Tsarelka v. Dana

Opinion

USCA1 Opinion

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                                [NOT FOR PUBLICATION]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
            ___  _______     ________________________

            (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
                                         ____     ________

            (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
                                                                    _____

            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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