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No constitutional claim against private individual

Appellant has no 14th Amendment claim against appellee, who directed a nursing home to ban phone calls from appellant to appellee’s brother, who was a nursing home patient.

The 14th Amendment specifically “prohibits only state action.” Appellee is not a state actor.

Statement of the case

“Christine Solem sought declaratory judgment that appellee Sarah Taylor had violated her constitutional rights by preventing her from speaking by telephone with Charles Taylor III (Charles) [Taylor’s brother], an incapacitated adult.

“Solem further asked the circuit court to enjoin Taylor from preventing such telephonic communication. Taylor filed a demurrer, which the circuit court sustained.

“After examining the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary.

“The dispositive issue in this appeal – whether the United States Constitution vests Solem with rights enforceable against Taylor, a non-state actor – has been ‘authoritatively decided, and the appellant has not argued that the case law should be overturned, extended, modified, or reversed.’”

Prior proceedings

Taylor demurred to Solem’s claims. “At the hearing on Taylor’s demurrer, Solem continued to assert an enforceable liberty interest, rooted in the United States Constitution, in the ‘pursuit of happiness,’ which included her ‘liberty’ to speak with her friend on the phone.

“Taylor countered that ‘[t]he 14th Amendment under the United States Constitution protects an individual’s rights to liberty from state actors, but not from private individuals.’

“Asserting that she was ‘not a state actor,’ Taylor argued that ‘as a matter of law there [wa]s no viable cause of action against [her] for infringing upon … Solem’s [asserted] liberty [interest].’

“Taylor further argued that ‘the declaratory judgment act … is a procedural statute’ and that Solem had to demonstrate ‘a substantive basis in law’ to bring an action under it.

“Solem could not meet that threshold requirement, Taylor argued, because her claim relied entirely upon the federal Constitution. Taylor asked that Solem’s claim ‘be dismissed with prejudice.’

“The circuit court asked sua sponte whether declaratory judgment was the proper vehicle for relief considering that the alleged harm had already occurred, leaving no ‘preventive’ relief the court could fashion. The circuit court sustained Taylor’s demurrer, finding that Solem’s complaint ‘s[ought] relief from an alleged harm that has already occurred, rather than preventative relief,’ and dismissed her request for injunction as “merely a remedy and not a cause of action.” Solem appeals.”


“Solem’s claims do not present a justiciable controversy. …

“The circuit court took the view that the harm Solem complained of had fully matured when Taylor arranged to have Arden Courts bar her from speaking with Charles (‘What I’m concerned about is that this action has already occurred in the past.’). Solem countered that her inability to contact Charles by phone was a continuing harm that could ‘probably happen again.’

“We find it unnecessary to determine whether the harm Solem identified was fully mature or ongoing because Solem’s claim did not present a justiciable controversy. … ‘“We have an “obligation to decide cases on the best and narrowest grounds available.”’ …

“In this case, the ‘best’ and ‘narrowest’ ground is that Taylor is not a state actor. … Solem does not name the specific constitutional provision upon which she relies but asserts that she is entitled to enforce her interest in ‘freedom from restraint under conditions essential for the equal enjoyment of this same right by others. (Emphasis added).

“Thus, we infer that she relies on the Fourteenth Amendment. That reliance, however, is misplaced. ‘[T]he Fourteenth Amendment, by its very terms, prohibits only state action.’ … It ‘erects no shield against merely private conduct, however discriminatory or wrongful.’ …

“To sustain her constitutional claim, Solem must show that Taylor, ‘the party charged with the deprivation’ of Solem’s rights, is ‘a person who may fairly be said to be a state actor.’ …

“Solem has alleged no government participation in this controversy at all. In the absence of such participation, the Fourteenth Amendment provides no right of action against a private party in a private dispute.

“Thus, Solem’s reliance on the Fourteenth Amendment is fatal to her declaratory judgment claim.

“Because Solem failed to present a justiciable claim to support her petition for declaratory judgment, the circuit court correctly dismissed her complaint with prejudice.”


Solem v. Taylor, Record No. 1102-22-2, April 4, 2023. CAV (unpublished opinion) (per curiam). From the Circuit Court of Albemarle County (Higgins). (Christine Solem, on briefs), pro se. (Michael E. Derdeyn; Ashley T. Hart; Flora Pettit, PC, on brief), for appellee. VLW 023-7-129, 7 pp.

VLW 023-7-129

Virginia Lawyers Weekly