Opinion
CIVIL ACTION No. 03-2304-GTV
October 6, 2003
MEMORANDUM AND ORDER
Plaintiff Sheree Lee filed this civil action against Defendant Brown Group Retail, Inc., an entity that does business under the name Famous Footwear. In her complaint, Plaintiff alleges Defendant violated her rights under the equal benefits clause of 42 U.S.C. § 1981 and violated her Fourth, Fifth and Fourteenth Amendment rights under 42 U.S.C. § 1983. Plaintiff also sues Defendant on state law claims of false imprisonment and false arrest. This matter comes before the court on Defendant's Motion to Dismiss (Doc. 5). For the reasons stated below, Defendant's motion is granted in part and denied in part.
I. Factual Background
On August 11, 2000, Plaintiff, a Kansas resident, was shopping at Defendant's Famous Footwear store in Johnson County, Kansas. While shopping, Plaintiff alleges that Defendant's employees closely monitored and followed her from behind. Plaintiff also states that she was the only black person in the store; the other white shoppers were not being similarly followed. After Plaintiff had made a purchase and left the store, two law enforcement officers approached Plaintiff in the adjacent parking lot. The officers informed Plaintiff that Defendant's employees had phoned the police because they suspected her of shoplifting. The two officers searched Plaintiffs bags and ordered her to produce a receipt for her purchase. One officer took Plaintiffs bag and receipt into the store to confirm that the purchases were lawful, while the other officer detained Plaintiff in the parking lot. The officers released Plaintiff after Defendant's employees conceded that they did not have a claim against Plaintiff.
II. Procedural Background
On January 29, 2001, Plaintiff filed a discrimination claim against Defendant with the Kansas Human Rights Commission ("KHRC"). The KHRC eventually issued a finding of probable cause. On August 7, 2002, Plaintiff filed a lawsuit in the United States District Court for the District of Kansas, Case No. 02-2368-KHV. Plaintiff alleged that Defendant had violated her rights under § 1981. On January 16, 2003, Magistrate Judge O'Hara issued an order to show cause why the case should not be dismissed for failure to obtain service as required by Fed.R.Civ.P. 4(m). Judge Vratil dismissed the case without prejudice on April 28, 2003, because Plaintiff failed to respond to the show cause order. Plaintiff filed the present action on June 3, 2003, alleging the same violations of her civil rights under § 1981. Plaintiff additionally asserted violations of her constitutional rights under § 1983 and state law claims of false imprisonment and false arrest.
III. Standard of Review
A rule 12(b)(6) motion to dismiss will be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling her to relief under her theory of recovery. Conlev v. Gibson, 355 U.S. 41, 45-46, 2 L.Ed.2d 80, 78 S.Ct. 99 (1957). "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true."Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984) (citation omitted). The court must view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed. Id. (citation omitted). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support her claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L.Ed.2d 90, 94 So. Ct. 1683 (1974), overruled on other grounds byHarlow v. Fitzgerald, 457 U.S. 800, 73 L.Ed.2d 396, 102 S.Ct. 2727 (1982).
IV. Discussion A. Section 1981 and 1983 Claims 1. Statute of Limitations
Defendant argues that Plaintiffs § 1981 and § 1983 claims must be dismissed because they are barred under the Kansas two-year statute of limitations. Defendant contends that the Kansas savings statute is not applicable to Plaintiffs present lawsuit because Plaintiff failed to properly "commence" her action as defined by Kansas law. Plaintiff maintains that her claims are saved by the Kansas savings statute and that her action was properly commenced under federal law.
"State statutes of limitations applicable to general personal injury claims supply the limitations periods for § 1983 claims, and for § 1981 claims." Delatorre v. Minner, 238 F. Supp.2d 1280, 1285-86 (D. Kan. 2002) (internal citations omitted). "Thus, any action brought under 42 U.S.C. § 1981 or 1983 in Kansas is subject to a two-year statute of limitation." Id. (citations omitted). Federal courts also borrow states' tolling and savings provisions when the federal cause of action asserted is governed by a state statute of limitations. See Brown v. Hartshorne Pub. Sch. Dist. No. I, 926 F.2d 959, 962 (10th Cir. 1991) (citations omitted); Kirtdoll v. City of Topeka, No. 01-2329-KHV, 2002 WL 226751, at *3 (D. Kan. Jan. 28, 2002). Kansas law contains a savings statute that affords plaintiffs additional time to file a second lawsuit under certain circumstances. K.S.A. § 60-518 provides:
If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.
K.S.A. § 60-518 (2002) (emphasis added).
Defendant argues that if the court borrows the Kansas statute of limitations and the Kansas savings statute, it must borrow the Kansas rule for the commencement of actions. A civil action in Kansas commences when the lawsuit is filed and service of process is obtained within 90 days after the filing. K.S.A. § 60-203. Defendant asserts that when Judge Vratil dismissed Plaintiffs first case in April 2003, service had not been attempted on Defendant. Thus, Plaintiffs failure to "commence" her first suit under Kansas law before it was dismissed prevents her from invoking the Kansas savings statute, barring her claims under the two-year statute of limitations.
Plaintiff maintains the court should apply Rule 3 of the Federal Rules of Civil Procedure because this lawsuit is based on federal question jurisdiction. Fed.R.Civ.P. 3 states that an action is commenced upon the filing of the complaint. The court agrees with Plaintiff.
Federal courts should "borrow only what is necessary to fill the gap left by Congress." West v. Conrail, 481 U.S. 35, 40 n. 6 (1987). In Smith v. Douglas Cable Communications, No. 93-4009-RDR, 1993 WL 455249, at *3 (D. Kan. Oct. 15, 1993), the court held Fed.R.Civ.P. 3 "governs actions pertaining to rights created by federal law, even when the court must 'borrow' states' statutes of limitations." The Smith case is similar to the case at hand.
In Smith the plaintiff argued that his § 1981 claim was saved by the Kansas savings statute, although his lawsuit was filed more than two years after his cause of action accrued. 1993 WL 455249, at *2. The plaintiff had filed his original complaint against the defendant in the United States District Court of Kansas. Id. at * 1. That action was dismissed by Judge Saffels "because plaintiff did not make service within the 120-day period allowed by FED. R. CIV. P. 4(j) and additional time allowed by the court." Id. at *2. Less than six months later, the plaintiff re-filed his claims and the case was assigned to Judge Rogers.Id. at *3. The defendant argued "the case before Judge Saffels was not 'commenced within due time' because service was not accomplished within the time required either under FED R. CIV. P. 4 or K.S.A. 60-203." Id. at *2. Judge Rogers ruled that Rule 3 of the Federal Rules of Civil Procedure governed the case. Id. at *3. Rule 3 provides that "an action is 'commenced upon filing'" the complaint. Id. (citation omitted). The plaintiff in Smith had filed his original complaint within the applicable statute of limitations, and thus, the Kansas savings statute could be applied. Id. The plaintiff also filed his second action within six months from the order dismissing the previous action. Id. Judge Rogers therefore held that the plaintiffs claim could not be dismissed as time-barred.Id.
In the present case, Plaintiff commenced her original action by filing her complaint before Judge Vratil on August 7, 2002, within the two-year statute of limitations period. Plaintiff re-filed her action within six months of Judge Vratil's order dismissing her first action. The Kansas savings statute is applicable and Plaintiffs § 1981 and § 1983 claims may not be dismissed upon statute of limitations grounds.
2. Requirement of State Action
Defendant argues that even if Plaintiffs § 1981 and § 1983 claims are not barred by the statute of limitations, Plaintiffs claims must be dismissed because she fails to allege the state action necessary to support both claims.
a. Section 1981 Claim
Plaintiff alleges that she was discriminated against because of her race in violation of 42 U.S.C. § 1981. Specifically, Plaintiff claims that Defendant's conduct denied her "the Ml and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. . . ." 42 U.S.C. § 1981 (a). "[T]o establish a prima facie case of [racial] discrimination under § 1981, the plaintiff must show: (1) that the plaintiff is a member of a protected class; (2) that the defendant had the intent to discriminate on the basis of race; and (3) that the discrimination interfered with a protected activity as defined in § 1981." Hampton v. Dillard Dep't Stores. Inc., 247 F.3d 1091, 1101-02 (10th Cir. 2001) (citation omitted). As to the third requirement, "[s]ection 1981 establishes four protected interests: (1) the right to make and enforce contracts; (2) the right to sue, be parties, and give evidence; (3) the right to the full and equal benefit of the laws; and (4) the right to be subjected to like pains and punishments." Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1267 (10th Cir. 1989). The allegations in Plaintiffs complaint plainly satisfy the first and second requirements to state a prima facie case. Defendant contends that Plaintiff fails to state a claim under the third requirement because Plaintiff fails to allege state action, which Defendant claims is required under the equal benefits clause of § 1981(a).
The court notes that Plaintiffs response to Defendant's motion to dismiss fails to respond to this argument. The court also notes that Plaintiffs complaint alleges only that Defendant's conduct violated the equal benefits clause, not the contracts clause.
Section 1981, in relevant part, states:
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.42 U.S.C. § 1981 (a), (c) (emphasis added).
The Tenth Circuit has yet to address the issue of whether the equal benefits clause of § 1981(a) requires state action. Two district courts in the Tenth Circuit previously held that the equal benefits clause requires state action. See Fisher v. Triplett. Inc., No. 83-4040, 1986 U.S. Dist. LEXIS 21423, at *13-14 (D. Kan. Aug. 18, 1986) (relying, in part, on Mahone v. Waddle, 564 F.2d 1018, 1029-30 (3d Cir. 1977), which stated, in dicta, "the concept of state action is implicit in the equal benefits clause"); Brooks v. Southland Corp., No. 83-JM-1826, 1984 U.S. Dist. LEXIS 17307, at *4-5 (D. Colo. Apr. 24, 1984) (also relying onMahone).
The other courts of appeals that have ruled on the issue are split. The Third, Fourth, and Eighth Circuits have all relied to some extent on theMahone decision to hold state action is required to assert a claim under the equal benefits clause. Brown v. Phillip Morris. Inc., 250 F.3d 789, 799 (3d Cir. 2001); Youngblood v. Hv-Vee Food Stores. Inc., 266 F.3d 851, 855 (8th Cir. 2001); Shaare Teffla Congregation v. Cobb, 785 F.2d 523, 525-26 (4th Cir. 1986), rev'd on other grounds, 481 U.S. 615, 95 L.Ed.2d 594, 107 So. Ct. 2019 (1987). Recently, the Second and Sixth Circuits have rejected the Mahone decision and relied on the literal language of § 1981(c) to hold that the equal benefits clause of § 1981(a) does not require state action. Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir. 2003), petition for cert. filed, 71 U.S.L.W. 3725 (U.S. May 6, 2003) (No. 02-1646); Phillip v. Univ. of Rochester, 316 F.3d 291, 299 (2d Cir. 2003).
The court is persuaded by the Second Circuit's opinion in Phillip, which holds that "the conduct of private actors is actionable under the equal benefit clause of Section 1981." 316 F.3d at 296. In 1991, Congress amended § 1981 to include subsection (c). Id. at 294. A literal reading of subsection (c) indicates Congress intended to "protect against impairment of nongovernmental discrimination." 42 U.S.C. § 1981(c). Moreover, the decisions relying on Mahone are questionable because that case was decided before the 1991 amendments. See Phillip, 316 F.3d at 296 (stating "[s]ection 1981(c) places Mahone's continuing viability in even greater doubt"). Accordingly, Defendant's argument that Plaintiffs § 1981 claim fails because Defendant is a private actor is rejected. Defendant's motion to dismiss Plaintiffs § 1981 claim is denied on that basis.
Defendant's motion to dismiss also argues that Plaintiff does not have a remedy under § 1981 for being stopped and interrogated about suspected shoplifting. For this proposition, Defendant cites Morris v. Office Max. Inc., 89 F.3d 411 (7th Cir. 1996). The court concludes this case is distinguishable because it involves an action under the contracts clause of § 1981. Today, the court concludes only that Plaintiff may bring an action under the equal benefits clause of § 1981 for the conduct of private actors.
b. Section 1983 Claim
Defendant argues Plaintiff failed to properly plead state action, or action under color of law, as is required for all § 1983 claims. Defendant cites several cases for the proposition that merchants do not act under the color of state law when they call the police to detain a suspected shoplifter.Section 1983 establishes a cause of action only against those individuals acting "under color of [law]." 42 U.S.C. § 1983. "In order to hold a private individual liable under 1983 for a constitutional violation requiring state action, a plaintiff must show . . . that the individual's conduct is "'fairly attributable to the State.'" Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996) (citingLugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). "[I]t must be shown that the private person was jointly engaged with state officials in the challenged action, or has obtained significant aid from state officials, or that the private individual's conduct is in some other way chargeable to the State." Lee v. Estes Park, 820 F.2d 1112, 1114 (10th Cir. 1987). See also Wood v. City of Topeka, No. 01-4016-SAC, 2003 WL 289983, at *2 (D. Kan. May 23, 2003) (reciting four tests courts have applied to decide whether a private individual acted under the color of state law).
Plaintiffs complaint alleges that Defendant deprived Plaintiff "of her liberty under color of state law as a result of causing her to be detained for questioning by police without probable cause, simply because she happens to be African American." The complaint also states "the apprehending officers admitted that a report had been phoned in to the police from the Defendant's Johnson County Famous Footwear store accusing her of shoplifting." Thus, Plaintiff argues that the law enforcement officers arrived at the instigation of Defendant.
"An individual does not act under color of law merely by reporting an alleged crime to police officers who take action thereon." Jones v. Wal-Mart Stores, No. 93-5240, 1994 WL 387887, at *3 (10th Cir. July 27, 1994) (citing Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983)). "Nor does the making of a citizen's arrest constitute acting under color of law for 1983." Id. (citing Carev v. Cont'l Airlines, 823 F.2d 1402, 1404 (10th Cir. 1987); Lee, 820 F.2d at 1114-15).
In Jones, the Tenth Circuit applied these doctrines to merchants:
Generally, merchants are not considered to be acting under color of law for purposes of 1983 when they detain a person suspected of shoplifting or other crimes, call the police, or make a citizen's arrest. See Gramenos v. Jewel Cos., 797 F.2d 432, 435-36 (7th Cir. 1986), cert. denied, 481 U.S. 1028, 95 L.Ed.2d 525, 107 S.Ct. 1952 (1987); Cruz v. Donnellv, 727 F.2d 79, 81 (3d Cir. 1984); White v. Scrivner Corp., 594 F.2d 140, 142-43 (5th Cir. 1979); Hurt v. G.C. Murphy Co., 624 F. Supp. 512, 514 (S.D. W. Va.), aff d, 800 F.2d 260 (4th Cir. 1986); cf Flagg Bros, v. Brooks, 436 U.S. 149, 165-66, 56 L.Ed.2d 185, 98 S.Ct. 1729 (1978) (holding that state enacted provisions which permit self-help do not automatically convert private action into state action); Carey, 823 F.2d at 1404 (holding that complaint to police and citizen's arrest by Continental Airlines employee does not constitute state action).Id.
Plaintiffs complaint alleges that Defendant's phone call to the police caused Plaintiff to be detained and searched on suspicion of shoplifting. Plaintiffs complaint fails to allege any further collusion, joint course of action, or other nexus with the law enforcement officers to demonstrate that Defendant acted under color of state law. Furthermore, Plaintiffs response to Defendant's motion to dismiss failed to even respond to Defendant's state action argument. The court concludes that Defendant's actions were not under color of law. Plaintiffs § 1983 claim is dismissed for failing to plead facts sufficient to support a critical element of her cause of action.
B. State Law Claims
Defendant argues Plaintiffs false imprisonment and false arrest claims are barred under the applicable statute of limitations. Plaintiff contends that her state claims relate back to her original federal complaint because they derive from a common nucleus of operative facts.
In Kansas, false imprisonment and false arrest claims are governed by a one-year statute of limitations. Mitchell v. Unified Gov't, No. 00-2116-CM, 2000 WL 1920036, at *10 (D. Kan. Dec. 21, 2000) (citing K.S.A. § 60-514). The allegations in Plaintiffs complaint stem from an incident that occurred on August 11, 2000. Plaintiff, however, failed to file her original lawsuit until August 7, 2002. The court concludes Plaintiff is barred from asserting her state law claims.
V. Conclusion
IT IS, THEREFORE, BY THE COURT ORDERED that Defendant's motion to dismiss (Doc. 5) is granted in part and denied in part. Specifically, the court makes the following rulings: (1) Defendant's motion is denied regarding Plaintiffs § 1981 claim because the Kansas savings statute applies and Plaintiff may assert a § 1981 claim under the equal benefits clause against a private actor; (2) Defendant's motion is granted regarding Plaintiffs § 1983 claim because Plaintiff failed to allege that Defendant acted under color of state law; and (3) Defendant's motion is granted regarding Plaintiffs state law claims because they are barred under the Kansas one-year statute of limitation.
Copies of this order shall be transmitted to counsel of record.
IT IS SO ORDERED.