     Case: 10-20606     Document: 00511692579         Page: 1     Date Filed: 12/12/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        December 12, 2011

                                       No. 10-20606                        Lyle W. Cayce
                                                                                Clerk

ELIMELECH SHMI HEBREW,

                                                  Plaintiff - Appellant
v.

HOUSTON MEDIA SOURCE,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  (4:09-CV-3274)


Before CLEMENT, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Elimelech Shmi Hebrew appeals the grant of summary judgment in favor
Houston Media Source (“HMS”) on his claim pursuant to 42 U.S.C. § 1983 that
HMS violated his freedom of speech rights under the First Amendment. For the
reasons set forth below, we AFFIRM the judgment below.
                            FACTS AND PROCEEDINGS
        HMS is a Texas 501(c)(3) corporation that has operated a public access
cable television channel since 1986 pursuant to a contract with the City of

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-20606

Houston (the “City”). The funding that HMS receives pursuant to its contract
with the City comes from access subscriber fees collected from each of the City’s
cable franchisees. The cable franchisees charge each cable customer inside the
Houston city limits an access subscriber fee. The cable franchisees then make
payments to the City, and the City gives a portion of those funds to HMS
“through a process and formula” set out in the contract between HMS and the
City. HMS does not receive funds from municipal tax revenue.
      HMS is not a state agency. It has its own Board of Directors, and the City
is not involved in its day-to-day activities. HMS provides access to television
production facilities along with equipment, training, and air time to groups and
individual members of the public in the Houston area. Access to these services
allows the groups and individuals to present television programming to
subscribers of five cable operators, reaching a potential audience of more than
one million households.
      Hebrew is President and Chief Executive Officer of Divine Unity 1, Inc.,
(“DU1”) a Texas 501(c)(3) corporation “dedicated to unifying all people, nations,
and faiths to operate and live with divine morals and standards.” DU1 used its
television program, Gathering the Lost Children of Israel (“Lost Children”) “to
relay the message given to [Hebrew] by God to fulfill its objective of unifying and
enlightening all through truth.” Beginning in 2006, Teboho Matlamela was the
producer of Lost Children, which originally aired Wednesday nights at 7:30 p.m.
The show apparently aired without incident until 2008, when HMS began asking
Matlamela to edit submitted episodes to eliminate scenes that HMS said violated
its content policies. By February 2009, Matlamela was allegedly being asked to
“continuously edit” episodes of the show to remove “adult” or “indecent” content
before HMS would air them at an evening time slot. HMS alleges that the
submitted episodes contained nudity, depictions of sex, and studio conversations



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                                 No. 10-20606

involving profanity. Pursuant to HMS policies, such “adult” content was only
aired in the hours between midnight and 6:00 a.m.
       Early in 2009, Hebrew began complaining to HMS, contending that the
station was violating his free speech rights. Meanwhile, the objectionable
content of the Lost Children episodes apparently increased. After a series of
meetings, letters, and phone calls between DU1 management and HMS in which
nothing was resolved, HMS informed Matlamela that Lost Children had been
suspended because of Matlamela’s repeated failure to indicate, on the
programming contracts submitted with each episode, that the shows contained
adult material. Matlamela was also banned from using HMS’s production
facilities.
       Hebrew initiated the lawsuit underlying this appeal on October 9, 2009,
asserting First Amendment violations under § 1983 and seeking damages of one
billion dollars. Both parties filed motions for summary judgment and later
consented to disposition of the case by a magistrate judge. On July 20, 2010, the
magistrate judge issued a 19-page memorandum opinion applying settled
Supreme Court caselaw granting HMS’s motion and denying Hebrew’s on the
ground that Hebrew had presented no evidence that HMS was a state actor. The
court agreed, however, to delay entry of final judgment for fourteen days, giving
Hebrew, who was proceeding pro se, the opportunity to submit additional
evidence in support of his claim. Although he did file a motion for
reconsideration within the fourteen day window, Hebrew did not submit
additional evidence, and the magistrate judge entered final judgment in favor
of HMS on August 16, 2010. This timely appeal followed.
                          STANDARD OF REVIEW
       This court reviews a grant of summary judgment de novo, applying the
same legal standards as the trial court. Like the magistrate judge, we view the
evidence and inferences from the summary judgment record in the light most

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                                  No. 10-20606

favorable to the nonmovant. Summary judgment is proper when the pleadings
and evidence demonstrate that no genuine issue of material fact exists and the
movant is entitled to judgment as a matter of law. Tradewinds Envtl.
Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 258 (5th Cir. 2009);
see also FED. R. CIV. P. 56(a).
                                  DISCUSSION
      In general, private entities are not liable to suit under § 1983. To survive
HMS’s motion for summary judgment, Hebrew must present evidence that HMS
was “acting under color of state law,” West v. Atkins, 487 U.S. 42, 48 (1988), such
that its conduct was “fairly attributable to the State.” Rendell-Baker v. Kohn,
457 U.S. 830, 838 (1982). Hebrew challenges the magistrate judge’s
determination that he failed to raise a genuine factual issue concerning whether
HMS is a “state actor.”
      “The Supreme Court has utilized a number of tests for deciding whether
a private actor’s conduct can be fairly attributable to the State.” Cornish v. Corr.
Servs. Corp., 402 F.3d 545, 549–50 (5th Cir. 2005) (summarizing tests). Relevant
here, the “nexus” or “state action test” considers whether the State has inserted
“itself into a position of interdependence with the [private actor, such] that it
was a joint participant in the enterprise.” Jackson v. Metro. Edison Co., 419 U.S.
345, 357–58 (1974).
      “Deciding whether a deprivation of a protected right is fairly attributable
to the State begins by identifying the specific conduct of which the plaintiff
complains.” Cornish, 402 F.3d at 550. Hebrew’s claim is focused on HMS’s
determination that the Lost Children episodes submitted by Matlamela were
“indecent” under HMS’s policies. As the magistrate judge noted, Hebrew
contended “that, when measured against [HMS]’s own rules and procedures,
none of the episodes being submitted needed to be edited for explicit content.” In
his brief on appeal, Hebrew complains that HMS “censored [his] shows, having

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Mr. Matlamela reedit them to [HMS] discretion.” Importantly, Hebrew argues
only that his shows were treated unfairly and that HMS wrongly characterized
them as containing indecent content; he does not challenge HMS’s policy of
airing indecent or adult programming in late-night time slots.
      That Hebrew does not challenge HMS’s general indecency policy is critical
because he has presented no evidence that the City or any government official
was involved in HMS’s decisions concerning the treatment of the programming
submitted by DU1. Hebrew has submitted evidence that HMS’s contract with
the City requires HMS to maintain policies that restrict the airing of indecent
content to certain times, but such evidence does not demonstrate that the City
had any role in determining whether episodes of Lost Children were properly
characterized as indecent. Although his pleadings are filled with accusations
against various City officials, Hebrew has not produced any evidence the City
was involved with HMS’s content-related decisions or influenced the way HMS
enforced its indecency policies. Evidence submitted by HMS, and many of
Hebrew’s own pleadings, confirm that HMS personnel acted without input from
any City officials in their dealings with Hebrew and Matlamela concerning the
airing and content editing of Lost Children. The City’s role in formulating or
influencing HMS’s general policy, which Hebrew does not challenge, is
insufficient to make the City a “joint participant” in HMS’s treatment of the Lost
Children programs. See Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982) (“Acts
of . . . private contractors do not become acts of the government by reason of
their . . . engagement in performing public contracts.”); see also Jackson v. Metro.
Edison Co., 419 U.S. 345, 350 (1974) (“The mere fact that a business is subject
to state regulation does not by itself convert its action into that of the State.”).
As set forth in the ruling below, Hebrew has not succeeded in showing that
HMS’s complained-of actions could reasonably be attributed to the City.



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                             CONCLUSION
     For the above reasons, the judgment of the magistrate judge is
AFFIRMED.




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