                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0065
                             Filed October 14, 2015


DOUGLAS GRASSLE,
    Plaintiff-Appellant,

vs.

THE CITY OF DAVENPORT, IOWA,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Joel W. Barrows,

Judge.



      Douglas Grassle appeals from the order granting summary judgment in

favor of the City of Davenport on his declaratory judgment action. AFFIRMED.




      Michael J. Meloy of Meloy Law Office, Bettendorf, for appellant.

      James W. White and Rand S. Wonio of Lane & Waterman, L.L.P.,

Davenport, for appellee.



      Considered by Mullins, P.J., Bower, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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SCOTT, Senior Judge.

       Douglas Grassle appeals from the order granting summary judgment on

his declaratory judgment action in favor of the City of Davenport (City). Grassle

initiated the action after receiving a trespass notice stating that any permission or

license he had to enter the Oakdale Cemetery, a non-profit cemetery located in

Davenport, had been revoked and withdrawn. He alleged the notice was issued

illegally and in violation of his due process rights under the federal and state

constitutions. The district court granted the City’s motion for summary judgment

after determining Grassle failed to prove the City’s involvement constituted state

action in violation of his due process rights.            Grassle challenges this

determination on appeal.

       We review rulings on motions for summary judgment for correction of

errors at law.     City of Johnston v. Christenson, 718 N.W.2d 290, 296 (Iowa

2006). Summary judgment is proper if there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P.

1.981(3). We must determine whether there is any material fact in dispute, and if

not, whether the district court correctly applied the law. See Shriver v. City of

Okoboji, 567 N.W.2d 397, 400 (Iowa 1997).

       The material facts are undisputed. Oakdale Cemetery is not owned by the

City of Davenport but is an independent cemetery under the general

management of Darrell Iossi, a private citizen. Iossi requested a trespass notice

from a Davenport Police Department officer. The officer filled out the notice and

Iossi signed it.    Iossi then requested the officer serve Grassle with trespass
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notice. The only question is whether the district court correctly applied the law in

determining this is insufficient to constitute state action.

       The United States and Iowa Constitutions limit state action that deprives a

person of property without due process of law. Green v. Racing Ass’n of Cent.

Iowa, 713 N.W.2d 234, 238 (Iowa 2006). In order to be considered a state action

there must first be a constitutional deprivation caused by the exercise of some

right or privilege created by the State or by a rule of conduct imposed by the

State or a person for whom the State is responsible. Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 50 (1999). The party charged with the deprivation must

also be a person who may fairly be said to be a state actor. Id. Action by an

individual may constitute state action in the following situations:

        (1) where a state acts directly through its officer or agent;
        (2) where the state acts in conjunction with business in a profit-
        making field; (3) where the state by its actions (or inaction)
        encourages or creates an atmosphere in which private citizens
        deprive others of their constitutional rights; (4) where the state
        affirmatively orders or approves the action in the course of its
        regulatory rule-making; and (5) where functions traditionally
        performed by the state are delegated to or performed by private
        interests.

Jensen v. Schreck, 275 N.W.2d 374, 385 (Iowa 1979).

       Grassle has failed to show a state action was involved in this case. As the

district court concluded, “the mere issuance of a trespass notice by a state actor

does not rise to the level of state action required to support a due process

violation.” This determination is supported by the law. See Green, 713 N.W.2d

at 242-43 (holding no state action present where racing association’s director of

human resources made the decision to issue trespass notices to jockeys banning

them from entering a racetrack on public property leased by county because
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there was no evidence the county controlled the decision to exclude the jockeys

and the county did not benefit from the constitutional violation alleged); Jensen,

275 N.W.2d at 385 (holding service of a notice of forfeiture does not constitute

state action where the state did not cause or even encourage forfeiture); see also

Williams v. Nagel, 643 N.E.2d 816, 820 (Ill. 1994) (holding service of notices by

police department barring plaintiff from apartment building was not sufficient

conduct to establish state action where apartment owner made decision

concerning who to place on “no trespass” list). The Davenport police officer did

not cause or encourage the trespass notice to be issued, but merely filled it out

and served it on Grassle at Iossi’s request. Iossi made the decision to revoke or

withdraw Grassle’s permission or license to enter the cemetery. Because the

district court correctly applied the law to the undisputed facts in determining no

state action was present, we affirm.

      AFFIRMED.
