Thomas Kadlec, James W. Kadlec, and Isaac Grinstead v. Illinois Bell Telephone Company , 407 F.2d 624 ( 1969 )

HASTINGS, Senior Circuit Judge.

Plaintiffs Thomas Kadlec, James W. Kadlec and Isaac Grinstead appeal from an order of the district court granting defendant Illinois Bell Telephone Company’s motion to dismiss plaintiffs’ second amended complaint, as amended.

Plaintiffs Thomas and James W. Kadlec are engaged in the business of selling automobile parts, rebuilding parts and providing a towing service. The business is operated at two locations, the largest of which, known as Kankakee Auto Parts, is near the city of Kankakee, Illinois. The other establishment, Skokie Automotive, is located in Niles, Illinois. Plaintiff Grinstead is a night watchman at the Kankakee location and lives in a trailer just outside such property.

Illinois Bell contracted with Thomas Kadlec to provide and install three CallPak lines. Pursuant to these agreements, defendant installed Call-Pak service in plaintiff Grinstead’s trailer; another line was supplied a small house, presumably Thomas Kadlec's residence, situated on the Kankakee business property ; and the third installation was made on the Niles property at the residence of James Kadlec.

Designed for residential use exclusively ^Call-Pak service provides telephone service at a flat fee instead of at a rate based upon the time-distanee-unit cost formula which is customary with business telephone service.

On March 16 and 17, 1967, pursuant to Illinois Bell’s regulations¹ and sometime after the installation of these CallPak lines, defendant terminated its CallPak service to plaintiffs; other telephone service provided to plaintiffs by defendant was not discontinued. The “shutoff” of the Call-Pak service obviously was the result of defendant’s determination that plaintiffs had been improperly using this particular service for other than residential purposes.

Plaintiffs’ original complaint, as amended, alleged that defendant’s action of discontinuing the Call-Pak service violated their constitutional rights. They further contended that the regulations under which defendant terminated this service violate the Federal Constitution. In addition, plaintiffs prayed for restoration of the Call-Pak service and for damages for defendant’s allegedly wrongful termination of appellants’ service. The district court in a written memorandum opinion dismissed the original amended complaint on the ground that the proper forum for the action was the Illinois Commerce Commission rather than the district court.

Following this dismissal, plaintiffs filed a further amended complaint which asked only for damages on the grounds that defendant’s conduct had violated the Civil Rights Act, 42 U.S.C.A. § 1983, and Amendments I, IV, XIV of the Constitution. This amended complaint, together with a subsequent amendment thereto, was dismissed by the district court for failure to state a cause of action. Appeal is taken from the dismissal of this second amended complaint, as amended.

The sole issue pesented is whether defendant’s conduct of discontinuing plaintiff’s Call-Pak service fell within the purview of the Civil Rights Act, 42 U.S. C.A. § 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 and an action at law, suit in equity, or other proper proceedings for redress.” [Emphasis supplied.]

or within the conspiracy section of the Act, § 1985.

It is well-settled that in order to establish a claim for damages under § 1983 of the Civil Rights Act the conduct complained of must have been engaged in under color of law and such conduct must have infringed upon the rights, privileges or immunities secured to the complaining party by the Constitution or laws of the United States. Haldane v. Chagnon, 9 Cir., 345 F.2d 601, 603 (1968); Duzynski v. Nosal, 7 Cir., 324 F.2d 924, 930 (1963); Jemzura v. Belden, N.D.N.Y., 281 F.Supp. 200, 205-206 (1968).

At least one of the two elements essential to maintaining a claim under § 1983 is missing in the instant case. Under the facts of this case, we are of the opinion that defendant telephone company was not acting under the authority or pretense of any Illinois state statute, regulation, custom or usage in discontinuing plaintiffs’ Call-Pak service. Thus, the second amended complaint, as amended, was properly dismissed by the district court for failure to state a cause of action under § 1983.

Motivated by purely private economic interests and pursuant to its own regulations, Illinois Bell terminated plaintiffs’ Call-Pak service. The only apparent state connection with the termination rests in the fact that defendant company filed its regulations with state authorities; the state in no sense benefited from, encouraged, requested or cooperated in this suspension of service.

The mere filing of these regulations with the state neither clothed Illinois Bell with state authority nor did it bring it under the aegis of the state. The § 1983 requirement of conduct taken under color of law “* * * can rarely be satisfied in the case of anyone other than a state official.” Jobson v. Henne, 2 Cir., 355 F.2d 129, 133 (1966) ; Weyandt v. Mason’s Stores, Inc., W.D.Pa., 279 F.Supp. 283, 288 (1968). Here, the nexus between the state and defendant’s conduct was not sufficient to maintain an action under § 1983.

We have carefully reviewed the eases cited by plaintiffs in support of their contention that defendant telephone company acted under color of law. These cases are readily distinguishable from the instant case and are not controlling. In all of the cases cited where conduct under color of law was found to be present, there existed greater state involvement or control than is alleged in this case.

The rationale of the Supreme Court of Rhode Island in Taglianetti v. New England Tel. & Tel. Co., 81 R.I. 351, 103 A.2d 67, 71 (1954) is relevant to and in accord with our conclusions reached in the instant appeal. In Taglianetti, the court ruled that the acts, of a telephone company, taken pursuant to its own regulations, could not be regarded as acts done under color of law simply because the company’s regulations had been filed with and approved by an organ of the state. In reaching this conclusion, the court stated:

“Regulations * * * are prescribed [by the telephone company] * * * solely to govern the use of its telephones by persons with whom it has contracted to provide telephone service and such regulations are in the nature of conditions attached to the right to the continuance of service. Action taken initially [by the company] * * * to impose the penalty therein prescribed for the violation of such conditions is in no sense action by the state. * * * [T]he fact that the regulations are filed with the division of public utilities and are approved by the administrator does not transform them into acts of the state. Such filing and approval are merely incidents of the state’s regulatory supervision * * * and are designed to inform the patrons thereof of their rights and obligations in the use of the service * *

The issue of whether there was state action in Taglianetti was more sophisticated than in the present case. In Taglianetti, defendant telephone company disconnected the telephone there in question at the request of the police; in the case at bar, there is no indication that any branch or agency of the state ordered, requested or even encouraged the discontinuance of plaintiffs’ service.²

Here there is no showing that defendant telephone company acted under color of law in terminating the service; as a consequence, no action for damages may be maintained under § 1983 of the Civil Rights Act. The district court’s dismissal of appellants’ second amended complaint, as amended, was proper and should be affirmed.

With respect to appellants’ allegations under the conspiracy section of the Civil Rights Act, § 1985, we do not find facts sufficient to support such a claim; the pleadings with respect to § 1985 were merely conclusory in nature and therefore were properly dismissed by the district court.

The judgment of the district court is affirmed.

Affirmed.

1 . Appellant’s residential Call-Pak service was discontinued by tbe defendant pursuant to its tariff which is on file with the Illinois Commerce Commission.

Apparently, defendant terminated the service on the authority of the following regulation contained in the tariff:

“OWNERSHIP AND USE OP THE EQUIPMENT — Equipment, instruments and lines on subscriber’s premises, furnished by the Telephone Company, shall be and remain the property of the Telephone Company, whose agents and employees have the right to enter said premises . at any reasonable hour for the purpose of installing, inspecting or repairing the instruments • and lines or for the purpose of making collections from coin boxes and, upon termination of the service, for the purpose of removing such instruments and lines. Such equipment is not to be used for performing any part of the work of transmitting, delivering or collecting any telephone message where any toll or consideration has been or is to be paid any party other than the Telephone Company, without the written consent of the Telephone Company.”

2 . No opinion is expressed as to whether the results in this case would he altered if the defendant had terminated the appellants’ service in cooperation with, at the request of or under the orders of the state.