United States District Court, D. Nebraska
KEITH D. PURDIE, Plaintiff,
DANIEL SHAW, Defendant.
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
originally filed this lawsuit in the District Court of Platte
County, Nebraska, alleging that defendant Daniel Shaw
violated his constitutional rights when he excommunicated
Plaintiff from the Church of Jesus Christ of Latter-Day
Saints (the “Church”) in Columbus, Nebraska,
because of Plaintiff's felony conviction which was still
on appeal at the time. Plaintiff alleges that, before
excommunicating him, Defendant held a
“counsil/trial” that violated Plaintiff's
First, Fifth, Sixth, and Eleventh Amendment rights.
Specifically, Plaintiff alleges that he was deprived of his:
• Constitutional right against double jeopardy, his
right to due process, and his right not to be called as a
witness against himself “as in a criminal case.”
(Filing No. 1-1 at CM/ECF p. 2 ¶ 4.)
• First Amendment right to “petition the
government for a redress of grievances.” (Filing No.
1-1 at CM/ECF p. 2 ¶ 5.)
• Rights to be informed of the nature and cause of the
accusation, a speedy trial, counsel, an impartial jury, to
confront witnesses against him, and to obtain witnesses in
his favor. (Filing No. 1-1 at CM/ECF p. 3 ¶ 6.)
• Right to avoid being subject to Defendant's
actions because the Church “has no judicial Authority
or Jurisdiction over the State's Case against the
Plaintiff .. ., nor can the Defendant . . . take Juricial
[sic] action against” him. (Filing No. 1-1 at
CM/ECF p. 3 ¶ 7.)
on these alleged constitutional violations, Plaintiff seeks
$5 million in damages, as well as an order prohibiting
Defendant from purporting to excommunicate Plaintiff from the
Church. (Filing No. 1-1 at CM/ECF p. 4.)
removing Plaintiff's action to this court based on both
federal question jurisdiction, 28 U.S.C. §
1331, and diversity, 28 U.S.C. § 1332, the
defendant now moves to dismiss pursuant to Fed. R. Civ.
P. 12(b)(6). (Filing No. 4.)
vehicle by which Plaintiff must seek relief for alleged
violations of his federal constitutional rights is 42 U.S.C.
§ 1983, which requires a plaintiff to show that the
alleged constitutional deprivation was caused by conduct of a
person acting under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow,
997 F.2d 494, 495 (8th Cir. 1993). See also
Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851,
855 (8th Cir. 2001) (“Only state actors can be held
liable under Section 1983.”); Luther v. Am. Nat.
Bank of Minnesota, No. CIV. 12-1085, 2012 WL 5471123, at
*4 (D. Minn. Oct. 11, 2012), report and recommendation
adopted, No. CIV. 12-1085, 2012 WL 5465888 (D. Minn.
Nov. 9, 2012) (“It is well-established that [t]here is
simply no cause of action for a private violation of
constitutional privileges in the absence of state
action.”) (internal quotation omitted).
private actor can be considered to act under color of state
law “if, though only if, there is such a ‘close
nexus between the State and the challenged action' that
seemingly private behavior ‘may be fairly treated as
that of the State itself.'” Brentwood Acad. v.
Tennessee Secondary Sch. Athletic Ass'n, 531 U.S.
288, 295 (2001) (quoting Jackson v. Metropolitan Edison
Co., 419 U.S. 345, 351 (1974)). This “close
nexus” exists where the private actor is
“‘a willful participant in joint activity with
the State' in denying a plaintiff's constitutional
rights.” Magee v. Trustees of Hamline Univ.,
747 F.3d 532, 536 (8th Cir. 2014) (quoting Dossett v.
First State Bank, 399 F.3d 940, 947 (8th Cir. 2005)).
Thus, to survive a motion to dismiss, a “plaintiff must
plausibly allege a mutual understanding, or a meeting of the
minds, between the private party and the state actor.”
Id. (internal quotation and citation omitted). In
doing so, the plaintiff must allege something more than
“multiple contacts” between the private party and
the state; rather, he must plead “specific facts
plausibly connecting” the alleged concerted action to
the alleged violation. Id.
the plaintiff has not alleged any facts plausibly suggesting
that the defendant is a state actor; is employed by, or is an
agent of, any governmental entity; or has any type of
“understanding” or contacts with state actors.
Therefore, Plaintiff cannot sue the defendant under 42 U.S.C.
§ 1983 for allegedly violating his constitutional
rights, and Plaintiff's claims must be dismissed pursuant
to Fed.R.Civ.P. 12(b)(6). Because of the fundamental nature
of the defect in his Complaint, Plaintiff shall not be
granted leave to amend, as any amendment would be futile.
See, e.g., Montano v. Hedgepeth, 120 F.3d
844, 849 (8th Cir. 1997) (prison chaplain who was employed by
state was not state actor for § 1983 purposes when
performing clerical tasks such as interpretation and
application of religious dogma, delivering sermons, taking
confessions, granting forgiveness for sins, and counseling
inmates on reading of sacred texts).
IT IS ORDERED:
1. Defendant's Motion to Dismiss (Filing No. 4)
is granted, this case is dismissed pursuant to Fed.R.Civ.P.
12(b)(6), and judgment ...