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April 22, 1975


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


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 court.

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 stated:

  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.
  at 1971.
  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. [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.
  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. [1965] 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 (7th 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
  private conduct.
  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 ...

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