The opinion of the court was delivered by: ROSENBERG
ROSENBERG, District Judge.
This matter is presently before me on the motions of each of the defendants, Tyrone Hospital, Dr. John Maras, Dr. Daniel Friday, Dr. R. P. Erdly, Dr. James Shindel, Dr. Howard G. Shaub, Dr. J. A. Ayres, Dr. S. Victor King and Dr. Norman B. Ream, to dismiss the complaint of the plaintiff Mel D. Acosta, Jr., M.D., alleging a deprivation of his civil rights under 42 U.S.C. § 1983. The defendants base their motions on the theory that the actions of the defendants did not constitute "state action" as required by the statute.
Thus it is that the motions of the defendants for the dismissal of the complaint are not to be considered strictly as a remedy to dismiss the complaint, but should be considered under Rule 56 as being motions for summary judgment. Since the plaintiff filed no counter-affidavit to that of the defendant, Tyrone Hospital and appears to have relied upon the answers given by the defendants as they relate to any question of state action which must necessarily be present to support the civil rights actions, I will consider only the jurisdictional question as it may relate to the civil rights law.
From these factual records now before me it appears that the plaintiff is a licensed medical doctor who became associated with the defendant, Tyrone Hospital, in 1967; that he was a member of the medical staff with clinical privileges including, but not limited to, general surgery; that from 1969 until the association was terminated in 1973 the plaintiff was chief of surgery; that the eight individual defendants are members of the Medical Staff of Tyrone Hospital and occupied positions of responsibility on various hospital committees having authority over the medical staff; that Tyrone Hospital is a private, non-profit hospital located in Tyrone Borough, Blair County, Pennsylvania, incorporated in 1946 and commencing the acceptance of patients in 1954; that the 16.43 acres of land on which the hospital was constructed were donated by the Water Department of Tyrone Borough; that construction costs were approximately $1,200,000 of which $407,249.58 were Hill-Burton Act funds
received by the hospital from 1953 through 1955; that several modernization projects were undertaken from time to time from 1957 through 1971, all of which were privately funded; that the hospital has received payments for services rendered to patients through the Medicare program since 1966 and the Medicaid program since 1968, all of which are subject to government auditing procedures and exempt from state and most local taxes; that Tyrone Hospital is governed by a Board of Directors who are elected for three-year terms by vote of the individual members of the Hospital corporation; that the Board of Directors has supervisory authority over the organization of the Medical Staff, the appointments and reappointments of the Medical Staff, and the clinical privileges to be accorded to each staff member; and that no state agency is involved in appointments to the Board of Directors or the functioning of the Board.
The plaintiff alleges that the defendant, Tyrone Hospital, through the individual defendants discriminated against him and restrained his medical practice by creating a department of orthopedic surgery under the guise and subterfuge of designating a physician ostensibly accredited by the Board of Orthopedic Surgery as head of that department, and forbid the plaintiff to perform orthopedic surgery any longer while it subsequently cancelled surgical operations scheduled by the plaintiff.
The defendants, in their answers, deny that any discrimination took place but argue that even if there were any such discrimination as charged, it would not be "state action", and therefore the court has no jurisdiction.
The statute under which the plaintiff proceeds is 42 U.S.C. § 1983 which provides:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
To sustain a cause of action the plaintiff must show that the state has so far insinuated itself into a position of interdependence with the hospital that it must be recognized as a joint participant in the challenged activity. Braden v. University of Pittsburgh, 477 F.2d 1, C.A. 3, 1973.
The plaintiff contends that this interconnection is demonstrated by the fact that: (1) Tyrone Hospital receives Hill-Burton funds; (2) the land on which the hospital was constructed was donated by Tyrone Borough with a reverter clause to the Borough if the land is no longer used for hospital purposes; (3) the hospital is inspected by the Department of Public Welfare; (4) it participates in Medicare and Medicaid programs and is audited annually; and (5) all members of the hospital staff must be licensed by the State.
The only contentions raised by the plaintiff seeking to create a nexus between the defendants and the jurisdictional issue under the civil rights law which needs any consideration is that (1) the Tyrone Hospital receives Hill-Burton funds, and (2) the land on which the hospital was constructed was donated by Tyrone Borough with a reverter clause to the Borough if the land is no longer used for hospital purposes.
Taking the second first, the contention raises no more of a problem than that which would have existed if the Borough of Tyrone had owned land or buildings for which it had no use and leased it out for commercial purposes on a rental basis. Under Pennsylvania law a Borough has such rights and it is common knowledge that the unnecessary properties or lands which a borough owns, whether through gift, purchase of taxpayers' foreclosures, are frequently leased out for private endeavors. The fact that the privately owned Tyrone Hospital is non-profit and ...