Stone v. Elohim, Inc. , 336 F. App'x 841 ( 2009 )


Menu:
  •                                                                         FILED
    United States Court of Appeals
    Tenth Circuit
    July 10, 2009
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    JOSIAH STONE,
    Plaintiff-Appellant,                      No. 08-7119
    v.                                     Eastern District of Oklahoma
    ELOHIM, INC.,                                 (D.C. No. 6:08-CV-00266-RAW)
    Defendant-Appellee.
    ORDER AND JUDGMENT *
    Before LUCERO, MURPHY and McCONNELL, Circuit Judges.
    Josiah Stone, a pro se plaintiff, brought a discrimination claim alleging that
    Elohim, Inc. had unlawfully evicted him from his land because of his race and
    disability. The district court dismissed his action for failure to state a claim. Mr.
    Stone has appealed that dismissal, and we now affirm.
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination
    of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
    therefore submitted without oral argument. This order and judgment is not
    binding precedent, except under the doctrines of law of the case, res judicata, and
    collateral estoppel. It may be cited, however, for its persuasive value consistent
    with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    I. BACKGROUND
    As best we can tell from his complaint, Mr. Stone resided on eight acres of
    tax-exempt property in Adair, Oklahoma. This property was owned and
    maintained by Elohim, Inc., a non-profit corporation which Mr. Stone describes
    as a “cult,” Aplt. 2, whose “religion states that they are God’s holy seed and
    outsiders cannot participate.” R. 142. Mr. Stone alleges that, in 2008, Elohim
    and its agents took a number of steps to force him from the property, including
    assaulting his family members, refusing his family water from the community
    well, cutting him off from all internet access, shunning him and his family,
    cutting down his fences, pulling guns on him, stealing one of his horses, shooting
    his other horses, and, eventually, evicting him. Aplt. 2–6. Mr. Stone is a
    Cherokee Indian and claims that his eviction was racially motivated. He is
    seeking restitution in the amount of $250,000.
    II. DISCUSSION
    Mr. Stone characterizes his claim as one of “discrimination on tax-exempt
    land by a non-profit corporation in respects to plaintiffs disability, race, origin,
    creed.” Aplt. 1. He has cited a number of civil rights statutes as authority,
    including the Ku Klux Klan Act of 1871, 
    42 U.S.C. §§ 1983
    , 1985, and 1988. He
    also argues that Elohim violated his rights under the Americans With Disabilities
    Act of 1990, although it is unclear exactly what disability he has.
    -2-
    The problem with Mr. Stone’s civil rights claims is that they do not create
    causes of action against private corporations. See 
    42 U.S.C. § 1983
     (authorizing
    suit against person acting “under color of” state law); Johnson v. Rodrigues, 
    293 F.3d 1196
    , 1202 (10th Cir. 2002) (state action doctrine requires that “the
    deprivation must be caused by the exercise of some right or privilege created by
    the State or by a rule of conduct imposed 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”) (quoting Lugar v. Edmondson Oil Co.,
    Inc., 
    457 U.S. 922
    , 937 (1982)); Brown v. Reardon, 
    770 F.2d 896
    , 906 (10th Cir.
    1985) (“[A]n alleged conspiracy to infringe [constitutional] rights is not a
    violation of § 1985(3) unless it is proved that the state is involved in the
    conspiracy or that the aim of the conspiracy is to influence the activity of the
    state”) (quoting United Brotherhood of Carpenters and Joiners v. Scott, 
    463 U.S. 825
    , 830 (1983)); Browns v. Mitchell, 
    409 F.2d 593
    , 595 (10th Cir. 1969) (“It is
    clear, as it always has been since the Civil Rights Cases that ‘Individual invasion
    of rights is not the subject-matter of the (Fourteenth) amendment,’ and that
    private conduct abridging individual rights does no violence to the Equal
    Protection Clause (and likewise the Due Process Clause) unless to some
    significant extent the State in any of its manifestations has been found to have
    become involved in it.”). The validity of his claim thus depends on Elohim being
    a state actor, and Mr. Stone has alleged no facts which suggest this is the case.
    -3-
    There is no allegation that Elohim was acting in concert with the
    government, that it was performing a public function, or that its conduct was
    fairly attributable to the state. Mr. Stone has made much of Elohim’s tax exempt
    status, including a dispute as to whether or not Elohim is a 501(c)(3)
    organization. (Elohim denies that it is now, or has ever been, a 501(c)(3)). Tax
    exempt status alone, however, does not transform a corporation from a private
    institution to a state actor. See Browns, 
    409 F.2d at
    595–96 (tax exempt status
    might help perpetuate an institution, but that status itself is not sufficient to
    constitute state action). While the federal government might condition tax
    exemptions upon the recipient’s not discriminating, see, e.g., Bob Jones
    University v. United States, 
    461 U.S. 574
     (1983), the condition does not itself
    create a private right of action for a victim of discrimination. Because Mr. Stone
    has alleged no facts that would suggest Elohim is a state actor, his civil rights
    claim must fail as a matter of law.
    As for his ADA claim, we can find no record of Mr. Stone raising the claim
    in his original complaint before the district court. See Compl., July 16, 2008. A
    plaintiff cannot raise a claim for the first time before the appellate court. His
    appellate brief elaborates on the claim by simply saying, “I am currently on SSI
    Disability and my rights have been discriminated against.” Aplt. 6. Even if he
    had said this in his original complaint, it would fail to state a claim, as it fails to
    -4-
    allege either that he has a legally recognized disability under the ADA or that he
    was evicted because of this disability.
    To the extent Mr. Stone also raised claims of assault, theft, damage to his
    fence, or similar state law tort claims, Aplt. 2–5, the district court was within its
    discretion not to assume supplemental jurisdiction.
    III. CONCLUSION
    Mr. Stone has failed to state a claim upon which the federal courts can
    grant relief. The judgment of the United States District Court for the Eastern
    District of Oklahoma is AFFIRMED.
    Entered for the Court,
    Michael W. McConnell
    Circuit Judge
    -5-