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May 13, 1965


The opinion of the court was delivered by: Parsons, District Judge.

  This is an action against a private hospital and two Chicago police officers brought under the Federal Civil Rights Act, 28 U.S.C. § 1343, 42 U.S.C. § 1983, § 1985, § 1986; and Amendments IV, VI and XIV to the United States Constitution,*fn1 28 U.S.C. § 1331. Diversity of citizenship is not alleged. The amount in controversy exceeds $10,000.00 exclusive of interest and costs. Defendant Provident Hospital has moved to dismiss the action against it (Count I) for lack of jurisdiction and for failure to state a claim upon which relief can be granted.

Taking as true the allegations of the complaint, as they must be on ruling upon defendant's motion to dismiss, Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964), it appears that plaintiff was injured in an automobile accident near 43rd Street and Drexel Boulevard, Chicago, Illinois, on August 15, 1964. He was transferred to Provident Hospital by a Chicago Police Department squadrol, where he requested, and was refused, immediate medical care by hospital employees. Plaintiff offered to pay the reasonable charges for medical services to be rendered him for his injuries, but was turned down. As a direct consequence of such refusal, plaintiff sustained serious and permanent injuries.

Plaintiff further alleges that employees of the hospital called and caused the two defendant Chicago police officers, acting on behalf of the City of Chicago, to cause plaintiff at the hospital to be wrongfully assaulted about his face and body, and to have plaintiff placed in handcuffs and falsely and wrongly imprisoned, and that they prevented plaintiff from going about his normal business and obtaining proper medical care; all without cause or provocation.

Thereafter, said police officers forcefully and without cause kept plaintiff in handcuffs and removed him from the hospital to a nearby police station, where he was placed in jail for a number of hours, and later released on bond. Plaintiff seeks $175,000.00 in damages from Provident Hospital.


Where a claim is alleged to "arise under" the Constitution and Amendments thereto, a United States District Court must assume jurisdiction to determine whether the complaint states a claim upon which relief can be granted, provided that the claim is not frivolous but arguable, Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912 (1951), and that the amount in controversy exceeds $10,000.00.*fn2 Giancana v. Johnson, 335 F.2d 366 (7th Cir. 1964), cert. denied, 379 U.S. 1001, 85 S.Ct. 718, 13 L.Ed.2d 702. Where, as here, jurisdiction depends upon subject matter, the question whether jurisdiction exists should not be confused with the question whether the complaint states a valid cause of action. The latter involves a decision on the merits; the former does not. A claim should not be dismissed for lack of jurisdiction unless it appears, to a legal certainty, that the claim is wholly insubstantial and frivolous so far as the Constitution is concerned. Bell v. Hood, supra; Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963).

Although plaintiff's claim against Provident Hospital for damages under the Fourteenth Amendment appears rather insubstantial, experience teaches that the wiser and better practice is for the Court to assume jurisdiction over this cause for the purpose of determining whether Count I states a cause of action against Provident under the Constitution. Wheeldin v. Wheeler, supra.

Although equitable actions have been permitted to be brought to enforce rights guaranteed under the Fourteenth Amendment, e. g., Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964), it has consistently been held that the Constitutional Amendments are not self-executing as far as civil actions for damages are concerned. Wheeldin v. Wheeler, supra; Bell v. Hood, 71 F. Supp. 813 (S.D.Cal. 1947).

But assuming, arguendo, that an action for damages "arising under" Amendments to the United States Constitution can be brought against an individual or a corporation, see, Wheeldin v. Wheeler, 373 U.S. 647, 653-667, 83 S.Ct. 1441 (1963) (opinion of Mr. Justice Brennan); Nash v. Air Terminal Services, Inc., 85 F. Supp. 545 (E.D.Va. 1949); clearly no violation of the Fourteenth Amendment is presented here.

  It is elementary that in order to establish a violation of
the Fourteenth Amendment, there must be "state action" which
results in a deprivation of a right,

privilege or immunity protected by that Amendment. Provident
Hospital is a private institution. Nowhere is it alleged that
it is involved with official agencies to such a "significant
extent", Burton v. Wilmington Parking Authority, 365 U.S. 715,
81 S.Ct. 856, 6 L.Ed.2d 45 (1961), that its actions are to be
judged by constitutional standards. Compare, Simkins v. Moses
H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert.
denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659, (Hospital
receiving Federal funds under Hill-Burton Act); Smith v.
Holiday Inns of America, Inc., 336 F.2d 630 (6th Cir. 1964,
(motel erected on land purchased in city redevelopment project
from city housing authority, which developed program with
city, state and federal funds, and imposed continuing
controls); Todd v. Joint Apprenticeship Committee, 223 F. Supp. 12
 (N.D.Ill. 1963), rev'd on grounds of mootness, 332 F.2d 243
(7th Cir. 1964), cert. denied, 380 U.S. 914, 85 S.Ct. 880, 13
L.Ed.2d 800 (city participation in vocational training
program); Girard College Trusteeship, 391 Pa. 434,
138 A.2d 844 (1958), cert. denied, 357 U.S. 570, 78 S.Ct. 1383, 2
L.Ed.2d 1546 (administration of charitable trust transferred
from public to private control); Clark, Charitable Trusts, The
Fourteenth Amendment, And the Will of Stephen Girard, 66 Yale
L.J. 979 (1957).

Nor is it alleged that hospital employees participated jointly or in concert with police officers in a common scheme to deprive plaintiff of his constitutionally protected rights. The mere fact that hospital employees requested Chicago police officers to remove plaintiff from the premises, without more, is insufficient either to constitute "state action" on the part of the Hospital in violation of the Fourteenth Amendment, or to attribute to the Hospital any alleged subsequent wrongdoing on the part of public officials. Compare, Griffin v. State of Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964); Bell v. State of Maryland, 378 U.S. 226, 286, 84 S.Ct. 1814, 12 L.Ed.2d 822 (opinion of Mr. Justice Goldberg), 318 (opinion of Mr. Justice Black) (1964). See generally, Lewis, The Sit-In Cases: Great Expectations, 1963 Sup.Ct.Rev. 101; Berle, Constitutional Limitations on Corporate Activity-Protection of Personal Rights From Invasion Economic Power, 100 U.Pa.L.Rev. 933 (1952).

Of controlling importance is the absence of any allegation that the refusal of the Hospital to render immediate medical care was based upon racial discrimination or some other type of unreasonable, arbitrary, or "invidious, purposeful discrimination." Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944). Plaintiff has not alleged any facts showing that he was treated differently from others under similar circumstances and conditions; and the Court fails to find any circumstances pleaded in the complaint, or reasonable inferences to be drawn from plaintiff's allegations, which amount to discrimination, much less discrimination of the nature prohibited by the Fourteenth Amendment. Cf. Stanturf v. Sipes, 335 F.2d 224 (8th Cir. 1964), cert. denied, 379 U.S. 977, 85 S.Ct. 676, 13 L.Ed.2d 567. Under these circumstances, it is obvious that plaintiff's claim against Provident Hospital based upon the Fourteenth Amendment is totally without merit and fails to state a claim upon which relief can be granted.


The jurisdictional section of the Federal Civil Rights Act, 28 U.S.C. ยง 1343, ...

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