United States District Court, D. South Dakota, Western Division
RUDY STANKO, a/k/a “Butch” Stanko, d/b/a The Stampede News, Plaintiff,
BIG D OIL COMPANY; DISTRICT MANAGER BRENDA STEEJDEE, individually and in her official capacity; DON POLICKY, Chief Executive Officer, individually and in his official capacity; and Defendants IX through 3x, individually, will be named after discovery, Defendants.
JEFFREY L. VIKEN CHIEF JUDGE.
Rudy Stanko, d/b/a The Stampede News, filed a two-count
complaint against the defendants. (Docket 1). Defendants Big
D Oil Company (“Big D Oil”), Brenda Steejdee and
Don Policky filed motions to dismiss the complaint pursuant
to Fed.R.Civ.P. 12(b)(6). (Dockets 10, 15 & 20). Mr.
Stanko opposes the motions. (Docket 13). Mr. Stanko filed a
motion to compel Mr. Policky to file an answer to the
complaint. (Docket 14). Mr. Policky opposes the
plaintiff's motion. (Docket 17). For the reasons stated
below, defendants' motions to dismiss are granted and
plaintiff's motion is denied.
Big D Oil, Ms. Steejdee and Mr. Policky filed motions to
dismiss plaintiff's complaint pursuant to Fed.R.Civ.P.
12(b)(6). (Dockets 10, 15 & 20). Because the three
motions assert the same grounds for dismissal under Rule
12(b)(6), the court will only reference the argument of Big D
Oil, unless otherwise indicated. The grounds asserted for
1. [The defendants are] not alleged to have acted under color
of state law as required by § 1983. (Docket 11 at p. 2);
2. [The defendants] did not conspire with a state actor.
Id. at p. 4; and
3. [The defendants are] not state actors under the
equal-benefits clause of § 1981, and Stanko is not a
minority under the right-to-contract clause of § 1981.
Id. at p. 5.
12(b)(6) provides for dismissal if the plaintiff fails to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). In evaluating the defendants' Rule 12(b)(6)
motion, the court accepts as true all of the factual
allegations contained in plaintiff's complaint and grants
all reasonable inferences in favor of plaintiff as the
nonmoving party. Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585, 594 (8th Cir. 2009) (“a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.' ”) (citing Ashcroft v. Iqbal,
556 U.S. 662, 663 (2009). See also Crooks v.
Lynch, 557 F.3d 846, 848 (8th Cir. 2009) (the court must
review “a Rule 12(b)(6) motion to dismiss for failure
to state a claim, accepting the facts alleged in the
complaint as true and granting all reasonable inferences in
favor of the plaintiff, the nonmoving party.”)
(brackets omitted). “While a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff's obligation to provide
the ‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do[.]” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
“[O]nly a complaint that states a plausible claim for
relief survives a motion to dismiss.” Iqbal,
556 U.S. at 679.
complaint asserts jurisdiction pursuant to Article III,
Section 2, of the United States Constitution, the Seventh
Amendment and 28 U.S.C. §§ 1331 & 1343. (Docket
1 ¶¶ 1-4). The complaint alleges the following
a. Big D Oil runs public gas stations throughout Western
South Dakota. Id. ¶ 10.
b. Big D Oil Co runs news stands at these gas stations that .
. . distribute free literature. Id. ¶ 11.
c. On or about October 1st, 2016, defendant Brenda Steejdee
informed the Plaintiff that she would no longer allow the
defendant's newspaper at her gas stations that she
manages, because of its content. Id. ¶ 12.
d. Defendant Steejdee informed the Plaintiff that she would
order all of the store managers to ban The Stampede.
Id. ¶ 13.
e. Plaintiff's speech is a cowboy newspaper and is freely
distributed. Id. ¶ 14.
f. The Plaintiff's newspaper advertises for the local
livestock sale auctions. Id. ¶ 15.
g. The Plaintiff is a professional cattle buyer. Id.
h. On or about October 1st, 2016, defendant Brenda Steejdee
informed the Plaintiff that she would confer with the Chief
Executive Officer, and get back to the Plaintiff.
Id. ¶ 17.
i. Defendant Steejdee failed to get back to the Plaintiff,
and has ignored the Plaintiff's continual request for
placement [of The Stampede] in the Big D's gas stations.
Id. ¶ 18.
of the complaint alleges: “Defendants violated the
Plaintiff's First Amendment right of speech by banning
the distribution of [The Stampede] in the Big D gas stations
in an attempt to exercise his First Amendment right of
speech, while at the same time allowing other newspapers to
be freely distributed or sold.” Id. at pp.
3-4. Count II alleges: “Defendants Bi[g] D Oil CO,
Brenda Steejdee, Don Policky, and defendants lX thru 3X
conspired to violate the Plaintiff's Constitutional and
Statutory rights (Title 42 USC §§ 1981 thru 1985).
Especially see 1985(3) (‘Conspiracy to interfere with
civil rights―depriving persons ...