# Swantack v. New Albany Park Condominium Association Board of Directors

> District Court, S.D. Ohio · December 13, 2022

URL: https://www.frixlaw.com/law-library/cases/10381422

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** December 13, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOSEPH J. SWANTACK, JR., et al.,

Plaintiffs, : Case No. 2:22cv2130

- vs - Judge Sarah D. Morrison
Magistrate Judge Elizabeth P.
NEW ALBANY PARK Deavers
CONDOMINIUM ASSOCIATION
BOARD OF DIRECTORS,
et al.,
:
Defendants.

OPINION AND ORDER
Plaintiffs Joseph J. Swantack, Jr. and Christine M. Swantack own and reside
in a condominium in the New Albany Park Condominium Association in New
Albany, Ohio; they seek to fly a “Thin Blue Line” flag1 outside their condominium as
an expression of their patriotism and to show their support and gratitude for law
enforcement; the flag is owned by Plaintiff National Police Association, Inc. (“NPA”).
Plaintiffs allege that Defendants New Albany Park Condominium Association
Board of Directors (“the Board”) and Lifestyle Property Management, Ltd. (“LPM”)
prohibited them from flying their flag.

1The Thin Blue Line flag resembles an American flag but has a blue stripe—
it has been a sign of support for law enforcement but has also come to signal
opposition to the racial justice movement. Janelle Griffith, Police Chief Bans ‘Thin
Blue Line’ Imager, Says its been ‘Co-opted’ by Extremists, NBC NEWS, Jan. 29, 2021,
https://perma.cc/JN46-QYWK; Tovia Smith, Thin Blue Line Flags Stir Controversy
In Mass. Coastal Community, NPR, Jul. 31, 2020, https://perma.cc/GQ5J-3572.
The matter is before the Court on three motions. First, Plaintiffs filed a
Motion for Preliminary Injunction. (ECF No. 10.) The Defendants opposed the
Motion and, in so doing, filed a Motion for Judgment on the Pleadings. (ECF No.

20.) Those two motions are now fully briefed. (ECF Nos. 24, 28.) Plaintiffs also filed
a Motion to Consolidate the Hearing on their Motion for Preliminary Injunction
with the Trial on the Merits of their Complaint (ECF No. 11), that motion is also
fully briefed. (ECF Nos. 18, 23.)
For the reasons set forth below, Defendants’ Motion for Judgment on the
Pleadings is GRANTED. Accordingly, both of Plaintiffs’ motions are DENIED as
moot.

I. BACKGROUND
On a Motion for Judgment on the Pleadings, all factual allegations in the
complaint are accepted as true but legal conclusions are not. Tucker v. Middleburg-
Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008). The following summary is drawn
from the factual allegations in the Amended Complaint.
In August 2020, the Swantacks began flying a “Thin Blue Line” flag from the
front porch of their condominium. (¶ 10.) Shortly after they hung their flag, the

Swantacks received a notice from LPM on behalf of New Albany Park Condominium
Association that the flag was not “approved” under the Association’s rules and
regulations. (¶ 15.)
When the Swantacks continued to fly the flag, LPM sent them a second
notice of violation, this time informing the Swantacks that a $50.00 enforcement
assessment had been charged to their account and that continued violation could
result in the loss of their amenity access and/or legal action. (¶ 16.) The Swantacks
were also told that they could dispute the violation by seeking a hearing with the
Board and management. (Id.)

On September 2, 2021, when the Swantacks still did not take down the flag,
LPM’s legal counsel sent a letter ordering them to immediately remove the flag or
the Association would proceed with legal action against the Swantacks. (¶ 17.) This
letter was followed by a third notice of violation from LPM on September 17, 2021.
(¶ 18.) At the time of the third notice, a $100.00 enforcement assessment was
charged to the Swantacks’ account. (Id.)
The following month, the Swantacks requested a meeting with the Board and

asked for an “immediate stay on all pending and future ‘enforcement assessments’
and ‘imposition of legal fees’” until that meeting could occur. (¶¶ 20-22.) Before a
meeting could be scheduled, and in an effort to avoid legal action and additional
charges, Mr. Swantack emailed LPM and the Board to tell them that the flag had
been removed and that he and his wife would pay the accumulated fines and legal
assessments. (¶ 23.) Mr. Swantack said that he would put the flag back up if they

learned that they have a legal right to display the flag. (Id.) In response to Mr.
Swantack’s notice, Defendants informed the Swantacks that they owed $1080 for
“flag enforcement.” (¶ 25.)
Plaintiffs bring one claim under 42 U.S.C. § 1983 for violation of their First
Amendment right to freedom of expression. They claim that the Swantacks were
prevented from flying NPA’s flag, and that the monetary assessment effectively
chilled the NPA’s and the Swantacks’ right to freedom of speech. (¶ 28.) Both the
NPA and the Swantacks continue to want the Swantacks to fly the Thin Blue Line
flag outside of their residence. (¶ 29.)

II. MOTION FOR JUDGMENT ON THE PLEADINGS
A. Standard of Review
A motion for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c) is analyzed in the same manner as a motion to dismiss under Rule
12(b)(6). See Tucker, 539 F.3d at 549. To overcome such a motion, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The complaint need
not contain detailed factual allegations, but it must include more than labels,
conclusions, and formulaic recitations of the elements of a cause of action. Directv,
Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). A motion for
judgment on the pleadings should be granted when there is no material issue of
fact, and the moving party is entitled to judgment as a matter of law. Tucker, 539
F.3d at 549.
B. Legal Standard and Analysis
Defendants move for judgment on the pleadings on several grounds, but the
Court need only address their argument that that they are not state actors because
that argument is dispositive.
For Plaintiffs’ § 1983 claim to succeed, the alleged deprivation of their First

Amendment rights must have been caused by state action. Tahfs v. Proctor, 316
F.3d 584, 590 (6th Cir. 2003) (internal citation and quotations omitted). While
private companies are generally considered private actors, Defendants’ actions may
constitute state action if it is “fairly attributable to the State.” Id. (quoting Lugar v.
Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)).
The Sixth Circuit has outlined four tests “to aid courts in determining
whether [challenged actions are] fairly attributable to the State: (1) the public

function test; (2) the state compulsion test; (3) the symbiotic relationship or nexus
test; and (4) the entwinement test.” Marie v. Am. Red Cross, 771 F.3d 344, 362 (6th
Cir. 2014) (collecting cases). While general rules for the application of these tests
can be drawn from caselaw, the ultimate determination of state action is
“necessarily [a] fact-bound inquiry.” Lugar, at 939. “[E]xamples may be the best
teachers.” Revis v. Meldrum, 489 F.3d 273, 289 (6th Cir. 2007) (quoting Brentwood

Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296 (2001)).
Plaintiffs argue that the public function test applies because Defendants’
assessment of penalties and legal expenses in accordance with Ohio Rev. Code
5311.19(A) and their threats of judicial enforcement constituted state action. (ECF
No. 24, PageID 402.) Plaintiffs do not argue that Defendants’ conduct constituted
state action under any other test. Instead, they argue that Defendants’ conduct was
state action because they could not have acted as they did in the absence of state
law. The Court will address each argument in turn.
1. Defendants did not perform a public function.

“The public function test ‘requires that the private entity exercise powers
which are traditionally exclusively reserved to the state, such as holding elections.’”
Bell v. Mgmt. & Training Corp., 122 F. App’x 219, 222 (6th Cir. 2005) (quoting
Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992). “While many functions have
been traditionally performed by governments, very few have been ‘exclusively
reserved to the State.’” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978)
(internal citations omitted). Thus, the emphasis of the public function test is on

whether a function is both “traditionally” and “exclusively” reserved to the state.
Using this test, the Supreme Court has found constitutional liability against
private entities administering elections, Terry v. Adams, 345 U.S. 461 (1953);
operating “company towns,” Marsh v. Alabama, 326 U.S. 501 (1946); and
administering private property used for a public purpose, Evans v. Newton, 382 U.S.
296 (1966). However, both the Supreme Court and the Sixth Circuit have rejected

many other attempts to frame private actions as encroaching on a traditionally
exclusive public function. See Flagg Bros., at 158–160 (settlement of disputes
between debtor and creditor is not a traditional public function); San Francisco Arts
& Athletics v. U.S. Olympic Committee, 483 U.S 522 (1987) (regulation of Olympic
sports teams by a private organization was not an exclusively public function);
Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (provision of special education is not an
exclusively public function); Cornett v. Mason Volunteer Fire Co., 1996 WL 242035,
at *2 (6th Cir. 1996) (firefighting and emergency medical services are not exclusive
public functions); Newsom v. Vanderbilt Univ., 653 F.2d 1100 (6th Cir. 1981)

(provision of hospital services for the poor was not an exclusive public function). See
also Santiago v. Puerto Rico, 655 F.3d 61, 69 (1st Cir. 2011) (provision of
transportation services for state-sponsored programs is not an exclusive public
function).
Running a condominium association is not a power traditionally or exclusive
reserved to the State. So instead, Plaintiffs argue that the Defendants relied on a
state statute to force Plaintiffs to take down the “Blue Lives Matter” flag—

Defendants “utilize[ed] the alternate enforcement mechanism made available by
Ohio Rev. Code § 5311.19(A).” (ECF No. 24, PageID 400). This argument is strained
at best. As an initial matter, Ohio Rev. Code § 5311.19(A) does not provide
alternative enforcement mechanisms. The only enforcement mechanism made
available by that statute is the ability for a condominium owner or tenant to file
suit against an owner or tenant who fails to comply with a provision of a deed or

rule imposed by the unit owners association. Ohio Rev. Code § 5311.19(A). No such
allegation is made here. Instead, Defendants used the threat of judicial enforcement
as leverage to obtain enforcement fees from Plaintiffs. This is common tactic in
settlement negotiations and is in no way an exclusive or traditional public function.
What is more, even if Defendants had filed suit under Ohio law, a private
party seeking to enforce a private contract is also not a power reserved to the State,
even if a state statute allows for such enforcement. See Jackson v. Metropolitan
Edison Co., 419 U.S. 345, 354 (1974) (no state action where a private utility
company terminated services pursuant to a state regulatory provision); Flagg Bros.,

at 149 (no state action where a private actor sold goods entrusted to him for storage,
as permitted by self-help provision of the New York Uniform Commercial Code,
absent an allegation of the participation of any public official); see also Bey v. LVN
Corp., No. 14-13723, 2015 WL 4546752 (E.D. Mich July 28, 2015) (no state action
where private mortgage lender engaged in a state-approved foreclosure practices).
Defendants did not perform a public function.

2. Defendants’ conduct did not otherwise constitute state
action.
Plaintiffs remaining argument is, in essence, that Defendants conduct must
have been state action because they could not have acted as they did in the absence
of state law. This argument is similar to the first half of the state-action test
employed in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 622 (1991).
In Edmonson, the Supreme Court found that the discriminatory use of
preemptory challenges during civil litigation was state action. In doing so, it applied
a two-part test: (1) “whether the claimed constitutional deprivation resulted from
the exercise of a right or privilege having its source in state authority” and (2)
whether the challenged conduct, in all fairness, must be treated as governmental in

character. Id. at 620 (citing Lugar, 457 U.S. at 939–42). The Court found that the
first prong was easily met because prospective jurors could not have been excluded
on the basis of race but for the authority to make peremptory challenges that was
granted by federal law. But this was only half of the analysis. Under the second
prong, the Court explained that:
Although private use of state-sanctioned private remedies or procedures
does not rise, by itself, to the level of state action, our cases have found
state action when private parties make extensive use of state
procedures with the overt, significant assistance of state officials. It
cannot be disputed that, without the overt, significant participation of
the government, the peremptory challenge system, as well as the jury
trial system of which it is a part, simply could not exist.
Id. at 622 (internal citations and quotations omitted); see also, Lugar, at 939, n.21
(“a private party’s mere invocation of state legal procedures” does not make that
party a state actor).
Even assuming that Plaintiffs could satisfy the first prong, their argument
fails under the second. Defendants did not make extensive use of state procedures—
in fact, Plaintiffs allege no use of state procedures at all. To get around this,
Plaintiffs argue that Defendants’ private enforcement of penalties negated the
requirement for judicial intervention.2 (ECF No. 24, PageID 400.) Not so. Both
requirements must be met to establish state action. Defendants’ threat of using
state procedures and the fact that they imposed a fine that could be the subject of a
state court procedures does not make state actors of Defendants.
Even if Defendants had actually filed suit against the Swantacks, as a
general principle, the filing of a suit between private parties in state court is not

2Confusingly, Plaintiffs cite Shelly v. Kramer, 334 U.S. 1, 19 (1948) in support
of this argument. However, in that case, the Supreme Court found state action
precisely because judicial intervention occurred. See also Edmonson, 500 U.S. at
622 (citing Shelley for the proposition that state action occurs where “the injury
caused is aggravated in a unique way by the incidents of governmental authority.”).
state action. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 354 (1974) (no
state action where a private utility company terminated services pursuant to a state
regulatory provision); Revis, 489 F.3d at 291–92 (“simply invoking or following

unchallenged state procedures, even if done in bad faith, does not render . . .
private-party defendants state actors,”) (citing Lugar, 457 U.S. at 941); Miller v.
Countrywide Home Loans, 747 F. Supp. 2d 947, 954 (S.D. Ohio 2010) (Sargus, J.)
(use of state courts and laws in foreclosure proceedings does not constitute state
action); Dunwoody v. Homeowners Ass’n, Inc. v. DeKalb Cty., Ga., 887 F.2d 1455,
1459, n.4 (11th Cir. 1989) (private litigation is not state action); Stevens v. Frick,
372 F.2d 378, 381 (2nd Cir. 1967) (a state “does not clothe persons who use its

judicial processes with the authority of the state.”); Fallis v. Dunbar, 386 F.Supp.
1117, 1120 (N.D. Ohio 1974), aff’d, 532 F.2d 1061 (6th Cir. 1976) (filing an eviction
action in state court is not state action) (citing Henry v. First Nat’l Bank, 444 F.2d
1300 (5th Cir. 1981); but see Shelly v. Kramer, 334 U.S. 1 (1948).
On this point, the Shelley decision, on which Plaintiffs rely heavily, has
limited precedential value. At least one court in our circuit has explicitly limited the

application of Shelley on the basis that:
[A] logical extension of the doctrine would result in a federal cause of action
existing whenever any state police power is used by private persons where
constitutionally protected rights are involved . . .. Such an extension has so
great an application to purely private actions as to be overbroad.
Fallis, 386 F.Supp. at 1120, aff’d, 532 F.2d 1061 (6th Cir. 1976). In addition, the
Eleventh Circuit has recognized that the holding in Shelley “has not been extended
beyond the context of race discrimination” and that, subsequent to Shelley, the
concept of state action has “been narrowed by the Supreme Court.” Davis v.
Prudential Secs., Inc., 59 F.3d 1186, 1191 (11th Cir. 1995) (citing Nat’l Collegiate
Athletic Ass’n v. Tarkanian, 488 U.S. 179, 199 (1988); San Francisco Arts &

Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 542–47 (1987);
Flagg Bros., 436 U.S. at 164–65).
Further still, Shelley is readily distinguishable from the facts of this case. In
Shelley, the private actor made the state court privy to their discriminatory
purpose—the state court in that case knew that the prospective buyer was black
and enforced a covenant that was racially restrictive. Shelley, 334 U.S. at 6–7. The
petitioners there were subject to state court orders divesting them of title in the

properties at issue, so the Supreme Court’s holding was premised on the idea that
the “[p]articipation of the State consists in the enforcement of the restrictions . . ..”
Id. at 13 (emphasis added); see also Id. at 19 (“It is clear that but for the active
intervention of the state courts, supported by the full panoply of state power,
petitioners would have been free to occupy the properties in question without
restraint.”). There are no allegations of active intervention of the state courts here—

Ohio law merely affords condominium associations a method of enforcing their rules
and regulations on their residents without inquiring into his motive for doing so.
Defendants made no use of state procedures and received no assistance from
state officials, so their conduct was not state action.
Because Plaintiffs have failed to allege state action, Defendant’s motion for
judgment on the pleadings is GRANTED.
III. CONCLUSION
Accordingly, the Motion for Judgment on the Pleadings (ECF No. 20) is
GRANTED. Plaintiffs’ Motion for Preliminary Injunction (ECF No. 10) and Motion
to Consolidate (ECF No. 11) are DENIED as moot.

IT IS SO ORDERED.

/s/ Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10381422. Public record. Not legal advice.