United States District Court, Northern District of Illinois, E.D
July 9, 1984
CHARLES G. MARCUCCI, PLAINTIFF,
NATIONAL RAILROAD PASSENGER CORPORATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Decker, Senior District Judge.
MEMORANDUM OPINION AND ORDER
Charles G. Marcucci (Marcucci) brought this five-count civil
rights suit against the National Railroad Passenger Corporation
(Amtrak) and twelve other individuals employed by Amtrak. The
complaint alleges that defendants violated Marcucci's
constitutional right to due process when they wrongfully
discharged him from his job as a "trainmaster." The defendants
move for summary judgment because, they argue, their conduct
fails to qualify as "state action." The court agrees with
defendants and enters judgment on the constitutional claims in
I. Factual Background
In February and March, 1981, the defendants, the Chicago Police
Department, the Burlington Northern Railroad Security Department,
and the Milwaukee Road Special Police conducted an investigation
into the theft and resale of commuter railroad tickets. The
investigation led to a series of interviews with Marcucci who, at
that time, worked as a trainmaster with Amtrak. Plaintiff alleges
that, during these interviews, defendants denied him procedural
rights guaranteed by the United States Constitution including his
right to counsel and notice. On February 24, 1981, Marcucci
prepared a written statement in which he admitted involvement in
the resale of the tickets. Amtrak then discharged him on March 9,
The complaint contains five counts.*fn1 The first three counts
allege violations of the fifth, sixth, and fourteenth amendments
to the Constitution. Marcucci also claims violations of
42 U.S.C. § 1983.*fn2 The final two counts are pendent state counts that
allege wrongful discharge and libel. Defendants move for judgment
on the civil rights counts because Amtrak is a private body
incapable of "state action."
On a motion for summary judgment, the moving party must clearly
establish "the non-existence of any genuine issue of fact that is
material to a judgment in his favor." Cedillo v. International
Association of Bridge & Structural Iron Workers, Local Union No.
1, 603 F.2d 7, 10-11 (7th Cir. 1979). The court must review "the
entire record in the light most favorable to the opponent of the
movant." Id. at 11.
Fed.R.Civ.P. 56(e) provides that "[w]hen a motion for summary
judgment is made and supported as provided in this rule, an
adverse party may not rest upon the mere allegations or denials
of his pleading, but his response, by affidavits or as otherwise
provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial." When the adverse party fails
to "so respond, summary judgment, if appropriate, shall be
entered against him." Id.
The fifth, sixth, and fourteenth amendments only protect
Marcucci from actions taken by the federal or state government.
E.g., Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct.
1965, 1971, 32 L.Ed.2d 627 (1972); Wenzer v. Consolidated Rail
Corporation, 464 F. Supp. 643, 647 (E.D.Pa.), aff'd, 612 F.2d 576
(3rd Cir. 1979). The fourteenth amendment "`erects no shield
against merely private conduct, however discriminatory or
wrongful.'" Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777,
2784, 73 L.Ed.2d 534 (1982) (quoting Shelley v. Kraemer,
334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948)). In determining
whether conduct is action by the federal government, the court
must apply the same standard as applied in determining whether
conduct is action by a state. Wenzer, 464 F. Supp. at 647.
The United States Supreme Court articulated what constitutes
state action in Blum v. Yaretsky, 457 U.S. at 1004, 102 S.Ct. at
2785, and Rendell-Baker v. Kohn, 457 U.S. 830, 839-43, 102 S.Ct.
2764, 2770-72, 73 L.Ed.2d 418 (1982). In Blum, the Court held
that decisions made by private physicians about transferring
nursing home patients were not actions by the state. 457 U.S. at
1005-12, 102 S.Ct. at 2786-89. Government Medicaid regulations
established the standards and procedures for transfer. Id. at
1005-12, 102 S.Ct. at 2786-89.
To establish state action, "[t]he complaining party
must . . . show that `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.'" 457 U.S. at 1004, 102 S.Ct. at 2785 (quoting
Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S.Ct.
449, 453, 42 L.Ed.2d 477 (1974)). "The purpose of this
requirement is to assure that constitutional standards are
invoked only when it can be said that the State is responsible
for the specific conduct of which the plaintiff complains." Id.
(emphasis in original).
Rendell-Baker reiterated that the state action doctrine
requires a causal connection between the state involvement and
the alleged deprivation. The plaintiffs, who were teachers,
challenged their discharges by a state-supported school. The
school allegedly based the discharges on the teachers' exercise
of their first amendment rights. The school received 90% of its
funds from state and federal agencies. The Court concluded that
state funding was insufficient to establish the "nexus between
the State and the challenged action." Compare 457 U.S. at 841-42,
102 S.Ct. at 2771-72 with id. 457 U.S. at 1004, 102 S.Ct. at
2785. The Court quoted the observation in Blum that "a State
normally can be held responsible for a private decision only when
it has exercised coercive power or has provided such significant
encouragement, either overt or covert, that the choice must in
law be deemed to be that of the State." Id. 457 U.S. at 840, 102
S.Ct. at 2771 (quoting Blum, 457 U.S. at 1004, 102 S.Ct. at
2785). "[T]he decisions to discharge the
[teachers] . . . were not compelled or even influenced by any
state regulation." Id. 457 U.S. at 841, 102 S.Ct. at 2771.
Applying these standards to Marcucci, the court must first
examine the relationship between Amtrak and the federal
government. The Rail Passenger Act of 1970, 45 U.S.C. § 501, et
seq., created Amtrak to make railway travel more efficient.
45 U.S.C. § 501. Congress created "a for profit corporation, the
purpose of which shall be to provide intercity rail passenger
service." Id. at § 541. Congress stated that the corporation was
not "an agency or establishment of the United States
government."*fn3 Id. The United States plays an
active role in Amtrak's operation. E.g., 45 U.S.C. § 543
(providing for eight of fifteen directors to be appointed by the
President); § 548 (requiring monthly reports to Congress); §§
601-02 (authorizing appropriations).
Blum and Rendell-Baker, however, require that the court probe
deeper to determine whether the government's involvement is so
closely connected with the alleged unconstitutional acts that the
government is responsible for the acts. Blum, 457 U.S. at 1004,
102 S.Ct. at 2785, Rendell-Baker, 457 U.S. at 841, 102 S.Ct. at
2772. The record in this case lacks any evidence that federal
regulations or funding resulted in the procedures that Amtrak
used when it disciplined Marcucci. In fact, section 546(b)
The Corporation shall be subject to the same laws and
regulations with respect to safety and with respect
to the representation of its employees for purposes
of collective bargaining, the handling of disputes
between carriers and their employees, employee
retirement, annuity and unemployment systems, and
other dealings with its employees as any other common
carrier subject to part I of the Interstate Commerce
45 U.S.C. § 546(b). This section evidences that Amtrak employees
have the same status as employees of any other private employer.
Therefore, employee relations, in general, and Amtrak's conduct
with respect to Marcucci, in particular, are independent of the
federal government. Federal action was not responsible for
In response to this challenge, Marcucci elaborated the intimate
relationship between Amtrak and the federal government. The court
recognizes the many regulatory and financial ties between Amtrak
and the federal government. None of the facts cited by Marcucci,
however, indicate that federal policies caused the conduct about
which Marcucci complains.*fn4 Although federal officials set goals
and general policies, Marcucci cites no regulation or policy that
could have caused the conduct described in the complaint. Without
any evidence of such a "nexus," no genuine issue of fact exists
on the material issue of whether there is state action.*fn5 This
consistent with other judicial opinions involving personnel
decisions by Amtrak. See, e.g., Anderson v. National Railroad
Passenger Corporation, No. 83 C 51, slip op. (N.D.Ill. August 30,
1983) (Judge Grady) (finding no state action); Kimbrough v.
National Railroad Passenger Corporation, 549 F. Supp. 169, 172-73
(M.D.Ala. 1982) (same).
Pendent State Claims
The court dismisses counts V and VI. Because they are state law
counts over which the court does not have diversity of
citizenship jurisdiction,*fn6 the court only has jurisdiction over
them as claims pendent to a federal claim. See Gibbs v. United
Mine Workers, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).
The court grants judgment on the federal counts at so early a
stage that it resists asserting its pendent jurisdiction over
counts V and VI. Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139
("[P]endent jurisdiction is a doctrine of discretion, not of
Even if the federal count had survived, however, the court
would still dismiss the state counts. Gibbs counseled restraint
in the exercise of pendent jurisdiction "if it appears that the
state issues substantially predominate." 383 U.S. 726-27, 86
S.Ct. at 1139. The allegations of the complaint convince the
court that this is a state-law wrongful discharge suit riding
into federal court on the back of three due process claims. The
state law claims belong in the state court whatever the
disposition of the constitutional claims.
For the reasons above, the court enters judgment for defendants
on counts I, II, and IV and dismisses counts V and VI without