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July 9, 1984


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


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 the complaint.

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, 1981.

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."

II. Discussion

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 ...

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