that the actions and conduct of the defendants as set out hereinabove deprived plaintiff of his rights, privileges and immunities secured by the Constitution and laws of the United States by the fact that he has been deprived of the opportunity of earning his livelihood as an assistant trainer at Liberty Bell Race Track, Keystone Race Track and all thoroughbred horse race meetings in which said defendants participate. The complaint further alleges that the actions and conduct of the defendants were undertaken under color of state law, more particularly pursuant to § 12.1 of the Act of December 11, 1967, P.L. 707, as amended 15 P.S. § 2662.1. Plaintiff further alleges that thoroughbred horse racing in the Commonwealth of Pennsylvania is a monopoly organized and conducted by the state for the purpose of providing it revenue; that Continental and Eagle Downs are granted licenses by the state to conduct horse race meetings; and that said horse race meetings and the activities of Continental and Eagle Downs are controlled and supervised by the Commission. In addition, he asserts that he has been deprived of a meaningful hearing at which he could confront adverse witnesses, present witnesses on his own behalf, give testimony on his own behalf and, further, that by their actions the defendants have in effect nullified the Commission's ruling reinstating his license, thereby arbitrarily, capriciously, and maliciously depriving him of the opportunity to pursue his chosen occupation. Finally, plaintiff claims that the actions and conduct of the defendants have improperly and unlawfully stigmatized him as unfit to pursue his chosen occupation, depriving him of an important property right without due process of law.
Count II alleges a violation of § 1985(3) of the Civil Rights Act of 1871 in that plaintiff states therein that the defendants have conspired to deprive him of the opportunity to pursue his occupation and have, thereby, injured him by depriving him of his livelihood.
It is on the basis of the aforesaid allegations that we evaluate the complaint against defendants' motions to dismiss.
II. § 1983
In their motions to dismiss, defendants contend that plaintiff has not sufficiently alleged a violation of § 1983. Defendants' contention is based upon their position that (1) state action is not present in the instant action, (2) a constitutional right is not involved and (3) even if a constitutional right is involved there has not been any impermissible invasion of the right.
In regard to defendants' position as to the state action question, we find that the complaint is replete with allegations of conduct by defendants committed under color of state law sufficient to establish a case of state action capable of withstanding dismissal at this stage of the proceedings. Included in the numerous allegations concerning state action are the assertions that "thoroughbred horse racing in the Commonwealth of Pennsylvania is a monopoly organized and conducted by the State for the purpose of providing revenues for the State; CONTINENTAL and EAGLE DOWNS are granted licenses by the State to conduct horse racing meetings, and the horse race meetings and the activities of CONTINENTAL and EAGLE DOWNS are controlled and supervised by the COMMISSION."
Plaintiff also alleges that "the actions and conduct of the aforesaid defendants constitute an abuse and misuse of power possessed by them by virtue of State law and the actions and conduct of the Defendants were undertaken under color of State law, more particularly § 12.1 of the Act of December 11, 1967, P.L. 707, 15 P.S. § 2662.1, as amended."
See, Catrone v. Massachusetts State Racing Commission, et al., 404 F. Supp. 765 (D.Mass. 1975); Cf. Rockwell v. Pennsylvania State Horse Racing Commission and Continental Racing Association, 15 Pa. Commw. 348, 327 A.2d 211 (Oct. 17, 1974).
Defendants second and third arguments, that a constitutional right is not involved and if involved has not been violated, can be properly considered together. In response to this argument, plaintiff cites New State Ice Company v. Liebmann, 285 U.S. 262, 52 S. Ct. 371, 76 L. Ed. 747 (1931), for the proposition that one has a constitutional right to ply his trade. We believe that Greene v. McElroy, 360 U.S. 474, 492, 79 S. Ct. 1400, 1411, 3 L. Ed. 2d 1377 (1959) is more on point. Greene involved the validity of the Government's revocation of security clearance granted to an aeronautical engineer employed by a private manufacturer. He was discharged from his employment, solely as a consequence of the revocation, because his access to required classified information was barred. After his discharge, petitioner was unable to secure employment as an aeronautical engineer and for all practical purposes that field of endeavor was closed to him. Although the Court in Greene expressly limited its holding to the issue of whether or not the President or Congress explicitly authorized or empowered the action taken, the Court also stated that the revocation of Mr. Greene's security clearance had the effect of restraining him in the enjoyment of constitutionally protected rights -- to wit, "property" in the loss of his job and "liberty" in seriously affecting, if not destroying, his ability to obtain employment in the aeronautics field. See also, Wahba v. New York University, 492 F.2d 96 (2nd Cir. 1974), cert. den., 419 U.S. 874, 95 S. Ct. 135, 42 L. Ed. 2d 113.
The allegations of the complaint sufficiently set forth a right within the definition of "liberty" and of "property" as defined in Greene. Most certainly the conduct of defendants in denying plaintiff access to the track is much more than the exercise of defendants' claimed common law rights as private proprietors to refuse admission to whomsoever they choose. For, considering the fact that the assistant trainer field is state controlled and requires access to the race tracks, defendants' conduct may well preclude plaintiff from obtaining employment as an assistant trainer.
However, in order to sustain an action under § 1983, the alleged deprivation of constitutionally protected rights by state action must be unreasonable. United States v. Briggs, 514 F.2d 794, 798 (5th Cir. 1975) citing Greene, supra, 360 U.S., at 492-493, 79 S. Ct., at 1411. Our reading of Count 1 leads us to conclude that plaintiff cannot realistically allege an unreasonable deprivation; that any deprivation experienced by plaintiff is only tentative pending plaintiff's attempt to enforce his Pennsylvania statutory rights.
Plaintiff's claim of an unreasonable deprivation of constitutionally protected rights is essentially based upon the allegation that he has not received a due process hearing with regard to defendants' refusal to allow him entrance into Liberty Bell and Keystone race tracks. In this regard, paragraph 25 of the complaint states that defendants' actions were taken pursuant to § 12.1 of the Act of December 11, 1967, P.L. 707, 15 P.S. § 2662.1, as amended.
A reading of this particular Pennsylvania Statute discloses that plaintiff cannot and is not, as he contends, permanently barred from his occupation and deprived of property or liberty without a full hearing. The statute involved provides as follows:
2662.1 Security personnel; powers and duties; penalty