The named plaintiffs, Rosemary Doyle, as Administrator for the
estate of Mary Ann Hawken, deceased, and Barbara Hawken, as
sister and next friend of Mary Ann Hawken, bring this action
against Unicare Health Services, Inc. (Unicare), and various of
its directors and employees, for alleged violations of Mary Ann
Hawken's civil rights, 42 U.S.C. § 1983, 1985(3) and 1986.
Unicare, a privately owned, for profit, health care facility,
licensed by the State of Illinois, contracted to provide
full-time supervision and care to Mary Ann Hawken, a mentally
retarded adult. Asserting that the defendants breached their
obligation to Mary Ann Hawken by denying her necessary medical
attention, thereby contributing to her death, the plaintiffs now
seek monetary damages in the amount of $1,000,000. Federal
jurisdiction is founded upon 28 U.S.C. § 1343. Plaintiffs also
join two pendent claims, one sounding in tort for alleged
malpractice, and the second, for breach of contract for failure
to provide the decedent with promised programs, services, and
Defendants move to dismiss these claims charging (1) lack of
jurisdiction, and (2) failure to state a valid cause of action.
For the reasons set forth hereinafter, the defendants' motions
will be granted.
The plaintiffs' factual allegations reflect that, on February
1, 1971, they entered into a written agreement with Unicare,
whereby it would provide full-time care and treatment for Mary
Ann Hawken's physical and emotional needs. Pursuant to this
agreement, the defendants allegedly received payments from the
deceased, her relatives, the Social Security Administration, and
the State of Illinois.
On May 18, 1973, Mary Ann Hawken allegedly fell and injured her
head. Defendants took Ms. Hawken to the Mercy
Center for Health Care Services located in North Aurora,
Illinois, where her head wound was treated and sutured. Upon
return to the Aurora Center, she apparently became weak,
nauseated, and complained to defendants that she was suffering
increased discomfort and pain. After several unanswered
entreaties for help, the deceased allegedly suffered a seizure.
The defendants allegedly still refused to administer any
medicine, call a doctor, or return Mary Ann to the hospital. On
May 20, 1973, having received no further treatment, Mary Ann
Hawken died at the Aurora Center. The plaintiffs claim that Mary
Ann's death was directly and proximately caused by defendants'
reckless and intentional disregard for her condition, their
intentional refusal to give her necessary treatment, and their
refusal to obey and comply with the laws and regulations
promulgated by the State of Illinois which define the standards
for medical treatment required for residents of a sheltered care
PLAINTIFFS' § 1983 CLAIM
The defendants raise two challenges to the plaintiffs' § 1983
claim; first, that the conduct described in plaintiffs' complaint
does not give rise to a valid claim of deprivation of any rights,
privileges, or immunities as contemplated by the Civil Rights
Act, and second, that Unicare was not acting under the color of
state law, and therefore is not subject to suit under § 1983.
Regarding the first challenge, the courts have generally
recognized that custodial institutions under the aegis of the
State have a constitutional obligation to ensure that an inmate
is secure in his life and person while confined there. Spence v.
Staras, 507 F.2d 554 (7th Cir. 1974); see also, Brazier v.
Cherry, 293 F.2d 401 (5th Cir. 1961), cert. denied, 368 U.S. 921,
82 S.Ct. 243, 7 L.Ed.2d 136 (1961). This has been interpreted to
require these institutions to provide necessary and reasonable
medical treatment to those entrusted to their care. Thomas v.
Pate, 493 F.2d 151 (7th Cir. 1974); Accord, La Batt v. Twomey,
513 F.2d 641 (7th Cir. 1974).
The institution's duty, however, is tempered, or conditioned,
by its broad discretion in determining the nature and extent of
medical treatment to be afforded its residents. The courts have
refused to entertain § 1983 lawsuits where the plaintiff merely
charges dissatisfaction with the adequacy of the treatment
received, Thomas, supra, or that it was administered negligently.
Scharfenberger v. Holmes, 384 F. Supp. 1269 (W.D.Ky. 1974). The
courts have carefully avoided second-guessing licensed physicians
as to the propriety of their prescribed treatment.
As expressed in Thomas, supra, 493 F.2d at 158, however, in the
. . a claim of medical mistreatment rises to
fourteenth amendment proportions when it asserts a
refusal to provide essential medical care after a
prisoner brings his medical complaint to the
attention of prison authorities. . . . In the
ultimate determination whether medical care was in
fact essential, the question would be, we think,
whether it had been proved that a physician
exercising ordinary skill and care at the time of the
request for medical care would have concluded that
the symptoms of the prisoner evidenced a serious
disease or injury; that the potential for harm by
reason of delay or denial of medical care was
substantial; and that such harm did result. In
deciding at the pleading stage whether a claim has
been stated, the court must consider whether the
factual allegations of the complaint suggests the
presence of these factors. [citations omitted]
We also think that it is sufficient to allege facts
which suggest that the medical care provided is so
clearly inadequate as to amount to a refusal to
provide essential care or is so blatantly
inappropriate as to evidence intentional mistreatment
likely to seriously aggravate
the prisoner's condition. [citations omitted]
If the defendants were acting under "color of state law," as
required for jurisdiction under § 1983 at the time in question,
the plaintiffs' complaint states a valid cause of action for
refusal to supply essential medical treatment.
Accepting plaintiffs' factual allegations as true, they set
forth that (1) the deceased was a mentally retarded adult
entrusted to the defendants' care, (2) she received a head injury
sufficient to require emergency treatment, (3) after receiving
initial treatment she experienced additional pain and discomfort
which she brought to the attention of the defendants without
recourse, (4) she then suffered a seizure which defendants knew
about and still refused additional treatment, and (5) she
ultimately died without receiving any further treatment. Based
upon these allegations, the plaintiffs contend that defendants,
although aware of Mary Ann Hawken's deteriorating physical
condition, knowingly, willfully, and wantonly refused to procure
readily available medical treatment which would have saved Mary
Ann Hawken's life, in violation of their contractural, moral, and
legal duty to aid her. Such a claim clearly states a cause of
action under the Fourteenth Amendment, for depriving Mary Ann
Hawken of her fundamental right to the enjoyment of life. See,
Spence v. Staras, supra.
The Civil Rights Act, however, was not intended to reach all
tortious interferences with the rights of others. To be
actionable under § 1983, the Plaintiffs must establish that the
defendant Unicare, a private for-profit institution, was acting
under color of state law. The plaintiffs, relying principally
upon this court's decision in Holmes v. Silver Cross Hospital of
Joliet, Illinois, 340 F. Supp. 125 (N.D.Ill. 1972), argue that
there is a sufficient element of state action present here
because (1) the defendant North Aurora Center is licensed and
pervasively regulated in all phases of its activities by the
Illinois Department of Public Health; (2) it is regularly
inspected by and forced to comply with the orders of four
governmental agencies; (3) it is financed in large part by public
tax dollars; and (4) it operates merely as an extension of the
Illinois Department of Mental Health in that the majority of its
residents are admitted directly from departmental institutions.
In support of these incidents of state involvement, the
plaintiffs have offered considerable material which arguably
establishes that the defendant is subject to pervasive
regulation, benefits substantially from governmental subsidies,
and provides services which supplement the State's mental health
system. Even accepting the existence of these criteria, in the
face of emerging decisional law running contra to Holmes, and
seriously eroding its precedential effect, we find that the
plaintiffs have failed to establish jurisdiction over the
As recently set forth by the Supreme Court in Jackson v.
Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d
477 (1974), on the question of § 1983's coverage of a public
utility, "[t]he mere fact that a business is subject to state
regulation does not by itself convert its action into that of the
State for purposes of the Fourteenth Amendment. Moose Lodge No.
107 v. Irvis, supra, 407 U.S. 163 at 176-177, 92 S.Ct. 1965, at
1973, 32 L.Ed.2d 627. Nor does the fact that the regulation is
extensive and detailed, as in the case of most public utilities,
do so." Consistent with this ruling and pertinent to the instant
suit, numerous cases have held that being subject to state
regulation and receiving Hill-Burton funds, do not convert an
otherwise private hospital into one acting under color of state
law. Ward v. St. Anthony Hosp., 476 F.2d 671 (10th Cir. 1973);
Jackson v. Norton-Children's Hospitals, Inc., 487 F.2d 502 (6th
Cir. 1973); Barrio v. McDonough District Hosp., 377 F. Supp. 317
(S.D.Ill. 1974); Mulvihill v. Julia L. Butterfield Memorial
Hosp., 329 F. Supp. 1020 (S.D.N.Y. 1971);
Barrett v. United Hosp., 376 F. Supp. 791 (S.D.N.Y. 1974);
Slavcoff v. Harrisburg Polyclinic Hosp., 375 F. Supp. 999 (M.D.Pa.
1974). Nor does a hospital lose its private character because it
receives funds from the state for the care of indigent patients,
Shulman v. Washington Hosp. Center, 222 F. Supp. 59 (D.D.C. 1963);
Halbertstadt v. Kissane, 31 A.D.2d 568, 294 N.Y.S. 841 (1968);
West Coast Hospital Ass'n. v. Hoare, 64 So.2d 293 (Fla. 1953); or
funds through Medicare or Medicaid programs, Ward v. St. Anthony
Hosp., supra, 476 F.2d at 675-676; Slavcoff v. Harrisburg
Polyclinic Hosp., supra, 375 F. Supp. at 1003-1004; or other
governmental financial assistance, Mauer v. Highland Park Hosp.
Foundation, 90 Ill. App.2d 409, 232 N.E.2d 776 (1967).
Nor does the fact that the defendants' services may be
"affected with a public interest" give rise to state action. As
expressed in Jackson v. Metropolitan Edison Co., supra, 419 U.S.
at 354, 95 S.Ct. at 455. "Doctors, optometrists, lawyers,
Metropolitan, and Nebbia's upstate New York grocery selling a
quart of milk are all in regulated businesses, providing arguably
essential goods and services `affected with a public interest.'
We do not believe that such a status converts their every action,
absent more, into that of the State."
In order to establish state action for purposes of the
Fourteenth Amendment, the kind of symbiotic relationship between
the private party and the State is required in which the State
has so far insinuated itself into a position of interdependence
that is a joint participant in the enterprise. Jackson at 357, 95
S.Ct. at 457, citing Burton v. Wilmington Parking Authority,
365 U.S. 715 at 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). In other
words, "the inquiry must be whether there is sufficiently close
nexus between the State and the challanged action of the
regulated entity so that the action of the latter may be fairly
treated as that of the State itself." Jackson, supra, 419 U.S. at
351, 95 S.Ct. at 453. The Seventh Circuit has recently held, Doe
v. Bellin Memorial Hosp., 479 F.2d 756 at 761 (7th Cir. 1973), in
passing on whether an action could be maintained under § 1983 to
enjoin a private hospital receiving federal subsidies from
denying abortions, that:
Unlike the fact situation in Simkins v. Moses H.
Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963),
on which plaintiffs place heavy reliance, this record
does not reflect any governmental involvement in the
very activity which is being challenged. We find no
basis for concluding that by accepting Hill-Burton
funds the hospital unwittingly surrendered the right
it otherwise possessed to determine whether it would
accept abortion patients.
This more direct participation rule has been applied by other
circuits. Judge Friendly, for instance, observed in Powe v.
Miles, 407 F.2d 73 at 81 (2d Cir. 1968):
. . [t]he state must be involved not simply with
some activity of the institution alleged to have
inflicted injury upon a plaintiff but with the
activity that caused the injury. Putting the point
another way, the state action, not the private
action, must be the subject of complaint.
Likewise, the Tenth Circuit required a "causal connection between
the state conduct and plaintiff's injury," in Ward v. St. Anthony
Hosp., supra, 476 F.2d at 676. In Slavcoff v. Harrisburg
Polyclinic Hosp., supra, 375 F. Supp. at 1001, the court found
that the "state must be intertwined in the very activity which
caused plaintiff's injury."