DeYoung v. Patten

• Decision Date: 14 March 1990
• Docket Number: No. 89-1037,89-1037
• Citation: 898 F.2d 628
• Parties: 17 Media L. Rep. 1638 Garry DeYOUNG, Appellant, v. Larry G. PATTEN, Executive Director; John C. White, Program Director; Iowa Public Television; Dean Borg; Iowa Public Broadcasting Network, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 628

898 F.2d 628

17 Media L. Rep. 1638

Garry DeYOUNG, Appellant, v. Larry G. PATTEN, Executive Director; John C. White, Program Director; Iowa Public Television; Dean Borg Iowa Public Broadcasting Network, Appellees.

No. 89-1037.

United States Court of Appeals Eighth Circuit.

Submitted Aug. 15, 1989.

Decided March 14, 1990.

Garry DeYoung, pro se.

Lynn M. Walding, Des Moines, Iowa, for appellees.

Before McMILLIAN, JOHN R. GIBSON and MAGILL, Circuit Judges.

McMILLIAN, Circuit Judge.

Garry DeYoung appeals pro se from a final order entered in the District Court ¹ for the Northern District of Iowa dismissing his case for failure to state a claim upon which relief could be granted. DeYoung v. Patten, No. C-86-4163 (N.D.Iowa Dec. 13, 1988). ² DeYoung sued Iowa Public Television (IPT), Iowa Public Broadcasting Network (IPBN), ³ Larry G. Patten, executive director of IPT, John C. White, program director of IPT, and Dean Borg, a speaker or commentator on the program Iowa Press, alleging they had committed various constitutional and statutory violations in connection with their coverage of his unsuccessful 1984 United States Senate campaign. For reversal DeYoung argues the district court erred in holding there was no state action for purposes of 42 U.S.C. Sec. 1983 and no implied private right of action for damages for violation of the equal time provision of the Federal Communications Act, 47 U.S.C. Sec. 315(a).

For the reasons discussed below, we affirm the order of the district court. DeYoung's motions for appointment of counsel and to remand the case to the district court for further proceedings are dismissed as moot.

PROCEEDINGS IN DISTRICT COURT

Both of DeYoung's complaints involved his unsuccessful 1984 campaign for the office of United States Senator from Iowa. DeYoung was a legally qualified candidate; the "major" political party candidates were Tom Harkin and Roger Jepsen. DeYoung alleged that IPT, White and Patten conducted and televised a debate between Harkin and Jepsen only, excluded him from the candidates' debate, and denied his request for equal air time. DeYoung also alleged that Borg discussed the U.S. Senate campaign on the program Iowa Press without mentioning his candidacy, despite his prior request for "fair treatment." DeYoung alleged that defendants' conduct violated his first amendment right to freedom of speech and access to the public, manipulated the political process, contributed to his loss of the 1984 election, and denied him equal protection. DeYoung sought only monetary damages ($20,000 against IPT, White and Patten; $10,000 against Borg) for "social ostracism, denial of access to the public, manipulation of the political process, and mental anguish."

The district court granted DeYoung's request for leave to proceed in forma pauperis. The state attorney general represented all defendants. Defendants filed motions to dismiss, alleging that IPT as a state agency (the public broadcasting division of the state Department of Cultural Affairs) was entitled to eleventh amendment immunity and that DeYoung had failed to state a claim against White, Patten and Borg because DeYoung had no first amendment or statutory right to appear on public television or on a particular program and had failed to allege any class-based discrimination. Defendants also argued that there is no private right of action for damages for violation of the equal time provision of the Federal Communications Act, 47 U.S.C. Sec. 315(a), and that any statutory duty thereunder is imposed on the broadcast licensee, not individual reporters, commentators or producers of particular programs. In response, DeYoung clarified his equal protection claim to allege that defendants improperly treated major party candidates differently than minor party and independent candidates.

In December 1987 the district court dismissed DeYoung's claims against Borg, holding that DeYoung had no first amendment right to compel Borg "as a television news commentator" to discuss his political candidacy on the program Iowa Press. DeYoung v. Patten, No. C-86-4163, slip Following supplemental briefing and a hearing conducted at least in part by telephone, the district court dismissed the claims against the remaining defendants. The district court held that there was no "state action" for purposes of 42 U.S.C. Sec. 1983 because the actions of IPT, White and Patten with respect to DeYoung's exclusion from the televised debate or debates could not be "fairly attributed" to the state. DeYoung v. Patten, No. C-86-4163, slip op. at 2-3 (N.D.Iowa Dec. 13, 1988) (order), citing Sinn v. The Daily Nebraskan, 829 F.2d 662, 665 (8th Cir.1987). The district court found that the state had administratively distanced itself from the editorial and programming decisions made by IPT, White and Patten. Slip op. at 2. This appeal followed.

op. at 2 (N.D.Iowa Dec. 18, 1987) (order), citing Christian Populist Party v. Secretary of State, 650 F.Supp. 1205, 1213 (E.D.Ark.1987) (newspaper). The district court also held that it lacked subject matter jurisdiction over DeYoung's claim that he had been denied equal time because, under the Federal Communications Act, 47 U.S.C. Sec. 315(a), such a claim was within the exclusive jurisdiction of the Federal Communications Commission (FCC). Slip op. at 5. The district court decided that it needed more information about whether IPT, White and Patten acted "under color of state law" for purposes of 42 U.S.C. Sec. 1983 and whether IPT was a state agency or merely a "lesser governmental unit" and invited supplemental briefing.

STANDARD OF REVIEW

In reviewing a Fed.R.Civ.P. 12(b)(6) dismissal for failure to state a claim, we accept the allegations in the complaint as true. The complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [the plaintiff's] claim that would entitle [the plaintiff] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Read liberally, DeYoung's complaint raised two claims. First, he alleged that all defendants violated his first amendment rights by excluding him from the televised candidates' debate and the program Iowa Press. Second, he alleged that defendants' conduct denied him "fair treatment" in violation of the "equal time" provision of the Federal Communications Act.

STATE ACTION

In the present case the district court applied the four-factor "state action" analysis set forth in Sinn v. The Daily Nebraskan and held defendants did not act "under color of state law." We disagree with the district court that defendants did not act under color of state law in excluding DeYoung from the candidates' debate and the program Iowa Press. For the reasons discussed below, we hold that the Sinn v. The Daily Nebraskan analysis is inapplicable and that there was state action. However, we affirm the district court order dismissing the complaint because we agree that DeYoung's complaint failed to state a claim.

"To state a claim under [42 U.S.C.] Sec. 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988) (physician under contract with state to provide medical services to prisoners held state actor). "The traditional definition of acting under color of state law requires that the defendant in a Sec. 1983 action have exercised power 'possessed by virtue of state law and made possible only because the wrong-doer is clothed with the authority of state law.' " Id., citing United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941). "To constitute state action, 'the deprivation must be caused by the exercise of some right or privilege created by the State ... or by a person for whom the State is responsible,' and 'the party charged with the deprivation must be a person who may fairly be said to be a state actor.' " Id., citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982).

In Sinn v. The Daily Nebraskan the defendants were the student editors of the student newspaper at a state university. The students were private parties; they were not state employees or under the control of state university officials. In that case, the students were "private actors" interposed between the plaintiffs and the state. In deciding whether the actions of private actors could be attributed to the state for purposes of 42 U.S.C. Sec. 1983, the court considered the extent of state regulation, the receipt of public funds, the type of function involved, and the presence of a symbiotic relationship. 829 F.2d at 665, citing Rendell-Baker v. Kohn, 457 U.S. 830, 840-42, 102 S.Ct. 2764, 2770-71, 73 L.Ed.2d 418 (1982) (employment decision of private school almost wholly funded by state and extensively regulated held not state action), and Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 2785-86, 73 L.Ed.2d 534 (1982) (placement decisions made by private nursing home that received government funds and was heavily regulated by state held not state action). See also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987) (USOC is a private, not-for-profit corporation established under federal law, partly funded through federal grants and federal statute granting its exclusive use of Olympic words and symbols; held no government action); Fulani v. League of Women Voters Education Fund, 684 F.Supp. 1185, 1189-92 (S.D.N.Y.1988) (no state action when private organization holds candidates' debate), aff'd, 882 F.2d 621 (2d Cir.1989). Cf. Gay & Lesbian Students Ass'n v. Gohn, 850 F.2d 361 (8th Cir.1988) (student senate's funding decisions not free from state university...