Lawrence Duriso brought this suit under 42 U.S.C. § 1983 against K-Mart Food Store No. 4195
K-Mart and Cox contend that the district court erred in denying their motions for a new trial, directed verdict, and judgment notwithstanding the verdict because the evidence was insufficient to show either that plaintiff had been deprived of any rights cognizable under § 1983 or that K-Mart and Cox had been acting under "color of law" within the meaning of that section. Duriso argues on cross-appeal that the district court erred in directing a verdict on the malicious prosecution claim. We affirm the judgment below.
The evidence, viewed in the light most favorable to Duriso,
Our review of the record convinces us that the trial judge did not err in his rulings on appellants' motions. If the evidence, viewed in the light most favorable to the non-moving party, is such that reasonable men could not arrive at a contrary verdict, granting a motion for directed verdict or judgment n. o. v. is proper; otherwise, the decision is in the hands of the jury. Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969). On appeal, this Court utilizes the same standards. Sulmeyer v. Coca-Cola Co., 515 F.2d 835 (5th Cir. 1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d 341 (1976).
In order to recover under § 1983, a plaintiff must establish both deprivation of a right secured by the federal Constitution or laws and action by defendant under color of state law. Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). An individual's right to be free from unlawful arrest is such a protected right, the violation of which may be grounds for a suit under § 1983. Lamb v. Cartwright, 393 F.Supp. 1081 (E.D.Tex.), aff'd without opinion, 524 F.2d 238 (5th Cir. 1975). See also Reeves v. City of Jackson, 532 F.2d 491 (5th Cir. 1976); Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963), cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964). Duriso was taken into police custody and charged with petty theft, despite the fact that no stolen merchandise was found on his person. Subsequent to the searches conducted by police, there was no probable cause to believe that Duriso was a shoplifter.
Regarding the "under color of state law" requirement, this Court has held that a detention by store employees is under color of state law if it is demonstrated that the store employees and the police were acting in concert and that the store and the police had a customary plan which resulted in the detention. Smith v. Brookshire Brothers, Inc., 519 F.2d 93 (5th Cir. 1975), cert. denied, 424 U.S. 915, 96 S.Ct. 1115, 47 L.Ed.2d 320 (1976). Duriso testified that a police officer asked the store manager to sign a "non-consent form," which recites that the person named therein was not given permission to remove items from the store without payment and that the store requests the filing of criminal charges against the individual. According to the store manager, the store's policy was to use this form to file criminal charges against an apprehended shoplifter in situations where the police had been summoned. After the store manager refused to sign the form,
Duriso seeks to appeal from the district court's granting of defendants' motion for directed verdict on the malicious prosecution claim. Our consideration of this issue is precluded by Duriso's failure to file a timely notice of cross-appeal. Rule 4(a), F.R.A.P.