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
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.
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 ...