Blankenship v. Buenger

• Decision Date: 28 June 2016
• Docket Number: No. 15-50974,15-50974
• Parties: THOMAS J. BLANKENSHIP, 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.
• Court: U.S. Court of Appeals — Fifth Circuit

THOMAS J. BLANKENSHIP, 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.

No. 15-50974

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

June 28, 2016

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.

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 McLennanCounty 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 asdefendants, 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.

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 besued 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

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 ofofficial 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...