Boling v. National Zinc Co., 75-C-365-C.

• Decision Date: 30 December 1976
• Docket Number: No. 75-C-365-C.,75-C-365-C.
• Citation: 435 F. Supp. 18
• Parties: Sherman BOLING, Manford Carter, Elvin Mayfield, Carl D. Moody, Leroy Olson, Robert Shambles, Individually and as Members of a Class, Plaintiffs, v. NATIONAL ZINC COMPANY, a corporation, State Insurance Fund, State of Oklahoma, Chris Sturm, Commissioner, Chris Sturm, an Individual, John S. Van Aken, an Individual, Jack L. Truman, an Individual, Melvin E. McCluskey, an Individual, and Thomas L. Vogt, an Individual, Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

435 F. Supp. 18

Sherman BOLING, Manford Carter, Elvin Mayfield, Carl D. Moody, Leroy Olson, Robert Shambles, Individually and as Members of a Class, Plaintiffs, v. NATIONAL ZINC COMPANY, a corporation, State Insurance Fund, State of Oklahoma, Chris Sturm, Commissioner, Chris Sturm, an Individual, John S. Van Aken, an Individual, Jack L. Truman, an Individual, Melvin E. McCluskey, an Individual, and Thomas L. Vogt, an Individual, Defendants.

No. 75-C-365-C.

United States District Court, N. D. Oklahoma.

December 30, 1976.

Eddie Harper, Gene Stipe, John B. Estes, Stipe, Gossett, Stipe & Harper, Oklahoma City, Okl., for plaintiffs.

Ben L. Burdick, Oklahoma City, Okl., Melvin D. Kraft, P. C., New York City, for Nat. Zinc, Van Aken, Truman, McCluskey.

James D. Fellers, Rand R. Guffey, Fellers, Snider, Blankenship & Bailey, Oklahoma City, Okl., for Sturm & State Ins.

Carl D. Hall, Jr., Hall & Sublett, Tulsa, Okl., for defendant.

ORDER SUSTAINING MOTION FOR SUMMARY JUDGMENT

COOK, District Judge.

This case is before the Court on the Motion for Summary Judgment on Behalf of National Zinc Company, John S. Van Aken, Jack L. Truman, Melvin E. McCluskey and Thomas L. Vogt and The Motion of Defendants, State Insurance Fund and Chris Sturm, to Dismiss, or in the Alternative for Summary Judgment.

The Complaint alleges that the named plaintiffs and all other members of the class which they represent and which is designated as the past, present and future employees of the defendant, National Zinc Company, (hereinafter "Zinc") have been deprived of their civil rights guaranteed by the constitutions and statutes of the United States and the State of Oklahoma. More specifically, the named plaintiffs allege that they were employees of the defendant, Zinc, at its plant in Bartlesville, Washington County, Oklahoma, when on July 15, 1975, the defendants met in Tulsa, Oklahoma, for the purpose of conspiring to terminate any employee of Zinc who received an Order of Award from the State Industrial Court of the State of Oklahoma in violation of Title 42 U.S.C. § 1985 (1974). The named plaintiffs charge that on or about July 17, 1975, they were discharged from employment by Zinc in furtherance of the unlawful conspiracy. The Complaint alleges that the conspiracy was designed to deny, impair, divest, abridge and otherwise interfere with the rights of the class to due process, equal protection and equal privileges and immunities protected by the constitutions and statutes of the United States and the State of Oklahoma in that defendants' actions intimidated and threatened them with termination if they exercised their right to prosecute a claim before the Oklahoma State Industrial Court against Zinc.

Defendant Chris Sturm is the Commissioner of the State Insurance Fund. Defendants Van Aken, Truman, McCluskey and Vogt are officers of defendant Zinc.

Plaintiffs assert that this action arises under Title 42 U.S.C. §§ 1981, 1983, 1985, 1986, 1988 (1974) and Title 18 U.S.C. § 241 (1969). See Plaintiffs' Response to Defendants' Motion for Summary Judgment filed Oct. 21, 1975, unnumbered p. 4. Title 28 U.S.C. § 1343 (1962) grants original jurisdiction to the district courts over actions arising out of a "deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens" or over actions resulting from acts "done in furtherance of any conspiracy mentioned in section 1985 of Title 42".

On July 2, 1976, the Court held a hearing on the pending Motions wherein each of the parties was given an opportunity to present arguments and evidence in support or in opposition to the Motions. The parties have submitted Post-Oral Argument Briefs. The Court has perused the entire file and is fully advised in the premises.

Plaintiffs' basic contention is that the defendants have conspired to deprive them of their right to prosecute lawful workmen's compensation claims before the State Industrial Court of the State of Oklahoma. They allege that the defendants agreed to terminate from employment any employee of defendant Zinc who submitted a workman's compensation claim to the State Industrial Court.

The right to petition the government to redress grievances is a right guaranteed by the first amendment to the Constitution of the United States.¹ United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875). Access to the courts of the United States is a constitutional right guaranteed by the due process clauses of the fifth and fourteenth amendments. Silver v. Cormier, 529 F.2d 161 (10th Cir. 1976). The federal constitutional right of access to the courts includes access to all courts, both state and federal. Hooks v. Wainwright, 352 F.Supp. 163 (M.D.Fla.1972).

It is clear that the cases which have interpreted § 1981² have required that a claim based on this statute be founded on racial discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) as applied in § 1981, Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974); Sabol v. Snyder, 524 F.2d 1009 (10th Cir. 1975); Baca v. Butz, 394 F.Supp. 888 (D.N.M.1975). No claim of racial discrimination is presented in the Complaint or in the plaintiffs' briefs. As to any action based on § 1981 the Complaint is dismissed on the ground that the Court lacks subject matter jurisdiction pursuant to Rule 12(b)(1) of the Fed.R.Civ.P.

Plaintiffs have alleged that their claim for relief is based in part on Title 42 U.S.C. § 1983.³ Defendants Chris Sturm and the State Industrial Fund argue that the Court lacks subject matter jurisdiction and that the Complaint fails to state a claim upon which relief can be granted under § 1983.

"The statutory prerequisites to liability under 42 U.S.C. § 1983 are: (1) that the defendant act `under color of' state or local law, and (2) that the plaintiff be subjected to a `deprivation of any rights, privileges, or immunities secured by the Constitution and laws." (Citations Omitted). Stringer v. Dilger, 313 F.2d 536, 540 (10th Cir. 1963). See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Marland v. Heyse, 315 F.2d 312 (10th Cir. 1963).

The question arises as to whether the defendant, Chris Sturm, as Commissioner of the State Insurance Fund, could be held to have acted under color of state or local law in participating in the alleged deprivation of plaintiffs' right to petition the State Industrial Court for a redress of a grievance. Whether particular conduct is private or amounts to "state action" presents a question with no easy answer. The solution lies in sifting facts and weighing circumstances. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). In the case of Jackson v. Statler Foundation, 496 F.2d 623, 629 (2nd Cir. 1973) the court found that a

"review of the `state action' case law suggests five factors which are particularly important to a determination of `state action': (1) the degree to which the `private' organization is dependent on governmental aid; (2) the extent and intrusiveness of the governmental regulatory scheme; (3) whether that scheme connotes government approval of the activity or whether the assistance is merely provided to all without such connotation; (4) the extent to which the organization serves a public function or acts as a surrogate for the State; (5) whether the organization has legitimate claims to recognition as a `private' organization in associational or other constitutional terms.

Each of these factors is material; no one factor is conclusive."

The State Insurance Fund is a creature of the legislature of the State of Oklahoma. Title 85 Okla.Stat. § 131 (Amended 1972).⁴ The purpose of the fund is to provide insurance coverage for employers against liability for workmen's compensation. While the State Treasurer is the custodian of the money deposited, Title 85 Okla.Stat. § 135, the funds deposited in the State Insurance Fund do not belong to the State of Oklahoma. Moran v. State ex rel. Derryberry, 534 P.2d 1282 (Okl.1975). The Commissioner is appointed by the Board of Managers of the State Insurance Fund. Title 85 Okla.Stat. § 131b (1970). The Governor of the State of Oklahoma is a member and chairman of the Board of Managers. Title 85 Okla.Stat. § 131a. The Commissioner is granted broad powers to manage and to conduct the affairs of the Fund. Title 85 Okla.Stat. §§ 132, 133. The Commissioner may act as fully and completely as a governing body of a private insurance carrier.

The Fund acts as a private insurer which is self-supporting and which acts in competition with other insurance carriers. The Fund must be self-supporting. 85 Okla. Stat. § 131(c).

The Fund is supported by premiums received and operates solely for the benefit of workmen injured through employment. The State assumes no liability beyond the amount of the Fund. The governmental regulation is similar to that of a private insurance carrier. 36 Okla.Stat. § 101 et seq. The Fund competes with private carriers and operates under the statutory requirement that it be self-supporting.

Monopoly status and heavy regulation by the State do not in themselves comprise "state action". Regulated businesses which provide goods and services which are affected with a public interest do not necessarily convert their actions into those of the State. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); See Teleco, Inc., v. Southwestern Bell Telephone Co., 511 F.2d 949 (10th Cir. 1975).

In considering all of these factors, it is the conclusion of the Court that the State of Oklahoma does not stand in a sufficiently close nexus to the actions of Chris Sturm, as Commissioner and therefore to the State...