Thomas Blankenship v. Charles Buenger

Case: 15-50974 Document: 00513568986 Page: 1 Date Filed: 06/28/2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 15-50974 FILED

June 28, 2016

Lyle W. Cayce

THOMAS J. BLANKENSHIP, Clerk

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.

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.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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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 McLennan

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County 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 as

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defendants, 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.

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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 be

1 Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).

2 Id. (citing In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)).

3 Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.

2010) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

4 Lane, 529 F.3d at 557 (citing Fin. Acquisition Partners LP v. Blackwell, 440 F.3d

278, 286 (5th Cir. 2006)).

5 Id. (quoting Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)).

6 See 42 U.S.C. § 1983 (“Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen

of the United States . . . to the deprivation of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the party injured . . . .” (emphasis added)).

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sued 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

7Filarsky v. Delia, 132 S. Ct. 1657, 1666 (2012) (quoting Lugar v. Edmondson Oil Co.,

457 U.S. 922, 937 (1982)).

8 Cornish v. Correctional Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005) (quoting

Richard v. Hoechst Celanese Chem. Grp., Inc., 355 F.3d 345, 352 (5th Cir. 2003)).

9 Lugar, 457 U.S. at 928 (quoting United States v. Price, 383 U.S. 787, 794 n.7 (1966)).

10 See Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 422-24 (Tex. 2004).

11 White v. ARCO/Polymers, Inc., 720 F.2d 1391, 1396 (5th Cir. 1983).

12 Martinez v. Bally’s La., Inc., 244 F.3d 474, 476 (5th Cir. 2001) (emphasis added).

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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 of

13 Lugar, 457 U.S. at 939.

14 See Cuyler v. Sullivan, 446 U.S. 335, 342 n.6 (1980) (describing the state action

inquiry as a “question of law”); see also United States v. Stein, 541 F.3d 130, 148 (2d Cir.

2008) (“[I]t remains a question of law whether the facts as found by the district court establish

state action.”); Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 344 n.7 (4th Cir.

2000) (“[T]he ultimate resolution of whether an actor was a state actor or functioning under

color of law is a question of law for the court.”); Jennings v. Patterson, 488 F.2d 436, 438 (5th

Cir. 1974) (“[S]tate action within the meaning of Section 1983 [is] an issue of law which

should never have been submitted to the jury.”).

15 See MacDonald v. Gen. Motors Corp., 110 F.3d 337, 341 (6th Cir. 1997) (“Judicial

admissions . . . typically concern only matters of fact.”); Glick v. White Motor Co., 458 F.2d

1287, 1291 (3d Cir. 1972) (“The scope of judicial admissions is restricted to matters of fact

which otherwise would require evidentiary proof, and does not include counsel’s statement of

his conception of the legal theory of a case.”). We note that CBWSC’s affirmative defense of

official immunity in the prior state court suit would likely not even constitute a judicial

admission in the prior state suit, itself, under Texas law. See Dorrough v. Faircloth, 443

S.W.3d 278, 284 (Tex. App.—San Antonio 2014, no pet.) (“Whether the doctrine of official

immunity may extend to a [particular individual] is a question of law which we review de

novo.”); H.E. Butt Grocery Co. v. Pais, 955 S.W.2d 384, 389 (Tex. App.—San Antonio 1997, no

pet.) (“A party may not judicially admit a question of law.”).

16 Universal Am. Barge Corp., v. J-Chem, Inc., 946 F.2d 1131, 1142 (5th Cir. 1991)

(emphasis added); see also Heritage Bank v. Redcom Labs., Inc., 250 F.3d 319, 329 (5th Cir.

2001); State Farm Mut. Auto. Ins. Co. v. Worthington, 405 F.2d 683, 686 (8th Cir. 1968).

17 2 MCCORMICK ON EVIDENCE § 257 (Kenneth S. Broun et al. eds., 7th ed. 2013).

18 See, e.g., Jones v. Morehead, 68 U.S. 155, 165 (1835); Martinez v. Bally’s La., Inc.,

244 F.3d 474, 476 (5th Cir. 2001); Wheeler v. John Deere Co., 935 F.2d 1090, 1097-99 (10th

Cir. 1991); Mo. Hous. Dev. Comm’n v. Brice, 919 F.2d 1306, 1314 (8th Cir. 1990); Davis v.

A.G. Edwards and Sons, Inc., 823 F.2d 105, 107-08 (5th Cir. 1987); Hill v. Fed. Trade

Comm’n, 124 F.2d 104, 106 (5th Cir. 1941).

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official 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 official immunity is inconsistent with a

subsequent denial of state action, he offers no evidence that the Texas court

relied on the CBWSC Defendants’ official immunity defense before

Blankenship nonsuited the action. Moreover, we are doubtful that the state

law official immunity defense is “clearly inconsistent” with the state action

inquiry. For one thing, while Texas law governs and defines the scope of official

immunity, “state action” is a federal issue. Nuances in the respective inquiries

could render official immunity unavailable, while state action may be present,

and vice versa. In sum, judicial estoppel is not appropriate in this case. 20

B

On appeal, Blankenship alternatively urges that § 1983’s state action

requirement is met because CBWSC and the State of Texas are “so inextricably

intertwined” that CBWSC’s conduct is fairly attributable to the State.

But Blankenship did not advance his entwinement argument or

supporting facts in his complaint. Other than Blankenship’s reference to the

purported “judicial admission,” his complaint merely asserts the bare legal

conclusion that the CBWSC Defendants are state actors who acted under color

19 Hall v. GE Plastic Pacific PTE Ltd., 327 F.3d 391, 396 (5th Cir. 2003).

20 For similar reasons, we reject Blankenship’s conclusory arguments respecting bad

faith pleading and detrimental reliance.

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of state law. Blankenship supplied legal argument for his “state actor” claim

for the first time in his opposition to Sheriff McNamara’s motion to dismiss,

and his arguments there constituted only a portion of those he now argues on

appeal. 21

The CBWSC Defendants urge that, due to these defects, we should not

consider Blankenship’s entwinement argument, as neither it nor its

supporting facts were set forth in Blankenship’s complaint. It is

well-established that our review of a Rule 12(b)(6) dismissal is limited to the

allegations in the pleadings, i.e. “the complaint, any documents attached to the

complaint, and any documents attached to the motion to dismiss that are

central to the claim and referenced by the complaint.” 22 Nevertheless, because

at least some of Blankenship’s allegations supporting his entwinement

argument were presented to and considered by the district court, we will

address the issue.

As Blankenship notes, CBWSC was formed under Chapter 67 of the

Texas Water Code and is subject to various regulations thereunder. 23 Chapter

67 details the formation and election procedures for the corporation, and

delineates its powers. 24 Water supply corporations like CBWSC must conform

21 In Blankenship’s opposition, he noted that various Texas laws define nonprofit

water supply corporations as either “political subdivisions” or “governmental bodies,” that

CBWSC is exempt from ad valorem taxes, and that CBWSC is highly regulated by the State.

22 Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.

2010); Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (“Because the court

reviews only the well-pleaded facts in the complaint, it may not consider new factual

allegations made outside the complaint, including those made on appeal.”); Fin. Acquisition

Partners LP v. Blackwell, 440 F.3d 278, 289 (5th Cir. 2006) (refusing to review a “new

allegation” because “we review only the well-pleaded facts in the complaint”); see also Estes

v. JP Morgan Chase Bank, Nat. Ass’n, 613 F. App’x 277, 280 (5th Cir. 2015) (per curiam)

(holding that “the district court did not err in failing to consider . . . additional factual

allegations” provided in an opposition to a motion to dismiss).

23 TEX. WATER CODE ANN. § 67.001, et seq.

24 See id.

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to Chapter 12 of the Texas Water Code, 25 which sets forth “provisions generally

applicable to water rights,” and Chapter 22 of the Texas Business

Organizations Code, which regulates nonprofit corporations. 26 Blankenship

notes that CBWSC is regulated by agencies of the State, namely, the Texas

Commission on Environmental Quality and the Texas Public Utilities

Commission. Under Texas law, CBWSC has a monopoly “in the areas [it]

serve[s]” 27 and is granted power of eminent domain. 28 CBWSC is tax exempt

under both Texas and federal law. 29 Additionally, because CBWSC receives

financial assistance from the Water Assistance Fund pursuant to Chapter 15

of the Texas Water Code, it is subject to open meetings and records laws. 30

Blankenship notes that Chapter 15 of the Water Code defines a “political

subdivision” to include nonprofit water supply corporations 31 and, similarly,

the Texas Open Meetings and Records Act defines “governmental body” to

include the same. 32 Blankenship finally contends that CBWSC’s provision of

water utility service constitutes a “public function” traditionally performed by

the State.

Blankenship’s “entwinement” argument derives from the Supreme

Court’s opinion in Brentwood Academy v. Tennessee Secondary School Athletic

Ass’n. 33 There, the Court held that the “nominally private character of the

Association [wa]s overborne by the pervasive entwinement of public

institutions and public officials in its composition and workings.” 34 The Court

25 Id. § 12.001 et. seq.

26 TEX. BUS. ORGS. CODE ANN. § 22.001 et. seq.

27 TEX. WATER CODE. ANN. §§ 13.001(b)(1), 13.002(19).

28 Id. § 49.222.

29 See TEX. TAX CODE ANN. §§ 11.30, 171.065; 26 U.S.C. § 501.

30 TEX. WATER CODE ANN. § 15.006.

31 Id. § 15.001(5).

32 TEX. GOV’T CODE §§ 551.001(3)(K), 552.003(1)(A)(ix).

33 531 U.S. 288 (2001).

34 Id. at 298.

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found it significant that: (1) the Association there was composed not of natural

persons but of largely public schools; (2) the Association was governed by

public officials, namely, “principals, assistant principals, and

superintendents”; (3) the Association enjoyed funding derived from the

member schools’ own sources of income; (4) “State Board members [we]re

assigned ex officio to serve” on the Association’s Board; and (5) “the

Association’s ministerial employees” were “eligible for membership in the state

retirement system.” 35

The symbiotic relationship illustrated in Brentwood is not present here.

There is no indication that state officers or public officials sit on CBWSC’s

Board, that CBWSC employees enjoy state benefits, or that CBWSC members

are primarily public entities that control and fund the Board. To the extent

that CBWSC could service public entities, “mere public buyers of contract

services . . . do not convert the service providers into public actors.” 36 It is

simply not the case, as it was in Brentwood, that the state is intertwined with

CBWSC from the “bottom up” and the “top down.” 37

It is true, as the aforementioned Texas statutory law illustrates, that

CBWSC is highly regulated by the State and is afforded certain benefits, such

as tax exemptions and a monopoly in its service area. But the Supreme Court

has found an absence of state action in similar circumstances. In Jackson v.

Metropolitan Edison Co., 38 the Court concluded that a privately-owned utility

35 Id. at 298-300.

36 Id. at 299 (citing Rendell-Baker v. Kohn, 457 U.S. 830, 839-43 (1982)); see TEX.

WATER CODE ANN. § 67.002 (indicating that water supply corporations can provide services

to a “municipality, a private corporation, an individual, or a military camp or base”).

37 Brentwood, 531 U.S. at 300.

38 419 U.S. 345 (1974).

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company was not a state actor even though it was “subject to extensive state

regulation.” 39 Specifically, the Court stated,

The mere fact that a business is subject to state regulation does

not by itself convert its action into that of the State for purposes of

the Fourteenth Amendment. Nor does the fact that the regulation

is extensive and detailed, as in the case of most public utilities, do

so. 40

While the Court noted that “[i]t may well be that acts of a heavily regulated

utility with at least something of a governmentally protected monopoly will

more readily be found to be ‘state’ acts,” it found the existence of a monopoly

“not determinative” in the case before it. 41 The Court reiterated the principle

that there must be 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.” 42 In Jackson, as here, there was no

relationship between the challenged actions and CBWSC’s monopoly status. 43

We also reject Blankenship’s argument that the delegation to state

agencies of the power to regulate CBWSC indicates that the agencies “control”

CBWSC. It is true that a nominally private entity may be treated as a state

actor “when it is controlled by an ‘agency of the state.’” 44 But in the seminal

case cited for that proposition, the private entity, a college, was actually

“administered” and “operated” by the “Board of Directors of City Trusts of the

City of Philadelphia” because the founder of the college had named the City of

39 Id. at 350.

40 Id. (internal citation omitted).

41 Id. at 350-52; see also Pub. Utils. Comm’n v. Pollack, 343 U.S. 451, 462 (1952)

(expressly disclaiming reliance on a transit authority’s congressionally-granted monopoly

status).

42 Jackson, 419 U.S. at 351 (citing Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176

(1972)).

43 Id.

44 Brentwood Acad. v. Tenn. Secondary School Athletic Ass’n, 531 U.S. 288, 296 (2001).

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Philadelphia the trustee of the fund left to “erect[], maint[ain], and operat[e]”

the college. 45

Nor does the fact that the Texas Open Meetings and Records Act and the

Texas Water Code define entities like CBWSC as “political subdivision[s]” or

“governmental bod[ies],” respectively, supply state action. We agree with the

district court that the terms in the definitional sections are applicable only, as

they explicitly state, “[i]n this chapter.” 46 Moreover, the question of state

action is a functional analysis conducted under federal law; how a state defines

a particularly entity is not determinative. We are supported in this conclusion

by the Supreme Court’s affirmance of a similar question raised in City of

Combes v. East Rio Hondo Water Supply Corp. 47 There, a three-judge district

court considered whether a nonprofit water supply corporation, regulated in

identical fashion to CBWSC, was a “‘political subdivision’ of the State of Texas

for purposes of the Voting Rights Act.” 48 Though the Texas Water Code, as

Blankenship highlights here, indeed defines a water supply corporation as a

“political subdivision,” that label was not determinative for purposes of the

Voting Rights Act. 49

Blankenship fares no better under the “public function” test, which asks

whether “the private entity has exercised powers that are traditionally the

exclusive prerogative of the State.” 50 In Jackson, the Court held that the

provision of electrical utility services was not a traditional function of the state,

in part because the state in which the utility conducted business had “rejected

45 Pennsylvania v. Bd. of Dirs. of City Trusts of Phila., 353 U.S. 230, 231 (1957) (per

curiam).

46See TEX. GOV’T CODE ANN. §§ 551.001, 552.003.

47244 F. Supp. 2d 778, 779 (S.D. Tex.), aff’d, 539 U.S. 955 (2003).

48 Id. at 780.

49 Id.

50 Blum v. Yaretsky, 457 U.S. 991, 1005 (1982) (emphasis added) (internal quotation

marks omitted).

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the contention that the furnishing of utility services is either a state function

or a municipal duty.” 51 Our review of Texas law reveals that private

corporations have long enjoyed a share in the water utility industry. 52 We

conclude that the provision of water services does not fall within the “very few

activities” exclusively reserved to the State. 53

In any event, we do not think that the requisite connection, or nexus,

“between the State and the challenged action” of CBWSC exists here. 54

Blankenship alleges that the CBWSC Defendants conspired to violate his

asserted property and liberty interests—the right to enter CBWSC premises

as a purported “member/owner”—and to violate his free speech rights

protected by the First Amendment. These claims do not relate to the State’s

regulation of CBWSC. Blankenship is correct that Chapter 67 of the Texas

Water Code regulates the election requirements of a nonprofit water supply

corporation. But the mere fact that CBWSC might not have complied with a

relevant regulation is not alone sufficient to ascribe “state action” to an

otherwise private entity.

Finally, we reject Blankenship’s reliance on a “joint activity” theory to

establish state action. Beyond the fact that Blankenship did not present the

theory to the district court, he raised the argument for the first time on appeal

in his reply brief. For multiple reasons, then, the argument has been waived. 55

51 Jackson, 419 U.S. at 353.

52 See Allen v. Park Place Water, Light & Power Co., 266 S.W. 219, 220

(Tex. Civ. App.—Galveston 1924, writ ref’d); Cole v. Adams, 49 S.W. 1052, 1052

(Tex. Civ. App. 1898).

53 See White v. Scrivner Corp., 594 F.2d 140, 142 (5th Cir. 1979).

54 Brentwood Acad. v. Tenn. Secondary School Athletic Ass’n, 531 U.S. 288, 295 (2001)

(quoting Jackson, 419 U.S. at 351); see also Rundus v. City of Dallas, 634 F.3d 309, 315 (5th

Cir. 2011) (holding that there was no “pervasive entwinement” where the city “had no role in

enacting or enforcing [the private entity’s] restriction on distribution of literature”).

55 Dixon v. Toyota Motor Credit Corp., 794 F.3d 507, 508 (5th Cir. 2015) (“Arguments

raised for the first time in a reply brief are waived.”); see also Chavez v. Wells Fargo Bank,

N.A., 578 F. App’x 345, 348 (5th Cir. 2014) (per curiam) (“As a general rule, we will not

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Even were we to consider it, Blankenship’s argument implies that the Sheriff’s

Department’s role in issuing a trespass warning and threatening arrest, both

of which Blankenship admits a deputy could do, subjects CBWSC to § 1983

liability. This bootstrap argument goes beyond that envisioned by the “joint

activity” test to which Blankenship refers. Neither “private defendants’

misuse of a valid state statute” nor “[p]olice reliance in making an arrest on

information given by a private party” renders a private party a state actor. 56

Because Blankenship’s complaint fails to allege facts sufficient to show

that the CBWSC Defendants were acting under color of state law, the district

court properly dismissed Blankenship’s § 1983 claims.

IV

Blankenship also appeals the district court’s dismissal of his “as-applied”

procedural due process challenge to Texas Penal Code § 30.05. The district

court concluded that Blankenship could not meet the injury-in-fact

requirement of standing because he had not been prosecuted under § 30.05,

and for similar reasons, Blankenship’s challenge was not ripe. The court

further held that § 30.05 was constitutional as applied to Blankenship.

Section 30.05(a) provides:

A person commits an offense if the person enters or remains on or

in property of another . . . without effective consent and the person:

(1) had notice that the entry was forbidden; or (2) received notice

to depart but failed to do so. 57

consider a new theory or issue that was ‘not properly before the district court.’” (quoting

Dunbar v. Seger-Thomschitz, 615 F.3d 574, 576 (5th Cir. 2010))); Benefit Recovery, Inc. v.

Donelon, 521 F.3d 326, 329 (5th Cir. 2008) (“We will not consider arguments . . . that w[ere]

not presented to the district court” and “arguments cannot be raised for the first time in a

reply brief.”).

56 Daniel v. Ferguson, 839 F.2d 1124, 1130 (5th Cir. 1988).

57 TEX. PENAL CODE ANN. § 30.05(a).

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We first clarify the structure and scope of Blankenship’s claim. Though

Blankenship cites § 30.05 as the object of his “as-applied” challenge, his

complaint attacks the due process procedures relevant to the “criminal

trespass warning ticket,” which he claimed was issued pursuant to § 30.05. He

claims that a deputy issued the warning “without hearing any kind of

argument on Plaintiff’s behalf,” that he has no right to appeal the warning,

that his only recourse is to convince CBWSC to “rescind the warning,” and that

CBWSC refuses to grant him a hearing in regards to the trespass warning. 58

Blankenship concludes that the ticket constitutes an indefinite ban from the

property, lest he subject himself to arrest under § 30.05. Blankenship

ultimately requests that Sheriff McNamara and his Department, as well as the

CBWSC Defendants, be enjoined from enforcing the trespass ticket.

But as Blankenship admits in his reply brief, § 30.05 does not

contemplate “trespass warning” tickets. 59 We therefore frame Blankenship’s

as-applied challenge to the statute that he attacks, § 30.05. We read

Blankenship’s complaint to take issue with the lack of a hearing, prior to an

arrest under § 30.05, to ascertain whether Blankenship has rights to the

property. Additionally, we note that the only due process with which we are

concerned is that due from the Sheriff’s Department. To the extent

Blankenship contends he should receive some degree of process from CBWSC,

his argument is foreclosed by our conclusion that the CBWSC Defendants are

not state actors.

58 Blankenship’s complaint is unclear as to who issued the trespass warning. At one

point, Blankenship states that “sheriff deputies . . . issued him a trespass warning ticket.”

Elsewhere, he claims that he was “given a trespass warning . . . by the Sheriff.”

59 To the contrary, a review of Texas case law indicates that such warnings are

typically issued pursuant to local ordinances or unofficial policy. See, e.g., Ray v. State, No.03-

14-00538-CR, 2016 WL 1317941, at *2 (Tex. App.—Austin Mar. 30, 2016) (unpublished);

Griffin v. State, No. 05-07-00480-CR, 2007 WL 4282154, at *2 (Tex. App.—Dallas Dec. 7,

2007, no pet.) (unpublished).

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At the outset, Sheriff McNamara contends that he is not a proper

defendant in this suit and should be dismissed from the case. 60 Sheriff

McNamara avers that Blankenship has not pled a policy sufficient to support

municipal liability and, further, that he cannot be liable under a theory of

respondeat superior. The district court rested on these conclusions.

Blankenship responds that Sheriff McNamara is a proper defendant because

he is a “necessary party” pursuant to Federal Rule of Civil Procedure 19.

Blankenship argues that without Sheriff McNamara, his request for injunctive

relief cannot be granted.

We note that Blankenship appears to miss the pertinent inquiry, which

is whether a jurisdictional basis exists for filing suit against Sheriff McNamara

to challenge the constitutionality of § 30.05 as it applies to Blankenship. He

does cite Texas authority, not relevant here, indicating that “a party

responsible for enforcing” a law must be named in a suit challenging the law’s

constitutionality. 61 This principle appears similar to that of Ex parte Young. 62

It is perhaps possible that Sheriff McNamara could be a proper defendant

pursuant to Ex parte Young, which permits individuals to file suit “against

state officials for the purpose of enjoining the enforcement of an

unconstitutional state statute.” 63 Ex parte Young requires such officers have

“some connection with the enforcement of the act” and “threaten[ ] to exercise

60 We note that a lack of proper adversaries can defeat the existence of a justiciable

case or controversy. See, e.g. Okpalobi v. Foster, 244 F.3d 405, 409 (5th Cir. 2001) (en banc)

(holding that because “plaintiffs have no case or controversy with these defendants . . . we

lack Article III jurisdiction”); Culinary Workers Union, Local 226 v. Del Papa, 200 F.3d 614,

617 (9th Cir. 1999) (addressing whether the “attorney general’s claim that [she is not a proper

defendant] renders this pre-enforcement action nonjusticiable”). Accordingly, we can discuss

the issue prior to and alongside the other requirements of standing at issue in this case.

61 See Motor Vehicle Bd. of Tex. Dep’t of Transp. v. El Paso Indep. Auto. Dealers Ass’n,

Inc., 37 S.W.3d 538, 541 (Tex. App.—El Paso 2001, pet. denied).

62 209 U.S. 123, 157 (1908).

63 Okpalobi, 244 F.3d at 411 (citing Young, 209 U.S. at 157).

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that duty.” 64 Blankenship has not cited Ex parte Young, much less alleged that

Sheriff McNamara has the requisite “connection” with the enforcement of

§ 30.05 or had, himself, threatened to arrest Blankenship.

We ultimately need not resolve this issue because, regardless,

Blankenship lacks standing to assert his procedural due process challenge to

§ 30.05. “To establish standing, a plaintiff must show: (1) it has suffered, or

imminently will suffer . . . injury-in-fact; (2) the injury is fairly traceable to the

defendant’s conduct; and (3) a favorable judgment is likely to redress the

injury.” 65 “An injury-in-fact constitutes ‘an invasion of a legally protected

interest which is (a) concrete and particularized, and (b) actual or imminent,

not conjectural or hypothetical.’” 66

The district court concluded that because Blankenship had not been

prosecuted for criminal trespass under § 30.05, he failed to satisfy the

injury-in-fact requirement for standing. We first note that the precedent relied

on by the district court—Johnson v. City of Dallas 67—is inapposite to the case

at hand. First, the district court misread the opinion as concluding that the

plaintiffs there lacked standing to challenge § 30.05 because they had not been

convicted of trespass. That was not our holding. The Johnson plaintiffs’

challenge to § 30.05 was not before the court in Johnson; the plaintiffs had not

cross-appealed the district court’s conclusion that § 30.05 was constitutionally

valid. 68 At issue instead was whether the plaintiffs had standing for their

as-applied, Eighth Amendment challenge to a city ordinance prohibiting

64 Id. at 414-15 (citing Young, 209 U.S. at 155-58).

65 Houston Chronicle Publ’g Co. v. City of League City, 488 F.3d 613, 617 (5th Cir.

2007) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

66 Wendt v. 24 Hour Fitness USA, Inc., --- F.3d ----, 2016 WL 1458989, *1 (5th Cir.

2016) (quoting Lujan, 504 U.S. at 561).

67 61 F.3d 442 (5th Cir. 1995).

68 Id. at 443.

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sleeping in public. 69 We held that the plaintiffs, none of whom had been

convicted under the ordinance, lacked standing because the Eighth

Amendment was “designed to protect those convicted of crimes.” 70 As

Blankenship notes, Johnson’s rationale, fairly read, is limited to standing in

the Eighth Amendment context.

Though the district court’s reliance on Johnson was error, Blankenship

lacks standing. Our holding rests primarily on the fact that § 30.05 has not

yet been applied to Blankenship.

Blankenship argues against this result and contends that he is entitled

to challenge § 30.05 because he has been threatened with arrest. We of course

recognize that this court and the Supreme Court have held that “it is not

necessary that [a plaintiff] first expose himself to actual arrest or prosecution

to be entitled to challenge a statute that he claims deters the exercise of his

constitutional rights.” 71 In Steffel v. Thompson, for example, the Supreme

Court held that a petitioner had standing to seek a declaratory judgment in

his as-applied, pre-enforcement challenge to the constitutionality of a state

criminal trespass statute under the First Amendment when police had

threatened him with prosecution if he again attempted to distribute handbills

at a shopping center, and petitioner’s companion had in fact been arrested for

the same activity. 72 We have similarly held that a person need not “disobey

the law and await his prosecution” before challenging the constitutionality of

a state criminal statute. 73

69 Id. at 444.

70 Id. at 444-45 (quoting Ingraham v. Wright, 430 U.S. 651, 664 (1977)).

71 Steffel v. Thompson, 415 U.S. 452, 459 (1974).

72 Id.

73 Peyote Way Church of God, Inc. v. Smith, 742 F.2d 193, 198 (5th Cir. 1984); see also

Houston Chronicle Publ’g Co. v. City of League City, 488 F.3d 613, 617-19 (5th Cir. 2007)

(holding that petitioners had standing to mount facial and as-applied pre-enforcement

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However Steffel, and the various other cases in which threats of

prosecution were deemed sufficient, are inapplicable to this case. Most

involved either facial challenges or First Amendment claims. 74 We have noted

that “[s]tanding requirements in the First Amendment context . . . are relaxed

‘because of a judicial prediction or assumption that the statute’s very existence

may cause others not before the court to refrain from constitutionally protected

speech or expression.’” 75

This showing is difficult to make in this case. We have previously stated

that “[t]he contention that a party cannot challenge a statute as-applied unless

the statute has been applied to him is generally correct.” 76 The Eleventh

Circuit has similarly indicated that the contention that a statute is

unconstitutional as-applied, even though it has not yet been applied to the

complaining party, “appears to be an inherent contradiction.” 77 While the

Eleventh Circuit assumed, but did not decide, that a credible threat of injury

may suffice in such a context, it “believe[d] that there are few situations where

that type of challenge would prevail” and noted that such a rare situation may

exist only if the “plaintiff’s complaint . . . include[s] all of the factual

allegations necessary to clearly illustrate the context in which the statute will

be applied.” 78

challenge where petitioners showed “imminent future prosecution if the City is not

enjoined”).

74 See, e.g., Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014); Babbitt v.

United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979); Steffel, 415 U.S. at 459; Houston

Chronicle, 488 F.3d at 617-18; Peyote Way, 742 F.2d at 196, 198.

75 J&B Entm’t, Inc. v. City of Jackson, Miss., 152 F.3d 362, 366 (5th Cir. 1998) (quoting

Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973)); see also Nat’l Rifle Ass’n of Am. v. Magaw,

132 F.3d 272, 284-85 (6th Cir. 1997).

76 See Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 660 (5th Cir. 2006).

77 GeorgiaCarry.Org., Inc. v. Georgia, 687 F.3d 1244, 1255 n.20 (11th Cir. 2012).

78 Id.

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Blankenship’s as-applied, pre-enforcement claim here does not cross the

line from speculative and abstract to concrete and imminent. Though

Blankenship was threatened with arrest, and has received a trespass warning

ticket, he has not been arrested, prosecuted, or convicted of a violation of

§ 30.05. Blankenship’s potential future arrest is an insufficient factual basis

upon which to hold that § 30.05 fails to satisfy procedural due process as

applied in this case. 79 We cannot know what process, in fact, will be afforded

to Blankenship even assuming CBWSC directors or employees request his

arrest and he is in fact arrested by the Sheriff’s Department and subsequently

prosecuted.

It is further questionable whether Blankenship has adequately pled that

his arrest pursuant to § 30.05 would invade a “legally protected interest.” “The

requirements of procedural due process apply only to the deprivation of

interests encompassed by the Fourteenth Amendment’s protection of liberty

and property.” 80 Blankenship alleges that he has a property interest and

corresponding liberty rights in entering CBWSC property because he is an

“owner” by virtue of his “membership” in CBWSC. This claim is nothing more

than a “conclusory allegation[], unwarranted factual inference[ ], or legal

conclusion[]” that we are not required to accept as true. 81 Blankenship points

to no “ordinance, official policy, state or local law, contract, or other enforceable

agreement” to support his claim of a constitutionally protected property

79 Cf. Houston Chronicle, 488 F.3d at 623 (holding that “future enforcement intentions

is an inadequate factual basis to support . . . any as-applied analysis,” and while “an

as-applied unconstitutionality issue may arise in the future . . . if the City enforces [the

ordinance] against the newspapers . . . , we can not uphold the district court’s conclusion that

[the ordinance] has been applied unconstitutionally”).

80 Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972).

81 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005); see also Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (a plaintiff must offer “more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do”).

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interest in entering CBWSC property or remaining on CBWSC premises when

asked to leave. 82 Accordingly, Blankenship’s complaint fails to set forth

sufficient facts indicating that the application of § 30.05 to him would invade

a legally protected interest.

To the extent Blankenship actually intended to assert an as-applied,

procedural due process challenge to the Sheriff’s Department’s “practice” of

issuing trespass warning tickets, he would have standing. This is because he

has actually received the trespass ticket, which is intended to operate as a type

of injunction. 83 Blankenship only alleged this purported “practice” for the first

time on appeal and in his reply brief. Nevertheless, we read his complaint and

arguments before the district court to allege deprivation sufficiently, insofar as

he was not provided an opportunity to contest the issuance of the trespass

warning or appeal it.

Still, Blankenship’s challenge, as applied to his circumstances, would not

make out a procedural due process violation. To assert a procedural due

process claim, one must have a protected property or liberty interest. 84

Blankenship’s purported interest lies in his asserted

ownership-by-virtue-of-membership argument. As indicated previously,

Blankenship’s contention that his membership supplies a property right to

enter CBWSC property is neither supported by the alleged facts, nor plausible

82 See, e.g. Gentilello v. Rege, 627 F.3d 540, 545 (5th Cir. 2010).

83 See Catron v. City of St. Petersburg, 658 F.3d 1260, 1267 (11th Cir. 2011) (holding

that homeless plaintiffs’ challenge to the constitutionality of city ordinances permitting

trespass warnings without any apparent appeal procedures could withstand a motion to

dismiss, noting that the warnings “are intended to serve instantly as some kind of restraining

injunction”).

84 See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999); Mathews v. Eldridge,

424 U.S. 319, 332 (1976),

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on its face. The liberty interest to which Blankenship refers—“right to

locomotion”—does not apply in these circumstances. 85

We affirm the district court’s dismissal of Blankenship’s complaint for a

lack of standing and failure to state a claim.

* * *

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

85 See, e.g., Catron, 658 F.3d at 1266 (holding that “Plaintiffs have a constitutionally

protected liberty interest to be in parks or on other city lands of their choosing that are open

to the public generally”) (citing City of Chicago v. Morales, 527 U.S. 41 (1999) (plurality

opinion)); Kent v. Dulles, 357 U.S. 116, 127 (1958) (recognizing liberty interest in “[f]reedom

to travel”).

23