Wednesday, January 23, 2008

Dismissal in section 1983 case upheld on grounds of lack of state action

In German v. Fox, the Fourth Circuit in a per curiam opinion for the panel of Judges Motz and Duncan and District Judge Brinkema affirmed the dismissal of a section 1983 claim related to the plaintiff's dismissal from employment with a private, non-profit organization. Judge Conrad of the W.D. Va. had held that the plaintiff had failed to state a First Amendment claim, but the panel decided the complaint failed to plead state action.

Even though I mostly litigate these cases on the government side, this seems like an odd decision on a Rule 12(b)(6) motion, how much are you supposed to say about state action? I guess the real problem was that he pleaded too many facts, which happens sometimes - pleading unnecessary details leads to dismissal when those details show you cannot have a claim.

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