                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 10, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 JOSIAH STONE,

               Plaintiff-Appellant,                      No. 08-7119
          v.                                     Eastern District of Oklahoma
 ELOHIM, INC.,                                 (D.C. No. 6:08-CV-00266-RAW)

               Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before LUCERO, MURPHY and McCONNELL, Circuit Judges.


      Josiah Stone, a pro se plaintiff, brought a discrimination claim alleging that

Elohim, Inc. had unlawfully evicted him from his land because of his race and

disability. The district court dismissed his action for failure to state a claim. Mr.

Stone has appealed that dismissal, and we now affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                I. BACKGROUND

      As best we can tell from his complaint, Mr. Stone resided on eight acres of

tax-exempt property in Adair, Oklahoma. This property was owned and

maintained by Elohim, Inc., a non-profit corporation which Mr. Stone describes

as a “cult,” Aplt. 2, whose “religion states that they are God’s holy seed and

outsiders cannot participate.” R. 142. Mr. Stone alleges that, in 2008, Elohim

and its agents took a number of steps to force him from the property, including

assaulting his family members, refusing his family water from the community

well, cutting him off from all internet access, shunning him and his family,

cutting down his fences, pulling guns on him, stealing one of his horses, shooting

his other horses, and, eventually, evicting him. Aplt. 2–6. Mr. Stone is a

Cherokee Indian and claims that his eviction was racially motivated. He is

seeking restitution in the amount of $250,000.

                                 II. DISCUSSION

      Mr. Stone characterizes his claim as one of “discrimination on tax-exempt

land by a non-profit corporation in respects to plaintiffs disability, race, origin,

creed.” Aplt. 1. He has cited a number of civil rights statutes as authority,

including the Ku Klux Klan Act of 1871, 42 U.S.C. §§ 1983, 1985, and 1988. He

also argues that Elohim violated his rights under the Americans With Disabilities

Act of 1990, although it is unclear exactly what disability he has.




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      The problem with Mr. Stone’s civil rights claims is that they do not create

causes of action against private corporations. See 42 U.S.C. § 1983 (authorizing

suit against person acting “under color of” state law); Johnson v. Rodrigues, 293

F.3d 1196, 1202 (10th Cir. 2002) (state action doctrine requires that “the

deprivation must be caused by the exercise of some right or privilege created by

the State or by a rule of conduct imposed by the state or by a person for whom the

State is responsible” and “the party charged with the deprivation must be a person

who may fairly be said to be a state actor”) (quoting Lugar v. Edmondson Oil Co.,

Inc., 457 U.S. 922, 937 (1982)); Brown v. Reardon, 770 F.2d 896, 906 (10th Cir.

1985) (“[A]n alleged conspiracy to infringe [constitutional] rights is not a

violation of § 1985(3) unless it is proved that the state is involved in the

conspiracy or that the aim of the conspiracy is to influence the activity of the

state”) (quoting United Brotherhood of Carpenters and Joiners v. Scott, 463 U.S.

825, 830 (1983)); Browns v. Mitchell, 409 F.2d 593, 595 (10th Cir. 1969) (“It is

clear, as it always has been since the Civil Rights Cases that ‘Individual invasion

of rights is not the subject-matter of the (Fourteenth) amendment,’ and that

private conduct abridging individual rights does no violence to the Equal

Protection Clause (and likewise the Due Process Clause) unless to some

significant extent the State in any of its manifestations has been found to have

become involved in it.”). The validity of his claim thus depends on Elohim being

a state actor, and Mr. Stone has alleged no facts which suggest this is the case.

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      There is no allegation that Elohim was acting in concert with the

government, that it was performing a public function, or that its conduct was

fairly attributable to the state. Mr. Stone has made much of Elohim’s tax exempt

status, including a dispute as to whether or not Elohim is a 501(c)(3)

organization. (Elohim denies that it is now, or has ever been, a 501(c)(3)). Tax

exempt status alone, however, does not transform a corporation from a private

institution to a state actor. See Browns, 409 F.2d at 595–96 (tax exempt status

might help perpetuate an institution, but that status itself is not sufficient to

constitute state action). While the federal government might condition tax

exemptions upon the recipient’s not discriminating, see, e.g., Bob Jones

University v. United States, 461 U.S. 574 (1983), the condition does not itself

create a private right of action for a victim of discrimination. Because Mr. Stone

has alleged no facts that would suggest Elohim is a state actor, his civil rights

claim must fail as a matter of law.

      As for his ADA claim, we can find no record of Mr. Stone raising the claim

in his original complaint before the district court. See Compl., July 16, 2008. A

plaintiff cannot raise a claim for the first time before the appellate court. His

appellate brief elaborates on the claim by simply saying, “I am currently on SSI

Disability and my rights have been discriminated against.” Aplt. 6. Even if he

had said this in his original complaint, it would fail to state a claim, as it fails to




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allege either that he has a legally recognized disability under the ADA or that he

was evicted because of this disability.

      To the extent Mr. Stone also raised claims of assault, theft, damage to his

fence, or similar state law tort claims, Aplt. 2–5, the district court was within its

discretion not to assume supplemental jurisdiction.

                                III. CONCLUSION

      Mr. Stone has failed to state a claim upon which the federal courts can

grant relief. The judgment of the United States District Court for the Eastern

District of Oklahoma is AFFIRMED.

                                                      Entered for the Court,

                                                      Michael W. McConnell
                                                      Circuit Judge




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