Bricker v. Crane, 72-1154.

• Decision Date: 07 November 1972
• Docket Number: No. 72-1154.,72-1154.
• Citation: 468 F.2d 1228
• Parties: Glenn W. BRICKER, M.D., Plaintiff, Appellant, v. Henry D. CRANE, Jr., M.D., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

468 F.2d 1228 (1972)

Glenn W. BRICKER, M.D., Plaintiff, Appellant, v. Henry D. CRANE, Jr., M.D., et al., Defendants, Appellees.

No. 72-1154.

United States Court of Appeals, First Circuit.

Heard September 6, 1972.

Decided November 7, 1972.

Glenn W. Bricker, M.D., pro. se.

Eugene M. Van Loan, III, Manchester, N. H., Martin L. Gross, Concord, N. H., W. Wright Danenbarger, Manchester, N. H., and Frederic K. Upton, Concord, N. H., with whom Sulloway, Hollis, Godfrey & Soden, Concord, N. H., Devine, Millimet, Stahl & Branch, Sheehan, Phinney, Bass & Green, Paul E. Nourie, Wiggin, Nourie, Sundeen, Pingree & Bigg, Wadleigh, Starr, Peters, Dunn & Kohls, Manchester, N. H., Upton, Sanders & Upton, Concord, N. H., Peter V. Millham, and Wescott, Millham & Dyer, Laconia, N. H., were on briefs, for defendants-appellees.

Before COFFIN, Chief Judge, McENTEE, Circuit Judge, HAMLEY,^* Senior Circuit Judge.

McENTEE, Circuit Judge.

This is an appeal from the district court's dismissal of an action brought under the Civil Rights Act of 1871. Appellant, Dr. Glenn W. Bricker, is a physician duly licensed to practice medicine in the State of New Hampshire. In August 1970, he received notification that the Credentials Committee of defendant Sceva Speare Memorial Hospital had recommended that he not be reappointed to the hospital's medical staff. Following receipt of this notification, Dr. Bricker made extensive efforts to obtain the minutes of the meeting at which this action had been taken, as well as a specification of the charges against him. Although these efforts were unavailing, he was afforded an appeal procedure which included a personal appearance before the hospital's Credentials and Joint Conference Committees. Upon being finally informed that he would not be reappointed to the medical staff, Dr. Bricker commenced an action for injunctive relief against the hospital in New Hampshire Superior Court.

In essence, Dr. Bricker alleged that his nonreappointment was due to his activities as a specialist in the field of legal medicine, which sometimes entailed testifying against other doctors in medical malpractice actions. Along with other allegations not relevant here, appellant claimed that the hospital's failure to provide him with a specification of charges violated his right not to be deprived of property without due process of law and that his nonreappointment to the hospital staff was arbitrary, capricious and unreasonable. In its decision of May 17, 1971, the Grafton County Superior Court ruled that Sceva Speare was a private hospital and that its bylaws did not require that Bricker be given a written specification of the charges against him. The court further held that Bricker had been a disruptive influence at the hospital, that his medico-legal activities had not played a substantial role in his nonreappointment and that the hospital's actions were therefore neither arbitrary nor unreasonable. The superior court's findings of fact and rulings of law were affirmed by the Supreme Court of New Hampshire which specifically held that "the acceptance of federal and town funds . . . has not changed the private character of defendant hospital." Bricker v. Sceva Speare Memorial Hospital, N.H., 281 A.2d 589, 592, cert. denied, 404 U.S. 995, 92 S.Ct. 535, 30 L.Ed.2d 547 (1971).

After the denial of his petition for a writ of certiorari, Bricker commenced the present action in the district court. In addition to the hospital, he named as defendants certain members of the Sceva Speare Medical Staff and Executive Committee, a number of insurance companies and three attorneys who represented several of the other defendants. His complaint alleged the existence of a broad-based conspiracy to deprive him of his capacity to practice medicine, solely because of his testimony in malpractice cases, in violation of the first, fifth and fourteenth amendments to the United States Constitution, and the Civil Rights Act of 1871.¹ The complaint further alleged that Bricker's nonreappointment to the Sceva Speare staff was a result of this conspiracy,² that he had not been informed of the charges against him prior to his exclusion from the hospital and that the hospital received certain monies from the state and federal governments under the Medicare Program and the Hill-Burton Act. Stripping this complaint to its "federal essentials," the district court construed it as alleging a deprivation of due process through the defendant hospital's refusal to provide appellant with the requested specification of charges. While recognizing its jurisdiction under 28 U.S.C. § 1343, the court dismissed the complaint as to all the defendants on various grounds of res judicata, collateral estoppel and failure to state a cause of action. We affirm the decision of the district court.

Our consideration of this appeal must begin with the doctrine of collateral estoppel.³ Insofar as appellant relies on 42 U.S.C. § 1983,⁴ he must demonstrate that, in denying him access to the facilities of Sceva Speare Memorial Hospital, the defendants acted under color of state law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). It is unnecessary for us to decide whether the reception of funds under the Hill-Burton Act and other government programs was sufficient to imbue the hospital with state action,⁵ since that issue has been conclusively determined against the appellant in the state courts.

In P. I. Enterprises, Inc. v. Cataldo, 457 F.2d 1012 (1st Cir. 1972), this court held that the effects of collateral estoppel cannot be avoided by recasting an adjudicated issue in the form of an action under the Civil Rights Act. We noted in that decision the well settled principle that state courts are fully empowered to decide federal claims and that "a state court decision on constitutional issues is res judicata to the identical suit brought in federal court." Id. at 1014. We reiterate that the Civil Rights Act is not a vehicle for collateral attack upon final state court judgments, Coogan v. Cincinnati Bar Association, 431 F.2d 1209 (6th Cir. 1970); Rhodes v. Meyer, 334 F.2d 709, 716 (8th Cir.), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964), and that a writ of certiorari to the United States Supreme Court is the only method by which such a decision may be reviewed. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). In the present case, appellant unsuccessfully sought such review after voluntarily litigating his federal claims in state court. Understandably disappointed with the outcome of this earlier litigation, he now seeks a happier result in a federal forum. But he is not entitled to an "encore."⁶ Angel v. Bullington, 330 U.S. 183, 191, 67 S.Ct. 657, 91 L.Ed. 832 (1947).

Appellant argues, however, that whatever the effects of collateral estoppel, he has a subsisting cause of action under 42 U.S.C. § 1985(3).⁷ Appellant bases this argument on the recent case of Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), in which the Supreme Court held that § 1985(3) does not require state action but reaches private conspiracies aimed at the discriminatory deprivation of equal rights under the law. We note the holding of at least one federal court that, when the object of such a conspiracy is the deprivation of rights secured by the fourteenth amendment, a state involvement requirement survives Griffin. See Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972). We need not reach this issue, however, since appellant has failed to meet the minimum requirements for stating a cause of action under this section.

In Griffin v. Breckenridge, supra, the Court recognized "the constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law." Id. at 102, 91 S.Ct. at 1798. In order to avoid these difficulties, the Court construed the statute to require, as an element of the cause of action, a showing of some invidiously discriminatory motivation.

"The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based invidiously discriminatory animus behind the conspirators\' action." Id. (Citations omitted.)

In his original complaint before the district court, Bricker did not claim that he was the victim of any class-based discrimination. Following the dismissal of his action, he sought to amend the complaint to include an allegation that he was a member of a class of physicians who had been discriminated against because of their testimony in malpractice cases. While the court denied his motion for leave to amend, this additional allegation would not, in any event, suffice to state a cause of action under § 1985(3).

We recognize, of course, that we are generally required to treat the allegations of a complaint as true for purposes of a motion to dismiss. In the instant case, however, appellant has done no more than flatly assert his membership in a novel class which is neither readily recognizable nor among those traditionally protected by the Civil Rights Act. He has alleged no facts supporting the existence of such a class and admitted at oral argument that he might be the only class-member in New Hampshire. Under these circumstances, we hold that appellant has not sufficiently alleged class-based discrimination to state a cause of action under § 1985(3). See Jacobson v. Industrial Foundation of Permian Basin, 456 F.2d 258 (5th Cir. 1972).

Appellant also makes fleeting reference in his brief to 42 U.S.C. § 1985(2).⁸ At no point in his complaint, or even in his motions for leave to amend, did Bricker specifically rely upon that section. He is therefore precluded...