               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0544n.06
                           Filed: August 2, 2007

                                       Case No. 05-6607

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

 GARRETT REDMOND,                                    )
                                                     )
        Plaintiff-Appellant,                         )
                                                     )
                v.                                   )
                                                     )        ON APPEAL FROM THE
 THE JOCKEY CLUB; COMMONWEALTH                       )        UNITED STATES DISTRICT
 OF KENTUCKY; KENTUCKY HORSE                         )        COURT FOR THE EASTERN
 RACING AUTHORITY,                                   )        DISTRICT OF KENTUCKY
                                                     )
        Defendants-Appellees.                        )
                                                     )
 _______________________________________             )

BEFORE: BATCHELDER, CLAY, and ROGERS, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge.

                                            W hat’s in a name? that which we call a rose
                                            By any other name would smell as sweet;
                                            So Romeo would, were he not Romeo call’d,
                                            Retain that dear perfection which he owes
                                            W ithout that title.

                                            W ILLIAM S HAKESPEARE , R O M EO   AN D J U LIET ,   act 2, sc. 2.


       What’s in a name? To Garrett Redmond, who desires to name his Thoroughbred race horse

“Sally Hemings,” everything is in the name. When the Jockey Club, acting on behalf of the

Kentucky Horse Racing Authority (KHRA), denied his request to register his horse under that name,

Mr. Redmond protested and eventually filed a 42 U.S.C. § 1983 action in federal court, alleging a

violation of his rights under the First, Fifth, and Fourteenth Amendments to the United States

Constitution, and seeking both an injunction and money damages. Mr. Redmond also included a
                                                   No. 05-6607

pendant state law claim, alleging that the state of Kentucky, through the KHRA, had impermissibly

delegated legislative authority to the Jockey Club, in violation of Kentucky’s state constitution. The

defendants moved to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), and the district

court granted the motion. We affirm the judgment, but dismiss on different grounds.

                                                          I.

         We relate the facts as they appear in Mr. Redmond’s complaint and its attached exhibits. The

Kentucky Horse Racing Authority (KHRA) is an independent state agency established by statute to

“regulate the conduct of horse racing and pari-mutuel wagering on horse racing, and related activities

within the Commonwealth of Kentucky.” Ky. Rev. Stat. Ann. § 230.225(1). It has broad power over

horse racing activities, including the “full authority to prescribe necessary and reasonable

administrative regulations and conditions under which horse racing at a horse race meeting shall be

conducted.” Ky. Rev. Stat. Ann. § 230.260(3). One such regulation, pertinent to this case, is that

“[n]o horse shall be entered or raced in this state unless duly registered and named in the registry

office of the Jockey Club in New York.” 810 Ky. Admin. Regs. 1:012 (Sec. 1).1 No Kentucky

statute or regulation contains any further statement regarding the naming.

         The Jockey Club is the sole organization that registers and maintains records of

Thoroughbred horses in the United States, Canada, and Puerto Rico. It is a New York-based

organization, established in 1894 and offering membership by invitation only, whose principal



         1
          This provision also contains an exception to the requirement that horses must be registered and named in the
Jockey Club registry, stating: “except, however, the stewards may for good cause, in their discretion, waive this
requirement if the horse is otherwise correctly identified to the stewards’ satisfaction.” 810 Ky. Admin. Regs. 1:012
(Sec. 1). This exception is not at issue in the present case, however, as Mr. Redmond’s complaint does not claim that
he has ever, at any time during his extensive communications, requested the KHRA stewards to waive the requirement.

                                                          2
                                            No. 05-6607

function is maintaining The American Stud Book Principal Rules and Requirements, which includes

the universally-accepted rules and requirements for naming Thoroughbred horses. Rule 6(A) states

that “names will be assigned based upon availability and compliance with the naming rules as stated

herein.” Rule 6(F) identifies classes of names that are not eligible for use, including:

       Rule 6(F)(6):       Names of persons, unless written permission to use their name is
                           on file with the Jockey Club.
       Rule 6(F)(7):       Names of “famous” people no longer living, unless approval is
                           granted by the Board of Stewards of the Jockey Club.
       Rule 6(F)(8):       Names of “notorious” people.
       Rule 6(F)(13):      Names that are suggestive or have a vulgar or obscene meaning;
                           names considered in poor taste; or names that may be offensive
                           to religious, political or ethnic groups.

Rule 6(G) gives the Jockey Club Registrar the absolute right to approve all name requests. Rule 20

provides the applicant the right to a hearing, upon payment of a $1,000 non-refundable fee.

       When Mr. Redmond submitted the name “Sally Hemings” for his yearling filly in February

2004, the Jockey Club rejected it. A lengthy correspondence ensued, culminating in a telephone call

in which the Jockey Club’s president, Alan Marzelli, informed Mr. Redmond that the name is “in

poor taste and may be offensive to religious, political or ethnic groups.” Ultimately, Marzelli

advised Mr. Redmond in writing that:

       [T]he name ‘Sally Hemings’ is not eligible for use under Rule 6(F) of The Principal
       Rules and Requirements of The American Stud Book as the name is considered by
       this office to be in poor taste and a name that may be offensive to religious, political
       or ethnic groups (pursuant to Rule 6(F)(13)). Furthermore, and as you are aware, the
       name of a ‘famous’ person no longer living is not eligible under Rule 6(F)(7), unless
       approval is granted by the Board of Stewards of The Jockey Club.

Mr. Redmond appealed the decision to the Jockey Club Board of Stewards, objecting that it was

arbitrary and unwarranted. The Board rejected Mr. Redmond’s arguments on appeal and concluded

                                                  3
                                           No. 05-6607

that the use of the name “may be offensive to persons of African descent and other ethnic groups,

may be offensive to descendants of the specific people involved, may have negative historical

implications, may have negative moral implications and may be degrading to ethnic groups and

descendants of the people involved.” The Board also rejected the name based on the prohibition

against using the names of “famous person[s] no longer living.”

       In response, Mr. Redmond filed a seven-count complaint in federal court. The crux of Mr.

Redmond’s complaint (which he repeated at least four times) is that:

       But for The Jockey Club’s refusal to permit Mr. Redmond the use of the name ‘Sally
       Hemings’ the Filly would be eligible to race in Thoroughbred races in Kentucky.
       Without the approval of The Jockey Club as to a name for the Filly, Mr. Redmond
       cannot race or breed the Filly nor can he thereby be eligible to obtain any purse that
       she might win and is without the opportunity to earn a livelihood through racing and
       breeding the Filly. The value of the Filly is negatively impacted by the inability to
       enter her into a Thoroughbred race. Mr. Redmond has a liberty and property interest
       in his right to name, race and breed the Filly in Kentucky.

Compl. at ¶¶ 37-39 (emphasis added); also ¶¶ 49-51, 57-59, 67-68. Otherwise stated:

       As a result of the KHRA’s actions to arbitrarily and capriciously deny Mr. Redmond
       the use of the name Sally Hemings and thereby refuse to permit Mr. Redmond to race
       the Filly in Thoroughbred horse races in the Commonwealth of Kentucky, Mr.
       Redmond has suffered, and will continue to suffer immediate and irreparable harm
       for which, absent injunctive relief, there is no adequate remedy at law.

Compl. at ¶ 84 (emphasis added); also ¶ 81.

       Thus, Mr. Redmond alleges that the Jockey Club (Counts 3 and 4 of his complaint) and the

KHRA (Count 3) have violated the United States Constitution by denying his request to name and

register his horse as “Sally Hemings,” and that the irreparable nature of the resulting harm

necessitates injunctive relief (Counts 6 and 7). Mr. Redmond asserts that the right to any name of




                                                 4
                                                  No. 05-6607

his choosing is protected by the First Amendment Free Speech Clause, the Fifth Amendment

Takings Clause, and the Fourteenth Amendment Equal Protection and Due Process Clauses.

         Mr. Redmond’s complaint also includes pendent state law claims alleging violations of

Kentucky’s state constitution. He claims that the Jockey Club’s (and thereby KHRA’s ) refusal to

allow him to use the name “Sally Hemings” violates his due process, equal protection, and free

speech rights under Sections 1, 2, 3, and 8 of the Kentucky Constitution (Count 2). He also claims

that the KHRA’s delegation of authority to the Jockey Club violates Sections 2 and 29 of the

Kentucky Constitution (Counts 1 and 5).2

         The defendants, Jockey Club and KHRA, moved the district court to dismiss the complaint

and the court granted their motion. The district court dismissed Count 1 based on the conclusion that

it is not “an unconstitutional delegation of authority for The Jockey Club to engage in the registration

of Thoroughbreds.” The court dismissed the remaining counts on the basis that the Jockey Club is

not a state actor. Mr. Redmond appealed, contending that these decisions were in error.

                                                         II.

         Mr. Redmond appeals the district court’s dismissal of his complaint for “failure state a claim

upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6). On appeal, we conduct a de novo

review of the 12(b)(6) motion, Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 451 (6th Cir.

2003), employing the same standard as the district court: “a court considering a motion to dismiss

under Rule 12(b)(6) must accept all well-pleaded factual allegations of the complaint as true and


         2
          Based on the outcome of our analysis — from which we conclude that Mr. Redmond has failed to state a
federal claim, and therefore grant the motion to dismiss the federal claims — we will exercise our discretion to deny
supplemental jurisdiction over the pendent state law claims. See Arbaugh v. Y&H Corp., 546 U.S. 500, 126 S.Ct. 1235,
1244-45 (2006). Therefore, we find that we need not consider the state law claims on the merits.

                                                         5
                                                     No. 05-6607
construe the complaint in the light most favorable to the plaintiff.” Benzon v. Morgan Stanley

Distrib., Inc., 420 F.3d 598, 605 (6th Cir. 2005) (internal quotation marks and citations omitted).

“Dismissal of the complaint is proper only if it is clear that no relief could be granted under any set

of facts that could be proved consistent with the allegations.” Id. (quotation marks and citations

omitted). Because we agree that Mr. Redmond has failed to state a claim on which relief can be

granted, we affirm the dismissal, but we do so on different grounds than the district court because,

in conducting our de novo review, we approach the analysis from a different direction.

         The district court began by analyzing Mr. Redmond’s claim that Kentucky had made an

unconstitutional delegation of power to the Jockey Club, in violation of Sections 2 and 29 of the

Kentucky Constitution. After a thorough review, the court concluded that: no legislative power had

been delegated; without such delegation, the Jockey Club was not a “state actor” for purposes of

claims brought under § 1983 or the state or federal constitutions; and, without state action, all of Mr.

Redmond’s claims for federal and state constitutional violations failed.3

         We do not reach the question of whether Kentucky has delegated legislative authority to the

Jockey Club in violation of its state constitution, or whether the Jockey Club’s naming requirements

amount to “state action” for purposes of Mr. Redmond’s claims. Instead, we begin (and end) our

analysis with our determination that, based on even our most liberal reading of his complaint, Mr.

Redmond has not alleged facts that could demonstrate a violation of any right or interest protected

under the United States Constitution. Accordingly, we conclude that “it is clear that no relief could



         3
           Because Mr. Redmond’s remaining state law issues could only be heard under the federal court’s pendent
jurisdiction, the district court did not err in dismissing these claims after determining that the federal claims could not
survive the motion to dismiss. See note 2, supra (citing Arbaugh, 126 S. Ct. at 1244-45).

                                                            6
                                            No. 05-6607
be granted under any set of facts that could be proved consistent with [Mr. Redmond’s] allegations,”

and dismissal is proper under Rule 12(b)(6). See Benzon, 420 F.3d at 605.

                                                 III.

       “To state a claim under § 1983, a plaintiff must allege [1] the violation of [2] a right secured

by the Constitution and laws of the United States, and must show [3] that the alleged violation was

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988);

accord Mezibov v. Allen, 411 F.3d 712, 716-17 (6th Cir. 2005). “If a plaintiff fails to make a

showing on any essential element of a § 1983 claim, it must fail.” Redding v. St. Eward, 241 F.3d

530, 532 (6th Cir. 2001). It is the second element — that the right at issue is secured by the

Constitution and laws of the United States — that we find lacking in the present case.

       As the passages from the complaint make evident, Mr. Redmond is claiming a fundamental

right to select any name of his choosing, or more specifically, a constitutional right to name and

register his horse as “Sally Hemings.” It is also evident from the complaint that neither KHRA nor

the Jockey Club nor the rules and regulations Mr. Redmond cites in his complaint prevent Mr.

Redmond from racing or breeding this horse, so long as the horse has a name that complies with the

Jockey Club’s rules. Therefore, the harms alleged by Mr. Redmond in the complaint (e.g., the

horse’s ineligibility to run as a Kentucky Thoroughbred, Mr. Redmond’s inability to earn a

livelihood through racing and breeding the horse, and the horse’s diminished value) all derive from

the denial of permission to use the name “Sally Hemings.” Consequently, we must assume that it

is only by allowing Mr. Redmond to so name the horse that his injuries might be redressed.

       Mr. Redmond contends that the right to register his horse under any name of his choosing

is protected by the Free Speech Clause of the First Amendment, the Takings Clause of the Fifth


                                                  7
                                                  No. 05-6607
Amendment, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Before proceeding to our individual consideration of each of these provisions, however, it is

worthwhile to note that we have never recognized — nor have we found any authority that has ever

recognized — a constitutional right to name a horse whatever one chooses, for any purpose

whatsoever, let alone for the express purpose of registering the horse for competition. We can

therefore say with some confidence that such a right would not be so securely established by the

Constitution as to be considered “fundamental.” Cf., e.g., Powers v. Tiebauer, 939 So.2d 749, 753-

54 (Miss. 2005) (recognizing the unsettled debate as to whether a parent has a fundamental

constitutional right to name his or her child) (citing cases). Compare Jech v. Burch, 466 F. Supp.

714, 719 (D.C. Haw. 1979) (“[P]arents have a common law right to give their child any name they

wish, and [] the Fourteenth Amendment protects this right from arbitrary state action.”), with Brill

v. Hedges, 783 F. Supp. 333, 339 (S.D. Ohio 1991) (citing Henne v. Wright, 904 F.2d 1208, 1214

(8th Cir. 1990)) (“[W]hile parents have an important interest in naming their children, this interest

does not rise to the level of a fundamental right.”). If there is no unambiguous right for parents to

bestow a name of their choosing upon their son or daughter, we have considerable doubt as to

whether there is such a right for a horse owner to bestow a name of his choosing on his horse.

         To be sure, the First Amendment protects horse owners’ rights to free speech, and we do not

foreclose Mr. Redmond indiscriminately from asserting that right, but the right to free speech is not

absolute in all contexts. See, e.g., Texas v. Johnson, 491 U.S. 397, 430 (1989); United Public

Workers v. Mitchell, 330 U.S. 75, 95 (1947). The present context — that of the Jockey Club

Thoroughbred naming registry4 — is at most a “limited public forum.” See Rosenberger v. Rector

         4
       W e will assume for purposes of this analysis that the Jockey Club, acting under the grant of authority by the
KHRA by formal regulation, is a state actor, acting under the color of state law.

                                                         8
                                            No. 05-6607
& Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). In such a limited public forum, the state may

constitutionally restrict speech, so long as it does “not discriminate against speech on the basis of

viewpoint,” and the restriction is “reasonable in light of the purpose served by the forum.” Good

News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (2001).

       In the present case, the purposes served by the forum (i.e., the Jockey Club registry) include

— as set out in the Principal Rules and Requirements and quoted in the complaint — ensuring that

the registered names are not those of living persons, names of famous people no longer living, names

of notorious people, or “names that are suggestive or have a vulgar or obscene meaning; names

considered in poor taste; or names that may be offensive to religious, political or ethnic groups.”

Thus, the restriction on the name “Sally Hemings” is reasonable in light of the purpose served by the

forum and it does not discriminate on the basis of viewpoint. See Good News Club, 533 U.S. at

106-07. We conclude, as a matter of law, that Mr. Redmond cannot prove any facts consistent with

the allegations in his complaint that would state a First Amendment claim. Let us emphasize,

however, that this holding does not preclude — on a different record — the possibility of a plaintiff

raising a viable First Amendment claim based on a state regulator’s disallowance of a horse name.

       The Takings Clause of the Fifth Amendment “provides that private property shall not be

taken for public use, without just compensation; but it does not purport to define property rights.”

Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1540 (2006) (Scalia, J., dissenting) (citations

omitted). The Supreme Court has “consistently held that the existence of a property interest is

determined by reference to existing rules or understandings that stem from an independent source

such as state law.” Id. (quotations omitted). To establish a property interest in a particular benefit,

such as a name, the plaintiff must have a “legitimate claim of entitlement to it.” Board of Regents



                                                  9
                                              No. 05-6607
v. Roth, 408 U.S. 564, 577 (1972). “[A]n abstract need or desire for it or a unilateral expectation is

insufficient.” LRL Props. v. Portage Metro Hous. Auth., 55 F.3d 1097, 1108 (6th Cir. 1995).

        Mr. Redmond claims a property interest in the horse itself, but he has not alleged and cannot

allege that the defendants have deprived him of his horse or the use of his horse. Instead, Mr.

Redmond asserts that they have deprived him of the use of the name, but Mr. Redmond has not

pleaded any facts that would demonstrate that he has any legitimate claim to the name. At most, Mr.

Redmond claims an abstract desire or unilateral expectation that the descendant of “Jefferson’s

Secret” and “A Colonial Affair” should race under the provocative name of “Sally Hemings.” This

is insufficient as a matter of law to state a property interest in that particular name, and therefore, Mr.

Redmond can state no actionable Fifth Amendment claim consistent with the facts he has alleged.

        Generally speaking, “[t]he Equal Protection Clause prohibits state and local governments

from treating similarly situated persons differently.” Rector v. Denver, 348 F.3d 935, 949 (10th Cir.

2003) (citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439-41 (1985)). “Unless

a suspect class or fundamental right is implicated, a government’s classification need only be

rationally related to a legitimate government interest.” Id. (citing Nordlinger v. Hahn, 505 U.S. 1,

10 (1992)). “When social or economic legislation is at issue, the Equal Protection Clause allows the

States wide latitude, and the Constitution presumes that even improvident decisions will eventually

be rectified by the democratic processes.” City of Cleburne, 473 U.S. at 440.

        Mr. Redmond protests that the Jockey Club’s “denial of Mr. Redmond’s right to use the name

‘Sally Hemings’ treats him differently and unfairly as compared to other Thoroughbred horse owners

in Kentucky without rational basis.” (Compl. ¶ 72). Despite this protest, however, we find that he

has alleged no facts that might support an argument that the Jockey Club’s regulations and rules, of

                                                    10
                                              No. 05-6607
which he complains, or the actions taken pursuant to them, are not rationally related to a legitimate

state interest, namely, the regulation of Thoroughbred racing in Kentucky. See Rector, 348 F.3d at

949. Accordingly, we conclude that his complaint is insufficient as a matter of law to state an

actionable Equal Protection claim, based on the facts as alleged.

       “The Due Process Clause guarantees more than fair process, and the ‘liberty’ it protects

includes more than the absence of physical restraint. The Clause also provides heightened protection

against government interference with certain fundamental rights and liberty interests.” Washington

v. Glucksberg, 521 U.S. 702, 719-20 (1997). A liberty interest is “an interest traditionally protected

by our society . . . so rooted in the traditions and conscience of our people as to be ranked as

fundamental.” Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality) (quoting Snyder v.

Massachusetts, 291 U.S. 97, 105 (1934)). As we explained at the outset of this analysis, we have

never recognized — nor have we found any authority that has ever recognized — a constitutional

right to name a horse whatever one chooses, and we are confident that Mr. Redmond’s interest in

bestowing his horse with a provocative name is not “so rooted in the traditions and conscience of

our people as to be ranked as fundamental.” See id. Therefore, Mr. Redmond has not pled facts that

would state a liberty interest or a fundamental right to the particular, provocative name of “Sally

Hemings,” and Mr. Redmond has no actionable Due Process claim.

       In short, because he has spent three years insisting that he has a constitutional right to name

his horse “Sally Hemings” and that no other name will do, Mr. Redmond now finds himself, like the

songster of the ‘70s, having “been through the desert on a horse with no name.”5 If he really wants

to race or breed this horse in Kentucky, Mr. Redmond will have to come up with a name that

       5
        Dewey Bunnell, A Horse with No Name, on A M ERICA (Warner Brothers 1972).

                                                   11
                                                    No. 05-6607
complies with the Jockey Club’s rules.6 A quick look at the Jockey Club’s Registry confirms that

“Horse With No Name” is no longer available.7

                                                          IV.

         For the foregoing reasons, we AFFIRM the judgment of the district court.




         6
          W e note from outside the present record that Mr. Redmond’s four-year-old filly made her racing debut on July
1, 2007, under the temporary name “Awaiting Justice,” finishing fifth in a nine-horse field. See Churchill Downs Race
Results, available at http://www.churchilldowns.com (last visited July 27, 2007); see also Jennie Rees, Filly’s Name is
Some Affair, Louisville (KY) Courier-Journal, June 30, 2007, available at http://www.courier-journal.com (quoting Mr.
Redmond as saying the name is “strictly temporary”) (last visited July 27, 2007). Of course, the term “awaiting justice,”
being a temporary condition, would appear by its own implication to be necessarily temporary when used as a name.

         7
          See The Jockey Club Registry, Online Names Book, available at http://www.registry.jockeyclub.com/ registry.
cfm (last visited July 27, 2007).

                                                          12
                                            No. 05-6607
       CLAY, Circuit Judge, concurring. I write separately to address the question of state action.

I would not so hastily set aside the question of state action in favor of exploring the constitutional

violations Plaintiff alleged. The question carries import in this Circuit beyond the instant case, and

the matter should at the very least be considered for three reasons. First, the district court disposed

of Plaintiff’s constitutional claims solely on the grounds that Defendant Jockey Club is not a state

actor, and solely with reference to a previous decision of the Eastern District of Kentucky, which it

considered controlling. Second, Plaintiff’s arguments in his opening brief on appeal were addressed

to the issue of state action, and not the viability of his constitutional claims. Third, and most

importantly, the question of state action constitutes a question of threshold inquiry: Section 1983

provides a vehicle for challenging the deprivation of constitutional rights “under the color of” law,

and the Constitution protects individual rights from invasion by the state. Having considered the

issue, I would find that Defendant Jockey Club did not act “under color of” law for purposes of §

1983. With respect to Defendant KHRA, however, I conclude that state action is present.

       The question whether state action exists is a “necessarily fact-bound inquiry.” Lugar v.

Edmondson Oil Co., Inc., 457 U.S. 922, 939 (1982). “Only by sifting facts and weighing

circumstances can the non-obvious involvement of the State in private conduct be attributed its true

significance.” Burton v. Wilmington Parking Auth., 365 U.S. 715, 234 (1961). Because this case

comes before the Court on appeal from a Rule 12(b)(6) dismissal, the facts alleged by Plaintiff must

be credited as true, and the complaint construed liberally. Gazette v. City of Pontiac, 41 F.3d 1061,

1064 (6th Cir. 1994). Additionally, this Court may take judicial notice of state statutes and

regulations where relevant. See Val Decker Packing Co. v. Corn Prods. Sales Co., 411 F.2d 850,

852 (6th Cir. 1969) (citing Lamar v. Micou, 114 U.S. 218, 223 (1885)).

                                                  13
                                           No. 05-6607
       We should begin by setting forth the facts relevant to the question of state action, as drawn

both from a favorable reading of Plaintiff’s complaint and from a review of Kentucky law. Plaintiff,

the owner and operator of a thoroughbred horse farm in Kentucky, breeds and races thoroughbred

horses. (J.A. at 7) Defendant Kentucky Horse Racing Authority (hereinafter “KHRA”) is an

independent administrative agency of Kentucky responsible for regulating the conduct of horse

racing and pari-mutuel wagering. (Id. at 7, 9; see also Ky. Rev. Stat. § 230.225(1)) KHRA consists

of 13 members appointed by the Governor and one executive director. Ky. Rev. Stat. § 230.225(2).

Kentucky law grants the KHRA the “full authority to prescribe necessary and reasonable

administrative regulations and conditions under which horse racing at a horse race meeting shall be

conducted” in Kentucky. Id. at § 230.260(3).

       Defendant The Jockey Club (hereinafter “Jockey Club”) is a New York corporation licensed

to do business in Kentucky, which was formed in 1894 “for the purpose of improving the breed of

domestic animals.” (J.A. at 7-8) In 1896, Defendant Jockey Club became “the exclusive

organization for registering and maintaining records of Thoroughbred horses in the United States,”

and assumed the task of publishing the registry, The American Stud Book. (Id. at 8) Additionally,

Defendant Jockey Club publishes The American Stud Book Principal Rules and Requirements

(hereinafter “Stud Book Rules”), which sets forth controlling guidelines for naming thoroughbred

horses. (Id.) Jockey Club abides by those rules in reviewing requests to register or change

thoroughbred horse names. (Id.) By the terms of the Rules, Defendant Jockey Club’s Registrar

reserves the right to approve name requests. (Id. at 9)

       Kentucky law defines “thoroughbred racing” with reference to Defendant Jockey Club.

Specifically, “‘thoroughbred racing’ means a form of horse racing in which each horse participating

                                                14
                                            No. 05-6607
in the race is a thoroughbred (i.e., meeting the requirements of and registered with The Jockey Club

of New York) and is mounted by a jockey.” Ky. Rev. Stat. § 230.210(3). The regulations

promulgated by KHRA require that a thoroughbred horse be “duly registered and named in the

registry office of the Jockey Club in New York” before that horse can be entered or raced in a

Kentucky thoroughbred race. 810 Ky. Admin. Regs. 1:012, §1. However, a limited exception

permits entry into the race if “the stewards . . . for good cause, in their discretion, waive” the

registration requirement, finding “the horse . . . otherwise correctly identified to the stewards’

satisfaction.” Id. As Plaintiff states in his complaint, neither Kentucky statute nor administrative

regulations establish objective criteria for approving names for thoroughbred horses who seek to be

registered with Defendant Jockey Club. Rather, by requiring thoroughbred horses to be registered

with Defendant Jockey Club, KHRA effectively incorporates the Stud Book Rules as they pertain to

naming thoroughbred horses. As a result, Plaintiff alleges, 8,596 Kentucky-born foals registered

with Defendant Jockey Club in 2003, each at a cost of $200 payable to Defendant Jockey Club. (J.A.

at 9) Mandatory registration fees for Kentucky-born foals alone thus yielded $1,719,200 in revenue

to Defendant Jockey Club. (Id.) Plaintiff’s complaint contains no factual allegations as to the

Commonwealth of Kentucky’s revenues from thoroughbred racing.

       The challenged act in the instant case is Defendant Jockey Club’s refusal to register

Plaintiff’s yearling filly (hereinafter “the Filly”) with Plaintiff’s requested name, “Sally Hemings,”

which had the alleged effect of excluding the Filly from Kentucky races. Although Defendant

Jockey Club issued a Certificate of Foal Registration for the Filly and received its $200 mandatory

registration fee, Defendant Jockey Club rejected Plaintiff’s desired name. (J.A. at 10) Plaintiff

persisted, and Defendant Jockey Club continually denied Plaintiff’s requests to name the Filly “Sally

                                                 15
                                                      No. 05-6607
Hemings.” (Id. at 11-13) Defendant Jockey Club referred Plaintiff to relevant provisions of the Stud

Book Rules in support of these denials. (Id. at 11-13) Before Defendant Jockey Club’s final

determination, Plaintiff could have obtained a hearing before its Board of Stewards on the matter by

paying a non-refundable fee of $1,000. (Id. at 13, 28) Plaintiff elected not to seek a hearing before

Defendant Jockey Club. (Id. at 29) Rather, he filed a written objection with the Stewards, to no

avail. (Id. at 29-34) No mechanism exists for appeal to the Commonwealth of Kentucky, the

KHRA, or the courts of the Commonwealth.8

         Over time, the Supreme Court has employed various tests to determine whether the conduct

at issue is “fairly attributable to the state,” as required by § 1983. See Wolotsky v. Huhn, 960 F.2d

1331, 1335 (6th Cir. 1992). Of these, Plaintiff invokes the public function test and the close nexus

test in support of his contention that Defendant Jockey Club acted under color of state law.9 (Pl.’s

Br. at 29-33) Although Plaintiff does not separately argue that Defendant KHRA constitutes a state

actor, Plaintiff jointly named the Jockey Club and KHRA as Defendants, and alleged constitutional

violations against Defendant KHRA. Accordingly, the question of state action on the part of

Defendant KHRA is also before us for consideration. Initially though, this discussion will focus on

the Jockey Club.

         8
          Plaintiff’s complaint does not allege that Plaintiff sought a discretionary waiver from D efendant KHRA’s
stewards to race the Filly without a name. See 810 Ky. Admin. Regs. 1:012, §1.

         9
           It is somewhat less than clear from Plaintiff’s brief whether he intended to invoke the close nexus test, or the
symbiotic relationship test established in Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961). In Burton, the
privately owned restaurant responsible for the challenged discriminatory conduct leased public property, and existed in
a state of mutually beneficial interdependence with the city. Id. at 723-76. Burton itself took pains to confine its holding
to the facts then before it, id. at 725-26, and subsequent courts have followed suit. See, e.g., Moose Lodge No. 107 v.
Irvis, 407 U.S. 163, 175 (1972) (“Here there is nothing approaching the symbiotic relationship between lessor and
lessee.”); Crissman v. Dover Downs Entm’t Inc., 289 F.3d 231, 242 (3d Cir. 2002) (en banc). At any rate, the Supreme
Court has acknowledged that Jackson v. Metro. Edison Co. modified “the vague ‘joint participation’ test” of Burton.
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 57 (1999). Thus, for purposes of this concurrence, I examine Plaintiff’s
claim under the close nexus test, and not the symbiotic relationship analysis.

                                                            16
                                             No. 05-6607
        Plaintiff first asserts that Defendant Jockey Club performed an “exclusive state function, the

naming and registration of business.” (Pl.’s Br. at 30) For support, Plaintiff points to provisions in

the Kentucky code that regulate the registration and naming of Kentucky corporations. See Ky. Rev.

Stat. § 271B.4-010 et seq. Of course, these provisions relate to corporations, and not animals. “The

public function test requires that the private entity exercise powers which are traditionally

exclusively reserved to the state.” Wolotsky, 960 F.2d at 1335; see also Marsh v. Alabama, 326 U.S.

501 (1946); Evans v. Newton, 382 U.S. 296 (1966). Nothing alleged in Plaintiff’s complaint, nor

found in the laws and regulations of the Commonwealth, supports Plaintiff’s contention that the

power to approve or reject names for thoroughbred racing horses traditionally and exclusively

belonged to the Commonwealth. Plaintiff’s contention under this theory lacks merit.

        Second, Plaintiff attempts to show a close nexus between Defendant Jockey Club and

Defendant KHRA. The “close nexus” test considers whether “a sufficiently close nexus [exists]

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.” Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974).

However detailed and extensive, state regulation and licensing of a private entity unrelated to the

challenged activity does not in and of itself transform wholly private conduct into state action.

Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176-77 (1972); Jackson, 419 U.S. at 350; Blum v.

Yaretsky, 457 U.S. 991, 1004 (1982); Sullivan, 526 U.S. at 52 (“Action taken by private entities with

the mere approval or acquiescence of the State is not state action.”). Nor does substantial state

funding of the activities of a private entity convert that entity’s actions into state action. Blum, 457

U.S. at 1011. Rather, “where the impetus for the discrimination is private, the State must have

‘significantly involved itself with invidious discriminations’ in order for the discriminatory action

                                                  17
                                             No. 05-6607
to fall within the ambit of the constitutional prohibition.” Moose Lodge, 407 U.S. at 173 (quoting

Reitman v. Mulkey, 387 U.S. 369, 380 (1967)). That is to say, the state must be “intimately involved

in the challenged private conduct” for that conduct to be attributed to the state. Bier v. Fleming, 717

F.2d 308, 311 (6th Cir. 1983).

        Instructive cases in this Circuit and sister circuits examine the question whether private

parties or entities involved in horse racing and dog racing constitute state actors for purposes of §

1983 suits. These cases militate against a finding of state action here. In this Circuit, Bier v.

Fleming, 717 F.2d at 309-10, concerned a § 1983 suit brought to challenge an Ohio horse racing

track’s decision to ban the plaintiff, a harness race driver, from racing in two meets at the track. The

plaintiff named both the Executive Secretary of Ohio’s Racing Commission and the president of the

race track as defendants. Id. at 309. Applying the nexus test, the court began by noting the private

character of the race track and its president. Id. at 311. The court acknowledged that Ohio heavily

regulates the horse racing industry, but found that “such extensive regulation does not, in itself,

transform otherwise private actions into state action for purposes of § 1983.” Id. Nor, in the court’s

view, did Ohio’s receipt of revenue from racing convert the race track’s private decision into state

action. Id. The court characterized the state’s involvement as “mere approval of or acquiescence

in the initiatives of a private party . . . not sufficient to justify holding the State responsible.” Id.

(quoting Blum, 457 U.S. at 1004-05) (internal quotation marks and brackets omitted). Ultimately

then, the Bier court concluded that the private horse racing track did not act “under color of” law.

Id. at 310.

        On two occasions, the Third Circuit has considered factually similar situations, reaching

divergent outcomes each time. In Fitzgerald v. Mountain Laurel Racing, Inc., 607 F.2d 589, 591

                                                   18
                                             No. 05-6607
(3d Cir. 1979), a private harness racing association expelled a trainer from its track purportedly for

violating a state harness racing commission rule, and the trainer brought a § 1983 suit against the

association. There, the private association’s management met with the presiding racing judge and

racing secretary to discuss previous consistent allegations against the trainer. Id. at 595. In the

court’s view, the racing judge and racing secretary possessed state-delegated authority to discipline

the trainer for violations of the Racing Commission Rules. Id. Although the private association

made the decision to expel the trainer, the racing secretary informed the trainer of that decision. Id.

at 596.

          The Fitzgerald court applied the “close nexus” test of Jackson, framing the key issue there

as “whether the State participated in the challenged conduct itself by ‘putting its weight’ behind the

challenged activity.” Id. at 597. The court rejected the private association’s claim that “its act of

expelling [the trainer] derived solely from its common law property rights as lessor.” Id. Rather,

the court found that “whatever private rights were exerted were specifically linked to the

enforcement of Racing Commission Rules.” Id. at 598. The racing officials acted pursuant to their

delegated authority when they opined that the trainer had violated the rules, and the private

association cited a Commission Rule violation in expelling the trainer. Id. Because the private

association lacked the power to enforce Commission Rules by itself, and because the racing officials

“personally and actively participated in the specific conduct challenged,” the Fitzgerald court

concluded that the private association’s expulsion of the trainer was state action. Id. at 598-99. The

court cautioned that where the challenged private activity occurred absent the involvement of any

state official, even where the activity purportedly enforces state law, no question of a close nexus

would arise. Id. at 600.

                                                  19
                                             No. 05-6607
        This cautionary note foreshadowed the result in Crissman v. Dover Downs Entertainment

Inc., 289 F.3d 231 (3d Cir. 2002) (en banc). There, the plaintiffs owned and trained horses, which

they raced in Delaware. Id. at 234. The plaintiffs filed a § 1983 suit against a privately owned and

operated harness racing facility where their horses had previously raced when the facility expressly

excluded them from future participation in races at that track. Id. Because the facility is one of only

two state-licensed harness racing tracks in the state, the effect of excluding plaintiffs was to bar them

from entering their horses in Delaware races for one-half of the year. Id. Although the state Harness

Racing Commission licensed the facility, the record did not reflect Commission involvement in the

decision to exclude plaintiffs from the facility. Id. at 235. Faced with the question of state action,

the Crissman court reviewed the applicable statutory and regulatory scheme, and the flow of funds

between the facility and the state. Id. at 235-38.

        The court rejected the plaintiffs’ argument under the “close nexus” test. The plaintiffs argued

that the Commission “effectively delegated to the race track its power to determine eligibility,” and

essentially “granted the track a ‘six-month monopoly.’” Id. at 246-47. The Crissman court reasoned

that, while Jackson posited that “a heavily regulated business with at least something of a

governmentally protected monopoly will more readily be found to be [a] ‘state’ act[or],” it also

required that the conduct be fairly attributable to the state. Id. at 247 (quoting Jackson, 419 U.S. at

350-51) (alterations added and omitted). Although Delaware licensed and regulated the track, and

received proceeds from horse racing and video lottery gaming at the track, the Crissman court found

this state licensing, regulation and flow of funds insufficient to implicate Delaware in the track’s

otherwise private decision to exclude the plaintiffs. Because the Commission bore no responsibility

for the exclusion, the court concluded that no state action had been shown. Id.

                                                   20
                                             No. 05-6607
       In Fulton v. Hecht, 545 F.2d 540, 540 (5th Cir. 1977), a greyhound breeder filed a § 1983 suit

against a private kennel club’s owners for refusing to renew his contract to race his dogs at the club.

Although privately owned, the kennel club required a state license to conduct greyhound races. Id.

at 541. The breeder claimed that the kennel club was a state actor since the state heavily regulated

the dog racing industry, shared dog racing revenues, and allocated racing dates among the various

private tracks. Id. at 542. The Fulton court, applying Jackson, found no state action. Id. Although

the court agreed that the state extensively regulated the dog racing industry, the court stated that

extensive regulation alone does not “make the state a partner in the endeavors of the Kennel Club.”

Id. What is more, the court observed that the state in no way partook in the decision not to renew

the breeder’s contract. Id. at 543. Consequently, the kennel club held not to be a state actor for

purposes of § 1983.

       The Fifth Circuit in Bailey v. McCann, 550 F.2d 1016, 1017 (5th Cir. 1977) concluded that

the United States Trotting Association (“USTA”) did not act under color of law, as required by §

1983, when it denied a harness trainer-driver’s license to the plaintiff. The suit arose when the State

of Florida denied plaintiff a state license to race allegedly because he did not possess a USTA

license. Id. USTA, a private association, licenses harness racing drivers, receives no state funding,

independently selects its own officers and directors, and is in no way regulated by the State of

Florida. Id. at 1018. However, as a prerequisite to racing at a Florida harness racing track, all horses

must be tattooed by the USTA and must possess an eligibility certificate from USTA. Id.

Additionally, Florida’s harness racing regulations require drivers to be licensed both by the Florida

State Racing Commission and USTA before racing in the state. Id. Further, the Florida regulations




                                                  21
                                            No. 05-6607
adopt USTA’s rules and regulations for any and all situations not otherwise covered by the Florida

rules. Id.

       In pertinent part, the Bailey court analyzed the issue as follows:

       . . . The fact that the State chooses to accord automatic weight to some of the
       defendant’s decisions does not alone render those decisions state action. The State
       may at any time choose to do otherwise and adopt and use its own standards. The
       fact that the State requires a USTA license in order to race is no more significant than
       its requirement of a law degree from an approved school as a prerequisite for taking
       the bar examination. Such a requirement does not change the conduct of private law
       schools into state action.
                                                ...
       . . . State adoption of the standards of a private organization as part of a State
       regulatory scheme which is not administered by that organization, is no more state
       action by that organization than is the adoption of State regulations by a wholly
       private organization.

Id. at 1019. Thus, the Bailey court found the USTA was not a state actor. Id.

       In the case at bar, Plaintiff vigorously argues that “Kentucky, through its statutes and

regulations, has essentially delegated to The Jockey Club the authority to determine what horses can

race in Kentucky.” (Pl.’s Br. at 31)        Plaintiff claims that Kentucky “decided that certain

qualifications are required of Thoroughbreds” and then allowed Defendant Jockey Club to define

those qualifications. (Id. at 32) Plaintiff’s argument fails on the facts alleged.

       It cannot be gainsaid that the Commonwealth of Kentucky, by and through Defendant

KHRA, extensively regulates the enterprise of thoroughbred racing. Kentucky empowers the KHRA

with “full authority to prescribe necessary and reasonable administrative regulations” applicable to

thoroughbred racing and pari-mutuel wagering. See Ky. Rev. Stat. § 230.260(3). With this broad

authority, KHRA promulgated a rather detailed body of regulations that cover even seemingly trivial

details, including registration and approval of racing colors, 810 Ky. Admin. Regs. 1:007, § 7, the



                                                 22
                                             No. 05-6607
time a jockey must report prior to a scheduled race, id. at 1:009, § 11, and assignment of

responsibility to a horse’s trainer for maintaining clean and sanitary stable areas. Id. at 1:008, § 3.

By way of example, horse owners and trainers must be licensed as a prerequisite to entering their

thoroughbreds in a Kentucky race, and jockeys require a license to race. Id. at 1:007, § 1; 1:008, §

1; 1:009, § 2. The regulations impose certain duties and responsibilities for the care, health, and

training of thoroughbreds on their trainers. Id. at 1:008, § 3. They require owners to disclose “the

entire ownership of each horse in their care.” Id. at 1:007, § 3. They even go so far as to require that

the stewards approve of any contracts entered into between apprentice jockeys and horse owners or

trainers. Id. at 1:009, § 4. KHRA additionally regulates permissible wagering systems, minimum

wagers and payoffs, all the details of the race itself, and much more than require mentioning here.

Id. at 1:011, §§ 1, 5; 1:015; 1:016. Further, the regulations set standards for the maintenance of

private racing association grounds, including stables and start gates, lighting, stands for spectators,

photo finish cameras, and so on. Id. at 1:026. All this is to say, the Commonwealth heavily

regulates horse racing, down to the very last detail.

        By its terms, the close nexus test laid forth in Jackson looks to the relationship between the

state and “the challenged action of the regulated entity.” Jackson, 419 U.S. at 351 (emphasis added).

As the preceding discussion makes clear, the enterprise of thoroughbred racing is heavily regulated;

Defendant Jockey Club is not. Were this a question of expulsion from a private racing association

in the Commonwealth, as in Bier, Fitzgerald, Crissman, or Fulton, the private entity would be

subject to the extensive and detailed state regulatory scheme. Yet, the Kentucky Administrative

Regulations in no way guide or circumscribe the conduct of Defendant Jockey Club, and

accordingly, the Jockey Club is not a “regulated entity” in any true sense of the word. It is therefore

                                                  23
                                            No. 05-6607
less than clear that Plaintiff can establish state action with reference to the close nexus test, which

has traditionally been applied solely to “regulated” private entities. See Jackson, 419 U.S. at 351

(electric company regulated by Public Utility Commission); Blum, 457 U.S. at 994-95 (nursing

homes federally regulated with respect to Medicaid patients); Sullivan, 526 U.S. at 52 (insurance

company subject to state regulation); Bier, 717 F.2d at 310 (racing facility licensed by state);

Fitzgerald, 607 F.2d at 592 (same); Crissman, 289 F.3d at 234 (same). Here, Defendant Jockey

Club’s approval and registration of thoroughbred names is more properly classed a private action

“with the mere approval or acquiescence of the State,” insufficient to establish state action. See

Sullivan, 526 U.S. at 52.

       At any rate, assuming that the close nexus test does apply to private entities not subject to

state regulation, “extensive regulation does not, in itself, transform otherwise private actions into

state action for purposes of § 1983.” See Bier, 717 F.2d at 311. The close nexus test requires

something more. Where a § 1983 litigant challenges private conduct, the state must have “intimately

involved” itself in that conduct in such a way as to render it conduct “under color of” law. See Bier,

717 F.2d at 311. The purportedly unconstitutional act here is Defendant Jockey Club’s refusal to

register the Filly with the name “Sally Hemings,” which, if given effect by Defendant KHRA, results

in exclusion of the Filly from thoroughbred races in the Commonwealth. Plaintiff does not allege

that Defendant KHRA participated directly in the decision to deny Plaintiff’s application to name

the Filly “Sally Hemings.” Nor could he since Defendant KHRA plays no part in registering

thoroughbred names with Defendant Jockey Club, and at no point sits in review of Defendant Jockey

Club’s determinations. Furthermore, Plaintiff does not allege that Defendant Jockey Club’s officers

and stewards are drawn from the ranks of the Commonwealth’s horse racing officials, or that the two

                                                  24
                                           No. 05-6607
entities are in anyway pervasively entwined in membership or function. Cf. Brentwood Academy

v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 298 (2001) (finding regulatory activity of a

state-wide interscholastic athletic association akin to state action because “[t]he nominally private

character of the Association is overborne by the pervasive entwinement of public institutions and

public officials in its composition and workings”). On the facts alleged by Plaintiff, the KHRA did

not “intimately involve” itself in the challenged act of approving thoroughbred names.

        It is true that Defendant KHRA’s regulations generally require thoroughbred horses to be

registered and named in the registry office of Defendant Jockey Club. 810 Ky. Admin. Regs. 1:012,

§1. Defendant Jockey Club adheres to its Stud Book Rules in approving and rejecting thoroughbred

names. (J.A. at 8) Neither the Commonwealth’s regulations nor the Stud Book Rules provide for

appeal to any administrative or judicial body of the Commonwealth. Rather, the only mode to

challenge Defendant Jockey Club’s refusal to approve a requested name is by internal appeal to the

Board of Stewards of the Jockey Club. (See id. at 9, 29-34) By requiring registration with

Defendant Jockey Club, KHRA effectively embraces the Stud Book Rules and, if KHRA permitted

those rules to govern its behavior, they would effectively become state rules. Cf. NCAA v.

Tarkanian, 488 U.S. 179, 194 (1988). Yet, this does not transform Defendant Jockey Club into a

state actor.

        The Supreme Court’s pronouncement in NCAA v. Tarkanian proves instructive on this point.

There, a state university suspended the plaintiff, a basketball coach, in response to an NCAA report

detailing multiple violations of NCAA rules. Tarkanian, 488 U.S. at 180-81. The court considered

whether the state university’s “actions in compliance with the NCAA rules and recommendations

turned the NCAA’s conduct into state action.” Id. at 193. Although the state university participated

                                                 25
                                              No. 05-6607
in drafting the NCAA rules, the state itself was not the source of those rules. Id. at 194.

Notwithstanding the private nature of the rules, “[s]tate action . . . might lie if [the state university],

by embracing the NCAA’s rules, transformed them into state rules and the NCAA into a state actor.”

Id. The Tarkanian court concluded that the state university “engaged in state action when it adopted

the NCAA’s rules to govern its own behavior,” but the NCAA was not a state actor merely because

it had formulated the disciplinary rules. Id. The court noted that the state university “retained the

authority to withdraw from the NCAA and establish its own standards.” Id. at 194-95.

        In the instant case, as in Tarkanian, the Commonwealth played no part in drafting the Stud

Book Rules for naming thoroughbreds. However, the Commonwealth allegedly embraced Defendant

Jockey Club’s Stud Book Rules for naming thoroughbreds and gave effect to those rules by denying

the Filly entry into thoroughbred races for lack of a registered name. See Tarkanian, 488 U.S. at

194. KHRA’s implicit adoption of the Stud Book Rules did not transform the Jockey Club into a

state actor simply by force of its role as author of the Stud Book Rules and keeper of the Registry.

See id. Moreover, KHRA quite obviously retained the authority to amend its regulations to exclude

reference to the Jockey Club, or to promulgate its own guidelines for the registration and naming of

horses. See id. at 194-95. Thus, Plaintiff cannot show Defendant Jockey Club acted under color of

law under the close nexus theory.

        Finally, Plaintiff claims the Commonwealth of Kentucky “granted a state monopoly to The

Jockey Club regarding the registration of Thoroughbreds and the recording of names.” (Def.’s Br.

at 32) This argument is unavailing. In Jackson, the Supreme Court, in dicta, said “[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 than will the acts of an entity lacking these

                                                    26
                                           No. 05-6607
characteristics.” Jackson, 419 U.S. at 350-51. As previously discussed, Defendant Jockey Club is

not a “heavily regulated utility” and, indeed, is not subject to regulation by the Commonwealth at

all. What is more, Jackson went on to say that the inquiry must look to whether a close nexus exists.

Id. at 351. Thus, Plaintiff’s attempt to attribute state action to Defendant Jockey Club on a

monopoly-status theory must also fail.

       Up until this point, I have solely examined the question of whether the Jockey Club acted

under the color of law for purposes of § 1983. All parties to this appeal, Defendant KHRA included,

focused the state action inquiry on Defendant Jockey Club, as did the district court below; indeed,

Plaintiff’s complaint asserted a § 1983 claim only against Defendant Jockey Club. However,

inasmuch as Plaintiff alleged that Defendant KHRA violated his constitutional rights as well, I now

turn my attention to Defendant KHRA. I construe Plaintiff’s complaint liberally to allege that

KHRA denied the Filly entry into races within the Commonwealth and, therefore, conclude that state

action lies for purposes of Plaintiff’s constitutional claims against KHRA.

       Defendant KHRA, as an administrative agency of the Commonwealth, is a state actor. See

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

scheme created by KHRA is unquestionably the product of state action. See Lugar, 457 U.S. at 941.

These regulations generally require thoroughbred horses to be registered and named with the Jockey

Club prior to racing in the Commonwealth, but they also set forth a limited exception for horses who

gain the approval of the racing stewards for a discretionary waiver. See 810 Ky. Admin. Regs.

1:012, § 1. As previously noted, the regulations do not establish guidelines for the Jockey Club to

follow in reviewing horse names, KHRA officials do not participate in the Jockey Club’s decisions,

and neither KHRA nor the Commonwealth itself sits in review of those decisions. To the extent that

                                                 27
                                            No. 05-6607
the challenged conduct is Defendant Jockey Club’s refusal to approve Plaintiff’s requested name for

the Filly, it cannot fairly be ascribed to KHRA. See Blum, 457 U.S. at 1004 (“[A] State normally

can be held responsible for a private decision only when it has exercised coercive power or has

provided such significant encouragement, either overt or covert, that the choice must in law be

deemed to be that of the State.”).

       Nevertheless, I do not doubt that state action lies when KHRA denies entry in its races to a

thoroughbred horse because the Jockey Club refused to register the horse’s name. See Tarkanian,

488 U.S. at 194 (“State action nonetheless might lie if UNLV, by embracing the NCAA’s rules,

transformed them into state rules.”); see also Bailey, 550 F.2d at 1019 (“Any defect in the [standards

of a private organization where adopted by the State] may translate into a defect in the State

system.”). As a regulatory body empowered with state authority, such direct conduct clearly

constitutes state action. Reading Plaintiff’s complaint liberally, as this Court must do on appeal from

a motion to dismiss, Plaintiff sufficiently alleged that KHRA denied the Filly entry into thoroughbred

races within the Commonwealth due and owing to Defendant Jockey Club’s refusal to approve

Plaintiff’s requested name. (See Pl.’s Comp. at ¶¶ 57, 58, 79, 85) Plaintiff’s complaint therefore

alleged sufficient facts to show that KHRA embraced the Jockey Club’s rules in such a way to

“transform[] them into state rules,” satisfying the state action requirement with respect to Defendant

KHRA. See Tarkanian, 488 U.S. at 194.

       Consequently, on the facts alleged, as read in concert with the statutes and regulations of the

Commonwealth of Kentucky, I conclude that Plaintiff failed to show that Defendant Jockey Club

acted under color of law. The district court therefore correctly dismissed Plaintiff’s federal

constitutional challenges against Defendant Jockey Club for lack of state action. With respect to

                                                  28
                                           No. 05-6607
Defendant KHRA, I would find state action. Nevertheless, because Plaintiff’s complaint failed to

state a claim that Defendant KHRA violated his constitutional rights, I join in the judgment. I find

it unnecessary to join in the majority’s discussion of Plaintiff’s several federal constitutional

challenges, and thus refrain from doing so.




                                                29
                                              No. 05-6607
        Rogers, J., concurring. I agree that Redmond’s complaint does not state facts that support

a claim for relief, and I concur in the majority opinion. I write separately, however, to explain my

understanding that we are not ruling in such a way as to preclude entirely the possibility of a First

Amendment claim based on a state’s acceptance of a private actor’s disallowance of a horse name.

If, for instance, Kentucky contracted with a private horse-naming entity that permitted names

insulting one political party but not another, a First Amendment claim might well be stated. There

is, however, nothing like that alleged in this case.

        As a preliminary matter, it appears that the KHRA is a state actor when it accepts the horse-

naming determinations of a private contractor, as explained in Judge Clay’s concurrence. Moreover,

it is unlikely that there is state action on the part of the Jockey Club, also for the reasons set forth in

Judge Clay’s concurrence. In the end, however, the failure of plaintiff to state a First Amendment

claim against either defendant makes it unnecessary for me to decide whether the Jockey Club is a

state actor.

        In a heavily-regulated industry like horse racing, the state may insist that racehorses have

nonduplicative names. This can certainly be done by the state’s reserving the right to approve or

reject names, on its own or by contract with a private enterprise. Once the state is (legitimately) in

the position of approving or rejecting names, the state may validly seek to associate itself only with

names that are not offensive or in bad taste. This is no different from the government’s support of

an art museum while retaining the right not to fund highly offensive exhibits. Similarly, the

government could commission a statue of a statesman for a public square, while reserving the right

to reject an offensive treatment of the personage. See Nat’l Endowment for the Arts v. Finley, 524

U.S. 569, 583-84 (1998). Considered this way, the state’s refusal (or acceptance of its private

                                                    30
                                            No. 05-6607
contractor’s refusal) to approve a particularly offensive name, without more, does not, in my view,

state a First Amendment claim.

       Nothing keeps the horse owner, or any other private person, from informally using an

alternate name for the horse. Indeed, Kentucky’s most famous horse, Man o’ War, was nicknamed

“Big Red.” See, e.g., Page Cooper & Roger L. Treat, Man O’ War 10 (Westholme Publishing, LLC

2004) (1950). Such freedom on the part of private actors would extend to highly offensive names.

Similarly, highly-offensive statuary can be sculpted and displayed by private actors.

       It might be, however, that certain government naming decisions, or some standards or

procedures used in making those decisions, might conceivably trench on First Amendment concerns.

Nothing remotely reaching that level has been alleged in this case, however.

       In particular, this case involves the state’s rejection of a government sanction for identifying

a horse with the distinct name of a historical figure who was an African-American slave. One could

reasonably expect that giving such a name to a chattel animal would be deeply and singularly

offensive to African-Americans, in a way that “Jefferson’s Secret,” for instance, would not. If

plaintiff has a First Amendment right to government approval of the name in question in this case,

it is hard to imagine what name would not be permitted. This cannot be the law.

       There is, moreover, no sufficiently alleged due process violation. As a matter of procedural

due process, assuming that Redmond has a liberty or property interest, he does not allege that the

Jockey Club denied him notice of or an opportunity to be heard with respect to its decision, nor does

he allege that the Jockey Club was somehow impermissibly impartial. See Mullane v. Cent. Hanover

Bank & Trust Co., 339 U.S. 306, 314-15 (1950); Gibson v. Berryhill, 411 U.S. 564, 578-79 (1973).

Instead, Redmond simply alleges that “the denial of Mr. Redmond’s right to use the name ‘Sally

                                                 31
                                            No. 05-6607
Hemings’ is arbitrary and irrational and serves no legitimate state interest.” JA 19 (¶ 69). It is even

more obvious that there is no substantive due process violation alleged in this case. “The contention

that the [state actor’s] actions were arbitrary or capricious cannot be sufficient; otherwise judicial

review for compliance with substantive due process would become the equivalent of a typical state

or federal Administrative Procedure Act.” Bell v. Ohio State, 351 F.3d 240, 251 (6th Cir. 2003).




                                                  32
