Plaintiffs brought this action under 42 U.S.C. SEC. 1983 alleging that defendant through agents acting as police officers wrongfully arrested plaintiff Fernando Rojas in the presence of plaintiff Petrucia Rojas all in violation of their constitutional rights.

Defendant Alexander's Department Store (Alexander's) moves for an order (a) dismissing the complaint for lack of subject matter jurisdiction and for failure to state a claim (b) dismissing the claims insofar as they allege state claims of false arrest and false imprisonment as barred by N.Y. Civ. Prac. Law SEC. 215 (3) requiring such actions to be commenced within a year and (c) dismissing the claim of Petrucia Rojas because she lacks standing to make the claim.

Alexander's submits affidavits in support of the motion. Plaintiffs submit an affidavit in opposition to the motion and also move for leave to file an amended complaint adding a claim that Alexander's discriminated against plaintiffs because they are of "South American (Spanish)" extraction. Court treats Alexander's motion as one for summary judgment pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

From the affidavits the following facts emerge. Plaintiffs were in Alexander's Department Store on November 9 1984. Fernando Rojas with a telephone answering machine in his hand was stopped and detained by store detectives employed by Alexander's. According to plaintiffs Petrucia Rojas was in another part of the store waiting for Fernando her husband. When he did not appear she searched him out and found him handcuffed in the security office causing her embarrassment and anxiety. After a few hours he was released from custody and given a summons to appear and answer to charges of petit larceny and possession of stolen property. Almost a year later he was acquitted on the charge. Plaintiffs filed this suit on March 25 1986.

Defendant claims that the store detectives who arrested and held Fernando Rojas were private citizens and not public officials and that therefore defendant did not act under color of state law. Moreover defendant asserts that it cannot be held vicariously liable under section 1983 for the acts of its employees.

Although the detective who held Fernando Rojas handcuffed him and told him he was under arrest was paid by Alexander's she was also apparently a "special patrolman" appointed by the New York City Police Commissioner pursuant to the New York City Administrative Code SEC. 434a-7.0. The summons was signed by her as "SPO" (Special Police Officer) and specified her shield number.

Under the Administrative Code such a special patrolman "shall . . . possess all the powers and discharge all the duties of the [police] force applicable to regular patrolmen." Such a special patrolman with the power to arrest is a government official subject to section 1983 liability. Cf. Williams v. United States 341 U.S. 97 95 L. Ed. 774 71 S. Ct. 576 (1951).

Alexander's potential liability under section 1983 for having employed the detective is a more difficult issue. Although it is not clear whether the arresting detective was commissioned as a special patrolman at Alexander's behest (one of several procedures available under SEC. 434a-7.0 of the Administrative Code) Court is of the view that in any event the decision to employ a "special patrolman" involves a utilization for Alexander's benefit of state law enforcement authority sufficient to satisfy section 1983's "under color" of state law requirement. See e.g. Thompson v. McCoy 425 F. Supp. 407 410 (D.S.C. 1976). In addition the complaint can be construed as setting forth facts sufficient to show that defendant's other store detectives conspired with the special patrolman in the actions taken against Fernando Rojas. See e.g. Dennis v. Sparks 449 U.S. 24 27-28 & n.4 66 L. Ed. 2d 185 101 S. Ct. 183 (1980) ("private persons jointly engaged with state officials in the challenged action are acting 'under color' of law for purposes of SEC. 1983 actions").

Absent a conspiracy however there remains an issue whether Alexander's can be held vicariously liable for its employee's actions. Most courts that have addressed this point have held that a corporate employer is not liable under of its employees. See e.g. Iskander v. Village of Forest Park 690 F.2d 126 128-29 (7th Cir. 1982); Powell v. Shopco Laurel Co. 678 F.2d 504 (4th Cir. 1982); Draeger v. Grand Central Inc. 504 F.2d 142 145-46 (10th Cir. 1974); Ibarra v. Las Vegas Metropolitan Police Department 572 F. Supp. 562 (D. Nev. 1983); Shepard v. Byrd 581 F. Supp. 1374 1389-90 (N.D. Ga. 1984); Estate of Iodice v. Gimbels Inc. 416 F. Supp. 1054 (E.D.N.Y. 1976). But see Classon v. Shopko Stores Inc. 435 F. Supp. 1186 (E.D. Wis. 1977). The majority viewpoint relies heavily on the line of cases that culminated in the Supreme Court's decision in Monell v. Department of Social Services 436 U.S. 658 56 L. Ed. 2d 611 98 S. Ct. 2018 (1978) and which held that "a municipality cannot be held liable under SEC 1983 on a respondent superior theory." Id. at 691. Neither the Supreme Court nor the Second Circuit appear to have addressed directly the issue of whether a private corporate employer may be held liable under section 1983 on a respondent superior theory.

This court does not decide this issue. Even if the doctrine of respondent superior does not apply to section 1983 actions at all plaintiffs particularly in their papers in support of their motion to amend the complaint have alleged that it was defendant's unstated policy to arrest more readily on suspicion of shoplifting those customers who were black or hispanic. This allegation if true would suffice to meet the requirements that a plaintiff show that official policy is the moving force behind the constitutional violation. See Polk County v. Dodson 454 U.S. 312 326 70 L. Ed. 2d 509 102 S. Ct. 445 (1981). Plaintiff Fernando Rojas is entitled to an opportunity at trial to prove the existence of such a policy.

Moreover to the extent that Fernando Rojas has alleged a conspiracy between Alexander's other private employees and the special patrolman a sufficient basis for Alexander's potential liability exists. See e.g. Adickes v. S. H. Kress and Co. 398 U.S. 144 26 L. Ed. 2d 142 90 S. Ct. 1598 (1970).

Plaintiffs' remaining contentions are more easily addressed. While any pendent state law claims for false arrest and false imprisonment are indeed barred by N.Y. Civ. Prac. Law SEC. 215 (3) establishing a one year statute of limitations see Conway v. Village of Mount Kisco 750 F.2d 205 (2d Cir. 1984) plaintiffs' federal claim under section 1983 is governed by the three year statute N.Y. Civ. Prac. Law SEC 214(2) see Pauk v. Board of Trustees 654 F.2d 856 (2d Cir. 1981) cert. denied 455 U.S. 1000 71 L. Ed. 2d 866 102 S. Ct. 1631 (1982) and is here timely brought. Court declines to view Wilson v. Garcia 471 U.S. 261 85 L. Ed. 2d 254 105 S. Ct. 1938 (1985) as overruling Pauk unless and until the Second Circuit adopts that position. See e.g. Green v. Coughlin 633 F. Supp. 1166 (S.D.N.Y. 1986).

Petrucia Rojas has constitutional standing to sue because she has alleged a direct injury to herself namely the emotional distress when she saw her husband detained and handcuffed. See Warth v. Seldin 422 U.S. 490 45 L. Ed. 2d 343 95 S. Ct. 2197 (1975). However the fact that she alleges injury does not establish that she has stated a claim under section 1983. "The first inquiry in any SEC. 1983 suit . . . is whether the plaintiff has been deprived of a right 'secured by the Constitution and laws [of the United States.]'" Baker v. McCollan 443 U.S. 137 140 61 L. Ed. 2d 433 99 S. Ct. 2689 (1979) (quoting 42 U.S.C. SEC. 1983). She may have alleged facts showing a state law tort claim of intentional or negligent infliction of emotional distress. But she has not pointed to any deprivation of her federally protected rights. Absent conduct that "shocks the conscience " see Rochin v. California 342 U.S. 165 172 96 L. Ed. 183 72 S. Ct. 205 (1952) a claim for damages due to emotional distress does not state a cognizable section 1983 cause of action. See e.g. Grandstaff v. City of Borger 767 F.2d 161 172 (5th Cir. 1985); Sullivan v. Marshall 628 F. Supp. 1080 1083 (D. Mass. 1985); Horne v. Farrell 560 F. Supp. 219 225 (M.D. Pa. 1983).

Her state law tort claims for the infliction of emotional distress may not be litigated here. Pendent party jurisdiction is unavailable. See Leopold v. Birkett 523 F. Supp. 525 (E.D.N.Y. 1981). See also Sullivan supra 628 F. Supp. at 1083-84; Fritts v. Niehouse 604 F. Supp. 823 827-30 (W.D. Mo. 1984); Stanley v. City of New York 587 F. Supp. 393 397 (E.D.N.Y. 1984).

The motion to dismiss the claims of Petrucia Rojas is granted. The motion to dismiss the claims of Fernando Rojas insofar as they allege state torts of false arrest and false imprisonment is granted. Defendant's motion to dismiss the complaint otherwise is denied. Plaintiffs' motion for leave to serve an amended complaint to allege discrimination is granted only with respect to Fernando Rojas. So ordered.

Eugene H. Nickerson U.S.D.J.