Holt v. Board of Mayor

421 F. Supp. 363, 1976 U.S. Dist. LEXIS 13211

Opinion

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

This is a civil rights action for money damages against, inter alia, the defendant Kuhn’s Big K Stores, Incorporated. 42 U.S.C. § 1983; 28 U.S.C. § 1343(3). Such defendant moved for a dismissal as to it on the ground that the plaintiff failed to state a claim against it on which relief can be granted. Rule 12(b)(6), Federal Rules of Civil Procedure. Such motion is meritorious.

The plaintiff is a Tennessee citizen, and such defendant is a Tennessee corporation. See 28 U.S.C. § 1332(a)(1), (c). The plaintiff claims that such defendant is liable to him for the actions of its employee, a certain security guard, on the basis of the doctrine of respondeat superior. No other involvement personally of the corporation is alleged by the plaintiff.

The defendant-department store cannot be held liable solely as a master or principal. If the store were an active participant, it could still not be state action under 42 U.S.C. § 1983. Therefore, the plaintiff must look to common law actions for relief against the moving defendant. Draeger v. Grand Central, Inc., C.A.10th (1974), 504 F.2d 142, 146[7]. For such reason, the plaintiff failed to state a claim herein against Kuhn’s Big K Stores, Incorporated, on which relief can be granted. The latter’s motion hereby is GRANTED, and as to such defendant only this action hereby is

DISMISSED.