ORDER AND REASONS

MARTIN L.C. FELDMAN, District Judge.

Before the Court is the defendants' motion to dismiss the plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the motion is GRANTED.

Background

This litigation arises from a townhouse association's alleged attempts to enforce restrictions on a townhouse owner's display of his American flag.

Thomas Michael Costanza owns and resides in two townhouse units located at 127 Highway 22 East in Madisonville, Louisiana. Tchefuncte Harbour Association, Inc. is the owner and operator of the townhouse development, as well as the homeowner's association that manages the property; Albert Oglesby is employed by Tchefuncte as the association manager. Alcor Group, L.L.C. manages the development.

In May 2013 Costanza began displaying the American flag outside the door to his townhouse. The Association has advised Costanza that his flag display violates the parties' covenants and restrictions applicable to his townhouse. Negotiations between the parties failed. Costanza continues to display the flag. In October 2013 the Association recorded in the mortgage records for the Clerk of Court of St. Tammany Parish a lien and privilege affidavit against Costanza's property; a portion of this lien relates to Costanza's flag display.

After more failed negotiations and alleged harassment by the Association (through Mr. Oglesby), Costanza sued the Association, the Alcor Group, and Oglesby in this Court, invoking this Court's federal question jurisdiction. Costanza seeks a declaration, pursuant to the Freedom to Display the American Flag Act of 2005, that the actions of the Association are invalid. He also seeks damages and attorney's fees pursuant to 42 U.S.C. § 1983 for the defendants' alleged infringement of his First Amendment rights. The defendants now seek dismissal of the plaintiff's complaint for failure to state a claim upon which relief may be granted.

I.

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. Such a motion is rarely granted because it is viewed with disfavor. See Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997) (quoting Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982)).

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Fed.R.Civ.P. 8). "[T]he pleading standard Rule 8 announces does not require `detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

In considering a Rule 12(b)(6) motion, the Court "accepts `all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" See Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464 (5th Cir.2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.1999)). But, in deciding whether dismissal is warranted, the Court will not accept conclusory allegations in the complaint as true. Kaiser, 677 F.2d at 1050. Indeed, the Court must first identify allegations that are conclusory and, thus, not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A corollary: legal conclusions "must be supported by factual allegations." Id. at 678, 129 S.Ct. 1937. Assuming the veracity of the well-pleaded factual allegations, the Court must then determine "whether they plausibly give rise to an entitlement to relief." Id. at 679, 129 S.Ct. 1937.

"`To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937) (internal quotation marks omitted). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations and footnote omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ("The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."). This is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. at 678, 129 S.Ct. 1937 (internal quotations omitted) (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).

Finally, "[w]hen reviewing a motion to dismiss, a district court `must consider the complaint in its entirety, as well as other sources ordinarily examined when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.'" Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir.2011) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)).

II.

A. The Freedom to Display the American Flag Act of 2005

The defendants seek dismissal of the plaintiff's claim for declaratory relief under the Freedom to Display the American Flag Act on the ground that the Act provides no private right of action. The Court agrees.

4 U.S.C. § 5, entitled "Display and use of flag by civilians; codification of rules and customs; definition", provides:

In 2006 Congress passed the Freedom to Display the American Flag Act of 2005, Pub.L. No. 109-243, 120 Stat. 572 (2006). The Act, codified as a note to 4 U.S.C. § 5, provides:

The Act further states:

Id. Noticeably absent from the text of the Act is an express creation of a private right of action, any explicit enforcement mechanism or remedy, or any reference to penalties or sanctions to be imposed for violations. The Act is simply an example of poor draftmanship. The plaintiff urges the Court to divine an implied right of action by resort to the factors analyzed in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). But resort to the legislative history of the Act does not compel the plaintiff's desired result.

To be sure, the U.S. Court of Appeals for the Fifth Circuit continues to apply the four factors articulated in Cort,1 notwithstanding observations that the Cort analysis has shifted to focus exclusively on legislative intent. See California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981) ("Cases subsequent to Cort have explained that the ultimate issue is whether Congress intended to create a private right of action ..., but the four factors ... remain the `criteria through which this intent could be discerned'"); Thompson v. Thompson, 484 U.S. 174, 178, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988) ("In determining whether to infer a private cause of action from a federal statute, our focal point is Congress' intent in enacting the statute"); Thompson, 484 U.S. at 189, 108 S.Ct. 513 (Scalia, J., concurring)("It could not be plainer that we effectively overruled the Cort v. Ash analysis in Touche Ross & Co. v. Redington, 442 U.S. 560, 575-576, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) and Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18, 100 S.Ct. 242, 246, 62 L.Ed.2d 146 (1979), converting one of its four factors (congressional intent) into the determinative factor, with the other three merely indicative of its presence of absence")(emphasis in original); Wright v. Allstate Ins. Co., 500 F.3d 390, 395 (5th Cir.2007) (acknowledging that "the determinative question is whether Congress intended to create a private right of action in favor of the plaintiff" but nonetheless analyzing each of the four factors).

The plaintiff alleges that, by harassing him and attempting to enforce the covenants restricting his display of the flag on his townhouse, the Association has (and continues to) violate the Act, and the Court should declare that the Association is conducting itself contrary to the Act. But, no matter how questionable the Association's rule or attitude, "`the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.'" Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (quotation omitted).

Turning to the determinative question: Did Congress intend to create the private right of action Costanza asserts?

The answer is, simply, no. As already noted, there is nothing in the text of the statute to support the creation of a private right of action. Nor is there any reference to a remedy, an enforcement mechanism, or penalties to be imposed for violations. Likewise, there is nothing implicit in the language or structure of the Act, or apparent from the circumstances of its enactment, that suggests congressional intent to establish a private right of action. In fact, one other district court that has considered this issue in an identical context — a condominium owner challenging the condominium association's restrictions on his display of the American flag — examined the legislative history and declined to find an implied right of action. In Murphree v. The Tides Condominium at Sweetwater by Del Webb Master Homeowners' Association, Inc., the district court observed:

No. 13-713, 2014 WL 1293863, at *11 (M.D.Fla. March 31, 2014) (internal citations omitted).2 In other words, the legislative history is silent on the issue of whether a private right of action should be available under the Act. Under these circumstances, the Court must heed the U.S. Supreme Court's prudent cautionary instruction: "implying a private right of action on the basis of congressional silence is a hazardous enterprise, at best." Touche Ross & Co. v. Redington, 442 U.S. 560, 571, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (citation omitted).

With respect to the touchstone of an implied rights inquiry — legislative history — the plaintiff advances no support for the outcome he seeks; he understandably asks "Why would Congress enact this Statute if [it] did not intend for it to have teeth and grant the protected class a remedy in this exact situation?" The Court wonders as well. The plaintiff is clearly frustrated. But rhetoric is not a predicate for the implication of a private remedy.3 Rather, "[t]he intent of Congress remains the ultimate issue ... and `unless this congressional intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate of private remedy simply does not exist.'" Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988) (quoting Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981)). The plaintiff offers up no source that would support his hope that he has a private right of action under the Act. Accordingly, his request for declaratory relief pursuant to the Act must fail.

B. 42 U.S.C. § 1983

Costanza also charges that the defendants violated his First Amendment rights by harassing him, fining him, and otherwise interfering with his display of the American flag. The defendants contend that dismissal of Costanza's § 1983 claim is warranted because they are not state actors, although Costanza persists that filing a lien in the mortgage records, a portion of which arises from his display of the flag, rises to the level of state action. He is simply wrong.

Title 42, U.S.C. § 1983 creates a damages remedy for the violation of federal constitutional or statutory rights under color of state law; it provides:

To establish § 1983 liability, the plaintiff must satisfy three elements:

Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir.2004) (citation omitted). "[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." Am. Mfrs. Mut. Ins., Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (internal quotation marks and citation omitted). Thus, the general rule is that private companies or individuals "are not considered to act under color of law, i.e., are not considered state actors." Ballard v. Wall, 413 F.3d 510, 518 (5th Cir.2005). However, a private company or citizen may be held liable under § 1983 if that citizen conspired with or acted in concert with state actors; the private citizen must be a "willful participant in joint activity with the State or its agents." See Priester v. Lowndes County, 354 F.3d 414, 420 (5th Cir.2004) (citations omitted).

Costanza invokes Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) in support of his state action theory.4 The petitioners in Shelley had purchased residential properties that were subject to racially-based restrictive covenants; the covenants were enforced through state court action. The U.S. Supreme Court ruled that state judicial enforcement of racially restrictive covenants in land deeds constituted state action that violated the Equal Protection Clause of the Fourteenth Amendment. Id. at 19-20, 68 S.Ct. 836. Notably, in Shelley, the petitioners were subject to state court orders divesting them of title in their properties; that state court orders were in place to enforce the racially discriminatory covenants quite reasonably compelled a finding of state action. Id. ("[B]ut for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.").

Here, Costanza alleges that the Association has recorded a lien on his property, a portion of which relates to Costanza's display of the flag;5 but, unlike the state court orders actually issued in Shelley to enforce the racially restrictive covenants, Costanza alleges no such judicial intervention or enforcement of the Association's lien. Without it, his state action theory fails as a matter of law.6 Because the plaintiff offers no facts from which the Court can infer state action on the part of these private defendants, he has not stated a claim for relief under § 1983.

Accordingly, the defendants' motion to dismiss is GRANTED, and the plaintiff's claims are hereby dismissed.7