Thomas Blankenship v. Charles Buenger ( 2016 )

Case: 15-50974 Document: 00513568986 Page: 1 Date Filed: 06/28/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50974 FILED
June 28, 2016
Lyle W. Cayce
THOMAS J. BLANKENSHIP, Clerk
Plaintiff–Appellant,
v.
CHARLES BUENGER; BARRY HAND; STEVE MAUK; CLAY MCKINNEY;
BEN SAAGE; DAVID HENDRICK; BOBBY BAIN; DANNY VOLCIK; EDDIE
COKER; LESLIE CASEY; J. “ANDY” HAWKINS; CHALK BLUFF WATER
SUPPLY CORPORATION; SHERIFF PARNELL MCNAMARA,
Defendants–Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:14-CV-474
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Thomas Blankenship appeals the district court’s dismissal of his 42
U.S.C. § 1983 action pursuant to Federal Rule of Civil Procedure 12(b)(1) and
Rule 12(b)(6). We affirm.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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I
This case arises from an ongoing dispute between Blankenship and
representatives for the Chalk Bluff Water Supply Corporation (CBWSC), a
private, nonprofit water supply corporation operating in McLennan County,
Texas. Blankenship, an attorney proceeding pro se, alleged the following facts
in his complaint.
Blankenship, a member of CBWSC, applied in November 2013 to run for
a position on CBWSC’s Board of Directors. The parties’ dispute began in early
December 2013, when Blankenship went to the CBWSC office and presented
an open records request to Barry Hand, the manager of CBWSC, seeking copies
of all submitted applications to verify that “he and the other applicants were
on record as having filed their applications before the deadline” to apply.
After consulting with Charles Buenger, an attorney for CBWSC, Hand
told Blankenship that the applications “would not be provided to him until
certain information was redacted from the applications.” Blankenship was
dissatisfied with this response and a “heated argument” ensued; Blankenship
felt that the documents constituted “public information” that CBWSC “could
not withhold.” In protest, Blankenship took a seat in the CBWSC foyer and
refused to leave “until Hand gave him the [requested] copies.” Hand in turn
threatened to “call the sheriff and have a trespass warning ticket issued to
[Blankenship].” Blankenship “left under protest.”
Later that day, Blankenship arranged for an acquaintance, Jacob Brown,
to submit an open records request to CBWSC; Blankenship promised pro bono
legal representation to Brown in the event CBWSC threatened legal action.
After CBWSC again refused to provide the documents, Blankenship entered
the office and demanded the records on Brown’s behalf, as his attorney. Hand
told Brown and Blankenship that if they did not leave, he would have them
arrested for trespassing. Later that evening, deputies for the McLennan
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County Sheriff’s Department issued a trespass warning ticket to Blankenship.
Deputies told Blankenship that the trespass warning “would last until CBWSC
withdrew it.”
On December 30, 2013, when the election ballots were issued,
Blankenship noticed that his “qualifications” and “100-word” statement of
purpose submitted alongside his application were not included on the ballot,
though such contents were provided for incumbent candidates. He claims that
the omission was deliberate and that CBWSC then took actions to block
Blankenship’s subsequent attempt to contact voters and provide his
qualifications. Though Blankenship’s complaint is not clear on this point, we
surmise that he was not elected to the Board.
In late January 2014, Blankenship attended a CBWSC Board meeting
held off-site and was told by a Board member that he could never again “come
on the premises of CBWSC . . . even to address the Board with regard to the
trespass warning.” In light of this pronouncement, Blankenship was
apprehensive about attending the February Board meeting, scheduled to be
held at the CBWSC office. Nevertheless, steadfast in his “right to attend th[e]
meeting . . . [as] a member/owner of CBWSC,” Blankenship attended the
meeting wearing a sign which read, “I AM A MEMBER-OWNER OF CBWSC
AND I HAVE A RIGHT TO BE HERE.”
After CBWSC contacted the Sheriff’s Department, deputies arrived on
the scene and instructed Blankenship that “he would be arrested if he did[]
[not] leave.” Approximately 30 minutes of discussion ensued, during which
Blankenship explained that he “was merely trying to vindicate his right to be
there and get some kind of due process from the Board.” Blankenship
ultimately elected to leave “rather than be arrested.”
Blankenship initially filed suit in state court, but nonsuited the action to
pursue relief in federal court. In his federal complaint, Blankenship named as
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defendants, in their individual capacities, Charles Buenger, Barry Hand, and
CBWSC Board members—Steve Mauk, Clay McKinney, Ben Saage, David
Hendrick, Bobby Bain, Danny Volcik, Eddie Coker, Leslie Casey, and J. “Andy”
Hawkins (collectively, CBWSC Defendants); Blankenship also named Parnell
McNamara (Sheriff McNamara), Sheriff of McLennan County, Texas.
Blankenship asserted three claims for damages against the CBWSC
Defendants pursuant to 42 U.S.C. § 1983: (1) the CBWSC Defendants deprived
him of constitutionally protected property and liberty interests without due
process of law in violation of the Fifth and Fourteenth Amendments; (2) the
CBWSC Defendants violated Blankenship’s First Amendment rights by
“censor[ing]” ballot content; and (3) the CBWSC Defendants engaged in a civil
conspiracy to deprive him of the aforementioned rights. Blankenship also
alleged that Texas’s criminal trespass statute, Texas Penal Code § 30.05, is
unconstitutional as applied to Blankenship. It is for this final claim that
Blankenship named Sheriff McNamara as a defendant; Blankenship avers
that Sheriff McNamara is a “necessary party” to challenge the constitutionality
of the statute.
The CBWSC Defendants and Sheriff McNamara subsequently moved to
dismiss Blankenship’s complaint. Adopting the magistrate judge’s Report and
Recommendation, the district court dismissed the suit in its entirety pursuant
to Federal Rule of Civil Procedure 12(b)(6). Blankenship timely appealed.
II
Though the district court purported to dismiss Blankenship’s complaint
under Rule 12(b)(6), it unquestionably relied in part on matters of subject
matter jurisdiction more properly considered under Rule 12(b)(1). Accordingly,
we conduct our review under both applicable standards.
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We review de novo a district court’s dismissal under Rules 12(b)(1) and
12(b)(6). 1 “In reviewing the dismissal order, we take the well-pled factual
allegations of the complaint as true and view them in the light most favorable
to the plaintiff.” 2
Under Rule 12(b)(6), our “task is to determine whether the plaintiff has
stated a legally cognizable claim that is plausible, not to evaluate the plaintiff’s
likelihood of success.” 3 “This analysis is generally confined to a review of the
complaint and its proper attachments.” 4 Under Rule 12(b)(1), however, “the
court may find a plausible set of facts by considering any of the
following: ‘(1) the complaint alone; (2) the complaint supplemented by the
undisputed facts evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts.’” 5
III
The district court dismissed Blankenship’s § 1983 claims against the
CBWSC Defendants, holding that the CBWSC Defendants were not “state
actors” and “did not act under the color of state law,” and therefore, that
Blankenship’s claims were not cognizable under § 1983. 6 The Supreme Court
has explained that “[s]ection 1983 provides a cause of action against any person
who deprives an individual of federally guaranteed rights ‘under color’ of state
law” and “[a]nyone whose conduct is ‘fairly attributable to the state’ can be
1 Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
2 Id. (citing In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)).
3 Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.
2010) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
4 Lane, 529 F.3d at 557 (citing Fin. Acquisition Partners LP v. Blackwell, 440 F.3d
278, 286 (5th Cir. 2006)).
5 Id. (quoting Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)).
6 See 42 U.S.C. § 1983 (“Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen
of the United States . . . to the deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured . . . .” (emphasis added)).
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sued as a state actor under § 1983.” 7 “‘[M]ere private conduct, no matter how
discriminatory or wrongful,’ is excluded from § 1983’s reach.” 8 The Supreme
Court has clarified that “[i]n cases under § 1983, ‘under color’ of law has
consistently been treated as the same thing as the ‘state action’ required under
the Fourteenth Amendment.” 9
A
In his complaint, Blankenship offers only one ground for designating the
CBWSC Defendants as state actors: they invoked the Texas doctrine of official
immunity, available only to public officials, 10 in prior state court pleadings.
Blankenship alleges that the pleading constitutes a judicial admission that
estops the CBWSC Defendants from taking a contrary position in federal court
for purposes of § 1983 liability.
For a number of reasons, Blankenship is mistaken. Judicial admissions
are defined as “factual assertions in pleadings . . . conclusively binding on the
party who made them.” 11 A judicial admission “has the effect of withdrawing
a fact from contention.” 12
7Filarsky v. Delia, 132 S. Ct. 1657, 1666 (2012) (quoting Lugar v. Edmondson Oil Co.,
457 U.S. 922, 937 (1982)).
8 Cornish v. Correctional Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005) (quoting
Richard v. Hoechst Celanese Chem. Grp., Inc., 355 F.3d 345, 352 (5th Cir. 2003)).
9 Lugar, 457 U.S. at 928 (quoting United States v. Price, 383 U.S. 787, 794 n.7 (1966)).
10 See Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 422-24 (Tex. 2004).
11 White v. ARCO/Polymers, Inc., 720 F.2d 1391, 1396 (5th Cir. 1983).
12 Martinez v. Bally’s La., Inc., 244 F.3d 474, 476 (5th Cir. 2001) (emphasis added).
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While the inquiry is “necessarily fact-bound,” 13 whether state action
exists is a question of law for the court; 14 it is not a “fact” 15 that can be
admitted. In any event, “judicial admissions are not conclusive and binding in
a separate case from the one in which the admissions were made.” 16
Additionally, “withdrawn . . . pleadings are no longer judicial admissions.” 17
Here, the CBWSC Defendants invoked official immunity in a now
extinguished (and effectively withdrawn) pleading, in an entirely separate
suit. The cases on which Blankenship relies are inapposite. In each case, a
party admitted a fact in a live pleading submitted in the case in which the
pleading was filed. 18 Therefore, the CBWSC Defendants’ advancement of
13 Lugar, 457 U.S. at 939.
14 See Cuyler v. Sullivan, 446 U.S. 335, 342 n.6 (1980) (describing the state action
inquiry as a “question of law”); see also United States v. Stein, 541 F.3d 130, 148 (2d Cir.
2008) (“[I]t remains a question of law whether the facts as found by the district court establish
state action.”); Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 344 n.7 (4th Cir.
2000) (“[T]he ultimate resolution of whether an actor was a state actor or functioning under
color of law is a question of law for the court.”); Jennings v. Patterson, 488 F.2d 436, 438 (5th
Cir. 1974) (“[S]tate action within the meaning of Section 1983 [is] an issue of law which
should never have been submitted to the jury.”).
15 See MacDonald v. Gen. Motors Corp., 110 F.3d 337, 341 (6th Cir. 1997) (“Judicial
admissions . . . typically concern only matters of fact.”); Glick v. White Motor Co., 458 F.2d
1287, 1291 (3d Cir. 1972) (“The scope of judicial admissions is restricted to matters of fact
which otherwise would require evidentiary proof, and does not include counsel’s statement of
his conception of the legal theory of a case.”). We note that CBWSC’s affirmative defense of
official immunity in the prior state court suit would likely not even constitute a judicial
admission in the prior state suit, itself, under Texas law. See Dorrough v. Faircloth, 443
S.W.3d 278, 284 (Tex. App.—San Antonio 2014, no pet.) (“Whether the doctrine of official
immunity may extend to a [particular individual] is a question of law which we review de
novo.”); H.E. Butt Grocery Co. v. Pais, 955 S.W.2d 384, 389 (Tex. App.—San Antonio 1997, no
pet.) (“A party may not judicially admit a question of law.”).
16 Universal Am. Barge Corp., v. J-Chem, Inc., 946 F.2d 1131, 1142 (5th Cir. 1991)
(emphasis added); see also Heritage Bank v. Redcom Labs., Inc., 250 F.3d 319, 329 (5th Cir.
2001); State Farm Mut. Auto. Ins. Co. v. Worthington, 405 F.2d 683, 686 (8th Cir. 1968).
17 2 MCCORMICK ON EVIDENCE § 257 (Kenneth S. Broun et al. eds., 7th ed. 2013).
18 See, e.g., Jones v. Morehead, 68 U.S. 155, 165 (1835); Martinez v. Bally’s La., Inc.,
244 F.3d 474, 476 (5th Cir. 2001); Wheeler v. John Deere Co., 935 F.2d 1090, 1097-99 (10th
Cir. 1991); Mo. Hous. Dev. Comm’n v. Brice, 919 F.2d 1306, 1314 (8th Cir. 1990); Davis v.
A.G. Edwards and Sons, Inc., 823 F.2d 105, 107-08 (5th Cir. 1987); Hill v. Fed. Trade
Comm’n, 124 F.2d 104, 106 (5th Cir. 1941).
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official immunity in the nonsuited, prior state court case does not have binding
effect in this separate, federal proceeding.
Nor does the related doctrine of judicial estoppel preclude the CBWSC
Defendants from denying that they are state actors for purposes of § 1983. For
a party to be estopped from taking a contrary position from that taken in an
earlier proceeding, it must be shown that (1) “the position of the party to be
estopped is clearly inconsistent with its previous one” and (2) “that
party . . . convinced the [prior] court to accept that previous position.” 19
Though Blankenship implies that official immunity is inconsistent with a
subsequent denial of state action, he offers no evidence that the Texas court
relied on the CBWSC Defendants’ official immunity defense before
Blankenship nonsuited the action. Moreover, we are doubtful that the state
law official immunity defense is “clearly inconsistent” with the state action
inquiry. For one thing, while Texas law governs and defines the scope of official
immunity, “state action” is a federal issue. Nuances in the respective inquiries
could render official immunity unavailable, while state action may be present,
and vice versa. In sum, judicial estoppel is not appropriate in this case. 20
B
On appeal, Blankenship alternatively urges that § 1983’s state action
requirement is met because CBWSC and the State of Texas are “so inextricably
intertwined” that CBWSC’s conduct is fairly attributable to the State.
But Blankenship did not advance his entwinement argument or
supporting facts in his complaint. Other than Blankenship’s reference to the
purported “judicial admission,” his complaint merely asserts the bare legal
conclusion that the CBWSC Defendants are state actors who acted under color
19 Hall v. GE Plastic Pacific PTE Ltd., 327 F.3d 391, 396 (5th Cir. 2003).
20 For similar reasons, we reject Blankenship’s conclusory arguments respecting bad
faith pleading and detrimental reliance.
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of state law. Blankenship supplied legal argument for his “state actor” claim
for the first time in his opposition to Sheriff McNamara’s motion to dismiss,
and his arguments there constituted only a portion of those he now argues on
appeal. 21
The CBWSC Defendants urge that, due to these defects, we should not
consider Blankenship’s entwinement argument, as neither it nor its
supporting facts were set forth in Blankenship’s complaint. It is
well-established that our review of a Rule 12(b)(6) dismissal is limited to the
allegations in the pleadings, i.e. “the complaint, any documents attached to the
complaint, and any documents attached to the motion to dismiss that are
central to the claim and referenced by the complaint.” 22 Nevertheless, because
at least some of Blankenship’s allegations supporting his entwinement
argument were presented to and considered by the district court, we will
address the issue.
As Blankenship notes, CBWSC was formed under Chapter 67 of the
Texas Water Code and is subject to various regulations thereunder. 23 Chapter
67 details the formation and election procedures for the corporation, and
delineates its powers. 24 Water supply corporations like CBWSC must conform
21 In Blankenship’s opposition, he noted that various Texas laws define nonprofit
water supply corporations as either “political subdivisions” or “governmental bodies,” that
CBWSC is exempt from ad valorem taxes, and that CBWSC is highly regulated by the State.
22 Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.
2010); Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (“Because the court
reviews only the well-pleaded facts in the complaint, it may not consider new factual
allegations made outside the complaint, including those made on appeal.”); Fin. Acquisition
Partners LP v. Blackwell, 440 F.3d 278, 289 (5th Cir. 2006) (refusing to review a “new
allegation” because “we review only the well-pleaded facts in the complaint”); see also Estes
v. JP Morgan Chase Bank, Nat. Ass’n, 613 F. App’x 277, 280 (5th Cir. 2015) (per curiam)
(holding that “the district court did not err in failing to consider . . . additional factual
allegations” provided in an opposition to a motion to dismiss).
23 TEX. WATER CODE ANN. § 67.001, et seq.
24 See id.
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to Chapter 12 of the Texas Water Code, 25 which sets forth “provisions generally
applicable to water rights,” and Chapter 22 of the Texas Business
Organizations Code, which regulates nonprofit corporations. 26 Blankenship
notes that CBWSC is regulated by agencies of the State, namely, the Texas
Commission on Environmental Quality and the Texas Public Utilities
Commission. Under Texas law, CBWSC has a monopoly “in the areas [it]
serve[s]” 27 and is granted power of eminent domain. 28 CBWSC is tax exempt
under both Texas and federal law. 29 Additionally, because CBWSC receives
financial assistance from the Water Assistance Fund pursuant to Chapter 15
of the Texas Water Code, it is subject to open meetings and records laws. 30
Blankenship notes that Chapter 15 of the Water Code defines a “political
subdivision” to include nonprofit water supply corporations 31 and, similarly,
the Texas Open Meetings and Records Act defines “governmental body” to
include the same. 32 Blankenship finally contends that CBWSC’s provision of
water utility service constitutes a “public function” traditionally performed by
the State.
Blankenship’s “entwinement” argument derives from the Supreme
Court’s opinion in Brentwood Academy v. Tennessee Secondary School Athletic
Ass’n. 33 There, the Court held that the “nominally private character of the
Association [wa]s overborne by the pervasive entwinement of public
institutions and public officials in its composition and workings.” 34 The Court
25 Id. § 12.001 et. seq.
26 TEX. BUS. ORGS. CODE ANN. § 22.001 et. seq.
27 TEX. WATER CODE. ANN. §§ 13.001(b)(1), 13.002(19).
28 Id. § 49.222.
29 See TEX. TAX CODE ANN. §§ 11.30, 171.065; 26 U.S.C. § 501.
30 TEX. WATER CODE ANN. § 15.006.
31 Id. § 15.001(5).
32 TEX. GOV’T CODE §§ 551.001(3)(K), 552.003(1)(A)(ix).
33 531 U.S. 288 (2001).
34 Id. at 298.
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found it significant that: (1) the Association there was composed not of natural
persons but of largely public schools; (2) the Association was governed by
public officials, namely, “principals, assistant principals, and
superintendents”; (3) the Association enjoyed funding derived from the
member schools’ own sources of income; (4) “State Board members [we]re
assigned ex officio to serve” on the Association’s Board; and (5) “the
Association’s ministerial employees” were “eligible for membership in the state
retirement system.” 35
The symbiotic relationship illustrated in Brentwood is not present here.
There is no indication that state officers or public officials sit on CBWSC’s
Board, that CBWSC employees enjoy state benefits, or that CBWSC members
are primarily public entities that control and fund the Board. To the extent
that CBWSC could service public entities, “mere public buyers of contract
services . . . do not convert the service providers into public actors.” 36 It is
simply not the case, as it was in Brentwood, that the state is intertwined with
CBWSC from the “bottom up” and the “top down.” 37
It is true, as the aforementioned Texas statutory law illustrates, that
CBWSC is highly regulated by the State and is afforded certain benefits, such
as tax exemptions and a monopoly in its service area. But the Supreme Court
has found an absence of state action in similar circumstances. In Jackson v.
Metropolitan Edison Co., 38 the Court concluded that a privately-owned utility
35 Id. at 298-300.
36 Id. at 299 (citing Rendell-Baker v. Kohn, 457 U.S. 830, 839-43 (1982)); see TEX.
WATER CODE ANN. § 67.002 (indicating that water supply corporations can provide services
to a “municipality, a private corporation, an individual, or a military camp or base”).
37 Brentwood, 531 U.S. at 300.
38 419 U.S. 345 (1974).
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company was not a state actor even though it was “subject to extensive state
regulation.” 39 Specifically, the Court stated,
The mere fact that a business is subject to state regulation does
not by itself convert its action into that of the State for purposes of
the Fourteenth Amendment. Nor does the fact that the regulation
is extensive and detailed, as in the case of most public utilities, do
so. 40
While the Court noted that “[i]t may well be that acts of a heavily regulated
utility with at least something of a governmentally protected monopoly will
more readily be found to be ‘state’ acts,” it found the existence of a monopoly
“not determinative” in the case before it. 41 The Court reiterated the principle
that there must be a “sufficiently close nexus between the State and the
challenged action of the regulated entity so that the action of the latter may be
fairly treated as that of the State itself.” 42 In Jackson, as here, there was no
relationship between the challenged actions and CBWSC’s monopoly status. 43
We also reject Blankenship’s argument that the delegation to state
agencies of the power to regulate CBWSC indicates that the agencies “control”
CBWSC. It is true that a nominally private entity may be treated as a state
actor “when it is controlled by an ‘agency of the state.’” 44 But in the seminal
case cited for that proposition, the private entity, a college, was actually
“administered” and “operated” by the “Board of Directors of City Trusts of the
City of Philadelphia” because the founder of the college had named the City of
39 Id. at 350.
40 Id. (internal citation omitted).
41 Id. at 350-52; see also Pub. Utils. Comm’n v. Pollack, 343 U.S. 451, 462 (1952)
(expressly disclaiming reliance on a transit authority’s congressionally-granted monopoly
status).
42 Jackson, 419 U.S. at 351 (citing Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176
(1972)).
43 Id.
44 Brentwood Acad. v. Tenn. Secondary School Athletic Ass’n, 531 U.S. 288, 296 (2001).
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Philadelphia the trustee of the fund left to “erect[], maint[ain], and operat[e]”
the college. 45
Nor does the fact that the Texas Open Meetings and Records Act and the
Texas Water Code define entities like CBWSC as “political subdivision[s]” or
“governmental bod[ies],” respectively, supply state action. We agree with the
district court that the terms in the definitional sections are applicable only, as
they explicitly state, “[i]n this chapter.” 46 Moreover, the question of state
action is a functional analysis conducted under federal law; how a state defines
a particularly entity is not determinative. We are supported in this conclusion
by the Supreme Court’s affirmance of a similar question raised in City of
Combes v. East Rio Hondo Water Supply Corp. 47 There, a three-judge district
court considered whether a nonprofit water supply corporation, regulated in
identical fashion to CBWSC, was a “‘political subdivision’ of the State of Texas
for purposes of the Voting Rights Act.” 48 Though the Texas Water Code, as
Blankenship highlights here, indeed defines a water supply corporation as a
“political subdivision,” that label was not determinative for purposes of the
Voting Rights Act. 49
Blankenship fares no better under the “public function” test, which asks
whether “the private entity has exercised powers that are traditionally the
exclusive prerogative of the State.” 50 In Jackson, the Court held that the
provision of electrical utility services was not a traditional function of the state,
in part because the state in which the utility conducted business had “rejected
45 Pennsylvania v. Bd. of Dirs. of City Trusts of Phila., 353 U.S. 230, 231 (1957) (per
curiam).
46See TEX. GOV’T CODE ANN. §§ 551.001, 552.003.
47244 F. Supp. 2d 778, 779 (S.D. Tex.), aff’d, 539 U.S. 955 (2003).
48 Id. at 780.
49 Id.
50 Blum v. Yaretsky, 457 U.S. 991, 1005 (1982) (emphasis added) (internal quotation
marks omitted).
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the contention that the furnishing of utility services is either a state function
or a municipal duty.” 51 Our review of Texas law reveals that private
corporations have long enjoyed a share in the water utility industry. 52 We
conclude that the provision of water services does not fall within the “very few
activities” exclusively reserved to the State. 53
In any event, we do not think that the requisite connection, or nexus,
“between the State and the challenged action” of CBWSC exists here. 54
Blankenship alleges that the CBWSC Defendants conspired to violate his
asserted property and liberty interests—the right to enter CBWSC premises
as a purported “member/owner”—and to violate his free speech rights
protected by the First Amendment. These claims do not relate to the State’s
regulation of CBWSC. Blankenship is correct that Chapter 67 of the Texas
Water Code regulates the election requirements of a nonprofit water supply
corporation. But the mere fact that CBWSC might not have complied with a
relevant regulation is not alone sufficient to ascribe “state action” to an
otherwise private entity.
Finally, we reject Blankenship’s reliance on a “joint activity” theory to
establish state action. Beyond the fact that Blankenship did not present the
theory to the district court, he raised the argument for the first time on appeal
in his reply brief. For multiple reasons, then, the argument has been waived. 55
51 Jackson, 419 U.S. at 353.
52 See Allen v. Park Place Water, Light & Power Co., 266 S.W. 219, 220
(Tex. Civ. App.—Galveston 1924, writ ref’d); Cole v. Adams, 49 S.W. 1052, 1052
(Tex. Civ. App. 1898).
53 See White v. Scrivner Corp., 594 F.2d 140, 142 (5th Cir. 1979).
54 Brentwood Acad. v. Tenn. Secondary School Athletic Ass’n, 531 U.S. 288, 295 (2001)
(quoting Jackson, 419 U.S. at 351); see also Rundus v. City of Dallas, 634 F.3d 309, 315 (5th
Cir. 2011) (holding that there was no “pervasive entwinement” where the city “had no role in
enacting or enforcing [the private entity’s] restriction on distribution of literature”).
55 Dixon v. Toyota Motor Credit Corp., 794 F.3d 507, 508 (5th Cir. 2015) (“Arguments
raised for the first time in a reply brief are waived.”); see also Chavez v. Wells Fargo Bank,
N.A., 578 F. App’x 345, 348 (5th Cir. 2014) (per curiam) (“As a general rule, we will not
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Even were we to consider it, Blankenship’s argument implies that the Sheriff’s
Department’s role in issuing a trespass warning and threatening arrest, both
of which Blankenship admits a deputy could do, subjects CBWSC to § 1983
liability. This bootstrap argument goes beyond that envisioned by the “joint
activity” test to which Blankenship refers. Neither “private defendants’
misuse of a valid state statute” nor “[p]olice reliance in making an arrest on
information given by a private party” renders a private party a state actor. 56
Because Blankenship’s complaint fails to allege facts sufficient to show
that the CBWSC Defendants were acting under color of state law, the district
court properly dismissed Blankenship’s § 1983 claims.
IV
Blankenship also appeals the district court’s dismissal of his “as-applied”
procedural due process challenge to Texas Penal Code § 30.05. The district
court concluded that Blankenship could not meet the injury-in-fact
requirement of standing because he had not been prosecuted under § 30.05,
and for similar reasons, Blankenship’s challenge was not ripe. The court
further held that § 30.05 was constitutional as applied to Blankenship.
Section 30.05(a) provides:
A person commits an offense if the person enters or remains on or
in property of another . . . without effective consent and the person:
(1) had notice that the entry was forbidden; or (2) received notice
to depart but failed to do so. 57
consider a new theory or issue that was ‘not properly before the district court.’” (quoting
Dunbar v. Seger-Thomschitz, 615 F.3d 574, 576 (5th Cir. 2010))); Benefit Recovery, Inc. v.
Donelon, 521 F.3d 326, 329 (5th Cir. 2008) (“We will not consider arguments . . . that w[ere]
not presented to the district court” and “arguments cannot be raised for the first time in a
reply brief.”).
56 Daniel v. Ferguson, 839 F.2d 1124, 1130 (5th Cir. 1988).
57 TEX. PENAL CODE ANN. § 30.05(a).
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We first clarify the structure and scope of Blankenship’s claim. Though
Blankenship cites § 30.05 as the object of his “as-applied” challenge, his
complaint attacks the due process procedures relevant to the “criminal
trespass warning ticket,” which he claimed was issued pursuant to § 30.05. He
claims that a deputy issued the warning “without hearing any kind of
argument on Plaintiff’s behalf,” that he has no right to appeal the warning,
that his only recourse is to convince CBWSC to “rescind the warning,” and that
CBWSC refuses to grant him a hearing in regards to the trespass warning. 58
Blankenship concludes that the ticket constitutes an indefinite ban from the
property, lest he subject himself to arrest under § 30.05. Blankenship
ultimately requests that Sheriff McNamara and his Department, as well as the
CBWSC Defendants, be enjoined from enforcing the trespass ticket.
But as Blankenship admits in his reply brief, § 30.05 does not
contemplate “trespass warning” tickets. 59 We therefore frame Blankenship’s
as-applied challenge to the statute that he attacks, § 30.05. We read
Blankenship’s complaint to take issue with the lack of a hearing, prior to an
arrest under § 30.05, to ascertain whether Blankenship has rights to the
property. Additionally, we note that the only due process with which we are
concerned is that due from the Sheriff’s Department. To the extent
Blankenship contends he should receive some degree of process from CBWSC,
his argument is foreclosed by our conclusion that the CBWSC Defendants are
not state actors.
58 Blankenship’s complaint is unclear as to who issued the trespass warning. At one
point, Blankenship states that “sheriff deputies . . . issued him a trespass warning ticket.”
Elsewhere, he claims that he was “given a trespass warning . . . by the Sheriff.”
59 To the contrary, a review of Texas case law indicates that such warnings are
typically issued pursuant to local ordinances or unofficial policy. See, e.g., Ray v. State, No.03-
14-00538-CR, 2016 WL 1317941, at *2 (Tex. App.—Austin Mar. 30, 2016) (unpublished);
Griffin v. State, No. 05-07-00480-CR, 2007 WL 4282154, at *2 (Tex. App.—Dallas Dec. 7,
2007, no pet.) (unpublished).
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At the outset, Sheriff McNamara contends that he is not a proper
defendant in this suit and should be dismissed from the case. 60 Sheriff
McNamara avers that Blankenship has not pled a policy sufficient to support
municipal liability and, further, that he cannot be liable under a theory of
respondeat superior. The district court rested on these conclusions.
Blankenship responds that Sheriff McNamara is a proper defendant because
he is a “necessary party” pursuant to Federal Rule of Civil Procedure 19.
Blankenship argues that without Sheriff McNamara, his request for injunctive
relief cannot be granted.
We note that Blankenship appears to miss the pertinent inquiry, which
is whether a jurisdictional basis exists for filing suit against Sheriff McNamara
to challenge the constitutionality of § 30.05 as it applies to Blankenship. He
does cite Texas authority, not relevant here, indicating that “a party
responsible for enforcing” a law must be named in a suit challenging the law’s
constitutionality. 61 This principle appears similar to that of Ex parte Young. 62
It is perhaps possible that Sheriff McNamara could be a proper defendant
pursuant to Ex parte Young, which permits individuals to file suit “against
state officials for the purpose of enjoining the enforcement of an
unconstitutional state statute.” 63 Ex parte Young requires such officers have
“some connection with the enforcement of the act” and “threaten[ ] to exercise
60 We note that a lack of proper adversaries can defeat the existence of a justiciable
case or controversy. See, e.g. Okpalobi v. Foster, 244 F.3d 405, 409 (5th Cir. 2001) (en banc)
(holding that because “plaintiffs have no case or controversy with these defendants . . . we
lack Article III jurisdiction”); Culinary Workers Union, Local 226 v. Del Papa, 200 F.3d 614,
617 (9th Cir. 1999) (addressing whether the “attorney general’s claim that [she is not a proper
defendant] renders this pre-enforcement action nonjusticiable”). Accordingly, we can discuss
the issue prior to and alongside the other requirements of standing at issue in this case.
61 See Motor Vehicle Bd. of Tex. Dep’t of Transp. v. El Paso Indep. Auto. Dealers Ass’n,
Inc., 37 S.W.3d 538, 541 (Tex. App.—El Paso 2001, pet. denied).
62 209 U.S. 123, 157 (1908).
63 Okpalobi, 244 F.3d at 411 (citing Young, 209 U.S. at 157).
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that duty.” 64 Blankenship has not cited Ex parte Young, much less alleged that
Sheriff McNamara has the requisite “connection” with the enforcement of
§ 30.05 or had, himself, threatened to arrest Blankenship.
We ultimately need not resolve this issue because, regardless,
Blankenship lacks standing to assert his procedural due process challenge to
§ 30.05. “To establish standing, a plaintiff must show: (1) it has suffered, or
imminently will suffer . . . injury-in-fact; (2) the injury is fairly traceable to the
defendant’s conduct; and (3) a favorable judgment is likely to redress the
injury.” 65 “An injury-in-fact constitutes ‘an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual or imminent,
not conjectural or hypothetical.’” 66
The district court concluded that because Blankenship had not been
prosecuted for criminal trespass under § 30.05, he failed to satisfy the
injury-in-fact requirement for standing. We first note that the precedent relied
on by the district court—Johnson v. City of Dallas 67—is inapposite to the case
at hand. First, the district court misread the opinion as concluding that the
plaintiffs there lacked standing to challenge § 30.05 because they had not been
convicted of trespass. That was not our holding. The Johnson plaintiffs’
challenge to § 30.05 was not before the court in Johnson; the plaintiffs had not
cross-appealed the district court’s conclusion that § 30.05 was constitutionally
valid. 68 At issue instead was whether the plaintiffs had standing for their
as-applied, Eighth Amendment challenge to a city ordinance prohibiting
64 Id. at 414-15 (citing Young, 209 U.S. at 155-58).
65 Houston Chronicle Publ’g Co. v. City of League City, 488 F.3d 613, 617 (5th Cir.
2007) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
66 Wendt v. 24 Hour Fitness USA, Inc., --- F.3d ----, 2016 WL 1458989, *1 (5th Cir.
2016) (quoting Lujan, 504 U.S. at 561).
67 61 F.3d 442 (5th Cir. 1995).
68 Id. at 443.
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sleeping in public. 69 We held that the plaintiffs, none of whom had been
convicted under the ordinance, lacked standing because the Eighth
Amendment was “designed to protect those convicted of crimes.” 70 As
Blankenship notes, Johnson’s rationale, fairly read, is limited to standing in
the Eighth Amendment context.
Though the district court’s reliance on Johnson was error, Blankenship
lacks standing. Our holding rests primarily on the fact that § 30.05 has not
yet been applied to Blankenship.
Blankenship argues against this result and contends that he is entitled
to challenge § 30.05 because he has been threatened with arrest. We of course
recognize that this court and the Supreme Court have held that “it is not
necessary that [a plaintiff] first expose himself to actual arrest or prosecution
to be entitled to challenge a statute that he claims deters the exercise of his
constitutional rights.” 71 In Steffel v. Thompson, for example, the Supreme
Court held that a petitioner had standing to seek a declaratory judgment in
his as-applied, pre-enforcement challenge to the constitutionality of a state
criminal trespass statute under the First Amendment when police had
threatened him with prosecution if he again attempted to distribute handbills
at a shopping center, and petitioner’s companion had in fact been arrested for
the same activity. 72 We have similarly held that a person need not “disobey
the law and await his prosecution” before challenging the constitutionality of
a state criminal statute. 73
69 Id. at 444.
70 Id. at 444-45 (quoting Ingraham v. Wright, 430 U.S. 651, 664 (1977)).
71 Steffel v. Thompson, 415 U.S. 452, 459 (1974).
72 Id.
73 Peyote Way Church of God, Inc. v. Smith, 742 F.2d 193, 198 (5th Cir. 1984); see also
Houston Chronicle Publ’g Co. v. City of League City, 488 F.3d 613, 617-19 (5th Cir. 2007)
(holding that petitioners had standing to mount facial and as-applied pre-enforcement
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However Steffel, and the various other cases in which threats of
prosecution were deemed sufficient, are inapplicable to this case. Most
involved either facial challenges or First Amendment claims. 74 We have noted
that “[s]tanding requirements in the First Amendment context . . . are relaxed
‘because of a judicial prediction or assumption that the statute’s very existence
may cause others not before the court to refrain from constitutionally protected
speech or expression.’” 75
This showing is difficult to make in this case. We have previously stated
that “[t]he contention that a party cannot challenge a statute as-applied unless
the statute has been applied to him is generally correct.” 76 The Eleventh
Circuit has similarly indicated that the contention that a statute is
unconstitutional as-applied, even though it has not yet been applied to the
complaining party, “appears to be an inherent contradiction.” 77 While the
Eleventh Circuit assumed, but did not decide, that a credible threat of injury
may suffice in such a context, it “believe[d] that there are few situations where
that type of challenge would prevail” and noted that such a rare situation may
exist only if the “plaintiff’s complaint . . . include[s] all of the factual
allegations necessary to clearly illustrate the context in which the statute will
be applied.” 78
challenge where petitioners showed “imminent future prosecution if the City is not
enjoined”).
74 See, e.g., Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014); Babbitt v.
United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979); Steffel, 415 U.S. at 459; Houston
Chronicle, 488 F.3d at 617-18; Peyote Way, 742 F.2d at 196, 198.
75 J&B Entm’t, Inc. v. City of Jackson, Miss., 152 F.3d 362, 366 (5th Cir. 1998) (quoting
Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973)); see also Nat’l Rifle Ass’n of Am. v. Magaw,
132 F.3d 272, 284-85 (6th Cir. 1997).
76 See Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 660 (5th Cir. 2006).
77 GeorgiaCarry.Org., Inc. v. Georgia, 687 F.3d 1244, 1255 n.20 (11th Cir. 2012).
78 Id.
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Blankenship’s as-applied, pre-enforcement claim here does not cross the
line from speculative and abstract to concrete and imminent. Though
Blankenship was threatened with arrest, and has received a trespass warning
ticket, he has not been arrested, prosecuted, or convicted of a violation of
§ 30.05. Blankenship’s potential future arrest is an insufficient factual basis
upon which to hold that § 30.05 fails to satisfy procedural due process as
applied in this case. 79 We cannot know what process, in fact, will be afforded
to Blankenship even assuming CBWSC directors or employees request his
arrest and he is in fact arrested by the Sheriff’s Department and subsequently
prosecuted.
It is further questionable whether Blankenship has adequately pled that
his arrest pursuant to § 30.05 would invade a “legally protected interest.” “The
requirements of procedural due process apply only to the deprivation of
interests encompassed by the Fourteenth Amendment’s protection of liberty
and property.” 80 Blankenship alleges that he has a property interest and
corresponding liberty rights in entering CBWSC property because he is an
“owner” by virtue of his “membership” in CBWSC. This claim is nothing more
than a “conclusory allegation[], unwarranted factual inference[ ], or legal
conclusion[]” that we are not required to accept as true. 81 Blankenship points
to no “ordinance, official policy, state or local law, contract, or other enforceable
agreement” to support his claim of a constitutionally protected property
79 Cf. Houston Chronicle, 488 F.3d at 623 (holding that “future enforcement intentions
is an inadequate factual basis to support . . . any as-applied analysis,” and while “an
as-applied unconstitutionality issue may arise in the future . . . if the City enforces [the
ordinance] against the newspapers . . . , we can not uphold the district court’s conclusion that
[the ordinance] has been applied unconstitutionally”).
80 Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972).
81 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005); see also Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (a plaintiff must offer “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do”).
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interest in entering CBWSC property or remaining on CBWSC premises when
asked to leave. 82 Accordingly, Blankenship’s complaint fails to set forth
sufficient facts indicating that the application of § 30.05 to him would invade
a legally protected interest.
To the extent Blankenship actually intended to assert an as-applied,
procedural due process challenge to the Sheriff’s Department’s “practice” of
issuing trespass warning tickets, he would have standing. This is because he
has actually received the trespass ticket, which is intended to operate as a type
of injunction. 83 Blankenship only alleged this purported “practice” for the first
time on appeal and in his reply brief. Nevertheless, we read his complaint and
arguments before the district court to allege deprivation sufficiently, insofar as
he was not provided an opportunity to contest the issuance of the trespass
warning or appeal it.
Still, Blankenship’s challenge, as applied to his circumstances, would not
make out a procedural due process violation. To assert a procedural due
process claim, one must have a protected property or liberty interest. 84
Blankenship’s purported interest lies in his asserted
ownership-by-virtue-of-membership argument. As indicated previously,
Blankenship’s contention that his membership supplies a property right to
enter CBWSC property is neither supported by the alleged facts, nor plausible
82 See, e.g. Gentilello v. Rege, 627 F.3d 540, 545 (5th Cir. 2010).
83 See Catron v. City of St. Petersburg, 658 F.3d 1260, 1267 (11th Cir. 2011) (holding
that homeless plaintiffs’ challenge to the constitutionality of city ordinances permitting
trespass warnings without any apparent appeal procedures could withstand a motion to
dismiss, noting that the warnings “are intended to serve instantly as some kind of restraining
injunction”).
84 See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999); Mathews v. Eldridge,
424 U.S. 319, 332 (1976),
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on its face. The liberty interest to which Blankenship refers—“right to
locomotion”—does not apply in these circumstances. 85
We affirm the district court’s dismissal of Blankenship’s complaint for a
lack of standing and failure to state a claim.
* * *
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
85 See, e.g., Catron, 658 F.3d at 1266 (holding that “Plaintiffs have a constitutionally
protected liberty interest to be in parks or on other city lands of their choosing that are open
to the public generally”) (citing City of Chicago v. Morales, 527 U.S. 41 (1999) (plurality
opinion)); Kent v. Dulles, 357 U.S. 116, 127 (1958) (recognizing liberty interest in “[f]reedom
to travel”).
23