to tell whether he acted in a purely private capacity (as a J.C. Penney security guard) he could not be dismissed. Likewise, defendant Watson, though a private actor, is alleged to have acted in concert with Crowley. If Crowley acted under color of state law, Watson may be liable. The report observed that Crowley would be immune if he acted in good faith and with probable cause. No objections to the Report have been filed.
After careful and independent consideration, I shall adopt the amended Report and Recommendation as modified herein. First, the court modifies the holding regarding plaintiff's claim against defendant J.C. Penney. Because a corporation is a "person" within the meaning of § 1983, it may be liable for the violation of constitutional rights. Croy v. Skinner, 410 F. Supp. 117 (N.D.Ga.1976); Comtronics, Inc. v. Puerto Rico Telephone Co., 409 F. Supp. 800, 806 (D.P.R.1975), aff'd, 553 F.2d 701 (1st Cir. 1977). However, as Magistrate Naythons points out, a person cannot be held liable under § 1983 unless its actions were taken under color of state law or had a sufficiently close nexus to state authority. See, e.g., Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974). Because plaintiff states no facts alleging that defendant J.C. Penney either acted under color of state law or conspired with a state official, his claim against J.C. Penney must be dismissed.
Second, the court wishes to clarify the issue of the qualified-immunity defense. The Supreme Court has defined this qualified immunity as being composed of two elements, an objective and subjective test. Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975). To be immune from liability under § 1983, a defendant must satisfy both elements. Id. at 321, 95 S. Ct. at 1000. The subjective element of good faith requires that the official "be acting sincerely and with a belief that he is doing right." Id. at 322, 95 S. Ct. at 1000-01. The objective test, however, imposes a more stringent standard. If an official knew or reasonably should have known that his action would violate plaintiff's constitutional rights, he is not immune from liability. Id. Thus, the court in Woods has included in the defense of qualified immunity the duty to know clearly settled rights.
Sometimes, however, the definition of the constitutional right involved subsumes one of the elements of qualified immunity. (For example, Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976), requires a showing of intent for equal-protection disparate-impact claims.) Under such circumstances, the plaintiff has the burden of pleading and proving that element. Furthermore, if plaintiff meets his burden, the defendant cannot possibly succeed in a qualified immunity defense because he has failed on a necessary element of that defense.
As the Ninth Circuit stated in Flores v. Pierce, 617 F.2d 1386 (9th Cir.) cert. denied, 449 U.S. 875, 101 S. Ct. 218, 66 L. Ed. 2d 96 (1980):
There is no objective basis for the defense (of good faith) if it is not reasonable to believe that there was a lawful right to take the action in question .... (S)tate officials are liable under section 1983 if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right, and if they knew or should have known that their conduct violated the constitutional norm.