Purdie v. Shaw

Filing 19

MEMORANDUM AND ORDER - IT IS ORDERED: 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 shall be entered by separate document. Plaintiff's Motion for Hearing (Filing No. 6 ) is denied. Plaintiff's Objection to the Notice of Removal to the United States District Court (Filing No. 7 ) is denied. Plaintiff's Objection to Defendant's Motion to Dismiss (Filing No. 8 ) is denied. P laintiff's Request to Present Oral Testimony (Filing No. 12 ) is denied. Plaintiff's Motion to Strike Removal (Filing No. 15 ) is denied. Defendant's Request to Submit for Decision on Motion to Dismiss (Filing No. 16 ) is denied as moot. Plaintiff's Motion to Remand (Filing No. 17 ) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KEITH D. PURDIE,
Plaintiff,
v.
DANIEL SHAW,
Defendant.

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4:17CV3049
MEMORANDUM
AND ORDER

Plaintiff 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.)
Based on these alleged constitutional violations, Plaintiff seeks $5 million in
damages, as well as an order prohibiting Defendant from purporting1 to excommunicate
Plaintiff from the Church. (Filing No. 1-1 at CM/ECF p. 4.)
After 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).2 (Filing No. 4.)
DISCUSSION
The 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

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Plaintiff asserts that he was not a member of the Church “branch” to which
Defendant belonged in Columbus, Nebraska, so Defendant had no authority to rescind
his Church membership.
2

Plaintiff argues that removal was improper because the parties are not citizens
of different states and the amount in dispute does not exceed $75,000. Even if
Plaintiff’s arguments were valid, this court has federal question jurisdiction under 28
U.S.C. § 1331 (federal district courts have original jurisdiction of all civil actions
arising under the Constitution), making removal proper under 28 U.S.C. § 1441(a)
(defendant may remove to federal district court any civil action brought in state court
over which the federal district court has original jurisdiction).
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cause of action for a private violation of constitutional privileges in the absence of state
action.”) (internal quotation omitted).
A 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.
Here, 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).
Accordingly,
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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 shall be entered by
separate document;
2.

Plaintiff’s Motion for Hearing (Filing No. 6) is denied;

3.
Plaintiff’s Objection to the Notice of Removal to the United States District
Court (Filing No. 7) is denied;
4.
denied;

Plaintiff’s Objection to Defendant’s Motion to Dismiss (Filing No. 8) is

5.

Plaintiff’s Request to Present Oral Testimony (Filing No. 12) is denied;

6.

Plaintiff’s Motion to Strike Removal (Filing No. 15) is denied;

7.
Defendant’s Request to Submit for Decision on Motion to Dismiss (Filing
No. 16) is denied as moot; and
8.

Plaintiff’s Motion to Remand (Filing No. 17) is denied.

DATED this 21st day of June, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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