goods. The permitted action furthers purely private interests and the statute designates such action as a "detention" rather than an arrest.
The fallacy of plaintiff's argument appears to be in equating acting under license of state law with acting under authority of state law. The same may be said of the contention, advanced at oral argument, that defendants Ellis and Matlack were acting under authority of state law if they were licensed under the Pennsylvania Private Detective Act of 1953, 22 Purdon's Pa.Stat.Ann. § 11 et seq. The nomenclature of this Act, however, is sufficient indication that it is an Act licensing purely private action and invests the licensee with no authority of state law.
It may be relevant to note in this connection that it is well settled that an attorney's status as an "officer of the court" does not make him an officer of the Commonwealth of Pennsylvania or of any governmental subdivision thereof. Cooper v. Wilson, 309 F.2d 153, 154 (6th Cir. 1962); Kenney v. Fox, 232 F.2d 288, 289-290 (6th Cir. 1956); Pritt v. Johnson, 264 F. Supp. 167, 169 (M.D.Pa.1967); Pugliano v. Staziak, supra, 231 F. Supp. at p. 351 n. 5; Rhodes v. Meyer, 225 F. Supp. 80, 93-94 (D.Neb.1963).
At oral argument, plaintiff also cited Williams v. United States, 341 U.S. 97, 71 S. Ct. 576, 95 L. Ed. 774 (1951), a criminal action under what is now 18 U.S.C. § 242, whose language respecting color of law parallels that of the civil statute, § 1983 of Title 42 U.S.C. Williams was indeed a private detective, but he also held a special police officer's card issued by the City of Miami, Florida, and had taken an oath and qualified as a special police officer. In committing the assaults he was charged with, he went about flashing his badge. The Court concluded that "petitioner was no mere interloper but had a semblance of policeman's power from Florida." Williams v. United States, supra, p. 100, 71 S. Ct. p. 578. Plaintiff does not ascribe any such powers either to store detective Matlack or to Matlack's employer Ellis. Private detectives or guards who are also deputized members of a municipal police force stand in a different position. Cf. National Labor Relations Board v. Jones & Laughlin Steel Corp., 331 U.S. 416, 67 S. Ct. 1274, 91 L. Ed. 1575 (1947).
Some cases have implied that private individuals who join or cooperate with state officers acting under color of state law may be subject to civil liability under § 1983.
In construing the similarly-worded criminal statute, 18 U.S.C. § 242, the Court does say in Williams v. United States, supra, 341 U.S. p. 100, 71 S. Ct. 576, that "the aegis of the State" was conferred upon the proceedings by the presence of a regular police officer who was detailed to attend. This was but in confirmation, however, of the state authority possessed by Williams, as evidenced by other facts.
One who merely obeys a police order as a private citizen does not act under color of state law. Henig v. Odorioso, 385 F.2d 491 (3d Cir. 1967). Similarly, mere initiation of a prosecution does not expose one to liability under the Civil Rights statutes. Cf. Cuiksa v. City of Mansfield, 250 F.2d 700, 704 (6th Cir. 1957). Since we hold, infra, that Count Two fails to state a claim for conspiracy because the allegations are conclusory, color of law cannot be said to attach to the acts of these private individuals by adoption of a conspiracy between peace officers. Cf. Picking v. Pennsylvania R. Co., 151 F.2d 240 (3d Cir. 1945).
The police officer and deputy constable are not alleged to have used state authority to aid and abet the corporate defendant and its employees in effectuating a company policy, so as to impute color of law by attributing the officers' acts to the private parties. Cf. Valle v. Stengel, supra, 176 F.2d 702. Nor do the allegations of this Complaint create an inference of private participation in official lawlessness, amounting to wilful concert with state officers in a joint activity from start to finish. Cf. United States v. Price, 383 U.S. 787, 794-795, 86 S. Ct. 1152, 16 L. Ed. 2d 267 (1966). The test of color of law, it has been said, "can rarely be satisfied in the case of anyone other than a state official." Jobson v. Henne, 355 F.2d 129, 133 (2d Cir. 1966).
Since we conclude that no action is stated against these private defendants under § 1983 because they did not act under color of law, we need not consider at length whether the allegations of the Complaint, viewed most favorably to her, support plaintiff's conclusion that she was deprived of "rights, privileges, or immunities secured by the Constitution and laws." We do note, however, that no right to counsel attached at any stage of the proceedings when she claims such right was denied, and that, so far as appears, plaintiff was accorded due process of law. Although plaintiff also alleges she was "forcibly searched and under compulsion was forced to expose her person", she does not allege such specific facts as would support an inference that the police officer and deputy constable clearly lacked probable cause to arrest and search her because they lacked any basis for a well-founded belief that she concealed unpurchased goods on her person.
If plaintiff was committed to jail on an erroneous charge, she alleges no facts attributing this error to any person who remains a defendant in this action. She alleges some specific facts tending to support the allegation of an assault, but her redress for an intentional tort must be sought in the state courts, absent diversity of citizenship and a federal question.
We next consider whether in Count Two plaintiff has stated a cause of action under § 1985(2) and (3) for conspiracy with intent to deny, or for the purpose of depriving, plaintiff of the equal protection of the laws, or of equal privileges and immunities under the laws.
Broad, conclusory allegations of conspiracy are insufficient to state a cause of action. Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967). Plaintiff seeks to satisfy this requirement by incorporating by reference into Count Two all the allegations of Count One. No additional facts are averred to identify acts of conspiracy; plaintiff relies on establishing an inference of conspiracy from the sum of the facts alleged in Count One. A complaint sounding in conspiracy likewise is not sufficient merely because it alleges concerted action resulting in intentional torts of assault, false arrest and false imprisonment. Section 1985 requires also a purposeful intent to deny to a citizen the equal protection of the law. Cf. Snowden v. Hughes, 321 U.S. 1, 8-10, 64 S. Ct. 397, 88 L. Ed. 497 (1943); Hoffman v. Halden, 268 F.2d 280, 290-291 (9th Cir. 1959).
To support her contention that her Complaint is sufficient, plaintiff relies on Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1958). The latter case, however, reflects a markedly different set of circumstances.
After similar burglaries and fires at two die and tool companies, police arrested Wakat as the suspect "because he had a criminal record and had worked at both of the burglarized places." Wakat v. Harlib, supra, p. 61. Wakat was detained for six days without being charged with a crime; barred from the right to give bail; denied the privilege of seeing his attorney; and coerced by brutal force into signing a confession later used to convict him. These incidents were shown to be the result of concerted action by the defendants, a police captain, a lieutenant, and three police officers, each of whom played a continuing part in a series of acts of physical violence aimed at obtaining plaintiff's confession and conviction. These efforts were unrelenting until Wakat's confession had been obtained.
Plaintiff here, on the other hand, states that although then being forcibly restrained, she refused to sign a confession when several of the defendants insisted she do so. She also states that she was taken before a justice of the peace who asked how she pleaded and released her after bond had been placed. Acquittal of the charge filed against her followed a week later. Plaintiff's own averments indicate that defendants Prouix and Matlack acted to bring her before the proper authority promptly. Her averments likewise negative any inference that in the proceedings before the justice of the peace any of the defendants attempted to interfere with due process of law. Nothing like the concerted unrelenting actions of the police defendants in Wakat v. Harlib, supra, is alleged. There is no indication that any of the defendants had any knowledge even of plaintiff's existence until they became aware of her presence in the store. Contrary to her allegation of a conspiracy, her Complaint suggests that events thereafter happened suddenly and with complete spontaneity.
Plaintiff also fails to establish how she was deprived of the equal protection of the laws. She does not claim to be the member of a discriminated class. The Court said of Wakat that he was treated differently because he had a record of conviction for crime and that this was discrimination based upon a classification created by the police. Plaintiff makes no claim of this sort. From the oral argument of her counsel, we gather it is plaintiff's contention that she was deprived of equal protection of the laws, or equal privileges and immunities under the laws, because her treatment was not the treatment that would have been or should have been accorded a person in similar circumstances.
The Supreme Court was presented with this argument in Collins v. Hardyman, 341 U.S. 651, 661-662, 71 S. Ct. 937, 942, 95 L. Ed. 1253 (1951). The plaintiff charged defendants with breaking up plaintiffs' meeting by threats and violence. In holding that plaintiffs' complaint did not state a cause of action for conspiracy under 8 U.S.C. § 47(3) (now transferred to 42 U.S.C. § 1985(3)), the Court said:
"What we have here is not a conspiracy to affect in any way these plaintiffs' equality of protection by the law, or their equality of privileges and immunities under the law. There is not the slightest allegation that defendants were conscious of or trying to influence the law, or were endeavoring to obstruct or interfere with it. The only inequality suggested is that the defendants broke up plaintiffs' meeting and did not break up meetings of others with whose sentiments they agreed. To be sure, this is not equal injury, but it is no more a deprivation of 'equal protection' or of 'equal privileges and immunities' than it would be fore one to assault one neighbor without assaulting them all, or to libel some persons without mention of others. Such private discrimination is not inequality before the law unless there is some manipulation of the law or its agencies to give sanction or sanctuary for doing so. Plaintiffs' rights were certainly invaded, disregarded and lawlessly violated, but neither their rights nor their equality of rights under the law have been, or were intended to be, denied or impaired. Their rights under the laws and to protection of the laws remain untouched and equal to the rights of every other Californian, and may be vindicated in the same way and with the same effect as those of any other citizen who suffers violence at the hands of a mob."
Accepting all her allegations as true and construing them most favorably to her, plaintiff's Complaint avers no facts which would support an inference that defendants conspired to manipulate the law or its agencies to deny plaintiff the equal protection of the laws. The allegations of a conspiracy are conclusory and therefore insufficient.
We hold that plaintiff has failed to state a cause of action under §§ 1983 and 1985 against defendants Mason, Prouix, Ellis and Matlack. If any of these defendants has wronged the plaintiff by tortious acts, her appropriate redress is through an action in the state courts.
An appropriate order will be entered.