United States District Court, Northern District of Illinois, E.D
April 22, 1975
WARREN F. SPENCER, M.D., PLAINTIFF,
THE COMMUNITY HOSPITAL OF EVANSTON, DEFENDANT.
The opinion of the court was delivered by: Kirkland, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes before the Court on defendant's motion to
dismiss the complaint for failure to state a cause of action
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. In the alternative, defendant moves to stay these
proceedings on grounds that a similar action is pending in state
This is an action for injunctive relief and for damages brought
by a Black physician where jurisdiction is invoked pursuant to
Title 28 U.S.C. § 1331, 1343 and 1651; Title 42 U.S.C. § 1981,
1983 and 1985; and the Thirteenth and Fourteenth Amendments to
the Constitution of the United States. The defendant is an
Illinois not-for-profit corporation which renders medical service
primarily to the Black community of Evanston. Plaintiff claims
that agents of defendant hospital have conspired with agents of
predominately White Evanston General Hospital, to cause the
smaller hospital, Community Hospital of Evanston, to be merged
with or utilized by the Evanston General Hospital as an
out-patient ambulatory care facility. Plaintiff's complaint
alleges that in furtherance of that goal, "agents of defendant
and agents of Evanston General Hospital have conspired to
unlawfully remove plaintiff's staff privileges at the defendant
hospital" because of plaintiff's opposition to this union.
Plaintiff further alleges that he, individually and on behalf
of the Black community of Evanston, has opposed termination of
defendant hospital's family practice and general medical programs
which serve primarily the Black community of Evanston.
The issue before the Court is whether the allegations of the
complaint state a cause of action under §§ 1981, 1983 and 1985 of
Title 42 U.S.C.
To be entitled to relief under § 1983 plaintiff must show that
defendant was acting "under color of" state law. The controlling
consideration is whether there is sufficient relationship between
the alleged private entity (defendant hospital) and the State to
make the private entity a de facto public body, whose
activities would constitute state action.
Three leading Supreme Court cases address the issue. In Burton
v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6
L.Ed.2d 45 (1961) a restaurant which discriminated against Blacks
leased its premises from an agency of the State of Delaware. The
building housing the restaurant was publicly constructed, owned
and maintained, and used for public purposes. The court held
there was sufficient governmental involvement so as to render the
private activities of the restaurant public insofar as due
process was concerned. In Moose Lodge No. 107 v. Irvis,
407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), the Supreme Court
applied concepts narrowing Burton. The case involved a Negro
guest of a member of a private club being refused service because
of his race. Plaintiff sought to require the liquor board to
revoke the club's license until the discriminatory practices were
discontinued. The issue was whether the state's regulatory and
licensing practice constituted sufficient state action to create
a cause of action under § 1983. In holding the state's regulatory
activities insufficient to constitute state action, the Court
Our holdings indicate that where the impetus for the
discrimination is private, the State must have
`significantly involved itself with invidious
discriminations,' . . . in order for the
discriminatory action to fall within the ambit of the
constitutional prohibition. 407 U.S. at 173, 92 S.Ct.
In December, 1974 the Supreme Court decided Jackson v.
Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed. 2d
477. In Jackson plaintiff claimed that termination of electric
service to his home by a privately owned utility company
constituted state action because of extensive state regulation.
In rejecting that claim, the Court specified a more concise test
as to state action:
Here the action complained of was taken by a utility
company which is privately owned and operated, but
which in many particulars of its business is subject
to extensive state regulation. The 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.] at 176-177, 92
S.Ct.  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.
Public Utilities Comm'n v. Pollak, 343 U.S. 451, 462,
72 S.Ct. 813, 820, 96 L.Ed. 1068 (1952). It may well
be that acts of a heavily regulated utility with at
least something of a governmentally protected
monopoly will more readily be found to be `state'
acts than will the acts of an entity lacking these
characteristics. But the inquiry must be whether
there is a sufficiently close nexus between the State
and the challenged action of the regulated entity so
that the action of the latter may be fairly treated
as that of the State itself. Moose Lodge No. 107,
supra, at 176, 92 S.Ct.  at 1973, 419 U.S. at
349, 95 S.Ct. at 453, 42 L.Ed.2d at 483-484 (Emphasis
The Court went on to say:
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. 419 U.S. at 354, 95 S.Ct. at 455,
42 L.Ed.2d at 485-486.
The Seventh Circuit has twice applied a substantially similar
test. In Lucas v. Wisconsin Electric Power Co., 466 F.2d 638
Cir. 1972), later reiterated in Doe v. Bellin Memorial Hospital,
479 F.2d 756
(7th Cir. 1973) the Court said:
The `under color of' provision [of Title 42 U.S.C.A.
Sec. 1983] encompasses only such private conduct as
is supported by state action. That support may take
various forms, but it is quite clear that a private
person does not act under color of state law unless
he derives some `aid, comfort, or incentive,' either
real or apparent, from the state. Absent such
affirmative support, the statute is inapplicable to
We believe that affirmative support must be
significant, measured either by its contribution to
the effectiveness of defendant's conduct, or perhaps
by its defiance of conflicting national policy, to
bring the statute into play. 466 F.2d at 654-656.
Plaintiff alleges state action predicated upon (1) a favorable
$1.00 per year land lease from the Metropolitan Sanitary District
of Greater Chicago; (2) receipt of Hill-Burton Act funds in
constructing the hospital; (3) operation of an alcohol abuse
program pursuant to contract with the City of Evanston; and (4)
receipt of funds from the state for care of indigent patients.
The fact that a hospital receives public funding or operates
specified medical programs for the state does not of itself
satisfy the requirement that the state's involvement with the
challenged action of the hospital must be of such nature that
action of the hospital can fairly be considered action of the
Plaintiff's complaint does not allege that the State of
Illinois or any political subdivision thereof has in any
way encouraged, aided, or supported the alleged merger, nor that
the state has in any way encouraged or supported the removal of
Dr. Spencer from staff privileges at the hospital. Neither has it
been alleged that the removal of Dr. Spencer would in any way
advance the interests of the state or any political subdivision
or that such action was taken at their undisclosed request, or
with their support or concurrence. In short, plaintff has not
alleged state involvement in the hospital action which would
permit the challenged action of the hospital to be imputed to the
state, within the meaning of § 1983.
Plaintiff relies upon two Fourth Circuit cases: Simkins v.
Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963),
and Sams v. Ohio Valley General Hospital Assn., 413 F.2d 826 (4th
Cir. 1969). In both Simkins and Sams, the court held that
receipt of Hill-Burton funds required sufficient state action in
compliance with the Act's provisions to hold certain actions of
the hospital to be state action under § 1983. The Seventh
Circuit, in the Doe opinion, supra, limited Simkins to its
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. 479 F.2d at 761.
Plaintiff also relies on Holmes v. Silver Cross Hospital of
Joliet, Illinois, 340 F. Supp. 125 (N.D.Ill. 1972). There Judge
Will adopted the reasoning of Simkins. However, in an opinion
filed March 31, 1975, Judge Will altered his position in Holmes
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
defendants. Doyle v. Unicare Health Services, Inc.,
No. 74 C 828 (Mar. 31, 1975).
Judge Will reviewed Jackson v. Metropolitan Edison Co.,
419 U.S. 345
, 95 S. Ct. 449, 42 L.Ed.2d 477 (1974), Doe v. Bellin
Memorial Hospital, 479 F.2d 756
(7th Cir. 1973), and authorities
from other circuits and concluded:
Applying the standard reflected by the aforementioned
cases we do not find that the plaintiffs have alleged
the requisite involvement by the state in the
wrongful conduct at issue here. Regardless of the
extent to which the defendants receive governmental
support, or the degree of government regulation,
unless the state activity or involvement related to
the conduct which caused Mary Ann Hawken's death, the
instant cause of action is not actionable under §
1983. Since there is no allegation that the state,
either through neglect or purposeful failure to
properly regulate the defendant, sanctioned or gave
tacit approval to the defendants' course of conduct,
the defendants cannot be subject to federal
jurisdiction. (Memorandum Opinion at 9.)
Plaintiff also cites Citta v. Delaware Valley Hospital,
313 F. Supp. 301 (E.D. Pa. 1970). More recent authority in that
Circuit, however, casts doubt on the continuing validity of the
Citta opinion. For example, in Hoberman v. Lock Haven Hospital,
377 F. Supp. 1178 (M.D. Pa. 1974) the court refused to find state
action in a Section 1983 suit even though the defendant hospital
received Hill-Burton funds, payments from medicare
and medicaid programs, other grants or services from governmental
units, and had to comply with rules and regulations promulgated
by the state department of welfare. 377 F. Supp. at 1186-1188. See
Ozlu v. Lock Haven Hospital, 369 F. Supp. 285, 287-288 (M.D.Pa.
1974) for holding to the same effect.
The cases relied upon by plaintiff are not in accord with the
present weight of authority. As to specific state involvements,
numerous cases have held that receiving Hill-Burton funds and
being subject to state regulation 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); Slavkoff v. Harrisburg Polyclinic
Hosp., 375 F. Supp. 999 (M.D.Pa. 1974); Shulman v. Washington
Hosp. Center, 222 F. Supp. 59 (D.D.C. 1963).
Leasing of land by a hospital from a state agency is
insufficient to convert a private hospital into one acting "under
color of" state law. Akopiantz v. Bd. of County Com'rs., 65 N.M. 125,
333 P.2d 611 (1959).
Donation of land by the federal or state government to a
hospital has likewise been held insufficient. Shulman v.
Washington Hosp. Center, 222 F. Supp. at 60, 62 (1963); Monyek v.
Parkway General Hosp., 273 So.2d 430 (Fla.Dist.Ct. of App.,
Nor does a private hospital lose its character because it
receives funds from the State for care of indigent patients or
other governmental financial assistance. Shulman v. Washington
Hosp. Center, 222 F. Supp. at 61, 62 (1963); Halberstadt v.
Kissane, 31 A.D.2d 568, 294 N.Y.S.2d 841 (1968); West Coast
Hospital Ass'n v. Hoare, 64 So.2d 293 (Fla. 1953); Hughes v. Good
Samaritan Hospital, 289 Ky. 123, 158 S.W.2d 159 (1942); Van
Campen v. Olean General Hospital, 210 App. Div. 204, 205 N.Y.S.
554 (1924), aff'd, 239 N.Y. 615, 147 N.E. 219. Mauer v. Highland
Park Hosp. Foundation, 90 Ill. App.2d 409, 232 N.E.2d 776 (1967).
In sum, there is no allegation that the State, either through
neglect or purposeful failure to properly regulate the defendant,
sanctioned or gave tacit approval to defendant's conduct.
Plaintiff's failure to show state activity related to the
challenged conduct of defendant, results in the complaint not
stating a cause of action under § 1983.
Sections 1981 and 1985 of Title 42 U.S.C. unlike § 1983,
proscribe private conduct and, with one exception, do not require
state action in order to state a cause of action under their
It is well settled that to state a cause of action under §
1985, it must be alleged that there was "some racial, or . . .
class-based, invidiously discriminat[ed] animus," thereby seeking
to deprive a plaintiff and/or others in his class, "of the equal
enjoyment of rights secured by law to all."
The principles governing the application of Section 1985(3)
were enunciated by the Supreme Court in Griffin v. Breckenridge,
403 U.S. 88, 101-02, 91 S. Ct. 1790, 1798, 29 L.Ed.2d 338 (1971):
That the statute was meant to reach private action
does not, however, mean that it was intended to apply
to all tortious, conspiratorial interferences with
the rights of others. For, though the supporters of
the legislation insisted on coverage of private
conspiracies, they were equally emphatic that they
did not believe . . . `that Congress has a right to
punish an assault and battery when committed by two
or more persons within a State' . . . 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. . . . The language requiring
intent to deprive of equal protection, or equal
privileges and immunities, means that there must be
some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the
conspirators action. The conspiracy in other words,
must aim at a deprivation of the equal enjoyment of
rights secured by the law to all. (Emphasis Added).
Other cases following Griffin have held Section 1985(3) only
encompasses racially discriminatory action. E.g. Arnold v.
Tiffany, 487 F.2d 216
, 218 (9th Cir. 1973), cert. denied,
415 U.S. 984
, 94 S. Ct. 1578
, 39 L.Ed.2d 881 (1974); Ward v. St.
Anthony Hosp., 476 F.2d 671
, 676 (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
, 320 (S.
D.Ill., 1974); Furumoto v. Lyman, 362 F. Supp. 1267, 1286
The scope of Section 1985(3) has recently been explained by the
Seventh Circuit in Dombrowski v. Dowling, 459 F.2d 190 (7th Cir.
1972). The Court stated:
The breadth of the statute's coverage is yet to be
determined, but three categories of protected rights
have been plainly identified. Griffin gives express
recognition to a black citizen's Thirteenth Amendment
rights and to his federal right to travel interstate;
the title of the statute expressly identifies the
third category, namely, rights protected by the
Fourteenth Amendment. We think the § 1983 cases make
it clear that in this third category a `state
involvement' requirement must survive Griffin. Id.
Dombrowski indicated that a cause of action under Section
1985(3) seeking to assert a Fourteenth Amendment right must
allege state action. Under prevailing standards the defendant is
a private hospital and not one sufficiently involved with the
state or federal government to be considered as acting "under
color of" state law.
The complaint also alleges, under Section 1985, violations of
Thirteenth Amendment rights — which must, under Griffin, allege
racial or otherwise class-based discriminatory action.
Similarly, under Section 1981, a cause of action may be founded
only upon allegations of racially discriminatory conduct. Waters
v. Wisconsin Steel Wks. of Internat'l Harvestor Co.,
427 F.2d 476, 492 (7th Cir. 1970); Dombrowski v. Dowling, 459 F.2d 190,
199 n. 22 (7th Cir. 1972).
Plaintiff does not allege any invidious, racial or class-based
discrimination. He does not allege that defendant hospital is
depriving Black physicians of staff privileges or that defendant
is depriving Blacks from hospitalization. Rather, plaintiff
asserts that on behalf of the Black community of Evanston, he
opposed an alleged merger between defendant and Evanston General
Hospital, and because of his opposition to this merger "agents of
defendant and agents of Evanston General Hospital have conspired
to unlawfully remove plaintiff's staff privileges at the
defendant hospital." (Complaint, ¶ 5.)
In essence, plaintiff alleges (1) an agreement between
management of two hospitals to merge, with control of plaintiff's
hospital to pass to the other hospital; (2) as a result of this
merger, plaintiff's hospital will be converted to use as an
out-patient medical facility; (3) plaintiff opposes this plan
because in his view it will have an adverse affect upon the Black
community of Evanston; (4) as a result of his opposition,
plaintiff's staff privileges were removed as a
result of agreement of agents of both hospitals.
This Court holds that these allegations of the complaint do not
state a claim for which relief may be granted.
The plan of the two hospitals to merge is not alleged to be
illegal. Conversion of use by the incoming management of
plaintiff's hospital is not alleged to be illegal. The fact that
conversion of use of Community Hospital will have an adverse
effect upon the Black community is not alleged to be sufficient
basis to make that action illegal. Finally, the allegation that
plaintiff was illegally removed from his position because of his
disagreement with controlling managers does not state a claim for
While it is unfortunate that corporate managers sometimes
choose to remove rather than deal with those who disagree, such
action does not give rise to Constitutionally-predicated relief
within the meaning of the Civil Rights Act. The Civil Rights
Statutes were not intended to apply to all tortious,
conspiratorial interferences with the rights of others. To be
entitled to relief under Sections 1981 and 1985, defendant must
be motivated by "some racial, or perhaps otherwise class-based,
invidiously discriminatory animus." Griffin, supra, 403 U.S. at
102, 91 S.Ct. at 1798.
Sections 1981 and 1985 of the Civil Rights Act require that a
plaintiff be deprived of his rights because he is Black. That
is not what the complaint in this instance alleges.
Assuming other requirements of the law to be satisfied, an
allegation that conversion of use of Community Hospital was done
with a design to discriminate against Blacks, and that plaintiff
was discharged because of his opposition thereto, would state a
cause of action. An allegation that plaintiff was discharged
because he is Black would also state a cause of action.
Had plaintiff alleged in his complaint, as opposed to a motion
brief, that he was discharged so that a White man could be
appointed in his stead, the complaint would state a cause of
action. Allegations made during court appearances and in motion
briefs do not remedy defective allegations of the complaint.
The complaint is dismissed for failure to state a cause of
action under Sections 1981, 1983 and 1985 of the Civil Rights
Act. Plaintiff is granted twenty days leave to file an amended
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