DocketNumber： 92-1738
Filed Date： 11/2/1992
Status： Precedential
Modified Date： 9/21/2015
November 2, 1992
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1738
LISA TSARELKA,
Plaintiff-Appellant,
v.
DANA-FARBER CANCER INSTITUTE,
Defendant-Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Torruella, Selya and Cyr,
Circuit Judges.
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Lisa Tsarelka on brief pro so.
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Per Curiam. Appellant Lisa Tsarelka filed an
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action in the United States District Court for the District
of Massachusetts against the Dana-Farber Cancer Institute
("Dana-Farber"). After granting in forma pauperis status to
appellant, the district court dismissed the complaint
pursuant to 28 U.S.C. 1915(d).1 It first held that Dana-
Farber did not qualify as a state actor for purposes of 42
U.S.C. 1983. Second, it stated that appellant could not
base her complaint on 42 U.S.C. 1981 because she had not
alleged that she had been discriminated against on the basis
of race. We affirm.
BACKGROUND
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In her complaint, appellant asserts that on October
6, 1988 and July 13, 1989, she "suffered medical neglect and
abuse, both verbal and upon her person" at the Breast
Evaluation Clinic at Dana-Farber. Specifically, she claims
that she did not receive any medical evaluation on the above
dates. On July 13, she avers, she was subjected to "cruel
and unusual physical brutality" which was known to and
sanctioned by two Dana-Farber physicians. As a result of
this conduct, appellant's arthritic condition allegedly
became aggravated. Further, she states, the staff refused to
provide her with a neck brace or to avert, in any other way,
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1. Section 1915(d) provides, in pertinent part: "The court .
. . may dismiss the case if the allegation of poverty is
untrue, or if satisfied that the action is frivolous or
malicious."
the pain she was experiencing. She also claims that Dana-
Farber refused to bill Medicaid for the costs of her medical
care. As relief, she requested compensatory damages for loss
of physical function and for the pain and suffering she
endured; she also asked for punitive damages.2
DISCUSSION
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A. The 1983 Claim
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"It is black-letter law that a showing of
interference with a constitutionally-protected right by
someone acting under color of state law is a prerequisite to
a 1983 action." Malachowski v. City of Keene, 787 F.2d
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704, 710 (1st Cir.) (per curiam), cert. denied, 479 U.S. 828
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(1986). That is, 1983 does not reach private conduct.
Mendez v. Belton, 739 F.2d 15, 17 (1st Cir. 1984). The
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action of a private party may be treated as that of the state
only where there is a "sufficiently close nexus between the
State and the challenged action" of the private defendant.
See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351
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(1974). "In short, the party seeking to establish that
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2. Before filing the federal action, appellant had initiated
an action in the Suffolk Superior Court against Dana-Farber
on July 17, 1989. The court allowed her to proceed in forma
pauperis and subsequently referred the matter to a medical
malpractice tribunal. See M.G.L.c. 231, 60B. After a
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hearing at which appellant did not appear, the tribunal found
in favor of Dana-Farber. The court reduced the amount of the
bond necessary to pursue her action in the state court. When
appellant failed to file the bond, the court dismissed the
case on February 7, 1992. Appellant did not pursue any state
appellate remedies.
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action of a private party violated the Constitution must be
able to point to the specific act or actions of the
government which in fact motivated the private action."
Gerena v. Puerto Rico Legal Services, Inc., 697 F.2d 447, 450
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(1st Cir. 1983).
Here, the only claim appellant makes is that the
receipt of public funds by Dana-Farber renders it a state
actor for purposes of 1983. It has been clear since 1982,
however, that the receipt of state funding, without more,
does not convert a private defendant's conduct into state
action. See West v. Atkins, 487 U.S. 42, 52 n.10 (1988)
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(citing Blum v. Yaretsky, 457 U.S. 991 (1982) and Rendell-
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Baker v. Kohn, 457 U.S. 830 (1982)).
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For example, in Mendez we addressed the claim of a
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physician who alleged that a private hospital had
discriminated against her based on sex and race in revoking
her staff privileges. We held that she failed to demonstrate
that the hospital had acted under color of state law even
though it was extensively regulated by the state, received
federal assistance under the Hill-Burton program, received
financial support through annual appropriations from the
Puerto Rico legislature, and received Medicaid and Medicare
funds. Mendez, 739 F.2d at 17-18.
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Essentially, what appellant is alleging here is
that medical decisions made by the "purely private" staff of
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a "purely private" hospital caused her harm. See Spencer v.
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Lee, 864 F.2d 1376, 1377-78 (7th Cir. 1989) (decision to
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commit a mentally ill individual by private doctor and
hospital not made under color of state law), cert. denied,
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494 U.S. 1016 (1990). In Blum v. Yaretsky, 457 U.S. 991
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(1982), the Supreme Court held that decisions which
"ultimately turn on medical judgments made by private parties
according to professional standards that are not established
by the State" are not the equivalent of state action. Id. at
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1008-09. Although such allegations may state a viable action
for medical malpractice, there is no question that, absent
state action, they cannot suffice to state a claim under
1983.
B. The 1981 Claim
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Section 1981 forbids "all 'racial' discrimination
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in the making of private as well as public contracts." Saint
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Francis College v. Al-Khazraji, 481 U.S. 604, 609 (1987)
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(emphasis added). As the district court correctly pointed
out, appellant "has not alleged one fact in support of a
claim of discrimination based on race. . . ." Memorandum and
Order at 3. Rather, she alleges discrimination on the basis
of wealth. Such a claim may not be brought under 1981.
CONCLUSION
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Under Neitzke v. Williams, 490 U.S. 319 (1989), a
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district court may dismiss an action as frivolous under
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1915(d) if it "lacks an arguable basis either in law or in
fact." Id. at 325. An action that lacks a basis in law is
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one that is premised on an "indisputably meritless legal
theory." Id. at 327. As the above discussion demonstrates,
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the law at the time appellant filed her complaint clearly
prohibited the type of civil rights claims she asserted
against Dana-Farber. Even assuming, however, that there was
some "arguable" foundation for her claim, appellant had the
opportunity to correct the deficiencies listed in the
district court's order of dismissal. Specifically, in her
motion for reconsideration, she responds, point by point, to
the reasons the district court gave for determining that her
complaint was frivolous. Cf. Purvis v. Ponte, 929 F.2d 822,
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826-27 (1st Cir. 1991) (per curiam) (where pro se plaintiff
had opportunity to respond to magistrate's report and
recommendation before district court dismissed his complaint,
he received the "'practical protections'" required by
Neitzke).
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The judgment of the district court is affirmed.
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Dr. Eileen T. MENDEZ, Plaintiff, Appellant, v. Dr. Robert ... , 739 F.2d 15 ( 1984 )
Julio C. Lopez Gerena v. Puerto Rico Legal Services, Inc. , 697 F.2d 447 ( 1983 )
Rendell-Baker v. Kohn , 102 S. Ct. 2764 ( 1982 )
Kevin C. Purvis v. Joseph Ponte , 929 F.2d 822 ( 1991 )
William Allen Spencer v. Bumyong Lee, M.D., and St. ... , 864 F.2d 1376 ( 1989 )
Jackson v. Metropolitan Edison Co. , 95 S. Ct. 449 ( 1974 )
Blum v. Yaretsky , 102 S. Ct. 2777 ( 1982 )
Saint Francis College v. Al-Khazraji , 107 S. Ct. 2022 ( 1987 )
West v. Atkins , 108 S. Ct. 2250 ( 1988 )