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Carlson v. Roetzel & Andress: 1983 - using ex parte procedure to reverse workers' compensation decision doesn't make employer or lawyer a state actor

1The Honorable Ralph R. Erickson, United States District Court for the District
of North Dakota.
United States Court of Appeals
No. 08-1975
Merwin R. Carlson, *
Plaintiff/Appellant, *
v. **
Appeal from the United States
Roetzel & Andress, an Ohio legal * District Court for the
professional association; Richard A. * District of North Dakota.
Plewacki; Adrienne L. Stemen; GMR *
Transportation, Inc., a North Dakota *
corporation; and Dennis Gustafson, *
Defendants/Appellees. *
Submitted: November 14, 2008
Filed: December 4, 2008
Before WOLLMAN, BEAM, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Merwin R. Carlson appeals the district courts1 grant of summary judgment on
his 42 U.S.C. 1983 claim. Having jurisdiction under 28 U.S.C. 1291, this court
Carlson provided trucking services to GMR Transportation, Inc., a North
Dakota corporation. After an accident, he filed a claim with the Workforce Safety &
Insurance Fund (WSI), North Dakotas workers compensation agency. WSI granted
the claim.
North Dakota law permits an employer to challenge an award of workers
compensation benefits. N.D. Cent. Code 65-01-16. WSI so informed Carlson
when awarding him benefits. After receiving notice of WSIs decision, GMR
Transportation contacted the Roetzel & Andress law firm. Two of the firms
attorneys, Richard A. Plewacki and Adrienne L. Stemen, represented GMR in its
request for reconsideration. Plewacki and Stemen submitted a lengthy legal analysis,
affidavits, and other documents. See N.D. Cent. Code 65-01-03 (The person who
asserts that a person is an independent contractor under the common law test, rather
than an employee, has the burden of proving that fact.); N.D. Admin. Code 92-01-
02-49 (listing the factors distinguishing employees from independent contractors).
Neither Carlson nor his attorney received notice of the ex parte request or the
supplementary documents.
Two months after GMR Transportation submitted its challenge, WSI issued a
Notice of Decision reversing its previous order. WSI concluded that Carlson was an
independent contractor, not an employee, and thus ineligible for WSI benefits. WSI
ordered Carlson to repay the benefits. Carlson requested reconsideration; WSI again
denied benefits. Carlson then sought a hearing before an Administrative Law Judge.
While the claim was pending before the ALJ, Carlson filed a federal lawsuit
against GMR Transportation, Roetzel & Adams, Plewacki, Stemen, and GMR owner
Dennis Gustafson (the Defendants). Carlson included a claim under 42 U.S.C.
1983 for Defendants ex parte opposition to his award. The district court granted
summary judgment to the Defendants on all claims. The only issue on appeal is
whether the Defendants are state actors under 1983.
This court reviews de novo a grant of summary judgment. Tjernagel v. Gates
Corp., 533 F.3d 666, 671 (8th Cir. 2008). This court affirms if the record shows no
genuine issue of material fact and that the moving party is entitled to judgment as a
matter of law. Id., citing Fed. R. Civ. P. 56(c). This court views the facts most
favorably to Carlson, the non-moving party, giving him the benefit of all reasonable
inferences. McNary v. Schreiber Foods, Inc., 535 F.3d 765, 768 (8th Cir. 2008).
Section 1983 creates a cause of action against a person acting under color of
any statute . . . of any State who deprives another of a federally protected right. 42
U.S.C. 1983. Only state actors can be held liable under Section 1983.
Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851, 855 (8th Cir. 2001). [T]he
under-color-of-state-law element of 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful. Americans United for
Separation of Church and State v. Prison Fellowship Ministries, Inc., 509 F.3d 406,
421 (8th Cir. 2007), quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50
(1999). To be liable under 1983, the claimed deprivation must result from the
exercise of a right or privilege having its source in state authority, and the party
charged with the deprivation must be one appropriately characterized as [a] state
actor[]. Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir. 2007), cert.
denied, 128 S.Ct. 387 (2007), quoting Lugar v. Edmondson Oil Co., 457 U.S. 922,
937 (1982).
Carlsons claim that the Defendants are state actors rests on an expansive
reading of the Lugar case. There, the Supreme Court held that a creditor who secured
prejudgment attachment of a debtors property pursuant to state statute acted under
color of state law for purposes of 1983. Id. at 924-25, 942. The statute authorized
a court clerk to issue a writ of attachment based solely on a creditors ex parte petition.
Id. at 924-25. No judge reviewed the petition before the clerk issued the writ. Id.
The Court limited its holding, noting that we do not hold today that a private partys
mere invocation of state legal procedures constitutes joint participation or conspiracy
with state officials satisfying the 1983 requirement of action under color of law.
Id. at 939 n.21 (quotations and citations omitted). The holding today, as the above
analysis makes clear, is limited to the particular context of prejudgment attachment.
The Defendants in this case are all private parties none of whom sought
prejudgment attachment of Carlsons property. When Carlson received WSI benefits,
the award letter alerted him that his employer could challenge the decision. In Lugar,
on receipt of the creditors ex parte petition, the clerk issued a writ of attachment; the
creditor controlled the attachment process. Here, critically, WSI controlled the
reconsideration process, reversing its earlier order after an independent two-month
review. Since the Defendants mere invocation of state legal procedures is not state
action, Lugar provides no support for Carlsons 1983 claim. The same analysis
applies to both GMR and its attorneys, who stand on the same legal footing as their
clients. See Hoai v. Vo, 935 F.2d 308, 313 n.5 (D.C. Cir. 1991).
Carlson also relies on the Supreme Courts decision in Connecticut v. Doehr,
501 U.S. 1 (1991). Like Lugar, Doehr concerned a state statute that authorized
prejudgment attachment without prior notice or hearing. Id. at 4. The Court did not,
however, consider whether the private party was a state actor. Doehr offers no
guidance here.
The district court correctly applied this courts 1983 case law when rejecting
Carlsons claim. Finding private parties liable as state actors, this court has required
joint action or conspiracy with state authorities. See Wickersham, 481 F.3d at 595,
599 (holding that a private air show is a state actor when its president is the final
arbiter of what constituted unwanted protest and directs whom police arrest); Dubose
v. Kelly, 187 F.3d 999, 1003 (8th Cir. 1999) (holding that a litigant who receives ex
parte assurances of success from a judge is a state actor under 1983). By contrast,
while the Defendants here invoked state authority, they never exercised state power
over Carlson or conspired with state officials. See Youngblood, 266 F.3d at 855
2Carlson emphasizes a district court decision applying Lugar to a workers
compensation scheme. Baksalary v. Smith, 579 F.Supp. 218 (E.D. Pa. 1984). This
court agrees with the Fifth Circuit that Lugar does not support the Baksalary courts
conclusion that private participants in a workers compensation case are necessarily
state actors under 1983. Barnes v. Lehman, 861 F.2d 1383, 1386-87 (5th Cir.
3This court expresses no opinion whether any attorneys ex parte
communications complied with the North Dakota Rules of Professional Conduct or
North Dakota statutes or administrative regulations.
(holding that a store is not a state actor when, pursuant to state statute, it detains a
suspected shoplifter in a reasonable manner and for a reasonable period of time);
Miller v. Compton, 122 F.3d 1094, 1098 (8th Cir. 1997) (a private lawyer is not a
state actor when she did no more than provide information to a government
On the undisputed facts, none of the Defendants is, as a matter of law, a state
actor under 1983.3
The judgment of the district court is affirmed.


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