United States District Court, S.D. Mississippi, Southern Division
JOHN FLETCHER; ELENA WEBER; JERRY WEBER; THOMAS ALFONSO; ANNE ALFONSO; and ROBERT ESHER, Plaintiffs,
DIAMONDHEAD COUNTRY CLUB AND PROPERTY OWNERS ASSOCIATION INC.; MARSHALL KYGER, in his official capacity as President of the Diamondhead Country Club and Property Owners Association Inc.; and BOARD OF DIRECTORS, in their official capacities, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
LOUIS GUIROLA, Jr., Chief District Judge.
BEFORE THE COURT is the  Motion for Summary Judgment filed by Defendants Diamondhead Country Club and Property Owners Association Inc. ("DPOA") and Marshall Kyger ("Kyger") in his official capacity as President of the DPOA. Having reviewed the submissions of the parties and the relevant law, the Court is of the opinion that Plaintiffs' § 1983 claims against the DPOA fail as a matter of law because the conduct of the Defendants does not constitute "state action."
This action arises out of the DPOA's prohibition on displays of political yard signs and door-to-door solicitation by property owners, including Plaintiffs. Plaintiffs claim that this prohibition violates their First and Fourteenth Amendment rights because the DPOA is a "state actor" since it is "inexorably intertwined with the City of Diamondhead." (Compl. 1 (¶ 2), ECF No. 1). Plaintiffs also argue that the DPOA is a "company town, " as that term has been discussed by the United States Supreme Court. Plaintiffs seek redress of their constitutional rights pursuant to 42 U.S.C. § 1983.
The DPOA argues on summary judgment that it is separate from the City of Diamondhead, and, thus, not a state actor subject to this suit. It also claims that, even if it is a state actor, Plaintiffs waived their constitutional rights. The Court does not reach the issue of waiver, however, because it finds that there is no genuine issue of material fact that the DPOA is not a state actor for purposes of Plaintiffs' § 1983 claims.
STANDARD OF REVIEW
A motion for summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party. Abarca v. Metro. Transit Auth., 404 F.3d 938, 940 (5th Cir. 2005). As movants, Defendants bear the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which they believe demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). If Defendants carry this burden, the burden shifts to Plaintiffs to show that summary judgment should not be granted. Id. at 324-25. Plaintiffs may not rest upon mere allegations in their Complaint but must set forth specific facts showing the existence of a genuine issue for trial. Abarca, 404 F.3d at 940.
Plaintiffs' "burden is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations and quotation marks omitted). While the Court is obligated to resolve factual controversies in favor of the non-moving party, it must only do so when there is an actual controversy, "that is, when both parties have submitted evidence of contradictory facts." Id. The Court will not, in the absence of proof, assume that the non-moving party could or would prove the necessary facts. Id. Finally, "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a [factfinder] to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted).
SUMMARY JUDGMENT FACTS
The Court notes that many of Plaintiffs' summary judgment "facts" in response to Defendant's Motion are mere argument of counsel not supported by actual evidence. See Little, 37 F.3d at 1075 (unsubstantiated assertions are insufficient to overcome summary judgment); Chester v. Associates Corp. of N. Am., No. 3:97-CV-3186-L, 2000 WL 743679, at *3 (N.D. Tex. May 26, 2000) ("Argument of counsel is not evidence...."). In addition, Defendant's have made several objections to Plaintiff's summary judgment exhibits. When the argument of counsel is set aside, in the light most favorable to Plaintiff, the relevant facts for summary judgment purposes are as follows:
Background of the DPOA
The Diamondhead common interest development ("CID") was first established in 1970. The Master Covenants applicable to the CID prohibit most signs, including political signs, on the residential lots in the CID and have done so since 1970. The DPOA, a private, non-profit corporation, was also incorporated in 1970 and its membership is composed of the incorporators and the owners and purchasers of lots in the Diamondhead CID. For purposes of this Motion, the DPOA concedes that the majority of residents in the City of Diamondhead (including Plaintiffs) live in the CID and are subject to the Master Covenants. Moreover, in addition to the Master Covenants, the DPOA has adopted rules for residents in the Diamondhead CID, which include a general rule in effect since 1989 prohibiting door-to-door solicitation.
In 1984, the Diamondhead CID conveyed to the DPOA ownership of its common amenities (including a country club, golf course, tennis courts, pools, a marina, and an airport) and the DPOA continues to operate and maintain these amenities. In 1989, the DPOA was also given the power to enforce the restrictive covenants applicable to the residential lots within the Diamondhead CID and continues to have that power through today. The DPOA's main purpose is to maintain the amenities and enforce the covenants.
The DPOA does not provide electric, water, sewage, or garbage disposal services to residents in the Diamondhead CID. It does not have a police or fire department and does not maintain any public property except for a small green space adopted pursuant to the City of Diamondhead's Adopt-a-Right-of-Way program. The DPOA does not own, operate, or maintain any water or sewage treatment facility, public school, library, or any ...