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June 19, 1974


The opinion of the court was delivered by: Robert D. Morgan, Chief Judge.


Jurisdiction over the complaint herein is invoked under the provisions of 28 U.S.C. § 1343.*fn1 The complaint rests upon the theory that plaintiff, a suspended former member of the medical staff of the defendant hospital, was suspended from the staff in violation of the provisions of the Civil Rights Act, 42 U.S.C. § 1983 and 1985(3), and in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. Defendants named in the complaint are the hospital, its administrator, and various members of the Executive Committee of the medical staff of the defendant hospital.

The defendants, jointly and severally, have moved to dismiss the complaint upon the grounds, among others, that it is prolix and conclusory and that it fails to state a cause of action within the court's jurisdiction. Both of those grounds are meritorious.

One can distill from the complaint factual allegations that plaintiff was, in May, 1973, suspended by the Executive Committee of the staff members from the hospital's staff for a period of thirty days, that in September, 1973, he was permanently suspended by the said Committee, that thereafter, in November, 1973, his suspension was affirmed following administrative review of the Committee's action, and that on March 11, 1974, the Board of Directors of the defendant hospital reaffirmed those decisions.

The balance of the complaint can only be characterized as a prolix mass of conclusions that those actions taken resulted from a conspiratorial course of conduct by the individual defendants. Though every intendment must be indulged in favor of a pleading, this complaint must be dismissed for the reason that it does not contain factual allegations, as opposed to conclusory allegations, sufficient to state a cause of action over which the court has jurisdiction, and for the further reason that the complaint, as drawn, would defy any intelligent effort to compile an answer thereto.

The matter might rest at that point upon these motions, but the court feels that the interests of justice and economy of time for all concerned requires further inquiry and evaluation of the background of this controversy as it relates to the precedents defining the requisites of a factual basis for a jurisdictionally sound claim.

To state a cause of action under Section 1983, it must be alleged that the acts of which complaint is made were actions taken under color of state law.*fn2 It must involve a misuse of power, possessed by virtue of state law and made possible because of the authority thereby vested in the alleged wrongdoer. Monroe v. Pape, 365 U.S. 167, 183-187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). "Color of state law" has been equated with the term "state action" within the context of the Fourteenth Amendment. United States v. Price, 383 U.S. 787, 794, n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966).

In essence, this complaint bases the conclusion that defendants acted in the premises under color of state law upon the facts that the hospital does receive federal or state aid under the provisions of the Hill-Burton Act, 42 U.S.C. § 291 et seq. Though there is some conflict in the authorities, a majority of courts facing the question have held that the fact of receipt of Hill-Burton funds and the fact that a private hospital is subject to state regulations do not make acts by the hospital or its staff acts done under color of state law. E.g., Jackson v. Norton-Children's Hospitals, Inc., 487 F.2d 502, 503 (CA6 1973); Ward v. St. Anthony Hosp., 476 F.2d 671, 674-675 (CA10 1973); Don v. Okmulgee Memorial Hosp., 443 F.2d 234, 235 (CA10 1971). Cases involving private hospitals are not to be equated with those operating under some degree of direct state control. E.g., Meredith v. Allen County War Memorial Hospital Com'n, 397 F.2d 33 (CA6 1968); Birnbaum v. Trussell, 371 F.2d 672 (CA2 1966), in each of which managerial personnel were state appointees.

In short, to state a claim under Section 1983, it will be necessary for any amended complaint to allege facts in addition to the facts of state regulation and the receipt of public funds, if such an amended complaint is to, prima facie, allege an action under color of state law.

The requisites of a cause of action under Section 1985(3) have been succinctly defined by the courts.*fn3 Unquestionably, that section does apply to private conspiratorial acts, without any necessity of state involvement. As the Supreme Court said in Griffin v. Breckenridge, 403 U.S. 88, 101-102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971):

  "[The fact that Section 1985(3) was intended to reach
  private action] does not, however, mean that it was
  intended to apply to all tortious, conspiratorial
  interference with the rights of others. * * * The
  constitutional shoals that would lie in the path of
  interpreting § 1985(3) as a general federal tort
  law can be avoided by giving full effect to the
  congressional purpose — by requiring, as an
  element of the cause of action, the kind of
  invidiously discriminatory motivation stressed by the
  sponsors of the limiting amendment [as reflected in
  the legislative history of the Act.] * * * The
  language requiring intent to deprive of equal
  protection, or equal privilege and immunities, means
  that there must be some racial, or perhaps otherwise
  class-based, invidiously discriminatory animus behind
  the conspirators' action. * * *" (Emphasis by the

In the context of precedents squarely in point, the courts have consistently held that a class-oriented, invidious animus must be alleged to state a cause of action under 1985(3). E.g., Jackson v. Norton-Children's Hospitals, Inc., supra; Ward v. St. Anthony Hospital, supra at 676; Birnbaum v. Trussell, supra at 676. In the latter case the court said that the allegation of unequal application of the law to an individual does not state a 1985(3) action even if that action was malicious, if the factual circumstances failed to indicate the existence of a class-oriented, invidious animus.

Accepting every conclusion of this complaint at face value, the complaint alleges only that there existed an animosity by other members of the medical staff against the plaintiff, as an individual, and that the action of the defendant was provoked and carried through to fruition because thereof. Thus, in this area the complaint may or may not indicate the existence of a tort action under state law, but it does not even conclude that the requisite animus existed to invoke the remedy provided by Section 1985(3).

Finally, to allege a denial of due process of law in violation of the Fourteenth Amendment, the complaint must allege facts sufficient to show that the matter of which plaintiff complains involved action by the State, as opposed to action by private individuals. More than ninety years ago the Supreme Court stated that, "Individual invasion of individual rights is not the subject matter of the" Fourteenth Amendment. Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 21, 27 L.Ed. 835 (1883). From exposition hereinabove, it is apparent that no state action is alleged herein, even if the court accepts conclusory allegations as factual. As plaintiff suggests, the Fourteenth Amendment guarantee of due process is involved in the suspension of a physician from a hospital staff by state action. E.g., Meredith v. Allen County War Memorial Hospital Com'n, supra. Though each Woodbury v. McKinnon, 447 F.2d 839 (CA5 1971), and Suckle v. Madison General Hospital, 362 F. Supp. 1196 (W.D.Wis., 1973), does state in exposition that the suspension of a physician did raise a federal due process question, neither opinion recites any facts upon which that conclusion by the respective courts rests. Neither can be read as holding that the due process question can arise divorced from some action by a state. To the extent ...

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