Thomas J. Sims, Plaintiff-appellant, v. Jefferson Downs, Inc. et al., Defendants-appellees, 611 F.2d 609 (5th Cir. 1980)

Sims, a horseman and state-licensed jockey's agent, prays for damages and injunctive relief in this Civil Rights action. 42 U.S.C. §§ 1983, 1985(3). He alleges deprivation of constitutional rights, in that he has been ejected from a state-licensed private race-track and subjected to arrest and track expulsion proceedings, because he attempted to organize the horse trainers into an association and because he publicly and privately criticized the management of the track.

Pursuant to certification, F.R.Civ.P. 54(b), the plaintiff Sims appeals the partial dismissal of his suit. On appeal, the principal defendants before us are the race track (Jefferson Downs, Inc., also referred to as the Jefferson Downs Racing Association) and its manager (Marie Krantz).¹  The substantial issues posed by Sims' appeal are:

I. Was summary judgment properly granted dismissing his section 1983 claim against Jefferson Downs and Krantz? That is, do the pleadings, answers to interrogatories, statement of uncontested facts, and affidavits on file show no genuine issue as to the material fact of state action requisite for a section 1983 suit? If there is no genuine issue, summary judgment was proper.

II. Was summary judgment properly granted dismissing his section 1985(3) claim against Jefferson Downs and Krantz?²  That is, do the filings show no genuine issue as to the material fact that these defendants' conduct was not grounded on the racial (or at least class-based) discrimination required for a section 1985(3) suit?

We (1) reverse the dismissal of the section 1983 claim, since issues of material fact preclude summary judgment as to it, and (2) affirm the dismissal of the section 1985(3) claim.

In order to be entitled to relief under section 1983,³  the plaintiff must show (a) that the defendant deprived him of a right secured to him by the Constitution or federal law and (b) that the deprivation occurred under color of state law. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155, 98 S. Ct. 1729, 1733, 56 L. Ed. 2d 185 (1978); Adickes v. S. H. Kress and Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 1604, 26 L. Ed. 2d 142 (1970); See also White v. Scrivner Corp., 594 F.2d 140, 141 (5th Cir. 1979).

Jefferson Downs, the defendant, contends that no state action was involved in its own ejectment of Sims from the race track on account of his criticism and "disruptive" conduct. The defendant argues that its expulsion of Sims was within its proprietary rights as owner and operator of the track; it contends that the mere fact that the track operation was subject to state regulation in much of its activity did not sufficiently implicate the state in the particular conduct complained of so as to constitute state action in its regard. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S. Ct. 1965, 28 L. Ed. 2d 529 (1972).

The fact of heavy state regulation does not, in itself, transform otherwise private actions into state action for purposes of the Fourteenth Amendment and section 1983. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974). Rather, "the inquiry must be whether there is 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." Id., 419 U.S. at 351, 95 S. Ct. at 453.

The determination of whether there is sufficient state action by non-state persons must be made by sifting facts and weighing circumstances case by case. Bailey v. McCann, 550 F.2d 1016, 1018 (5th Cir. 1977), citing Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S. Ct. 856, 860, 6 L. Ed. 2d 45 (1961). This essentially factual determination hinges upon whether the state is shown to be sufficiently connected with the particular aspect of the defendant's conduct complained of, so that the respondent's act is treated as that of the state itself. Robinson v. Price, 553 F.2d 918 (5th Cir. 1977). In absence of such sufficient state connexity, the non-state defendant's private conduct is not actionable under section 1983. Bailey v. McCann, supra; Fulton v. Hecht, 545 F.2d 540 (5th Cir. 1977).

The burden upon the party moving for a summary judgment is, first, to show the absence of a genuine issue concerning any material fact. Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 213-14 (5th Cir. 1976). Hence, for purposes of appellate review of a summary judgment dismissing a plaintiff's section 1983 claim, the question of whether there is a factual issue as to state action must be resolved in favor of the plaintiff, in the absence of factual showing clearly negativing sufficient state connexity. Bailey v. McCann, supra.

B. Application of these Principles to the Present Case

Jefferson Downs' motion for summary judgment was supported by a memorandum of law and a "statement of uncontested facts." These showed its proprietary rights in operation and management of the track. They also purported to show a dichotomy between the private management of the Jefferson Downs Racing operations and the regulatory powers of the Louisiana State Racing Commission. (Jefferson Downs is one of the five tracks licensed by the Commission to operate in Louisiana, subject to Commission regulation and rules.)

In the district court's reasons for judgment, it sustained Jefferson Downs' motion for summary judgment essentially on the basis of the plaintiff's allegations and of the state statutes and regulatory scheme pertaining to horse racing.⁴  On this basis, it concluded that the expulsion efforts of Jefferson Downs, the private operator, were independent of expulsion efforts by the Commission's track stewards, who Were state officials.⁵ 

In essence, Jefferson Downs argues that its own expulsion of the plaintiff Sims, and its action causing his arrest for coming onto the track grounds, were as a matter of law private and non-state actions within its proprietary rights. The contemporaneous actions of the track stewards in suspending Sims, Jefferson Downs contends, were likewise as a matter of law acts of state regulatory agents which were entirely independent of Jefferson Downs' conduct, so that it cannot be charged with that state action by the track stewards.

For purposes of summary judgment, the difficulty with the reliance by Jefferson Downs upon these abstract propositions is that it has made no factual showing to contravene Sims' allegations that Jefferson Downs had ejected him from its track, in derogation of rights of free speech and of assembly guaranteed him by the First and Fourteenth Amendments, under color of the state statutes regulating horse racing, La.R.S. 4:141-83, indicating, Inter alia, that the racing commission stewards had participated with Jefferson Downs in this action.⁶  Furthermore, in the exhibits attached to the interrogatories filed by the co-defendant racing commission, there are substantial factual indicia that Jefferson Downs had availed itself of the commission's regulatory powers in aid of its expulsion of Sims from its track,⁷  particularly through the track stewards, state regulatory agents, all three of whom however are paid by Jefferson Downs.⁸ 

The record thus demonstrates a disputed issue of material fact concerning the involvement of state agents acting under color of state law and their close connexity with the expulsion by Jefferson Downs of Sims from its race track because of his exercise of alleged constitutional rights. As in Fitzgerald v. Mountain Laurel Racing, Inc., 607 F.2d 589 (3rd Cir. 1979), and Catrone v. Massachusetts State Racing Com'n, 404 F. Supp. 765 (D.C.Mass., 1975), Vacated (on abstention grounds, but approving rationale) 535 F.2d 669 (1st Cir. 1976), the action of the state racing commission or its stewards if we construe the disputed facts most favorably to the plaintiff as required for summary-judgment-review purposes was so intimately involved with the track-management's private act of expelling Sims as to constitute state participation in the challenged act.

Summary judgment dismissing the plaintiff's section 1983 claim must therefore be reversed.

The district court also dismissed the plaintiff's section 1985(3)⁹  claim against Jefferson Downs and its manager (Krantz), as well as (see note 2, Supra) against the state racing commission. This statute creates a cause of action for damages against private persons who conspire to deprive a plaintiff of his constitutional rights. The cause of action so created does not require state action; however, as an essential element "there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckinridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971).

Neither the pleadings nor any showing in the record indicate other than that the expulsion was directed against Sims alone, based upon his expression of views and his criticism found obnoxious by the track management. Sims argues strongly in brief that (at least for purposes of summary judgment) the discriminatory action was directed against him as a member of a class attempting to organize the trainers into an association. See Westberry v. Gilman Paper Co., 507 F.2d 206 (5th Cir. 1975), Vacated as moot pending rehearing en banc, 507 F.2d 216 (1975). Nevertheless, so far as the record before us shows, Sims' interest in and efforts to form a trainers' association were shared by no other persons at the track. Thus, the alleged invidious conduct was not class-based as required for a civil rights cause of action under section 1985(3).

We therefore find no error in the district court's dismissal of his section 1985(3) claim.

Summary

We reverse the dismissal of the plaintiff's section 1983 claim against the defendants Jefferson Downs and Krantz, and we remand it for further proceedings in the district court; we affirm the dismissal of the plaintiff's section 1985(3) claim against all defendants.

REVERSED AND REMANDED IN PART; AFFIRMED IN PART.