James Brown, M.D. v. Marc Linder, in his individual and official capacities

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1463
___________________________
James Brown, M.D.
Plaintiff - Appellant
v.
Marc Linder, in his individual and official capacities
Defendant - Appellee
------------------------------
Foundation for Individual Rights and Expression, formerly known as Foundation
for Individual Rights in Education
Amicus on Behalf of Appellee(s)
____________
Appeal from United States District Court
for the Southern District of Iowa - Eastern
____________
Submitted: October 20, 2022
Filed: January 4, 2023
____________
Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
____________

-- 1 of 7 --

-2-
GRUENDER, Circuit Judge.
James Brown and Marc Linder both work for the State of Iowa. Brown is a
urologist at the University of Iowa Hospitals and Clinics; Linder is a professor at the
University of Iowa College of Law.1 After Linder criticized Brown’s expert
testimony in a case unrelated to this one, Brown sued Linder under 42 U.S.C. § 1983,
alleging that Linder retaliated against him for engaging in constitutionally protected
speech. The district court2 dismissed Brown’s claim on multiple grounds, including
that Brown failed to allege plausibly that Linder’s conduct was under color of state
law. We affirm.
I.
According to the complaint, Brown provided expert testimony for a meat-
processing company in litigation about the company’s compliance with labor
regulations. As a board-certified urologist, Brown was asked to opine on the health
consequences of the company’s bathroom-use policy for its employees. Before,
during, and after Brown’s testimony, Linder made it known that he disapproved of
Brown’s support for the company’s policy.
First, in the days before Brown’s testimony, Linder “registered a verbal
complaint” to Karl Kreder, the head of UI’s urology department, about Brown.
Along with the complaint, Linder sent a series of emails to Kreder in which he
referred to Brown’s “self-confessed money-driven report, deposition, and hearing
testimony.” Then, during Brown’s testimony, Linder appeared in the gallery
wearing a t-shirt that said “People Over Profits.” Following the testimony, Linder
continued to condemn Brown by making comments in local newspaper articles. In
one article, published in both the Waterloo-Cedar Falls Courier and the Cedar
1 For simplicity, we refer to both entities as “UI.”
2 The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.

-- 2 of 7 --

-3-
Rapids Gazette, Linder stated that Brown’s testimony “could have unleashed . . .
terrible consequences for workers of Iowa.” In another, published in UI’s student
newspaper, The Daily Iowan, Linder called Brown a “hired gun” who “had never
even published a single scholarly article on urinary incontinence
frequency/urgency.” These articles attributed Linder’s comments to “Marc Linder,
a UI law professor whose focus is on labor law” and “Marc Linder, UI Professor of
Law,” respectively.
In addition to these published comments, Linder allegedly criticized Brown’s
testimony by stating or implying that Brown wanted “to [M]ake America Great
Again by helping his customer,” “subordinate[d] . . . his medical ethics” in order “to
pay his kids’ college tuition,” and wished for workers to “urinate less and kill
animals more.” Brown does not say when, in what form, or to whom Linder made
these criticisms.
Brown says that Linder’s “multi-faceted retaliatory vendetta” caused him and
his family emotional and psychological distress. Others expressed to Brown their
concerns about Linder. Kreder told Brown that he was worried about Brown’s safety
and advised him to hire a lawyer. Another UI colleague also recommended that
Brown hire a lawyer and told Brown that Linder “is harassing the s**t out of you.”
To protect himself and his family from Linder, Brown bought a gun and a dog.
Brown sued Linder, bringing a First Amendment retaliation claim under
§ 1983, as well as various state-law defamation and false-light claims. Linder
moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The district court
granted Linder’s motion as to the § 1983 claim, concluding that it suffered from two
independently fatal defects: it did not plausibly allege that Linder acted under color
of state law or that his conduct would chill a person of ordinary firmness from

-- 3 of 7 --

-4-
engaging in protected speech. As for the other claims, the court declined to exercise
supplemental jurisdiction and remanded them to state court.
II.
Brown appeals the dismissal of his § 1983 claim, which we review de novo.
See Kelly v. City of Omaha, 813 F.3d 1070, 1075 (8th Cir. 2016). “To survive a
motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Id.
(internal quotation marks omitted); see Fed. R. Civ. P. 8(a)(2). A claim is facially
plausible if “the pleaded factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Hamilton v. Palm,
621 F.3d 816, 817 (8th Cir. 2010). Although we draw all reasonable inferences in
Brown’s favor, we will affirm the dismissal if his complaint offers mere “labels and
conclusions,” “naked assertions,” or a “formulaic recitation” of the elements of his
claim. See id. at 817-18.
Section 1983 provides a cause of action against anyone who, “under color of”
state law, deprives a person of federally guaranteed rights. To state a claim under
§ 1983, a plaintiff must allege facts sufficient to show that the defendant’s injurious
conduct was “fairly attributable to the State,” Yassin v. Weyker, 39 F.4th 1086, 1090
(8th Cir. 2022), rather than carried out in a “purely private capacit[y],” Dossett v.
First State Bank, 399 F.3d 940, 947 (8th Cir. 2005).
Brown argues that his complaint contains ample facts that together plausibly
allege that Linder acted under color of state law. These include that Linder (1)
identified himself as a state employee when he criticized Brown in the newspaper
articles, (2) relied on “the prestige of his official position with [UI] to gain credibility
with his audience,” and (3) “used the instrumentalities and resources of the State of
Iowa to facilitate his retaliatory conduct.” Brown further argues that the complaint
adequately pleads state action because it alleges, and Linder himself does not

-- 4 of 7 --

-5-
contest, that Linder was acting within the scope of his UI employment when he
carried out the retaliatory conduct.
We agree with the district court that Brown failed to plead adequately that
Linder’s retaliatory actions were under color of state law.3 Contrary to Brown’s
insistence, our case law is clear that a state employee, merely by publicly identifying
himself as such, does not act under color of state law. See Magee v. Trs. of Hamline
Univ., 747 F.3d 532, 535-36 (8th Cir. 2014). In Magee, we held that a plaintiff failed
to plead that a police officer acted under color of state law when her complaint
alleged only that the officer identified himself as a state employee in a newspaper
editorial disparaging the plaintiff. Id. We explained that to act under color of state
law, a state employee must “exercise power possessed by virtue of state law and
made possible only because [he] is clothed with the authority of state law.” Id. at
535 (brackets omitted). Because the complaint failed to identify any relationship
between the officer’s conduct and the performance of his duties as a state employee,
the plaintiff did not adequately allege conduct under color of state law. Id. at 535-
36 (“Nothing in [the] complaint indicates that [defendant’s] actions were made
possible by, or undertaken in, his position as a police officer.”).
Brown argues that Magee is distinguishable because in that case there were
no allegations that the officer was exercising official duties or acting within the scope
of his state employment, whereas Linder himself concedes that he was acting within
the scope of his employment when he criticized Brown. Brown contends that
because a state employee “generally . . . acts under color of state law while acting in
his official capacity,” West v. Atkins, 487 U.S. 42, 50 (1988), Linder’s retaliatory
conduct was under color of law.
Brown is wrong. Even assuming that a public-university professor acts in his
official capacity or within the scope of his employment when he comments on public
3 We thus need not consider the district court’s separate conclusion that Brown
failed to allege that Linder’s conduct would chill a person of ordinary firmness from
engaging in protected speech.

-- 5 of 7 --

-6-
affairs,4 it would not necessarily follow that he acts under color of state law. See
Polk Cnty. v. Dodson, 454 U.S. 312, 324 (1981) (holding that a public defender does
not act under color of state law when “exercising her independent professional
judgment in a criminal proceeding”). Indeed, we have suggested that, at least for
certain state employment, whether a defendant’s conduct is “fairly attributable to the
state” depends more on the degree of control that the state exercises over such
conduct than on the mere fact that the conduct was within the scope of the
defendant’s employment. See Montano v. Hedgepeth, 120 F.3d 844, 851 (8th Cir.
1997). In Montano, we held that a state prison chaplain did not act under color of
state law when conducting ecclesiastical activities within the scope of his
employment. Id. We observed that, because a prison chaplain’s pastoral acts are
constitutionally enshrined and not “subject to governmental pressures,” such acts,
unlike his administrative or managerial acts, are not “fairly attributable to the state.”
Id. at 850-51. Montano thus demonstrates that “[e]ven when state employees are
performing the services for which the state pays them, they may not be state actors
while performing functions that the state has no right to control.” See Hall v.
Witteman, 584 F.3d 859, 866 (10th Cir. 2009).
Accordingly, accepting as true all of Brown’s well-pleaded factual
allegations and drawing all reasonable inferences in his favor, we conclude that his
complaint does not adequately allege that Linder acted under color of state law when
he rebuked Brown’s expert testimony. The bare assertion that Linder identified
himself as a UI law professor and acted within the scope of that employment when
he criticized Brown is not enough to allege plausibly that Linder’s conduct was state
action. See Magee, 747 F.3d at 536; Montano, 120 F.3d at 850-51. Nothing in
Brown’s complaint indicates that Linder’s criticisms involved an exercise of “power
possessed by virtue of state law” or were “made possible only because [Linder] [wa]s
clothed with the authority of state law.” See Magee, 747 F.3d at 536. And absent
from the complaint is any detail about what Linder’s official duties as a state
4See Garcetti v. Ceballos, 547 U.S. 410, 438 (2006) (Souter, J., dissenting)
(stating that public-university professors “necessarily speak and write pursuant to
official duties” (internal quotation marks and ellipsis omitted)).

-- 6 of 7 --

-7-
employee include or how his conduct was facilitated by state resources. See id.
Without facts like these, Brown fails to allege that Linder’s condemnation was
anything other than “purely private.” See Dossett, 399 F.3d at 947. Brown’s
allegations are therefore exactly the sort of “labels and conclusions” that cannot
survive a Rule 12(b)(6) motion. See Hamilton, 621 F.3d at 817.
At the end of the day, we do not doubt that the public might regard a law
professor’s views on expert testimony as particularly authoritative. Indeed, it is
certainly possible that Linder’s occupation brought attention to, or elevated the
credibility of, his criticism of Brown. Nonetheless, that Linder happens to work for
a public university rather than a private one does not, by itself, mean that his conduct
was under color of state law.
III.
For the foregoing reasons, we affirm the district court’s dismissal of Brown’s
§ 1983 claim.
______________________________

-- 7 of 7 --