Douglas Grassle v. the City of Davenport, Iowa ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0065
Filed October 14, 2015
DOUGLAS GRASSLE,
Plaintiff-Appellant,
vs.
THE CITY OF DAVENPORT, IOWA,
Defendant-Appellee.
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Appeal from the Iowa District Court for Scott County, Joel W. Barrows,
Judge.
Douglas Grassle appeals from the order granting summary judgment in
favor of the City of Davenport on his declaratory judgment action. AFFIRMED.
Michael J. Meloy of Meloy Law Office, Bettendorf, for appellant.
James W. White and Rand S. Wonio of Lane & Waterman, L.L.P.,
Davenport, for appellee.
Considered by Mullins, P.J., Bower, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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SCOTT, Senior Judge.
Douglas Grassle appeals from the order granting summary judgment on
his declaratory judgment action in favor of the City of Davenport (City). Grassle
initiated the action after receiving a trespass notice stating that any permission or
license he had to enter the Oakdale Cemetery, a non-profit cemetery located in
Davenport, had been revoked and withdrawn. He alleged the notice was issued
illegally and in violation of his due process rights under the federal and state
constitutions. The district court granted the City’s motion for summary judgment
after determining Grassle failed to prove the City’s involvement constituted state
action in violation of his due process rights. Grassle challenges this
determination on appeal.
We review rulings on motions for summary judgment for correction of
errors at law. City of Johnston v. Christenson, 718 N.W.2d 290, 296 (Iowa
2006). Summary judgment is proper if there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P.
1.981(3). We must determine whether there is any material fact in dispute, and if
not, whether the district court correctly applied the law. See Shriver v. City of
Okoboji, 567 N.W.2d 397, 400 (Iowa 1997).
The material facts are undisputed. Oakdale Cemetery is not owned by the
City of Davenport but is an independent cemetery under the general
management of Darrell Iossi, a private citizen. Iossi requested a trespass notice
from a Davenport Police Department officer. The officer filled out the notice and
Iossi signed it. Iossi then requested the officer serve Grassle with trespass
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notice. The only question is whether the district court correctly applied the law in
determining this is insufficient to constitute state action.
The United States and Iowa Constitutions limit state action that deprives a
person of property without due process of law. Green v. Racing Ass’n of Cent.
Iowa, 713 N.W.2d 234, 238 (Iowa 2006). In order to be considered a state action
there must first be a constitutional deprivation caused by the exercise of some
right or privilege created by the State or by a rule of conduct imposed by the
State or a person for whom the State is responsible. Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999). The party charged with the deprivation must
also be a person who may fairly be said to be a state actor. Id. Action by an
individual may constitute state action in the following situations:
(1) where a state acts directly through its officer or agent;
(2) where the state acts in conjunction with business in a profit-
making field; (3) where the state by its actions (or inaction)
encourages or creates an atmosphere in which private citizens
deprive others of their constitutional rights; (4) where the state
affirmatively orders or approves the action in the course of its
regulatory rule-making; and (5) where functions traditionally
performed by the state are delegated to or performed by private
interests.
Jensen v. Schreck, 275 N.W.2d 374, 385 (Iowa 1979).
Grassle has failed to show a state action was involved in this case. As the
district court concluded, “the mere issuance of a trespass notice by a state actor
does not rise to the level of state action required to support a due process
violation.” This determination is supported by the law. See Green, 713 N.W.2d
at 242-43 (holding no state action present where racing association’s director of
human resources made the decision to issue trespass notices to jockeys banning
them from entering a racetrack on public property leased by county because
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there was no evidence the county controlled the decision to exclude the jockeys
and the county did not benefit from the constitutional violation alleged); Jensen,
275 N.W.2d at 385 (holding service of a notice of forfeiture does not constitute
state action where the state did not cause or even encourage forfeiture); see also
Williams v. Nagel, 643 N.E.2d 816, 820 (Ill. 1994) (holding service of notices by
police department barring plaintiff from apartment building was not sufficient
conduct to establish state action where apartment owner made decision
concerning who to place on “no trespass” list). The Davenport police officer did
not cause or encourage the trespass notice to be issued, but merely filled it out
and served it on Grassle at Iossi’s request. Iossi made the decision to revoke or
withdraw Grassle’s permission or license to enter the cemetery. Because the
district court correctly applied the law to the undisputed facts in determining no
state action was present, we affirm.
AFFIRMED.