Mark Wilson v. M C RAE ’ S , INC ., doing business as Carson Pirie Scott & Co.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2722
M ARK W ILSON ,
Plaintiff-Appellant,
v.
M C R AE ’ S , I NC ., doing business
as Carson Pirie Scott & Co.,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 01 C 0281—Blanche M. Manning, Judge.
____________
A RGUED F EBRUARY 9, 2005—D ECIDED J ULY 1, 2005
____________
Before B AUER , E ASTERBROOK , and R OVNER , Circuit
Judges.
E ASTERBROOK , Circuit Judge. As he was leaving the
Carson Pirie Scott department store in Chicago’s Loop with
two bed sheets, Mark Wilson was stopped and accused of
shoplifting. Mahmoud Yassin, the store’s “lead loss preven-
tion agent,” called the police and held Wilson in handcuffs
until they arrived. In the officers’ presence Yassin signed a
criminal complaint stating that he had seen Wilson pick up
the sheets from a display, put them in a bag, and head for
an exit without paying. The police arrested Wilson, who was

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2 No. 04-2722
detained for about 13 hours before being released on bail.
When Yassin failed to appear on the date set for Wilson’s
trial, the judge dismissed the criminal charges. Wilson then
filed this suit against Carson Pirie Scott. Although he did
not name either arresting officer as a defendant, he con-
tends that Carson Pirie Scott itself is a state actor, so that
42 U.S.C. §1983 supplies a remedy. The district judge
granted summary judgment for the defendant, holding that
Wilson’s grievance arises under state law (for false arrest,
malicious prosecution, or a related theory) rather than the
federal Constitution or 42 U.S.C. §1982 (Wilson’s fallback
claim).
Private entities may be treated as state actors when the
state effectively transfers authority to them. That general
statement of the legal norm has a concrete application to
arrests for shoplifting or similar charges at the behest of
commercial establishments: “shopkeepers are engaged in
‘state action’ when they strike a deal with the police under
which the police simply carry out the shopkeepers’ direc-
tions. If the police promise to arrest anyone the shopkeeper
designates, then the shopkeeper is exercising the state’s
function and is treated as if he were the state.” Gramenos
v. Jewel Companies, Inc., 797 F.2d 432, 435 (7th Cir. 1986),
deriving this approach from Adickes v. S.H. Kress & Co.,
398 U.S. 144 (1970). Wilson contends that two facts dem-
onstrate that Illinois handed over its police power to the
department store. First, the officers did not conduct an
independent investigation but relied on Yassin’s claim, even
though Wilson told them that Yassin was lying and offered
a receipt from another retailer to show that he was the
sheets’ owner. Second, the two arresting officers acknowl-
edged that they had never refused to arrest anyone whom
Carson Pirie Scott accused of shoplifting. (We call the first
of these propositions a fact even though Carson Pirie Scott
insists that Yassin told the truth and that Wilson is lying
about having a receipt. Given the posture of the litigation

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No. 04-2722 3
we must accept Wilson’s position.) Neither of these prop-
ositions would allow a reasonable trier of fact to infer that
Carson Pirie Scott is exercising state power delegated by
the Chicago Police.
The first of Wilson’s propositions—that the officers did
not conduct their own investigation—was equally true in
Gramenos, which held that lack of investigation does not
support an inference that the police are the merchant’s
tools. Officers regularly rely on people who claim to be
eyewitnesses to (or victims of) crime; that reliance does not
imply that the victims are exercising state power. What
is more, the two officers swore in depositions that they
normally do conduct their own investigations rather than
accept retailers’ say-so. Wilson did not try to undermine
this contention—as he might have done by, for example,
gathering evidence about their conduct in a random sample
of recent arrests. Wilson’s only evidence concerns the events
of his own arrest, and one event cannot demonstrate the sort
of long-term delegation that implies a transfer of authority
from the police department to the department store.
Wilson’s second proposition—that these two officers
have made an arrest every time Carson Pirie Scott pressed
charges—conflates two people with the whole Police
Department. Wilson has not endeavored to learn Carson’s
overall record of success when it presses charges; again the
evidence is confined to one instance. Nor would repeated
conduct imply agreement. Suppose that Wilson has pur-
chased Ford autos for his entire adult life; that does not
imply that he has agreed with Ford to buy his next car from
it. It would show satisfaction with the product so far, not a
commitment to act in the future. Likewise if Carson for the
last decade has hired every Bryn Mawr graduate who
applied for a job; this would evince satisfaction with the
graduates rather than a promise to hire future applicants.
Cf. United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993)
(en banc).

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4 No. 04-2722
What might support Wilson’s claim would be proof that
police always arrest whomever Carson Pirie Scott accuses
even though the suspects are frequently acquitted at trial—
while other department stores have lower arrest rates and
higher conviction records among those arrested. Such a
pattern would show that something unusual was going on
between the police and Carson Pirie Scott. But, to repeat,
Wilson offers no comparative or systemic evidence. The
deficiency is not, as the district judge stated, that Wilson’s
evidence is “self-serving.” Most affidavits are self-serving,
as is most testimony, and this does not permit a district
judge to denigrate a plaintiff’s evidence when deciding
whether a material dispute requires trial. See Payne v.
Pauley, 337 F.3d 767, 772-73 (7th Cir. 2003). The problem
is that what happened to Wilson, even if it occurred exactly
as he narrates events, does not show an agreement between
Carson and the Police Department.
This leads us to Wilson’s claim under §1982, which
provides: “All citizens of the United States shall have the
same right, in every State and Territory, as is enjoyed by
white citizens thereof to inherit, purchase, lease, sell, hold,
and convey real and personal property.” Wilson contends
that Carson had him arrested, and forbade him to reenter
its store, because he is black; this means, he asserts, that
he has been denied the same right to “purchase” property
that Carson extends to white shoppers. (He also contends
that Carson confiscated “his” sheets because of his race and
thus infringed his right to “hold” personal property.) Once
again, however, Wilson lacks evidence from which a
reasonable trier of fact could conclude that his race, rather
than Yassin’s belief that he was shoplifting, accounts for the
events.
This time Wilson has no person-specific evidence but
some systemic data: He contends that 90% of all persons
arrested for shoplifting at Carson Pirie Scott’s Loop store
are black or Hispanic. This, however, does not create even

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No. 04-2722 5
a prima facie case of discriminatory arrests and prose-
cutions. The Supreme Court held in United States v.
Armstrong, 517 U.S. 456 (1996), and United States v. Bass,
536 U.S. 862 (2002), that raw arrest data are insufficient.
Maybe 90% of all shoplifters at the store are minorities, and
arrest practices are race-neutral. What is essential, the
Court concluded, is some evidence of disparate treatment—
here, either that whites known to pilfer are not arrested, or
that minorities are accused on weaker suspicion. One
potential source of evidence is the disposition of charges
that Carson presses. If, for example, courts dismiss pros-
ecutions of black shoppers at higher rates than they dismiss
charges against white shoppers, this could imply that
Carson is engaged in discrimination by making charges
against minority customers on flimsy bases, while letting
similarly situated white customers walk away. (We say
“could” rather than “would” because it may be necessary
to control for other sources of variance.) See Anderson
v. Cornejo, 355 F.3d 1021, 1023-25 (7th Cir. 2004), which
discusses this method of establishing discrimination
through statistical inference. All Wilson proffers, however,
is the sort of raw arrest data that Armstrong and Bass have
held insufficient.
After dismissing Wilson’s claims under federal law, the
district court relinquished supplemental jurisdiction over
his state-law theories, such as wrongful arrest and mali-
cious prosecution. Wilson then sought reconsideration, see
Fed. R. Civ. P. 59(e), contending that the litigants are of
diverse citizenship and that the stakes exceed $75,000, so
that the district court should resolve the state-law claims
on the merits. The district court denied this motion, and we
share its view that jurisdictional grounds must be set out
early in the litigation—when they are subject to adversarial
testing—rather than after a decision has been rendered on
the merits. How would one test, on a post- judgment
motion, Wilson’s new claim about his citizenship and the

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6 No. 04-2722
stakes of the suit? Complaints must describe the jurisdic-
tional foundation of the suit, see Fed. R. Civ. P. 8(a), and
Wilson’s asserted only federal-question jurisdiction. As
“[t]he plaintiff is absolute master of what jurisdiction he
will appeal to”, Healy v. Sea Gull Specialty Co., 237 U.S.
479, 480 (1915), the district judge was entitled to hold him
to his choice.
If, as Wilson contends, diversity jurisdiction exists, he can
file a new suit in federal court tomorrow raising the state-
law claims. He can use discovery already taken; there is no
need to go through that process again. In a fresh suit
Carson will be free to contest the allegations about both
citizenship and the amount in controversy. This is a cleaner
route than an attempt to add new theories to an old case.
We don’t say that the judge would have abused her discre-
tion in allowing a belated amendment to the complaint to
allege diversity jurisdiction. See 28 U.S.C. §1653. But
neither did she abuse her discretion in treating a motion to
reconsider as a motion to reconsider, rather than as a
request to add new issues to the litigation after judgment
had been entered.
A FFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-1-05

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