Perkins v. Londonderry Basketball CV-98-171-B 02/18/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Terri Perkins, as mother and next friend of Stacey Perkins, a minor. Plaintiff,
v. Civil No. C-98-171-B
Londonderry Basketball Club, Defendant
O R D E R
Terri Perkins brings this action on behalf of her daughter,
Stacey Perkins. Perkins alleges that the Londonderry Basketball
Club denied her daughter egual protection of the law in violation
of the Fourteenth Amendment to the United States Constitution and
42 U.S.C. § 1983 by barring Stacey's participation in an all-boys
basketball tournament.1 The Club has moved for summary judgment,
pursuant to Fed. R. Civ. P. 56(a), claiming that its actions with
respect to Stacey do not amount to state action for purposes of
1 Perkins also alleges that the Club violated Stacey's rights under Article 2 of the New Hampshire Constitution and N.H. Rev. Stat. Ann. § 354-A:16, which bars discriminatory practices in public accommodations. the Fourteenth Amendment or give rise to § 1983 liability.2
Perkins objects to the Club's motion. For the reasons set forth
below, I find that there is no state action and, accordingly,
grant the Club's motion for summary judgment.
FACTS
At the time Perkins commenced this litigation, her daughter
was 10 years old. Stacey is a resident of Seabrook, New
Hampshire, where she plays many sports, including basketball.
The Town of Seabrook does not have a girls basketball league.
Seabrook does, however, have a league consisting of five coed
basketball teams. In the winter of 1998, Stacey and four other
girls played alongside boys on the Red Devils Seabrook
Recreational basketball team. In March, Stacey was one of two
girls selected from the five coed teams to play for the town's
All Star Team. The All Star Team subseguently entered the 10th
Annual Londonderry Tournament. The tournament, held in
2 The Egual Protection Clause of the Fourteenth Amendment to the United States Constitution states that "No State shall . . . deny to any person within its jurisdiction the egual protection of the laws." 42 U.S.C. § 1983 provides that "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 eguity, or other proper proceeding for redress." Londonderry, New Hampshire, is sponsored by the Londonderry
Basketball Club. The Club is a private volunteer organization
run by Londonderry residents.
The Club's tournament is open to any team consisting of
players from the same town. The Club sponsors separate week-long
tournaments for girls and boys. Girls are not allowed to play on
the boys' teams or in the boys' tournament and, likewise, boys
cannot play on girls' teams or in the girls' tournament. The
Club does not sponsor a coed tournament. Because the Seabrook
All Star Team entered the boys' tournament, the Club barred
Stacey from participating. She traveled with her team to the
first game, but was not permitted to play. Stacey's coach
subseguently withdrew the All Star Team from the tournament.3
The Club was formed in October 1990 to offer children in
Londonderry an opportunity to compete in an organized traveling
basketball league.4 The Club is a private, non-governmental.
3 Perkins initially sought a temporary restraining order enjoining the Club from barring Stacey's participation in the tournament. Because the team withdrew from the competition, I found, in an order dated March 27, 1998, that the TRO issue was moot. Perkins currently seeks a permanent injunction, damages, costs and attorneys' fees, noting that Stacey could make the Seabrook All Star Team and be barred from the Londonderry tournament again in 1999.
4 Prior to the Club's formation, there were at least two groups providing basketball opportunities for the town's
- 3 - charitable corporation organized under the laws of the State of
New Hampshire. The Club was granted preliminary tax-exempt
status as a publicly supported organization under § 501 (c) (3) of
the Internal Revenue Code in April 1998.
The Club does not receive any direct funding from the Town
of Londonderry or any other governmental body. Rather, the Club
survives on registration fees and fundraisers. The annual
tournament is the Club's largest fundraiser. A portion of the
tournament proceeds provides scholarships to Londonderry
students. The Club has also made donations to the Town's schools
in the form of new uniforms, baskets, backboards, nets, court
improvements, and other eguipment. Since 1991, the Club has
donated more than $22,000 in scholarships, uniforms, and
eguipment to the Town. (Pl.'s Ex. 8). Additionally, the Club's
Articles of Agreement provide that upon disbanding, the Club's
assets will be distributed to the Town of Londonderry. (Pl.'s
Ex. 19).
children. The Club was formed, in part, to bring the groups together in an effort to avoid competition for gymnasium time and participants. (Pl.'s Ex. 5, Crosbie Dep. at 7; Pl.'s Ex. 6, Psaledas Dep. at 23-25). Currently, there is at least one other traveling basketball program in Londonderry for boys. (Pl.'s Ex. 5, Crosbie Dep. at 24-25).
- 4 - At least two members of the Town's Recreation Commission are
Club volunteers.(Pl.'s Ex. 20). Several of the Club's
volunteers also are associated with the Londonderry recreational
basketball program. This program is not affiliated with the town
but it was at one time run by the town's recreation director,
Arthur Psaledas. Psaledas currently assists the Club by
scheduling the use of school gymnasiums, sometimes giving
priority to the Club over adult groups in order to schedule the
tournament. Like other private groups that use school
facilities, the Club uses the property at no cost, but must pay
for a private security service when the schools are not open.
The Town does not reguire the Club to provide its own insurance.
The Club also holds its meetings at the Town's high school.
The Club, as well as other private groups, must apply to use
Town facilities. Psaledas testified that he, the high school
athletic director, the school department's business administrator
and representatives of groups vying for gymnasium and field time
meet occasionally to set a use schedule, although the ultimate
decision to grant or deny use lies with the Town. Psaledas
typically submits the Club's application. In 1996, in an effort
to prioritize and coordinate scheduling, the Recreation
Commission established "sanctioning standards" for prospective users.5 The Club is sanctioned under the Commission's standards.
The Town does allow non-sanctioned sports leagues to use its
facilities. (Pl.'s Ex. 6, Psaledas Dep. at 38; Def.'s Ex. 1,
Psaledas Aff.; Pl.'s Ex. 5, Crosbie Dep. at 22-24).
STANDARD
Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) .
A "genuine" issue is one "that properly can be resolved only by a
finder of fact because [it] may reasonably be resolved in favor
of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986); accord Garside v. Osco Drug, Inc., 895 F.2d 46, 48
(1st Cir. 1990). A "material issue" is one that may "affect the
5 The Recreation Commission's Group Sanctioning Standards reguire that: (1) 60 percent of the participants are Londonderry residents; (2) coaches and supervisors are residents of Londonderry; (3) no other sanctioned program providing the same or similar service exists; (4) the program is permanent; (5) the program is well planned and properly supervised; (6) the group demonstrates a proper framework for leadership and people to provide the leadership; (7) the group has no outstanding financial obligations that would hinder its progress; and (8) the group complies with the rules of the school district and recreation commission. (Pl.'s Ex. 10).
- 6 - outcome of the suit . . . Anderson, 477 U.S. at 248. The
burden is upon the moving party to aver the lack of a genuine,
material factual issue, see Finn v. Consolidated Rail Corp., 782
F.2d 13, 15 (1st Cir. 1986), and the court must view the record
in the light most favorable to the non-movant, according the non
movant all beneficial inferences discernable from the evidence.
See Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir.
1988). If a motion for summary judgment is properly supported,
the burden shifts to the non-movant to show that a genuine issue
exists. See Donovan v. Aqnew, 712 F.2d 1509, 1516 (1st Cir.
1983). I apply these standards to the issues the parties raise
before me.
DISCUSSION
Here, the Club argues that summary judgment is appropriate
because its policy of barring girls from participating in the
boys' tournament is not state action for purposes of Fourteenth
Amendment or § 1983 liability. In support of its motion, the
Club has produced the affidavits of Recreation Director Psaledas
and Club Director Alan Crosbie, as well as a copy of the Club's
Articles of Agreement. Both Psaledas and Crosbie state that the
Club is a private entity, over which the Town exerts no influence or control. Specifically, both Psaledas and Crosbie state that
neither the Town nor any of its subdivisions reviewed or approved
the Club's tournament rules.
A private actor cannot be held liable for an equal
protection violation unless his actions can be "fairly
attributable to the State." Lugar v. Edmondson Oil Co., 457 U.S.
922, 937 (1982). Similarly, a private actor is not liable for a
constitutional deprivation of a plaintiff's rights under § 1983
unless he acted "under color of state law." See Rodriguez-Garcia
v. Davila, 904 F.2d 90, 94 (1st Cir. 1990) (citing Flagg Bros.
Inc. v Brooks, 436 U.S. 149, 155 (1978)). While the inquiry into
the state action requirement is necessarily fact-based, it can
properly be resolved at the summary judgment stage of litigation.
See id. (citing Lugar, 457 U.S. at 939) .
State action may be either direct or indirect. See id. at
95; see also Barrios-Velazguez v. Asociacion de Empleados del
Estado Libre Asociado de Puerto Rico, 84 F.3d 487, 491 (1st Cir.
1996). Here, there is no direct state action because the Club is
a private organization, neither officially controlled by nor
officially connected to the Town of Londonderry. See Barrios-
Velazguez , 84 F.3d at 492 (no direct state action where
government neither subsidized private entity nor appointed its directors). Thus, Perkins must establish that the Club's action
constitutes "indirect state action." See id. at 491.
In determining whether the Club's action is indirect state
action, I must apply a three-part analysis applicable to both the
Fourteenth Amendment equal protection and § 1983 questions. See
Blum v. Yaretskv, 457 U.S. 991, 1004-05 (1982); Barrios-
Velazguez , 84 F.3d at 491 (citing Rendell-Baker v. Kohn, 457 U.S.
830, 838 (1982)). I must determine whether there was:
(1) [a]n elaborate financial or regulatory nexus between [the Club] and [the Town of Londonderry] which compelled [the Club] to act as [it] did, (2) an
assumption by [the Club] of a traditional public function; or (3) a symbiotic relationship involving the sharing of profits.
Barrios-Velazguez, 84 F.3d at 493 (quoting Rodriguez-Garcia, 904
F.2d at 96); see also Blum, 457 U.S. at 1004-05. Because
satisfaction of any one of the three tests quoted above requires
that I find indirect state action and deny the Club's motion for
summary judgment, I consider each test in turn. See id.
A. Nexus Analysis
A sufficiently close nexus exists between the government and
a private party to support a finding of state action where the
government exercised such power or encouragement that the alleged
violation must be deemed to be the conduct of the government
- 9 - itself. See Blum, 457 U.S. at 1004; Barrios-Velazguez, 84 F.3d
at 493. The focus is on the government's connection to the
alleged violation, not its connection to the private party
itself. See Barrios-Velazguez, 84 F.3d at 493 (citing Blum, 457
U.S. at 10 04); see also Yeo v. Town of Lexington, 131 F.3d 241,
253-54 (1st Cir. 1997), cert, denied, 118 S.Ct. 2060
(1998)(insufficient nexus between town and school yearbook, which
refused to publish advertisement counseling sexual abstinence,
where there was "no interplay between the decision not to publish
the advertisement and the state's provision of financial and
faculty support").
Perkins argues that the Recreation Commission's sanctioning
reguirements, the Town's policy for allocating gym time, and the
fact that the Town shares in the Club's profits establish a
sufficiently close nexus to constitute state action. Perkins
fails, however, to link any one of these factors to the alleged
violation she complains of. While the sanctioning reguirements,
gym scheduling, and the Club's donations to the town6 may
6 As I more fully discuss below in both the traditional public function and the symbiotic relationship analyses, the fact that the Club donates a portion of the tournament proceeds to the Town is insufficient to establish state action. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 724 (1961); Barrios- Velazguez , 84 F.3d at 494-95.
- 10 - indicate that the Club and Town have an on-going and mutually
beneficial relationship, these facts are irrelevant for purposes
of the nexus analysis except insofar as they establish government
coercion or encouragement of the alleged violation. See Barrios-
Velazguez , 84 F.3d at 493; see also Blum, 457 U.S. at 1005 (no
state action where state did not influence private nursing homes'
decisions to discharge or transfer patients pursuant to Medicaid
regulations); Rendell-Baker, 457 U.S. at 841 (no state action
where state regulation of private school did not compel or
influence school's decision to discharge plaintiffs).
A mere governmental grant of authority allowing a private
party to exist and act, without more, is insufficient to
establish state action. See Barrios-Velazguez, 84 F.3d at 493
(citing Rockwell v. Cape Cod Hospital, 26 F.3d 254, 258 (1st Cir.
1994)). Rather, the grant of authority must be linked to a
coercion or encouragement of the alleged violation. See id.
("state-granted authority . . . must be connected to the aim of
encouraging or compelling the specific complained-of conduct").
Here, Perkins seems to argue that the sanctioning reguirements
are the functional eguivalent of a governmental grant of
authority because the Town could bar the Club from using its
facilities if the Club failed to meet its reguirements, rendering
- 11 - the Club powerless to operate.7 Perkins presents no evidence,
however, that the Town, through its sanctioning reguirements,
either coerced or encouraged the Club to establish a single-sex
tournament rule. Rather, the reguirements are simply designed to
ensure that groups using Town facilities are primarily run by and
for Town residents, are well-managed, and are financially
solvent. (Pl.'s Ex. 10).
Similarly, the scheduling of gym time itself cannot
logically be tied to the Club's decision to operate single-sex
tournaments. There is no allegation, nor evidence, that the town
or school department reguired the Club to establish or enforce
such a rule in exchange for gym time. See, e.g., Yeo, 131 F.3d
at 251-52 (no state action where private parties made complained-
of decision free from state control); Ponce v. Basketball
Federation of the Commonwealth of Puerto Rico, 760 F.2d 375, 378-
79 (1st Cir. 1985) (no state action where private party
established rules absent state control or involvement).
Perkins also claims that the Town, through Psaledas, could
have enforced the Club's tournament rules. Relying on the First
7 It is not clear that the Club would suffer such demise if it did not meet the sanctioning reguirements as there is evidence that the Town does, in fact, allow non-sanctioned groups to use its facilities. (Pl.'s Ex. 6).
- 12 - Circuit Court of Appeals decision in D'Amario v. Providence Civic
Center Authority, Perkins argues that such possible intervention
on the part of the Town constitutes a nexus between the Town and
the Club sufficient to establish state action. See 783 F.2d 1, 3
(1st Cir. 1986) (state action where public employees enforced
private parties' "no-camera rule" during concerts at public
facility). She further argues that the Town's failure to
intervene and challenge the Club's rule supports a finding of
state action. To support this argument, Perkins notes that
Psaledas testified in his deposition that he could intervene
during the tournament if he feared that school property would be
damaged or destroyed.
Perkins' argument is unpersuasive for several reasons.
First, in D'Amario, there was ample evidence that state employees
actually did enforce the private rule challenged by the
plaintiff. Id. Here, there is no such evidence. Moreover,
there is no evidence that the Town could, or would, either
enforce or challenge the Club's rules. Psaledas testified that
he would only intervene in order to protect the Town's property,
not to enforce or challenge a Club rule:
Only -- the only way that I would be -- would intercede is if there was a destruction of property. If there's something going on in that gymnasium that would harm the court -- you had a team that came in that didn't
- 13 - have basketball shoes on and they were on a wood floor -- then I would intercede, if I were there, and say -- But other than that, as far as the operation of the tournament, no.
(Pl.'s Ex. 6, Psaledas Dep. at 34). Finally, the government's
"mere approval or acquiescence in the initiatives of a private
party" is insufficient to justify a finding of state action.
Blum, 457 U.S. at 1004-05; see also Ponce, 760 F.2d at 379. The
fact that the Town did nothing to stop the Club's alleged
discrimination, as appears to be the case here, does not
establish a nexus between the two for state action purposes. See
id. Indeed, it more likely establishes the lack of such a nexus.
See, e.g., Yeo, 131 F.3d at 251, n.9 (evidence that school
officials neither could nor did control students' decision not to
publish advertisement supported finding of no state action) .
There is no allegation, nor evidence, that the Town of
Londonderry coerced or encouraged the Club to establish and
enforce its tournament rules. Nor is there evidence that the
Town or its agents actually did, could, or would enforce these
rules. Thus, I find that there is no state action under the
nexus test.
B. Traditional Public Function Analysis
Perkins argues that the Club's assumption of some of the
duties of the Londonderry recreational basketball program and its
- 14 - donations to the Town support a finding of state action under the
public function analysis. I disagree.
The purpose of the public function analysis is to determine
whether "a state [is trying] to escape its responsibilities by
delegating them to private parties." Rockwell, 26 F.3d at 258.
The mere fact that a private party performed a public function is
insufficient to establish state action under this analysis. See
Rendell-Baker, 457 U.S. at 852; Barrios-Velazguez, 84 F.3d at
493. Rather, the plaintiff must show that the private party
"assumed powers ''traditionally exclusively reserved to the
State.'" Barrios-Velazguez, 84 F.3d at 494 (guoting Rodrigues v.
Furtado, 950 F.2d 805, 813 (1st Cir. 1991)). Courts have
repeatedly emphasized the significance of exclusivity. See,
e.g., Rendell-Baker, 457 U.S. at 842 ("[T]he relevant guestion is
not simply whether a private group is serving a 'public function'
. . . [but] whether the function performed has been
'traditionally the exclusive prerogative of the State.'");
Barrios-Velazguez, 84 F.3d at 494 (where other non-governmental
entities provided same or similar public service, private entity
does not engage in traditional public function).
Here, the Club did not assume a traditional public function.
Evidence in the record establishes that private groups offered
- 15 - basketball programs prior to the Club's formation. Indeed, the
Londonderry recreational basketball program continues to provide
instruction, albeit with help from Club volunteers. The
recreational program is not a Town organization. There is also a
private boys traveling team based in Londonderry. Thus, the
Club's programs "cannot reasonably be characterized as the
exclusive province of the State." Barrios-Velazguez, 84 F.3d at
494 (emphasis added).
Perkins also seems to argue that, because the school is
ultimately responsible for purchasing uniforms and eguipment for
the school's teams, the Club's donations to the school system
constitute a traditional public function sufficient to establish
state action. This argument is neither persuasive nor logically
sound. That the Club, on its own initiative, donates to the
schools is laudable, but it in no way creates a connection
between the two for purposes of Fourteenth Amendment or § 1983
liability. To hold otherwise could subject any and all
charitable groups and individuals that make donations to state
actors to Fourteenth Amendment and § 1983 liability for their
private actions simply by virtue of their philanthropy. Such a
result is not only unreasonable, it would also abrogate the
entire purpose of the state action reguirement. See, e.g..
- 16 - Lugar, 457 U.S. at 936 ("Careful adherence to the 'state action'
requirement preserves an area of individual freedom by limiting
the reach of federal law and federal judicial power.").
C. Symbiotic Relationship Analysis
A private party's actions may also constitute state action
where the state "has so far insinuated itself into a position of
interdependence with [the private party] that it must be
recognized as a join participant in the challenged activity."8
See Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961);
Barrios-Velazguez, 84 F.3d at 494; Ponce, 760 F.2d at 381. While
a financial relationship between a private party and the state
8 Plaintiff's reliance on Fortin v. Darlington Little League is unpersuasive. 514 F.2d 344, 347-48 (1st Cir. 1975)(finding symbiotic relationship between city and little league sufficient to establish state action). First, Fortin is of questionable precedential value as it was decided years before the Supreme Court handed down its decision in Rendell-Baker. In Rendell-Baker, the Court noted that a key factor in the symbiotic relationship analysis is whether the state profited from the private actor's discriminatory conduct. See Ponce, 760 F.2d at 382 (citing Rendell-Baker, 457 U.S. at 843). Here, there is no evidence that the Town of Londonderry profited from the Club's action. Furthermore, Fortin is easily distinguished on the facts. In Fortin, the City of Pawtucket built and maintained baseball diamonds specifically for the Little League's use. 514 F.2d at 347. The league used the fields to the virtual exclusion of the general public during the baseball season. See id. Here, the Club "shares the [gymnasiums] with other teams and other sports, the courts were not constructed for the exclusive benefit of the [Club], nor were they laid out or maintained to the [Club's] specifications." Ponce, 760 F.2d at 382 n.5.
- 17 - may indicate a symbiotic relationship, its existence or lack
thereof is not dispositive. See Rodriquez-Garcia v. Davila, 904
F.2d 90, 98-99 (1st Cir. 1990); Barrios-Velazguez, 84 F.3d at
494. Rather, the symbiotic relationship inquiry encompasses a
number of factors, including the sharing of profits, which focus
on interdependence and ioint enterprise rather than financial
enrichment. See Rodriguez-Garcia, 904 F.2d at 98-99. What
matters is that the state benefitted from the alleged wrongdoing.
See Barrios-Velazguez, 84 F.3d at 495 (no state action where
government neither mandated nor profited from private entity's
discriminatory conduct); cf., Burton, 365 U.S. 715, 723-24
(1961)(state action where government benefitted from private
restaurant's discriminatory policy). Discretionary acts of
discrimination committed by a private body under authority
granted by the government do not rise to the level of a symbiotic
relationship for constitutional or § 1983 purposes absent proof
the government mandated or profited from those acts. See
Barrios-Velazguez, 84 F.3d at 494-95.
Here, the Town of Londonderry does not benefit from the
Club's tournament rules. The Town does benefit indirectly from
the tournament itself, through the Club's donations to the
schools. Perkins makes no allegation nor offers any proof that.
- 18 - absent a single-sex tournament rule, the Club would take in, and
thus donate, less money to the Town. C f . Burton, 365 U.S. at 724
(state action where private restaurant in lease-agreement with
state claimed it would lose business without racially
discriminatory policy, thus earning less profit for the state).
Thus, I find that there is no symbiotic relationship between the
Town and Club for purposes of establishing state action.
CONCLUSION
For the foregoing reasons, I find that there is no state
action for purposes of Fourteenth Amendment egual protection or §
1983 liability. Therefore, I must grant Defendant's motion for
summary judgment (document no. 11) on Plaintiff's Fourteenth
Amendment and § 1983 claims.9 Having disposed of the federal
claims, I decline to exercise my discretion to retain
supplemental discretion over Perkins' remaining state claims
9 In granting defendant's motion for summary judgment, I do not intend to indicate support for its decision to categorically exclude girls from the boys' tournament. The recent success of Olympic champion Tara Mounsey who won a gold medal as part of the United States Women's Olympic hockey team after having starred on a state championship boys' high school team demonstrates how both boys and girls can benefit when issues such as plaintiff raises here are dealt with flexibly by sports authorities. I have ruled against plaintiff not on the substance of her claim, but rather because I have concluded that defendant did not engage in state action when it excluded plaintiff from the tournament.
- 19 - (Counts III and IV). Counts III and IV of Perkins' complaint are
dismissed without prejudice to her right to pursue them in state
court. See 28 U.S.C. § 1367(c)(3); United Mine Workers v. Gibbs,
383 U.S. 715, 726 (1966).
SO ORDERED.
Paul Barbadoro Chief Judge
February , 1999
cc: Linda S. Johnson, Esg. Joseph L. Hamilton, Esg.
- 20 -