Rundus Order And Opinion

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IN THE LTNITEDSTATESDISTRICTCOURT NORTHERNDISTRICTOFTEXAS DALLASDIVISION DARREL RLTNDUS

$ $

Plaintiff VS . CITY OF DALLAS, ET AL. Defendants.

MEMORANDUM

I $ $ $ $ $ $

NO.3-06-CV-1823-BD

OPINION AND ORDER

In this section 1983civil rights action tried to the court on stipulatedfacts and written briefs, two legal issuesarepresentedfor determination: (1) whether the Literature Distribution Restriction promulgated by the StateFair of Texas, Inc. ("SFOT"), which prohibits plaintiff from distributing religious materials on the grounds of the StateFair, violates the First and FourteenthAmendments to the United StatesConstitution; and (2) whether SFOT, by virtue of its relationship with the City of Dallas ("the Cify"), is a "stateactor" for purposesof section1983liability. Concludingthat there is no state action, the court entersjudgment for the defendants. I. SFOT is a private, non-profit corporationthat operatesthe annual StateFair of Texas. (Am. Stip. Facts at l-2, flfl l-3). The State Fair, which runs for a period not to exceed 30 days in Septemberand October,is held on public fairgroundsownedby the City of Dallas. (Id. at2,l\3-4). SFOT leasesthe fairgroundsfrom the City and regulatesall expressiveactivities on the premises during the StateFair. (Id. at3,l19 & 12-13,fl'lT75-78).

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A policy promulgatedby SFOTgenerallyprohibitsthedistributionof advertising,flyers,or other written materialson the fairgrounds. (ld. al 13, lJfl 77,81). Instead,individuals and organizations wishingto engagein suchactivitiesarerequiredto rentexhibit spacefrom SFOTand exhibitorsandsponsors confinethoseactivitiesto their allottedspace.(Id. at 13, u 82). Prospective must submit an applicationto SFOT,which evaluatesthe applicationbasedon variousfactors, of the exhibit,the typeof product,the typeof service,educationalvalue, includingthe uniqueness for a family audience.(Id. at 14,flfl 86-87). Oncethe applicationis approved andappropriateness by SFOT,theexhibitormustsigna writtencontractagreeingto complywith certainExhibitorRules andRegulations.(Id. at 14,fl 90). ExhibitorRule9 providesthat the "[d]istribution,sampling, promoting of productsoutsideof the contractedbooth/space(as definedby SFOT) is strictly justificationsfor Rule9 andits generalpolicy prohibited."(Id. at 14,fl 9l). SFOToffersseveral prohibitingthe distributionof written materialson the fairgrounds,which the partiescollectively referto asthe "LiteratureDistributionRestriction,"including: .

the needto maintain the orderly movementof the crowd given the largenumber of exhibitors and personsattendingthe State Fair;

.

SFOT's interest in protecting fairgoers from deceptive and misleadingspeech;

.

SFOT's interest in protecting fairgoers from harassmentand undue annoyance;and

.

protecting SFOT's financial interests and the rights of exhibitors who pay for the ability to distribute written materials.

(Id. at 16-17, fl I I 1). Over the years,SFOT has leasedexhibit spaceto many different religious organizations,which are then permitted to distribute literature to fairgoers from their assigned 101-104). booths.(Id. at l5-16,1T'11

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In 2006, more than sevenmillion visitors attendedthe StateFair of Texas. (Id. at 41,n2fi). One such visitor was plaintiff, Darrel Rundus, an Evangelical Christian who is committed to spreadingthe Gospelof JesusChrist and teachingothersto do the same. (Id. at I 8- 19,nn l2l-122). When plaintiff attempted to enter the State Fair with printed religious materials, or Bible tracts, SFOT prohibited him from doing so pursuantto the Literature Distribution Restriction. (Id. at26, tT150). SFOT did not prevent plaintiff from distributing religious literatureor engagingwilling listeners outside the fairgrounds. (Id, at22,1l 138). Nor was plaintiff prohibited from initiating purely verbal conversationswith patronson the groundsof the StateFair. (Id. at 13,1179). Indeed, SFOT informed plaintiff that he may talk about his faith with others on the fairgrounds, so long as he did not distribute literature. (Id. at22,1t 134). Plaintiff acknowledgesthat he could distribute Bible tracts from a booth at the StateFair if he paid a fee and was given an exhibitor contract. (Id. at22,tT l3S). However, plaintiff believesthat using a booth is not a viable or an effectivemethod 'lT of reachinghis audience.(Id. at22-23, 139). On October5,2006,plaintiff suedSFOT and the City in federaldistrict court for violating his First Amendment right to practice his religion by distributing Bible tracts at and aroundthe State Fair of Texas. As part of his complaint, plaintiff soughta preliminary injunction, which was denied. Rundusv. City of Dallas, et al.,No. 3-06-CV-1823-B(N.D. Tex. Oct. 11,2006). After conducting discovery, the parties were able to stipulate to the relevant facts, leaving only issuesof law for the court to decide. Those issueshave beenfully briefed and arguedby the parties, and this caseis ripe for final adjudication. II. The gravamen of plaintiffs complaint is that the Literature Distribution Restriction promulgatedby SFOT violates his First Amendmentright to expresshis religious beliefs through

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evangelicalactivities. In order to seekredressfor this allegedconstitutional violation, plaintiffmust satisfuthe requirementsof 42 U.S.C. S 1983,which provides,in pertinentpart: Every person who, under color of any statute,ordinance,regulation, custom, or usage, of any State or Tenitory or the District of Columbia, subjects, or causesto be subjected, any citizen of the United Statesor other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities securedby the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other properproceedingfor redress[.] 42 U.S.C. $ 1983.' An essentialelementof the section1983remedyis stateaction. Merelyprivate conduct, "no matter how discriminatory or wrongful," is not actionable under the statute. See AmericanMfrs. Mut. Ins. Co. v. Sullivan,526 U.S. 40, 50, 119 S.Ct.977,985, 143 L.Ed.2d 130 (1999),quotingBlumv. YaretslE,457U.S. 991,1002,102S.Ct.2777,2785,73L.Ed.2d534(1982). Unless defendantsacted "under color of statelaw" to deprive plaintiff of a right securedby the Constitution or laws of the United States,plaintiff cannot maintain a causeof action under section 1983.SeeWestv. Atkins,487U.S. 42,48,108 S.Ct.2250,2255,l0l L.Ed.zd40 (1988). A. There is no question that the City of Dallas is a "state actor" for purposesof section 1983 liability. However, in order to maintain a causeof action againstthe City, plaintiff must prove that the allegeddeprivationof his First Amendmentrights was the resultof an official policy or custom. SeeMonell v. Dept. of SocialServicesof the City of New York,436 U.S. 658, 691,98 S.Ct.2018, 2036,56L.8d.2d 6l I (1978). An "official policy" may be either: l.

a policy statement,ordinance,regulation,or decisionthat is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegatedpolicy-making authority; or

I Section 1983doesnot createany substantiverights,but insteadprovidesa remedyfor violations offederal constitutionaland statutoryriSfis. SeeLafleurv. TexasDept. of Health,126F.3d758,759 (5thCir,1997) (citing cases).

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2.

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apersistent,widespreadpracticeofcityofficialsoremployees which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly representsmunicipal policy.

Websterv. City of Houston,735 F.2d 838, 841 (5th Cir. l98a); seealso Campbell v. City of San Antonio,43 F.3d973,977 (5th Cir. 1995). The offrcialpolicy or customalsomust be a "moving force" behindthe allegedconstitutionalviolation. SeePiotrowski v. City of Houston,237F.3d 567, 578 (5th Cir.), cert. denied,122 S.Ct.53 (2001). The facts of this case, as stipulated by the parties, do not come close to establishing municipal liability underMonell. The partiesagreethat the City had no involvement in the adoption of the Literature Distribution Restriction, or any otherrestrictionson expressiveactivities at the State Fair. (Am. Stip. Factsat ru,n 92 &, 16,flfl 109-110). Instead,the policy was enactedby SFOT, which also has the authority to expel personsfrom the fairgrounds for conduct or speechit deems objectionable,unduly annoying,harassing,false,and deceptive.(Id. at 13,fl'tT77-78,82).Without evidenceof an official policy or custom that was a moving force behind the allegedviolation of his First Amendment rights, plaintiff cannotprevail on his section 1983 claim againstthe City. See Reinhartv.Cityof Brookings,84F.3d1071,1073(8thCir. 1996)(citynotliableforactionsof private committee that had sole discretion to establishrules concerningexpressiveactivities during annual arts festival held in public park). B. Recognizing that the City had no direct involvement in promulgating the Literature Distribution Restriction or regulating expressive activities at the State Fair, plaintiff offers an alternativetheory for section 1983liability-{hat SFOT andthe City work "hand-in-glove" to operate the StateFair of Texasas a "joint venture." (SeePlf. Tr. Br. at 6, 9, 10 & Plf. Resp.Br. at 9).

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l. A private actor, suchas SFOT, is subjectto constitutional liability only when the challenged conduct is "fairly attributableto the State." Lugar v. EdmondsonOil Co., 457 U.S. 922, 937, 102 S.Ct.2744,2753,73 L.Ed.2d 482 (1982). Sucha determinationinvolves a two-part inquiry: First, the deprivation must be causedby the exerciseof someright or privilege createdby the Stateor by a rule of conduct imposed by the stateor by a person for whom the Stateis responsible.. . Second,the party chargedwith the deprivation must be a person who may fairly be said to be a stateactor. This may be becausehe is a stateofficial, becausehe acted together with or has obtained significant aid from state officials, or becausehis conduct is otherwise chargeableto the State. Id.,102 S.Ct.at 2753-43;seealso Bassv. ParkwoodHospital,l80 F.3d 234,241(5th Cir. 1999). The SupremeCourt has utilized at least three different tests for deciding whether the conduct of a private actor can be fairly attributable to the State: (l) the public function test; (2) the state compulsiontest; (3) and the nexus,or stateaction,test. SeeRichardv. HoechstCelaneseChemical Group, lnc.,355 F.3d 345, 352 (sth Cir. 2003),cert. denied,125 S.Ct.46 (2004) (summarizing tests). Under the public function test, "a private entity actsunder color of statelaw when the entity performs a function which is 'exclusively reservedto the state."' Id., quoting Flagg Bros. v. Broolrs, 436U.S. 149, 157-58,98S.Ct. 1729,1734,56L.Ed.zd185 (1978). Thestatecompulsiontest imposes liability for a private decision "only when [the state] has exercisedcoercive power or has provided such significant encouragement,either overt or covert, that the choice must in law be deemedto be that of the State." Id., quotingBlum,l02 S.Ct.at2786. The nexus,or stateaction,test with the considerswhetherthe statehas "so far insinuateditself into a position of interdependence [private actor] that it was a joint participant in the enterprise." Id., quoting Jacl<sonv. Metropolitan E d i s o n C o . , 4 l 9 U . S . 3 4 5 , 3 5 7 - 5 8 , 9 5 S . C t . 4 4 9 , 4 5 7 , 4 2 L . 8 d . 2 d 4 7 7 ( 1I9t i7s4n)o. t c l e a r w h e t h e r

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thesetestsaredifferent in operationor merely different ways of characterizingthe fact-boundinquiry of deciding whether private conduct constitutesstateaction. SeeCornish v. Correctional Services Corp.,402F.3d545,550 (5th Cir. 2005),citingLugar, 102S.Ct.at27 55. "Only by siftingfactsand weighing circumstancescanthe nonobviousinvolvement of the Statein private conductbe attributed i t s t r u e s i g n i f i c a n c eB . "u r t o n v . W i l m i n g t o n P a r k i n g A u t h . , 3 6 5 U . S . 7 1 5 , 7 2 2 , 8 l S . C t . 8 5 6 , 8 6 0 ,

6L.Ed.2d4s (196r). 2. Plaintiff contendsthat SFOT and the City have worked together for more than 100 years to "provide for the continued operationand presentation"ofthe StateFair of Texas,therebymaking the StateFair a joint enterprise.(SeePlf. Tr. Br. at 8, l0 & Plf. Exh. I at 5, fl 3.01). This argument implicates the nexus, or stateaction, test. In order to prove stateaction under this theory, plaintiff must show "such a'close nexusbetweenthe Stateand the challengedaction'that [the] seemingly private behavior'may be fairly treatedasthat of the Stateitself."' Brentwood Academyv. Tennessee SchoolAthleticAss'n,531U.S. 288,295,121S.Ct.924,930,l48L.Ed.zd807 (2001), Secondary quoting Jacl<son,95S.Ct. at 453. Deciding whetherthe deprivationof a protectedright is fairly attributableto the State"beginsby identifring the specific conductofwhich the plaintiff complains." Cornish,402F.3dat550,quotingSullivan,llgS.Ct.at985. AstheFirstCircuitexplained: This inquiry is a targetedone, with the challengedconduct at the hub of the analytical wheel. Thus, the focal point is the connection between the State and the challenged conduct, not the broader relationship between the State and the private entity. Extensive regulation, without more, cannot establish the necessarynexus. Indeed, even when the State has conferred monopoly status on a private entity, courts will not find state action on a nexus theory absenta snugrelationship betweenthe grant of monopoly power and the challengedconductitself. Perkinsv. LandanderryA)rrutUall Club,l 96 F.3d 13, 19 (1st Cir. 1999)(internalcitationsomitted).

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Here, the challengedconduct is the adoption and enforcementof the Literature Distribution Restriction, which barsplaintiff from freely passingout religious materialsat the StateFair of Texas. Plaintiff doesnot challengethe operation of the StateFair or the fairgrounds in general. Therefore, whether SFOT and the City have a long history of working together to conduct the State Fair is irrelevant to determining the threshold issue of state action. The relevant inquiry is whether defendantshave sufficient involvement with one other in the adoption and enforcement of the Literature Distribution Restriction. 5.

The parties have stipulated that the City had no involvement in the decision to enact the LiteratureDistribution Restriction. (SeeAm. Stip. Factsat A,n92 & 16,fl 109). Rather,the policy challengedby plaintiff in this lawsuit was enactedby SFOT, a private non-profit corporation that regulatesall expressiveactivities on the fairgrounds during the period of the State Fair. (Id. at l, l1fl 1-2 & l2-l3,tTtT 75-73). SFOT is governedby an Executive Committee appointedby the Board of Directors. (Id. atl2,l 7l). No City employeesor officials sit on the ExecutiveCommitteeor are voting membersof the SFOT Board. (Id. at 12,'1]fl72-n).2 The Dallas police departmenttypically assignsmore than 150 uniformed officers to patrol the fairgrounds during the State Fair. (ld. at 28, tT 16l). The police officers provide security, maintain the peace,and enforcestatecriminal laws and municipal ordinances.(Id. at 28, flll 16l162). While policing the fairgrounds,the officers are not controlledby SFOT. (Id. at29,n l7l). City police officers do not receivetraining or other specific information about SFOT rules and regulations. (Seeid. at29, fl 170). If a fairgoer violates the Literature Distribution Restriction,

2 Although the presidentof the Dallas Parks and RecreationBoard is an ex of Directors,he is not a voting member. (See Am. Stip. Factsat 12,174).

fficio memberof the SFOT Board

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SFOT asksthe personto comply with the restriction. (Id. at 18,fl 117). If the personrefuses,SFOT asks the fairgoer to leave the State Fair. (Id.). If the person refuses to leave the fairgrounds as instructed, SFOT notifies a City police officer, who issuesa criminal trespasswarning and either escortsthe personoff the premisesor effects an arrestfor criminal trespass.(ld. at 18, 111I 18- 119). The police do not enforce any SFOT rules governing the conduct of exhibitors and sponsors. (.Id at 18,'l.[120). In this case,the partieshave stipulatedthat it was SFOT officials, not City police officers, who preventedplaintiff from entering the StateFair with his Bible tracts. (ld. at26-27,n

1s0). Notwithstanding thesefacts, plaintiff contendsthat the activities of SFOT and the City are so "entwined" as to createstateaction for purposesof section1983 liability. (SeePlf. Tr. Br. at 8l0). In support of this argument, plaintiff relies on Brentwood, a casewhere the SupremeCourt applied the stateaction label to a non-profit associationthat set and enforced standardsfor athletic competition among both public and private secondaryschoolsin the State of Tennessee. The plaintiff in Brentwood was a private high school charged with violating an Association rule that prohibited "undue influence" in the recruitmentof studentathletes. Brentwood,l2l S.Ct. at929. The school allegedthat enforcementof the rule by the Association was stateaction and violated the First and FourteenthAmendments. Id. The district court enjoined the Association from enforcing the rule, but the Sixth Circuit reversed,finding no stateaction. Id., citing Brentwood Academy v. SecondarySchoolAthletic Ass'n,180 F.3d 758 (6th Cir. 1999). On certiorarireview, a Tennessee closely divided SupremeCourt found state action basedon the "pervasive entwinement" of state schoolofficials in the compositionand workings of the nominallyprivateAssociation.Brentwood, 12l S.Ct. at 932. The majority opinion stressedtwo points--thatthe Association was comprised overwhelminglyof "public schoolsrepresentedby their officials acting in their official capacityto

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provide an integralelementof secondarypublic schooling," seeid. at932, and that the Association set binding athletic standardsfor public secondaryschools throughout Tennessee,including the recruitingstandardschallengedby plaintiff. Id. at932-33. Becauseof the "pervasiveentwinement" of public school offrcials, who were clearly stateactors,in the structureof the Association, and the fact that the Association had historically regulatedhigh school athletics in lieu of a stateBoard of Education, the Court held that the Association'sregulatory activities constituted state action. Id. at 933. Brentwood doesnot rewrite the nexustest for determining stateaction. In fact, the Supreme Court expresslyrecognizedthat a nominally private entity may be treatedas a stateactor only "when 'entwinedin it is 'entwinedwith governmentalpolicies,'or when governmentis [its] management or control."' Id. at930, quotingEvansv. Newton,382U.S. 296,299,301, 86 S.Ct.486, 488, 489, 15 L.Ed.2d 373 (1966). The evidencein this case fails to meet that standard. As previously discussed,thereis no evidencethat the City was involved, much less"pervasivelyentwined,"with any aspectof the Literature Distribution Restriction. Without such evidence,there is absolutelyno reasonfor attributing the actions of SFOT to the City. See Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950,956 (9th Cir. 2008) (no stateactionwhereevidencefailed to establishthat city played a dominant role in controlling the actions of a private organizationor the content of a festival); Lansing v. City of Memphis,z0z F.3d 821,833 (6th Cir. 2000) (merecooperationbetweenprivate and public actors, such as using criminal trespasslaws to maintain order at festival run by private organizeron city property, doesnot rise to the level of mergerrequired for finding stateaction). Cf. Wickershamv.CityofColumbia,4Sl F.3d591, 597-98(SthCir.),cert.deniedsubnom.,Memorial Day LlteekendSalute to VeteransCorp. v. Wickershqm,128 S.Ct. 387 (2007) (private corporation held to be a state actor where city, in addition to providing critical assistanceto the corporation in

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the planningand operationof municipalair show,playedan active and direct role in enforcing challenged speechrestrictions by plaintiff). CONCLUSION maintain ofstateactionnecessaryto requirement Plaintiffhasfailedtoestablishthe threshold a civil rights claim againstdefendantsunder 42 U.S.C. $ 1983. Accordingly, the court finds in favor of defendants.A final judgment dismissingthis casewill be filed today.3

SO ORDERED. 16,2009. DATED: September

STATESMAGISTRATEJUDGE

3 tn light of the resolution of the stateaction issue,the court declinesto addressthe more difficult question of whether SFOT violated plaintiffs constitutional rights by prohibiting him from distributing religious materials on the grounds of the State Fair of Texas. See United States v. Texas, 445 F.Supp.2d 7 | | , 720 (E.D. Tex. 2006), citing Ashwanderv. TennesseeValleyAuthority,297 U.S. 288, 34'7,56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis,J., concurring) ("The Court will not passupon a constitutional question although properly presentedby the record, ifthere is also present some other ground upon which the casemay be disposedof.").