Chico Fem. Women's Hlth. Cr. v. Butte Glenn Med. S.

Decision Date23 February 1983
Docket NumberCiv. No. S-81-42 MLS.
Citation557 F. Supp. 1190
PartiesCHICO FEMINIST WOMEN'S HEALTH CENTER, a California non-profit corporation; Lorene Reed, for herself and as representative of the class of women similarly situated, Plaintiffs, v. BUTTE GLENN MEDICAL SOCIETY, an unincorporated association; Drs. Jerome Weinbaum, William Reed, Dennis Dalisky, Joseph Brooks, Homer Heath, Thomas Lorenz, Dale Ritter, and Stephen Cowdrey; Joanne Cowdrey; N.T. Enloe Memorial Hospital, a California non-profit corporation; and Norcal Mutual Insurance Company, a California corporation, Defendants.
CourtU.S. District Court — Eastern District of California


Mark E. Merin, Cathleen A. Williams, Kanter, Williams, Merin & Dickstein, Sacramento, Cal., Paul T. Persons, Chico, Cal., for plaintiffs.

David R. Harrison, Steven A. Lewis, Marsha L. Morrow, Michael P. McKisson, Long & Levit, San Francisco, Cal., for defendants Butte Glenn Medical Soc., Drs. Jerome Weinbaum, William Reed, Dennis Dalisky, Joseph Brooks, Homer Heath, Thomas Lorenz and Dale Ritter.

James B. Young, John F. McLean, Emmett C. Stanton, M. Robert Bragin, Pillsbury, Madison & Sutro, San Francisco, Cal., for defendant Norcal Mut. Ins. Co.

Charity Kenyon, John J. Hannegan, John S. Gilmore, Diepenbrock, Wulff, Plant & Hannegan, Sacramento, Cal., for defendant N.T. Enloe Memorial Hosp., Inc.

Terry A. Appling, Greve, Clifford, Diepenbrock & Paras, Sacramento, Cal., Delbert M. Siemsen, Butte County Counsel, Oroville, Cal., Laurence L. Angelo, Bolling, Walter & Gawthrop, Sacramento, Cal., for defendant Joanne Cowdrey.

Carol Hunter, Deputy Atty. Gen., Sacramento, Cal., for defendant Stephen Cowdrey.

John Q. Brown, Weintraub, Genshlea, Hardy, Erich & Brown, Sacramento, Cal., Long & Levit, San Francisco, Cal., for defendant Dr. Dennis Dalisky.


MILTON L. SCHWARTZ, District Judge.

The Chico Feminist Women's Health Center "Center" is a non-profit clinic located in Chico, California, which offers a broad range of health services to women in Northern California, Southern Oregon and Western Nevada. Included among those services is the provision of elective vacuum aspiration abortions. Lorene Reed is a Butte County resident who sought and obtained an abortion at the Center.1

On January 22, 1981, the Center and Lorene Reed filed suit against the Butte Glenn Medical Society, Drs. Jerome Weinbaum, William Reed, Dennis Dalisky, Joseph Brooks, Homer Heath, Thomas Lorenz and Dale Ritter hereafter collectively referred to as "BGMS", Dr. Stephen Cowdrey, Joanne Cowdrey, N.T. Enloe Memorial Hospital "Enloe Hospital" and Norcal Mutual Insurance Company "Norcal".2 The complaint alleges: (1) restraint of trade and monopolization in violation of the Sherman Act, 15 U.S.C. §§ 1 and 2; (2) violations of federal constitutional privacy, due process and equal protection rights, 42 U.S.C. §§ 1983, 1985(3), U.S. Const.amend. XIV, § 1; (3) violation of California's constitutional right of privacy, Cal. Const. art. I, § 1; (4) violation of Cal.Ins.Code § 679.71; and (5) interference with contract, employment relations and prospective economic advantage.

The gravamen of plaintiffs' complaint is that defendants conspired to "hinder, harass, interfere with, obstruct and force the closure of the Center." Complaint at ¶ 4. The specific contentions underlying the various claims for relief are that defendants refuse to work at the Center or provide back-up services for its patients; dissuaded physicians and nurse practitioners in Chico from working at the Center by threatening to deny them staff privileges at Enloe Hospital or otherwise interfere with their employment opportunities; waged a defamation campaign against the Center; initiated an investigation of the Center by the Board of Medical Quality Assurance solely for harassment purposes; and persuaded Norcal, the Center's professional liability insurer, to cancel the Center's insurance policy.

The complaint alleges that defendants' acts have forced the Center to increase its fees and to divert funds from patient care in order to combat defendants' allegedly defamatory accusations, obtain a new professional liability policy and pay the increased costs incurred as the result of being forced to hire non-local physicians to work at the Center. It further charges that the refusal of local physicians to provide backup services creates a "serious and unacceptable risk" to the Center's patients, who must receive such services on an emergency basis at Enloe Hospital, or in Oroville where the closest physician willing to offer such care is located. Finally, plaintiffs allege that defendants' acts have rendered the Center unable to meet its patients' demands for abortions.

In March 1981, defendants filed lengthy motions to stay, strike, dismiss and require a more definite statement of portions of plaintiffs' complaint. Among them were the motions of defendants Enloe Hospital, BGMS and Norcal to dismiss the third, fourth and fifth claims for relief—plaintiffs' federal and state constitutional civil rights claims.3 The court heard oral argument on those particular motions on January 14, 1982 and then ordered the hearing continued until April 15, in order to afford plaintiffs additional time to conduct discovery on some of the issues discussed. The parties subsequently agreed to waive further oral argument and the motions to dismiss counts three, four and five were submitted for decision on April 28. The court now renders this opinion to resolve the issues raised by those motions.4


The third claim for relief is brought by the Center on its own behalf and on behalf of women seeking to obtain abortions at the Center. It is also pleaded as a class action, with plaintiff Reed designated as the class representative. The claim is founded on 42 U.S.C. §§ 1983 and 1985(3) and alleges that defendants' interference with the operations of the Center resulted in violations of plaintiffs' constitutional rights of privacy, due process and equal protection as guaranteed by the Fourteenth Amendment. U.S. Const.amend. XIV, § 1.

Defendants have moved to dismiss the third claim on the ground that defendants' alleged unconstitutional acts do not satisfy the "state action" requirements of 42 U.S.C. §§ 1983 and 1985(3) "§ 1983" and "§ 1985(3)". The court has examined materials outside the pleadings in considering these motions and therefore, in accordance with Fed.R.Civ.P. 12(b), treats them as motions for summary judgment under Fed. R.Civ.P. 56.5 "Summary judgment is proper only when there is no genuine issue of any material fact or when viewing the evidence and the inferences which may be drawn therefrom in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law." Gaines v. Haughton, 645 F.2d 761, 769 (9th Cir.1981), cert. denied, 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d 297 (1982).6

The court turns first to plaintiffs' § 1983 claim. The statute provides that:

every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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 equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

Thus, in order to maintain an action under § 1983, a plaintiff must establish: "(1) that defendant was acting `under color of state law' at the time of the acts complained of, and (2) that defendant deprived plaintiff of a right, privilege, or immunity secured by the Constitution or Laws of the United States." Freier v. New York Life Insurance Co., 679 F.2d 780, 783 (9th Cir.1982). The only defendant alleged to have acted under color of state law in the instant case is Enloe Hospital, a private institution. See Complaint at ¶¶ 13, 45. Its acts will be deemed under color of state law only if the state is significantly involved with the specific hospital activity that is the subject of plaintiffs' complaint.7 See Aasum v. Good Samaritan Hospital, 542 F.2d 792, 794 (9th Cir.1976); Taylor v. St. Vincent's Hospital, 523 F.2d 75, 77-78 (9th Cir. 1975), cert. denied, 424 U.S. 948, 96 S.Ct. 1420, 47 L.Ed.2d 355 (1976); Watkins v. Mercy Medical Center, 520 F.2d 894, 896 (9th Cir.1975); Ascherman v. Presbyterian Hospital of Pacific Medical Center, Inc., 507 F.2d 1103, 1105 (9th Cir.1974); Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d 308, 312-13 (9th Cir.1974). And, if Enloe Hospital is found to have acted under color of state law and thus subjected itself to liability under § 1983, all of the other private defendants alleged to have acted in concert with it are similarly subject to § 1983 liability. Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 186-87, 66 L.Ed.2d 185 (1980); Goichman v. Rheuban Motors, Inc., 682 F.2d 1320, 1322 (9th Cir.1982).

The requisite degree of state involvement is obviously present if a rule or policy followed by a private entity is mandated or approved by the state. See Bond v. Dentzer, 494 F.2d 302 (2d Cir.), cert. denied, 419 U.S. 837, 95 S.Ct. 65, 42 L.Ed.2d 64 (1974); Doe v. Bellin Memorial Hospital, 479 F.2d 756 (9th Cir.1973); Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir.1963). It also exists when the state has "so far insinuated itself into a position of interdependence with the private entity that it must be recognized as a joint participant in the challenged activity ...." Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 862, 6 L.Ed.2d 45 (1961).8 Similarly, significant state involvement can be found where the private entity serves a traditionally sovereign function, see Reitman v. Mulkey, 387 U.S. 369, ...

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