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June 14, 2004.


The opinion of the court was delivered by: THOMAS PLATT, JR., Senior District Judge


Defendant Kohl's Department Stores ["Kohl's"] moves for dismissal under Federal Rule of Civil Procedure 12(b)(6) of the claims of Plaintiffs William Guiducci and John Clancy as guardians of their respective daughters [collectively, "Plaintiffs"].*fn1 Plaintiffs sued Kohl's under both 42 U.S.C. § 1983 and relevant State laws.*fn2 Oral argument was heard on June 10, 2004.

Plaintiffs may seek redress of their grievances through a tort suit in State court, but they may not obtain it through a civil rights suit in federal court. Kohl's motion to dismiss is GRANTED as to Plaintiffs' § 1983 claims, but WITHOUT PREJUDICE in any State proceeding, and the Court declines to exercise its supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c) over Plaintiffs' remaining State law claims.*fn3


  Messrs. Guiducci and Clancy's daughters were 14-year old girls when they were caught shoplifting by a (female) security guard at Kohl's. Without informing either their parents or the police of their apprehension, the guard forced the girls into an office, interrogated them, and made them strip to their underclothes to recover the store's merchandise. Once the girls returned the shoplifted items to Kohl's, the security guard contacted Suffolk County police, who arrested the girls on the strength of the statements of the Kohl's employee. See Plaintiffs' Memorandum of Law in Opposition to Kohl's Motions at 4-6.


  A. Standard of review

  In a Rule 12 motion to dismiss for failure to state a claim upon which relief may be granted, Kohl's must demonstrate that even if Plaintiffs' allegations are accepted as true, and all reasonable inferences are drawn in Plaintiffs' favor, Plaintiffs are still not entitled to the relief sought. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).

  B. The parties' arguments

  Kohl's argues that where "there is an absence of proof that the private security guard was acting at the direction of or in cooperation with law enforcement . . . when they detained and/or arrested a party, there is no Fourth Amendment" violation, and therefore no § 1983 violation of constitutional rights. Kohl's Memorandum of Law in Support of Their Motion at 8. Plaintiffs respond by invoking a single case within the Second Circuit, Brooks v. Santiago, 1998 U.S. Dist. LEXIS 2769 (S.D.N.Y. Mar. 10, 1998), for the proposition that "a § 1983 claim [may be] sustained as a result of a shoplifting apprehension upon the determination that the defendants acted in concert with the police for the purpose of procuring the plaintiff's arrest," if the "police made the arrest without having conducted an independent investigation in order to determine whether or not there existed probable cause." Plaintiffs' Memorandum at 7.

  C. Section 1983, state action, and store security guards

  Section 1983 applies to the deprivation of rights under the color of law by state actors. It does not apply, except in special circumstances not presented by this case, to store security guards.

  The Second Circuit recently stated in Tancredi v. Metropolitan Life Ins. Co., 316 F.3d 308, 312-13 (2d Cir. 2003), that a "plaintiff pressing a claim of violation of his constitutional rights under § 1983 is [] required to show state action," and in "order to satisfy the state action requirement where the defendant is a private entity, the allegedly unconstitutional conduct must be fairly attributable to the state" (citation and quotation marks omitted).

  District courts within the Second Circuit usually reject claims that the actions of store security guards implicate state action when they detain and investigate suspected shoplifters. Most recently, in Josey v. Filene's, Inc., 187 F. Supp.2d 9 (D. Conn. 2002), a district court stated that
Generally, the acts of private security guards, hired by a store, do not constitute state action under § 1983. Courts have held that the actions of private security guards constitutes state action in two circumstances. First, private guards may be sued when they are given the authority of state law. Second, security guards are considered to be acting under state law if they are willful participants in the joint activity of the State ...

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