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February 7, 1983

Leroy C. GIPSON, Sr., and Peggy Gipson, his wife, Plaintiffs,
SUPERMARKETS GENERAL CORPORATION, a Delaware corporation and Realty Maintenance, Inc., a New Jersey corporation, Defendants

The opinion of the court was delivered by: THOMPSON

 This matter comes before the court on motion of the defendant, Supermarkets General Corporation ["SGC"], to dismiss this action under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and under 12(b)(6) for failure to state a claim upon which relief can be granted. Since matters outside the pleadings have been considered by the court, this motion will be treated as one for summary judgment and disposed of as provided by Rule 56. The United States Court of Appeals for the Third Circuit has recently reiterated the standard for granting summary judgment.

Rule 56 of the Federal Rules of Civil Procedure provides that a trial court may enter summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." We have characterized summary judgment as "'a drastic remedy,'" and have made clear "that courts are to resolve any doubts as to the existence of genuine issues of fact against the moving parties." Ness v. Marshall, 660 F.2d 517 at 519 (3d Cir.1981) (quoting Tomalewski v. State Farm Life Insurance Co., 494 F.2d 882, 884 (3d Cir.1974)). Moreover, "inferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion." Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977).

 Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 95 (3d Cir.1982), quoting Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 403 (3d Cir.1981).


 Gipson was then presented with a form stating that he released SGC, its officers and employees from any liability in connection with the transaction. (Complaint, Exhibit "A"). The names of the parties and the statement that Gipson was stopped and questioned about the two items were added on the form. Gipson states in his affidavit that he was told that if he did not sign the form, Zirkel would call the Linden policeman in the store and have Gipson and his wife arrested. He claims that he was also told that if he did sign the release form, it would not leave Zirkel's desk.

 Gipson signed the release form. He then returned to the checkout counter and purchased the glue and deodorant. The following day, Gipson reported to work at the SGC Woodbridge warehouse. That afternoon the SGC supervisor told Gipson that due to the incident at the Linden Pathmark he received orders from SGC security to fire him.

 The Gipsons filed suit against SGC, Service Employees International Union Local 389 AFL-CIO and Realty on September 4, 1981. An amended complaint was filed on October 26, 1981. On March 18, 1982, arbitration proceedings were held. The arbitrator ruled in an opinion dated May 6, 1982, that Gipson was to be reinstated to his former or comparable position with seniority unimpaired and that he was to receive three months back pay. Following the May 6, 1982 award, a stipulation of dismissal was filed as to defendant Local 389.


 The Gipsons' federal claims against SGC are brought under 42 U.S.C. § 1983 with jurisdiction pursuant to 28 U.S.C. § 1343 and under § 301 of the Labor Management Relations Act of 1947 ["LMRA"], 29 U.S.C. § 185(a). This motion concerns only the § 1983 claims. In the complaint, Gipson alleges that SGC violated his constitutional right not to be deprived of liberty, privacy or property or to be punished without due process of law. More specifically, the complaint states that SGC's employees and agents were acting in concert with the local police, according to a customary plan and under color of law, when Gipson was detained, searched and deprived of his liberty against his will in the Pathmark Linden store. The complaint asserts that SGC's employees and agents acted under color of state law when they detained Gipson. In addition, the complaint asserts that SGC exercised control over the employment policies of Realty causing Gipson to be summarily discharged from his employment with Realty. The complaint also states that by this termination Gipson was deprived of his property rights without due process of law in direct contravention of the Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and provisions of the LMRA. In support of this assertion, the complaint goes on to state that pursuant to Article I, Paragraph 1 of the Constitution of the State of New Jersey and case law thereunder, the right to employment is a constitutional right protected by state law. (Count 1, §§ 21-24).

 A suit pursuant to § 1983 *fn1" must satisfy two criteria. The plaintiff must show that the defendant deprived him of a right "secured by the Constitution and the laws" of the United States and the plaintiff must show that the defendant deprived him of this right while acting "under color of any statute. . . ." "It is clear that these two elements denote two separate areas of inquiry." Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56, 98 S. Ct. 1729, 1733, 56 L. Ed. 2d 185 (1978), citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 1604, 26 L. Ed. 2d 142 (1970).

 The court finds that as a matter of law SGC's employees and agents did not act under color of state law. In addition, the court finds that as a matter of law Gipson was not deprived of any ...

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