Library, supra at 385, quoting Grossner v. Trustees of Columbia Univ., 287 F. Supp. 535, 547-548 (S.D.N.Y. 1968).
Finally, Plaintiff alleges that Indiana Hospital is subject to the standards of the Professional Standards Review Organization, "a judicially determined agency of the United States." Compl. para. 21(x).
Plaintiff also alleges that the Hospital participates in Champus, a federally-funded program for members of the armed services. Compl. para. 21(bb). Plaintiff further alleges that the Hospital is exempt from paying federal income tax.
None of these allegations, either alone or in conjunction with Plaintiff's other allegations, are sufficient to show the extensive interdependence and involvement with the federal government required under the Burton test.
Thus, given the allegations before us, we cannot find that a "symbiotic relationship" exists between the Hospital Defendants
and the government such as existed in Burton.57
B. THE "NEXUS" TEST
Under the "nexus" test established by the Court in Jackson v. Metropolitan Edison Co., supra, government action may be found if "there is a sufficiently close nexus between the (government) and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the (government) itself." Id. 419 U.S. at 351.
Under Jackson, the Plaintiff must show that the government is so involved in the specific act at issue that it has effectively placed its imprimatur on that act or put its weight behind it. See Jackson v. Metropolitan Edison Co., supra 419 U.S. at 357; Fitzgerald v. Mountain Laurel Racing, Inc., supra, at 597. The government's mere acquiescence or approval of the private action does not convert the act into that of the government. See Blum v. Yaretsky, 457 U.S. 991, 102 S. Ct. 2777, 2785, 73 L. Ed. 2d 534 (1982). See also Flagg Bros. v. Brooks, 436 U.S. 149, 164, 98 S. Ct. 1729, 1737, 56 L. Ed. 2d 185 (1978); Jackson v. Metropolitan Edison Co., supra 419 U.S. at 357, 95 S. Ct. at 456.
Thus, the government can be held responsible for the private act only when it has compelled the act by law
or when it has "provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the (government)." Blum v. Yaretsky, supra, U.S. at , 102 S. Ct. at 2785.
We can perceive no basis in the case at bar for finding a nexus between the federal government and the failure to accept or process Plaintiff's applications for medical staff privileges. Specifically, the pleadings are devoid of allegations to support an inference that the federal government compelled or provided significant encouragement to Indiana Hospital's actions.
Thus, we can find no federal government action under the Jackson "nexus" test.
C. THE "PUBLIC FUNCTION" TEST
Finally, under the "public function" test discussed by the Court in the recent case of Rendell-Baker v. Kohn, 457 U.S. 830, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982) and also in the earlier case of Jackson v. Metropolitan Edison Co., supra, government action may be present where the function performed by the private entity is "'traditionally the exclusive prerogative of the State.'" Rendell-Baker v. Kohn, supra, U.S. at , 102 S. Ct. at 2773, quoting Jackson v. Metropolitan Edison Co., supra 419 U.S. at 353, 95 S. Ct. at 455.
The performance of a function which serves the public or which is "affected with a public interest" does not suffice under this test. Rendell-Baker v. Kohn, supra, U.S. , 102 S. Ct. at 2771; Jackson v. Metropolitan Edison Co., supra 419 U.S. at 353-54, 95 S. Ct. at 455. Rather, the activity must be one which is traditionally associated with sovereignty. Id. 419 U.S. at 353.
Plaintiff has offered no facts which would establish the existence of federal action under the public function test. Thus, there are no facts to support the proposition that the provision of hospital or medical services has traditionally been within the exclusive province of the federal government.
That Defendants' services may further government policies does nothing more than clothe their activities "with a public use." See Jackson v. Metropolitan Edison Co., supra at 353-54. Hence, Defendants' activities are not the exercise of powers which have traditionally been exercised exclusively by the government. Cf. Evans v. Newton, 382 U.S. 296, 15 L. Ed. 2d 373, 86 S. Ct. 486 (1966) (Control and maintenance of a public park).
Plaintiff has failed to establish a "federal action" under any of the tests discussed above. Consequently, Plaintiff is unable to prove that Defendants have violated rights secured by the Fifth Amendment.
* * *
II. CLAIM UNDER 42 U.S.C. § 1983
Defendants contend that Plaintiff's allegations cannot establish that Defendants' conduct was action under the color of state law within the meaning of 42 U.S.C. § 1983.
Plaintiff asserts that the Defendants did act under color of state law within the meaning of § 1983.
We do not reach the issue of whether the Hospital's activities constitute "state" action for purpose of § 1983 and the Fourteenth Amendment
because that issue has already been decided by the Pennsylvania Superior Court.
Both the Hospital Defendants and Dr. Muller, as a threshold matter, assert the defense of collateral estoppel with respect to this issue.
We agree that the doctrine of collateral estoppel is applicable here but only with respect to the issue of whether the Hospital's activities, absent any conspiratorial conduct on the part of a state actor, constitute state action.
The purpose of collateral estoppel is to prevent the waste of judicial and individual resources, minimize the occurrence of inconsistent decisions and encourage reliance upon judicial decisions. See Allen v. McCurry, 449 U.S. 90, 94, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980). Under this doctrine, a court's decision on an issue of fact or of law which is necessary to its judgment is conclusive with respect to that issue in subsequent suits based upon a different cause of action involving a party to the first case. Montana v. United States, 440 U.S. 147, 153, 59 L. Ed. 2d 210, 99 S. Ct. 970 (1979).
The federal courts have consistently applied collateral estoppel to issues decided by state courts. Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S. Ct. 1883, 72 L. Ed. 2d 262 (1982). Further, it is now firmly established that the doctrine of collateral estoppel is applicable to § 1983 actions. See Allen v. McCurry, supra (where the Supreme Court held that the doctrine of collateral estoppel could be applied in a § 1983 action in federal court with regard to issues decided in a state criminal proceeding).
Thus, the doctrine of collateral estoppel will apply when (1) the issue decided in the prior litigation is identical to the issue here, (2) the prior litigation resulted in a final judgment on the merits, (3) the party against whom the estoppel is asserted is a party, or in privity with a party, to the prior proceeding, and (4) the opportunity to present the claim in the prior proceeding was full and fair. Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 844 (3d Cir. 1974).
In this case, the question of whether state action exists with respect to Indiana Hospital
is identical to the issue decided in the state court proceeding. The state court litigation resulted in a final decision on the merits. The Plaintiff here was a party to the prior litigation. Further, there is absolutely no indication that Plaintiff was denied a full and fair opportunity -- procedurally or substantively -- to present his case before the Pennsylvania courts.
See id. at 845.
We decline to apply collateral estoppel to the alleged conspiracy between Dr. Muller of the Pennsylvania Department of Health and the Hospital Defendants because that issue was not present before the Pennsylvania courts.
Plaintiff contends that the facts he alleges support a finding that a conspiracy existed between Dr. Muller and the Hospital Defendants so that we may conclude that all Defendants acted under color of state law.
A conspiracy between a private party and a state official to effect a prohibited act may constitute action under color of state law for purposes of § 1983. Adickes v. Kress & Co., 398 U.S. 144, 152, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Mere acquiescence in a private action, however, does not convert the action into that of the state. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164-66, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978).
We believe that the Plaintiff in this case, like those in Flagg Bros., is not complaining "that the State has acted, but that it has refused to act (emphasis in original)." Id. at 166. Such a contention does not provide a basis for finding action under color of state law for purposes of § 1983.
In the instant case, the Pennsylvania Department of Health did not become involved until after the Hospital Defendants had already taken their disputed action. Specifically, Plaintiff requested and was denied application forms from the Hospital in October of 1980. The earliest date of involvement by the Department was December of 1980. Thus, the Department could not have conspired with the Hospital Defendants at the time of the conduct in question. Any alleged conspiracy could only have arisen after the Hospital had refused to provide Plaintiff with the application forms.
Further, the Department of Health only became involved at Plaintiff's request. The Department's involvement was not at its own initiative or at the Hospital's request. This is a factor which would tend to negate any alleged concerted action between the Hospital Defendants and the Department of Health.
Most importantly, the Department of Health simply refused to take any action in the matter. It would not order the Hospital to provide Plaintiff with an application. It is the Department's refusal to take any action which Plaintiff actually contests.
Thus, it cannot be said here that the Commonwealth of Pennsylvania compelled a specific act by a private party or "commanded a particular result." Adickes v. Kress & Co., supra 398 U.S. at 170; Peterson v. Greenville, 373 U.S. 244, 248, 10 L. Ed. 2d 323, 83 S. Ct. 1119 (1963). Certainly, there is no allegation that the Department of Health ordered the Hospital to withhold an application from Plaintiff. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974).
The state's inaction in this case cannot be characterized as "coercion" or even "significant encouragement." See Blum v. Yaretsky, 457 U.S. 991, 102 S. Ct. 2777, 2785, 73 L. Ed. 2d 534 (1982). At best, it is mere acquiescence in the Hospital's decision. See id.
Therefore, the facts as alleged by Plaintiff, even if fully proven, do not provide a basis for holding the Commonwealth of Pennsylvania responsible for the Hospital's act and do not enable us to find that the Hospital's conduct was action under color of state law for purposes of § 1983.
Accordingly, Defendants' Motions with respect to Plaintiff's claim under § 1983 must be granted.
* * *
III. CLAIM UNDER 42 U.S.C. § 1985
The Hospital Defendants and Dr. Muller contend that Plaintiff has failed to state a claim under 42 U.S.C. § 1985 because he has not alleged any facts showing the existence of class-based animus.
Plaintiff responds that an "animus" test is not required by the terms of either § 1985(2) or (3). He also asserts that class-based animus need not be shown where state action is involved.
Section 1985 contains three major subsections, each providing for the redress of somewhat different wrongs. Plaintiff does not make clear under which (subsections) he is proceeding. His Complaint alleges a violation of § 1985 without identifying a particular subsection or subsections. His brief primarily discusses § 1985(3) although a fleeting reference is also made to § 1985(2).
Clearly, § 1985(1)
is inapplicable to the instant case. That subsection only protects federal officers. Canlis v. San Joaquin Sheriff's Posse Comitatus, 641 F.2d 711, 717-718 (9th Cir.), cert. denied, 454 U.S. 967, 70 L. Ed. 2d 383, 102 S. Ct. 510 (1981); McIntosh v. Garofalo, 367 F. Supp. 501, 505 n. 1 (W.D. Pa. 1973). Specifically, it proscribes conspiracies which interfere with the performance of official duties by federal officers. Kush v. Rutledge, 51 U.S.L.W. 4356, 4358, 460 U.S. 719, 103 S. Ct. 1483, 75 L. Ed. 2d 413 (1983). This subsection does not apply to private individuals or even to non-federal officials. Canlis, supra.
Further, Plaintiff does not state a claim under § 1985(2).
Section 1985(2) subdivides into two parts -- that which precedes the semicolon and that which follows it. Brawer v. Horowitz, 535 F.2d 830, 840 (3d Cir. 1976); Hahn v. Sargent, 523 F.2d 461, 469 (1st Cir. 1975), cert. denied, 425 U.S. 904, 47 L. Ed. 2d 754, 96 S. Ct. 1495 (1976).
The first part of § 1985(2) addresses conspiracies to intimidate or retaliate against parties, jurors or witnesses in federal court proceedings. Id. See also Kush v. Rutledge, supra. Plaintiff does not allege that Defendants conspired to interfere with a federal court proceeding. See Hahn v. Sargent, supra, at 469.
The second part of § 1985(2) parallels the first part of § 1985(3) inasmuch as both are directed towards "equal protection of the laws." Id. A requisite element to a cause of action under the first part of § 1985(3) is a showing of "class-based, invidiously discriminatory animus." Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971). See also Kush v. Rutledge, supra. The U.S. Court of Appeals for the Third Circuit has applied this requirement to the second portion of § 1985(2) as well. Brawer v. Horowitz, supra at 840. See also Kush v. Rutledge, supra; Hahn v. Sargent, supra at 469. For reasons discussed in connection with § 1985(3) (see below), Plaintiff's allegations will not support an inference that class-based animus exists here. Therefore, Plaintiff fails to state a claim under the second part of § 1985(2).
was previously thought to apply only to actions taken under color of state law. See Collins v. Hardyman, 341 U.S. 651, 655, 95 L. Ed. 1253, 71 S. Ct. 937 (1951). In the landmark case of Griffin v. Breckenridge, supra, the Supreme Court held that § 1985(3) provides a cause of action for damages caused by purely private conspiracies. Id. See also Kush v. Rutledge, supra; Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 371-72, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979). The Court, however, in order to avoid constitutional difficulties which would have arisen had § 1985(3) been interpreted as a general federal tort law, concluded that the language of the provision which requires an intent "to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action (emphasis in original)." Griffin v. Breckenridge, supra 403 U.S. at 102. The Court was quite clear that this invidiously discriminatory motivation is a required element of a cause of action under § 1985(3).
The U.S. Supreme Court recently clarified in Kush v. Rutledge, supra, that the requirement of class-based animus applies only to the first part of § 1985(3). The second part of § 1985(3) proscribes conspiracies that interfere with federal elections. Plaintiff does not allege that Defendants conspired to interfere with a federal election.
Given the above cases, Plaintiff's contentions that class-based animus is not required under the second part of § 1985(2) or under the first part of § 1985(3), or, alternatively, need not be shown in this particular case, are without merit.
Moreover, even a most liberal reading of the Complaint in this case will not support an inference of class-based animus.
In paragraph 39 of his Complaint, Plaintiff alleges that he "is a member of the class of persons that the Acts of Congress intends to protect" without identifying that class.
Plaintiff does not allege that he was discriminated against because of his race or even because of his sex. See Three Rivers Cablevision v. City of Pittsburgh, 502 F. Supp. 1118, 1133 (W.D. Pa. 1980). Plaintiff does allege, in paragraph 35, that "(physicians) similarly qualified and situated as is plaintiff have been granted renewal of medical staff privileges at the defendant Hospital in the years 1978 through 1981 and they thereby have an opportunity superior to the plaintiff's for the practice of their profession." Perhaps, based upon this language, Plaintiff purports to belong to a class of physicians.
Animus against physicians is not based upon "immutable characteristics" for which the members of the class have no responsibility. See Carchman v. Korman Corp., 594 F.2d 354, 356 (3d Cir.), cert. denied, 444 U.S. 898, 62 L. Ed. 2d 133, 100 S. Ct. 205 (1979). Nor are physicians a group which otherwise requires and warrants special federal assistance in protecting their civil rights. See Canlis v. San Joaquin Sheriff's Posse Comitatus, supra at 720.
Hence, we cannot find that Plaintiff is a member of a class protected under the first portion of § 1985(3).
See Feldman v. Jackson Memorial Hospital, 509 F. Supp. 815, 823-24 (S.D. Fla. 1981) (Podiatrists are not members of a class protected under § 1985(3)). See also Jackson v. Norton-Children's Hospitals, Inc., 487 F.2d 502, 503 (6th Cir. 1973), cert. denied, 416 U.S. 1000, 94 S. Ct. 2413, 40 L. Ed. 2d 776 (1974), rehearing denied, 417 U.S. 978, 94 S. Ct. 3189, 41 L. Ed. 2d 1149 (1974) (No class-based animus in a suit by a discharged physician against a hospital); Ward v. St. Anthony Hospital, 476 F.2d 671, 676 (10th Cir. 1973) (No class-based animus in a physician's suit against a hospital).
Since Plaintiff's allegations will not support an inference that Defendants' actions were motivated by class-based animus, Defendants' Motions with respect to Plaintiff's § 1985 claim must be granted.
* * *
IV. CLAIM UNDER THE FEDERAL ANTITRUST LAWS
The Hospital Defendants
contend that this Court lacks subject matter jurisdiction over the federal antitrust claim because Plaintiff does not adequately allege the requisite effects on interstate commerce. Specifically, according to the Hospital Defendants, Plaintiff's allegations fail to show that Defendants' allegedly illegal activities have a substantial and adverse effect on Plaintiff's activities in interstate commerce. Defendants maintain that the focus of the jurisdictional inquiry is upon the Plaintiff's activities.
Plaintiff responds that the relevant inquiry for purposes of federal antitrust jurisdiction focuses upon Defendants' activities. Plaintiff contends in this regard that the jurisdictional requirements are satisfied in this case because the activities of the Hospital Defendants are in interstate commerce or have a substantial effect on interstate commerce.
One of the prerequisites to a cause of action under the Sherman Act
"is the existence of a demonstrable nexus between the defendants' activity and interstate commerce." McLain v. Real Estate Bd. of New Orleans, 444 U.S. 232, 246, 62 L. Ed. 2d 441, 100 S. Ct. 502 (1980). It is unnecessary for the activity to be in the flow of interstate commerce.
Rather, it is well established that the Sherman Act also extends to activities which, though local in nature, have a substantial effect on interstate commerce. Id. at 241-42; Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 743, 48 L. Ed. 2d 338, 96 S. Ct. 1848 (1976); Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 194-95, 42 L. Ed. 2d 378, 95 S. Ct. 392 (1974).
The United States Supreme Court discussed the "effect on commerce" test or theory in McLain, supra. In that case, the Court stated:
To establish the jurisdictional element of a Sherman Act violation it would be sufficient for petitioners to demonstrate a substantial effect on interstate commerce generated by respondents' brokerage activity. Petitioners need not make the more particularized showing of an effect on interstate commerce caused by the alleged conspiracy to fix commission rates, or by those other aspects of respondents' activity that are alleged to be unlawful. The validity of this approach is confirmed by an examination of the case law. If establishing jurisdiction required a showing that the unlawful conduct itself had an effect on interstate commerce, jurisdiction would be defeated by a demonstration that the alleged restraint failed to have its intended anticompetitive effect. This is not the rule of our cases. See American Tobacco Co. v. United States, 328 U.S. 781, 811, 90 L. Ed. 1575, 66 S. Ct. 1125 (1946); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 225, 84 L. Ed. 1129, 60 S. Ct. 811, n. 59 (1940). A violation may still be found in such circumstances because in a civil action under the Sherman Act, liability may be established by proof of either an unlawful purpose or an anticompetitive effect. United States v. United Gypsum Co., 438 U.S. 422, 436, 57 L. Ed. 2d 854, 98 S. Ct. 2864, n. 13 (1978); United States v. Container Corp., 393 U.S. 333, 337, 21 L. Ed. 2d 526, 89 S. Ct. 510 (1969); United States v. National Assn. of Real Estate Boards, 339 U.S. 485, 489, 94 L. Ed. 1007, 70 S. Ct. 711 (1950); United States v. Socony-Vacuum Oil Co., supra, 310 U.S. at 224-225, n.59 (emphasis in original).
444 U.S. at 242-43.
Subsequent lower court opinions have disagreed over the meaning of the crucial language in McLain. Some courts have held that McLain simply emphasizes that a Plaintiff does not have to prove that the Defendant's allegedly unlawful activities actually affected interstate commerce; Plaintiff must still show, however, that Defendant's allegedly unlawful conduct probably has a substantial effect on interstate commerce. See, e.g., Cordova v. Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank, 649 F.2d 36, 44-45 (1st Cir. 1981); Pao v. Holy Redeemer Hosp., 547 F. Supp. 484 (E.D. Pa. 1982). Other courts, however, have found that the language in McLain permits a Plaintiff to satisfy the jurisdictional requirement if it can be shown that the Defendant's general business activities, as opposed to, or independent of, the allegedly illegal conduct, substantially affect interstate commerce. See, e.g., Turf Paradise, Inc. v. Arizona Downs, 670 F.2d 813, 818-19 (9th Cir.), cert. denied, 456 U.S. 1011, 102 S. Ct. 2308, 73 L. Ed. 2d 1308 (1982); Robinson v. Magovern, 521 F. Supp. 842, 876-77 (W.D. Pa. 1981), aff'd mem., 688 F.2d 824 (3d Cir.), cert. denied, 51 U.S.L.W. 3340, 459 U.S. 971, 103 S. Ct. 302, 74 L. Ed. 2d 283 (1982).
We think it quite clear that the Court in McLain focused upon the Defendants' general business activities for its jurisdictional inquiry rather than the specific conduct alleged to be unlawful. Accord, Western Waste Service v. Universal Waste Control, 616 F.2d 1094, 1096-97 (9th Cir.), cert. denied, 449 U.S. 869, 66 L. Ed. 2d 88, 101 S. Ct. 205 (1980); Crane v. Intermountain Health Care, Inc., 637 F.2d 715, 727-28 (10th Cir. 1981) (Holloway, J., concurring and dissenting); McElhinney v. Medical Protective Co., 549 F. Supp. 121, 127-28 (E.D. Ky. 1982); Feldman v. Jackson Memorial Hosp., 509 F. Supp. 815, 820-21 (S.D. Fla. 1981). But cf. Crane v. Intermountain Health Care, Inc., supra at 719-27 (en banc) (Plaintiff must allege a nexus between interstate commerce and the challenged activity); Cardio-Medical Assoc. v. Crozer-Chester Medical Center, 536 F. Supp. 1065 (E.D. Pa. 1982) (The focus is on the effect of Plaintiff's activities on interstate commerce). We do not believe that the Court's pronouncements in McLain should be interpreted otherwise, notwithstanding the possible expansion of Sherman Act jurisdiction as it had existed under prior cases.
In light of the above, the threshold issue under Plaintiff's federal antitrust claim is whether the Hospital Defendants' activities have a substantial effect on interstate commerce.
Plaintiff's factual allegations as to interstate commerce are set forth in paragraph 43 of his Complaint. That paragraph states in pertinent part:
Both the plaintiff physician and the defendant Hospital . . . treat patients who are citizens of various states. Their medical supplies are purchased and delivered to them from states outside of Pennsylvania. A large part of their income is derived from sources outside of Pennsylvania, namely, federal Medicare and Medicaid. The defendant Hospital also receives federal grants-in-aid.