                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                         FEB 13 2001
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 H.C. MASSEY,

           Plaintiff-Appellant,

 and

 MARY DEAN; WOODROW
 FLOWERS; JAMES H. GILLESPIE;
 ELIZA HILL; DOROTHY LEE;
 JIMMY LONG; LILLIAN MEDINA;
 BETTY SAWYER; DUNNESE
 SCOTT,

           Plaintiffs,
 v.                                                     No. 00-4037
 BOARD OF TRUSTEES OF THE                          (D.C. No. 97-CV-124)
 OGDEN AREA COMMUNITY                                    (D. Utah)
 ACTION COMMITTEE, a non-profit
 corporation,

           Defendant-Appellee.


                              ORDER AND JUDGMENT        *




       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before BRISCOE, PORFILIO,            Circuit Judges, and   MARTEN , District Judge     **
                                                                                            .


       Plaintiff H.C. Massey (Massey) appeals the district court’s order of

summary judgment in favor of defendant the Board of Trustees of the Ogden

Area Community Action Committee, Inc. (Board). We exercise jurisdiction

pursuant to 28 U.S.C. § 1291, and affirm.

       Massey was executive director of Ogden Area Community Action

Committee, Inc. (OACAA), a nonprofit corporation established “to stimulate a

better focusing of all available federal, state and local resources to aid low

income individuals” in Ogden, Utah, and the surrounding area. Aplt. Br. at 4-5.

The Board claimed it terminated Massey’s employment for “just cause.”         Id. at

94. Massey sued the Board and several of the Board members who voted to

uphold his termination, alleging he was wrongfully terminated without due

process in violation of 42 U.S.C. § 1983. All defendants moved for summary

judgment, arguing they could not be found in violation of § 1983 because they

were not state actors. The district court agreed and granted summary judgment in

favor of the defendants. Massey appeals this decision only as to the Board.

       We review the district court’s grant of summary judgment de novo,

applying the same legal standard as the district court.     See Kendrick v. Penske


        The Honorable J. Thomas Marten, United States District Judge, District
       **

of Kansas, sitting by designation.

                                             2
Transp. Servs., Inc. , 220 F.3d 1220, 1225 (10th Cir. 2000). “Summary judgment

is appropriate ‘if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.’”    Id. (citing Fed. R. Civ. P. 56(c)). “When

applying this standard, we review the evidence and draw reasonable inferences

therefrom in the light most favorable to the nonmoving party.”       Id.

       Section 1983 “creates a cause of action against individuals who violate

federal law while acting ‘under color of state law.’”    David v. City & County of

Denver , 101 F.3d 1344, 1353 (10th Cir. 1996);      see also 42 U.S.C. § 1983.

“[T]he only proper defendants in a Section 1983 claim are those who represent

[the state] in some capacity, whether they act in accordance with their authority

or misuse it.” Gallagher v. “Neil Young Freedom Concert”         , 49 F.3d 1442, 1447

(10th Cir. 1995) (internal quotation omitted).

       Massey alleges the Board was a state actor engaged in state action. His

theory is that Utah state officials influenced the Board to terminate him. More

specifically, he contends that Anne Kagie, Director of the Community Services

Office of the Utah State Department of Community and Economic Development,

orchestrated his termination.

       Whether an action was taken “under color of state law” or whether it was a


                                             3
“state action” are two separate areas of inquiry.      See Pino v. Higgs , 75 F.3d 1461,

1464 (10th Cir. 1996). However, since “state action necessarily constitutes

action under color of state law,”    id. , the Board can be held liable if it was a state

actor engaged in state action. “Application of the state action doctrine has been

characterized as one of the more slippery and troublesome areas of civil rights

litigation.” Gallagher , 49 F.3d at 1447. The Supreme Court has taken a

“flexible” approach, see id. , applying four different tests, referred to as the nexus

test, the symbiotic relationship test, the joint action test, and the public functions

test, see Anaya v. Crossroads Managed-Care Sys., Inc.          , 195 F.3d 584, 595 (10th

Cir. 1999). Each test requires very fact-specific inquiries.       See Gallagher , 49

F.3d at 1448. It appears that Massey is invoking two of these tests.

       Massey implicates the nexus test by arguing that a state “can be held

responsible for a private decision only when it . . . has provided such significant

encouragement, either overt or covert, that the decision at issue must be deemed

to be that of the State.” Aplt. Br. at 30-31 (citing    Blum v. Yaretsky , 457 U.S.

991 (1982)). Under the nexus test, courts consider whether “‘there is a

sufficiently close nexus’ between the government and the challenged conduct

such that the conduct ‘may be fairly treated as that of the State itself.’”

Gallagher , 49 F.3d at 1447 (quoting     Jackson v. Metro. Edison Co. , 419 U.S. 345,

351 (1974)).


                                              4
       Massey also relies upon the symbiotic relationship test – “the cumulative

effect of all of these links amounted to a symbiotic relationship that presented a

question of fact as to the existence of state action.” Aplt. Br. at 33-34. Under

the symbiotic relationship test, courts inquire whether the state “‘has so far

insinuated itself into a position of interdependence’ with a private party that ‘it

must be recognized as a joint participant in the challenged activity.’”   Gallagher ,

49 F.3d at 1451 (quoting    Moose Lodge No. 107 v. Irvis , 407 U.S. 163, 175

(1972)).

       A review of all the evidence indicates that Massey cannot meet either test.

There is no link between Massey’s termination and the state. Rather, what

prompted Board action were negative reports from many sources about Massey’s

management of OACAA. All major sources of funding identified problems with

OACAA’s compliance with rules. A U.S. Department of Health and Human

Services (HHS) audit of OACAA’s Head Start program uncovered substantial

noncompliance with financial and administrative procedures. For example, HHS

found OACAA was “unable to produce accurate and complete disclosure of

financial data of the agency,” and could not “accurately account for expenditures

by grant year and funding period.” Aplt. App. at 19. The audit found the

deficiencies so grave that continuance in the Head Start program required that

OACAA take various actions no later than June 19, 1997, including:


                                             5
       OACAA must reconstitute the Board of Directors to assure that, at a
       minimum, a quorum of Board members are seated.

       OACAA must act to discharge the present Executive Director from
       his current position in order to restore public trust and confidence in
       its program. This objective cannot be met if OACAA allows the
       Executive Director to remain in his current position.

Aplt. App. at 19.

       Massey seeks to establish state action by asserting Kagie was responsible

for the audit. Specifically, Massey alleged “the state had called the federal

government in Denver and asked the federal government to do certain things to

remove [him],” and he believed Kagie made that call. Aplt. App. at 218. Massey

stated a staff member told him someone named Bob at the federal government

had called the staff member to say he had been called by a person from the state

who wanted Massey fired, and that the person from the state was Kagie. Massey

submits no admissible evidence in support of this assertion.

       Other funding sources also identified problems with Massey’s

management. Although the actual audit report identifying the problems is not in

the record, a letter from the Utah Department of Community and Economic

Development, Division of Community Development, identified contract

violations by OACAA that justified contract termination and termination of

OACAA’s participation in the Federal Community Services Block Grant program

and, thus, elimination of funding.   See id. at 12-13. Massey claims the fact that


                                           6
Kagie signed this letter is “evidence” that she put OACAA’s funding in jeopardy.

Massey does not contest the allegation that OACAA violated its contract. Rather,

he tries to blame the problem on the messenger. This allegation is unsupported.

       Further, an independent investigator hired to evaluate various employee

grievances filed against Massey found serious flaws in his management skills and

possible illegalities in procedures.   See id. at 166-205. Massey alleges Kagie was

“involved” with the grievances, providing the requisite state action. However, he

expressly states that he is not alleging Kagie “concocted the complaints against

him” or that she influenced the investigation of the grievances.     See Aplt. Br. at

32. Rather, he contends “Kagie was working behind the scenes to create a fertile

environment” for his termination.      Id. This is not evidence of state action.

       The district court’s grant of summary judgment in favor of the Board is

AFFIRMED.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge




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