Robert D. Spickler v. Carroll R. Lee

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1954
ROBERT D. SPICKLER,
Plaintiff, Appellant,
v.
CARROLL R. LEE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Cyr, Senior Circuit Judge,
Lynch and Lipez, Circuit Judges.
Robert D. Spickler on brief pro se.
Paul W. Chaiken, Timothy A. Pease and Rudman & Winchell, LLC
on brief for appellees.
March 31, 2003

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Per Curiam. Plaintiff Robert Spickler, a retired real-estate
developer in Maine, filed this action against three managers of a
private electric-utility company, alleging breach of an agreement
to install power lines free of charge once certain conditions were
met. Brought under 42 U.S.C. § 1983, the complaint set forth
claims under both federal and state law. Upon motion of
defendants, the district court dismissed the federal claims under
Fed. R. Civ. P. 12(b)(6) for failure to state a claim, concluding
that the requisite state action had not been established. See 208
F. Supp. 2d 68 (D. Me. 2002). In turn, it dismissed the state-law
claims without prejudice pursuant to 28 U.S.C. § 1367(c). Spickler
has appealed, and we now affirm.
We agree, substantially for the reasons recited by the
district court, that the complaint did not make a sufficient
allegation of state action. Such a conclusion is virtually
dictated by Jackson v. Metropolitan Edison Co., 419 U.S. 345
(1974), a case which Spickler has failed to distinguish in any
meaningful sense. As there, the regulatory commission here cannot
be said to have placed its "imprimatur" on the challenged practice
(the alleged rescission of all pre-1990 contracts) simply by having
assented thereto. Id. at 357; accord, e.g., Blum v. Yaretsky, 457
U.S. 991, 1004-05 (1982) ("[m]ere approval of or acquiescence in
the initiatives of a private party is not sufficient to justify
holding the State responsible for those initiatives"); see also

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Destek Group, Inc. v. New Hampshire Public Utilities Comm'n, 318
F.3d 32, 39-40 & n.17 (1st Cir. 2003) (holding that state
commission's approval of agreement between telephone company and
university did not convert company into state actor); Logiodice v.
Trustees of Maine Central Inst., 296 F.3d 22, 30-31 (1st Cir. 2002)
(discussing Jackson), cert. denied, 123 S. Ct. 882 (2003); Jemzura
v. Public Service Comm'n, 971 F. Supp. 702, 706-07 (N.D.N.Y. 1997)
(dismissing for lack of state action under similar circumstances).
The other factors upon which Spickler relies do not change this
result.
Spickler also advances a pair of procedural objections--
protesting that the complaint was dismissed without the opportunity
to conduct discovery or to amend. Under the circumstances, we
perceive no error. The state-action inquiry, to be sure, is
"necessarily fact-bound." Brentwood Acad. v. Tennessee Secondary
School Athletic Ass'n, 531 U.S. 288, 298 (2001) (quoting Lugar v.
Edmondson Oil Co., 457 U.S. 922, 939 (1982)). Yet disposition
thereof at the Rule 12(b)(6) stage prior to discovery is not always
unwarranted. See, e.g., Gonzalez-Morales v. Hernandez-Arencibia,
221 F.3d 45, 47-51 (1st Cir. 2000); accord, e.g., Hack v. President
and Fellows of Yale College, 237 F.3d 81, 84-85 (2d Cir. 2000),
cert. denied, 534 U.S. 888 (2001); DeBauche v. Trani, 191 F.3d 499,
506-09 (4th Cir. 1999). Here, we see no hint that Spickler's
requested discovery would have yielded anything of pertinence to

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the state-action issue. Indeed, we note that the complaint in
Jackson itself was dismissed on the pleadings. See 348 F. Supp.
954, 955, 958 (M.D. Pa. 1972), aff'd, 483 F.2d 754 (3d Cir. 1973),
aff'd, 419 U.S. 345 (1974).
In turn, Spickler's district court pleadings and appellate
submissions make it clear that, with respect to the three named
defendants, any amendment of his complaint would have been
"futile." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 59
(1st Cir. 1990). Indeed, Spickler focuses on a separate matter on
appeal, expressing the wish to add a member of the regulatory
commission as a defendant. Yet contrary to his assertion, see Blue
Brief at 14-15, such a possibility was never mentioned below. The
district court cannot be faulted for failing to anticipate such a
request, and under the circumstances we see no reason to pursue it
further.
Affirmed.

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