Case 3:06-cv-01823-BD Document 115 Filed 09/16/2009 Page 1 of 11

IN THE LTNITEDSTATESDISTRICTCOURT
NORTHERNDISTRICTOFTEXAS
DALLASDIVISION

DARREL RLTNDUS $
$
Plaintiff I
$
VS . $ NO.3-06-CV-1823-BD
$
CITY OF DALLAS, ET AL. $
$
Defendants. $

MEMORANDUM 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).

 Case 3:06-cv-01823-BD Document 115 Filed 09/16/2009 Page 2 of 11

A policy promulgatedby SFOTgenerallyprohibitsthedistributionof advertising,flyers,or

other written materialson the fairgrounds. (ld. al 13, lJfl 77,81). Instead,individuals and

wishingto engagein suchactivitiesarerequiredto rentexhibit spacefrom SFOTand

organizations

confinethoseactivitiesto their allottedspace.(Id. at 13, u 82). Prospective

exhibitorsandsponsors

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

booths.(Id. at l5-16,1T'11
101-104).
 Case 3:06-cv-01823-BD Document 115 Filed 09/16/2009 Page 3 of 11

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
 Case 3:06-cv-01823-BD Document 115 Filed 09/16/2009 Page 4 of 11

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).
 Case 3:06-cv-01823-BD Document 115 Filed 09/16/2009 Page 5 of 11

2. 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).
 Case 3:06-cv-01823-BD Document 115 Filed 09/16/2009 Page 6 of 11

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

considerswhetherthe statehas "so far insinuateditself into a position of interdependence

with the

[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
 Case 3:06-cv-01823-BD Document 115 Filed 09/16/2009 Page 7 of 11

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).

 Case 3:06-cv-01823-BD Document 115 Filed 09/16/2009 Page 8 of 11

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 16l-

162). 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

fficio memberof the SFOT Board
of Directors,he is not a voting member. (See Am. Stip. Factsat 12,174).
 Case 3:06-cv-01823-BD Document 115 Filed 09/16/2009 Page 9 of 11

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 8-

l0). 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

 Case 3:06-cv-01823-BD Document 115 Filed 09/16/2009 Page 10 of 11

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
 Case 3:06-cv-01823-BD Document 115 Filed 09/16/2009 Page 11 of 11

the planningand operationof municipalair show,playedan active and direct role in enforcing

speechrestrictions by plaintiff).
challenged

CONCLUSION

Plaintiffhasfailedtoestablishthe requirement
threshold maintain
ofstateactionnecessaryto

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.").