Mitchell v. Dillard Dep't Stores, Inc.

LU MITCHELL, PLAINTIFF, v. DILLARD DEPARTMENT STORES, INC., et al, DEFENDANTS.

CASE NO. 1:12cv2507

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Dated: October 1, 2013

JUDGE SARA LIOI

MEMORANDUM OF OPINIONAND ORDER

Pro se plaintiff Lu Mitchell ("plaintiff") filed this action under 42 U.S.C. § 1981 against Dillard Department Stores, Inc. ("Dillard's"), and the City of Westlake ("Westlake") (collectively, "defendants"). She also asserts state law tort claims for false imprisonment, theft, and defamation per se. In the complaint, plaintiff alleges she was falsely accused of theft on the basis of her race. She seeks monetary damages.

Plaintiff also filed an application to proceed in forma pauperis. That application is GRANTED.

I. BACKGROUND

The following is a summary of relevant allegations made by plaintiff in her complaint. On September 18, 2008, plaintiff, an African-American female, was shopping at the Dillard's store in Beachwood, Ohio. (Doc. No. 1 at ¶ 7.) Plaintiff had previously purchased a dress in the wrong size and brought it back to the store to exchange it for one that fit properly. (Doc. No. 1 at ¶¶ 9-10.) She was able to locate an identical dress in the size she desired andspoke with Dillard's employees about effecting the return. (Doc. No. 1 at ¶ 8-9.) Sales associate Jackie Hanna advised plaintiff she would have to return the ill-fitting dress at the Customer Service Counter and then return to the sales counter to purchase the second dress. (Doc. No. 1 at ¶ 9.) Ms. Hanna offered to hold the desired dress at her counter while plaintiff went to return the first dress. (Doc. No. 1 at ¶ 9.)

After plaintiff made the return, she went back to the sales counter, where a different sales associate had replaced Ms. Hanna. (Doc. No. 1 at ¶ 10-11.) That associate (name unknown) told plaintiff she knew nothing about the dress that Ms. Hanna was to have been holding for plaintiff until she completed her return at the Customer Service Department. (Doc. No. 1 at ¶ 11.) The associate retrieved Ms. Hanna, who told plaintiff that she had allowed a third sales associate to take the dress back to its original department. (Doc. No. 1 at ¶ 11.)

At this point, a Dillard's supervisor approached the counter and entered the discussion. (Doc. No. 1 at ¶ 14.) Plaintiff and the supervisor looked for the dress near the counter but could not locate it. (Doc. No. 1 at ¶ 14.) The supervisor also indicated that she would "speak to her employees about their lack of customer service towards Plaintiff." (Doc. No. 1 at ¶ 14.) Although none of the Dillard's employees gave any indication that they suspected plaintiff had stolen the dress, they reported a theft to the Beachwood Police Department after plaintiff left the store. (Doc. No. 1 at ¶ 17-19.) As a result of the report, on September 28, 2008, Patrolman Michael Acker of the Beachwood Police Department filed a theft complaint against plaintiff, and a warrant was issued. (Doc. No. 1 at ¶ 19-20.)

On August 13, 2010, plaintiff was arrested by Westlake Police after a routine traffic stop revealed the outstanding warrant. (Doc. No. 1 at ¶ 20-21.) While at the police station, Westlake Police Officer Justin Hughes stole money from plaintiff, including a one hundreddollar bill. (Doc. No. 1 at ¶ 22.) She demanded that Westlake reimburse her for the missing funds but they refused to do so. (Doc. No. 1 at ¶ 22.) The theft charge against plaintiff was dismissed on October 5, 2011. (Doc. No. 1 at ¶ 21.)

Plaintiff claims defendants' actions were racially motivated. (Doc. No. 1 at ¶ 23.) She contends that Dillard's discriminates against African-American shoppers and that Westlake refuses to return her money due to her race. She asserts four causes of action. Her first claim asserts a violation 42 U.S.C. § 1981 against both defendants. Next, she claims Westlake is liable to her for false imprisonment and theft.¹ Finally, Plaintiff asserts Dillard's is liable to her for defamation per se. She seeks monetary damages.

II. STANDARD OF REVIEW

Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), the district court is required to dismiss an in forma pauperis action under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can be granted or if it lacks an arguable basis in law or fact. McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). A claim lacks an arguable basis in law or fact when it is premised on an indisputably meritless legal theory or when the factual contentions are clearly baseless. Neitzke v. Williams, 490 U.S. 319, 327 (1989). A cause of action fails to state a claim upon which relief may be granted when the complaint lacks "plausibility." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The factual allegations in the pleading must be sufficient to raise the right to relief above the speculative level, on the assumption that all the allegations in the complaintare true. Twombly, 550 U.S. at 555. Plaintiff is not required to include detailed factual allegations, but must provide more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A pleading that offers legal conclusions or a simple recitation of the elements of a cause of action will not meet this pleading standard. Id. In reviewing a complaint, the Court must construe the pleading in the light most favorable to the plaintiff.

III. ANALYSIS

A. 42 U.S.C. § 1981

Plaintiff first claims Dillard's "engaged in a pattern or practice of arresting or detaining African American shoppers at a significantly greater rate than it arrests or detains white shoppers" in violation of 42 U.S.C. § 1981. (Doc. No. 1 at ¶ 26.) This statute prohibits racial discrimination in the making and enforcement of private contracts. It applies to all incidents of the contractual relationship, including the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. See 42 U.S.C. § 1981(b). While most litigation involving § 1981 arises from the right to make and enforce employment contracts, courts, including the Sixth Circuit, have applied the contracts clause of § 1981 to situations involving retail establishments. See, e.g., Christian v. Wal-Mart Stores, 252 F.3d 862 (6th Cir. 2001); Garrett v. Tandy Corp., 295 F.3d 94 (1st Cir. 2002); Hampton v. Dillard Dep't Stores, Inc., 247 F.3d 1091 (10th Cir. 2001); Morris v. Dillard Dep't Stores, Inc., 277 F.3d 743 (5th Cir. 2001).

In a § 1981 commercial establishment case, a plaintiff must prove:

(1) she is a member of a protected class;

(2) she sought to make or enforce a contract for services ordinarily provided by the defendant; and

(3) she was denied the right to enter into or enjoy the benefits or privileges of the contractual relationship in that (a) she was deprived of services while similarly situated persons outside the protected class were not and/or (b) plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.

Christian, 252 F.3d at 872. In Christian, an African-American plaintiff testified that she was watched, followed, and excessively offered assistance by a Wal-Mart sales associate, and that she was falsely accused of shoplifting an item later found on the shelf. Id. at 864-66. Christian alleged the sales associate believed she was more likely to be attempting to shoplift merchandise because of her race. Id. at 864. The Sixth Circuit applied the three-part test listed above and reversed the district court's grant of judgment as a matter of law to Wal-Mart on the plaintiff's § 1981 claim. Id. at 879-80.

Similarly, plaintiff, a member of a protected class, asserts Dillard's employees believed her more likely to have taken the dress based on her race. She alleges that when she went to return the first dress, the second dress, which was to be held for her to purchase, disappeared with a sales associate, leaving plaintiff unable to make the purchase. She claims Dillard employees assumed she had stolen it and after she left the store, called the police to report the crime. These allegations, taken as true, are sufficient to state a prima facie claim for relief against Dillard under 42 U.S.C. § 1981.

Plaintiff's claims against Westlake under this statute, however, are without merit. She alleges Westlake police arrested her on the outstanding warrant. Westlake was not involved in the retail business, and did not refuse to enter into a contract with the plaintiff on the basis ofher race. Although plaintiff claims a Westlake employee stole money from her, this conduct does not fall within the parameters of 42 U.S.C. § 1981. Accordingly, plaintiffs § 1981 claim against Westlake must be dismissed.

B. False Imprisonment

In Count II of her complaint, plaintiff asserts tort claims for false imprisonment and theft. Under Ohio law, to set forth a cause of action for false imprisonment, plaintiff must show that the defendant intentionally confined her within a limited area, for any appreciable time, against her will and without lawful justification. Logsdon v. Hains, 492 F.3d 334, 347 (6th Cir. 2007); Nerswick v. CSX Transp., Inc., 692 F. Supp. 2d 866, 882 (S.D. Ohio 2010). Plaintiff does not allege that Dillard's confined her when she visited the store. In fact, she alleges she was totally unaware that Dillard's suspected she had stolen the missing dress and that she left the store without incident. Because confinement by the defendant is an element of this cause of action, plaintiff fails to state a claim against Dillard's for false imprisonment.

Westlake did detain plaint...