On Appeal from the United States District Court for the Eastern District of Pennsylvania.
Adams, Garth, Circuit Judges, and Brotman, District Judge.*fn*
This is an appeal from an order granting summary judgment in favor of an operator of a retail food store and its employee who were sued under 42 U.S.C. § 1983 after two police officers, acting at the request of the company's employee, stripped and searched the plaintiff for stolen goods. The case requires us to clarify the current law governing § 1983 liability of private parties who participate in an allegedly unconstitutional police investigation.
While shopping at an A&P store, the plaintiff, Modesto Cruz, aroused the suspicion of store employees. They in turn called two West Chester Borough police officers, who forcibly escorted Cruz to the store manager's office. Once Cruz was inside the office, the A&P manager, William Rayburn, accused Cruz of shoplifting and, according to the complaint, "ordered and commanded" the policemen to strip search Cruz. Finding no A&P property on his person, the police officers permitted Cruz to reclothe and escorted him from the store, all the time disparaging his Puerto Rican heritage.
Cruz filed a civil rights action under 42 U.S.C. § 1983 (1976) against the two policemen, the A&P manager, and the A&P company, alleging that he had been detained and searched without probable cause and only because of racial discrimination. On August 2, 1982, the district court granted summary judgment in favor of the A&P and store manager, Rayburn, but permitted trial to proceed against the police officers. After a jury verdict in favor of the two policemen on May 20, 1983, Cruz filed a timely appeal to this Court. Before us, he objects only to the summary judgment in favor of the A&P and its manager, urging that because these private parties acted in concert with the police officers, the private parties acted under "color of law" for purposes of § 1983.
The only allegations in the complaint concerning the private parties' involvement in the incident are as follows:
(1) Rayburn "accuse[d] plaintiff of shoplifting and order[ed the police] to conduct a search of plaintiff's person." Comp. para. 9.
(2) Rayburn "ordered and commanded [the police] to strip-search plaintiff." Comp. para. 10.
(3) Rayburn joined with the police in "laugh[ing]," "mock[ing]" and "disparag[ing]" Cruz' heritage. Comp. para. 12.
(4) The A&P company "had knowledge" of such activities, but "neglected and refused" to prevent them. Comp. para. 14.
The supporting affidavits filed by Cruz simply reiterate the allegations of his complaint. Viewing these allegations in the light most favorable to Cruz, but also keeping in mind that our Court requires § 1983 plaintiffs to plead specific facts showing that a federal Civil Rights Act claim is at stake, see Ross v. Meagan, 638 F.2d 646, 650 (3d Cir. 1981) (per curiam); Kauffman v. Moss, 420 F.2d 1270, 1275-76 (3d Cir.), cert. denied, 400 U.S. 846, 27 L. Ed. 2d 84, 91 S. Ct. 93 (1970); Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967),*fn1 we cannot say that either the complaint or the affidavits suggest the existence of a pre-arranged plan by which the police substituted the judgment of private parties for their own official authority. Absent allegations or facts ...