Grogan v. Blooming Grove Volunteer Ambulance Corps

• Decision Date: 29 September 2014
• Docket Number: Docket No. 13–656–cv.
• Citation: 768 F.3d 259
• Parties: Lenore B. GROGAN, Plaintiff–Appellant, v. BLOOMING GROVE VOLUNTEER AMBULANCE CORPS, Carole McCann, Chairman, Board of Directors, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

768 F.3d 259

Lenore B. GROGAN, Plaintiff–Appellant

v.BLOOMING GROVE VOLUNTEER AMBULANCE CORPS, Carole McCann, Chairman, Board of Directors, Defendants–Appellees.¹

Docket No. 13–656–cv.

United States Court of Appeals, Second Circuit.

Argued: Dec. 12, 2013.

Decided: Sept. 29, 2014.

Michael H. Sussman, Sussman & Watkins, Goshen, NY, for Plaintiff–Appellant.

Rebecca Grace Baldwin Mantello, and Joseph A. Catania, Jr., Catania, Mahon, Milligram & Rider, PLLC, Newburgh, NY, for Defendants–Appellees.

Before: CABRANES, HALL, and CHIN, Circuit Judges.

Opinion

HALL, Circuit Judge:

Lenore Grogan brought this civil rights suit pursuant to 42 U.S.C. § 1983 against the Blooming Grove Volunteer Ambulance Corps (“BGVAC”) and several of its directors, alleging that various disciplinary charges levied against her by BGVAC, and her resulting suspension as an officer of BGVAC without a hearing, violated her rights under the First and Fourteenth Amendments of the United States Constitution. The United States District Court for the Southern District of New York (Briccetti, J. ) granted summary judgment to the defendants and dismissed Grogan's federal constitutional claims after concluding that the challenged acts of BGVAC did not constitute “state action.” Grogan argues on appeal that BGVAC's conduct amounts to state action because: (1) the services BGVAC provides—emergency medical care and general ambulance services—are “traditionally exclusive public functions” that the State has delegated to BGVAC; and (2) the extensive State regulation and oversight under which BGVAC operates, coupled with BGVAC's performance of a “municipally assumed” statutory function, so “entwines” BGVAC with the State that its actions are fairly attributable to the State. Because BGVAC's conduct does not constitute state action under either theory, we affirm the judgment of the district court.

BACKGROUND ²

BGVAC is a private, non-profit membership corporation organized under the laws of New York. The Town of Blooming Grove, New York contracted with BGVAC to provide emergency medical services and general ambulance services to the members of that community, as authorized by New York Town Law § 198(10–f). As relevant here, that statutory provision states that a town in New York “may ... provide” emergency medical and general ambulance services “and to that end may ... [c]ontract with one or more ... organizations ... to supply, staff and equip emergency medical service or ambulance vehicles suitable for such purposes and operate such vehicles for the furnishing of prehospital emergency treatment.” N.Y. Town Law § 198(10–f)(a)(iii). Various other provisions of New York law permit “municipalities” to provide emergency medical and general ambulance services in a similar manner, see N.Y. Gen. Mun. Law § 122–b, provide for state oversight and regulation of emergency medical services, see N.Y. Pub. Health Law §§ 3000 –032, and establish a benefits scheme and an award program for volunteer ambulance workers, see N.Y. Gen. Mun. Law §§ 219–b –219–t ; N.Y. Volunteer Ambulance Workers Benefit Law §§ 1 –91.

The terms of BGVAC's contract with the Town require it to maintain emergency response vehicles and to hire trained personnel for the purpose of providing emergency medical services and the transportation of sick and injured persons. In consideration for these services the Town pays BGVAC a yearly sum of $362,000, distributed in four quarterly installments. The contract identifies BGVAC as an “independent contractor” and disclaims any agency or employment relationship between the Town and BGVAC. BGVAC is also required to purchase and maintain liability insurance “in an amount deemed satisfactory by the Town” and to indemnify the Town against “any and all cost, claim, injury, damage or liability” arising from the contract or the services BGVAC provides. The contract allows the Town to audit BGVAC's books and requires BGVAC to provide the Town with quarterly reports detailing its financial activities, but there is no indication in the record that the Town appoints BGVAC's board of directors, oversees the election of BGVAC officers, or has any role in BGVAC's personnel decisions.

Grogan is a certified emergency medical technician who became a member of BGVAC in 2001 and was elected Captain in 2007. In that capacity, Grogan was responsible for supervising the assistant captain and lieutenants, overseeing scheduling and training, reporting to BGVAC's board of directors (“Board”), and fundraising. In May 2008, the Board issued twenty-one charges against Grogan and suspended her for dereliction of her duties as Captain, violations of BGVAC's rules and regulations, and failure to follow approved medical protocol. Although the Board's letter informing Grogan of her suspension stated that she was entitled to a hearing on the charges, the hearing never took place, and Grogan was never reinstated.

Grogan, acting pro se, subsequently brought this § 1983 action against BGVAC and the Chair of its Board.³ She alleged in her complaint that after she was elected Captain and attempted to implement certain changes to BGVAC procedures, the members of the Board consistently undermined her authority, verbally abused her during Board meetings, and brought numerous “fictitious charges” against her. She claimed that the Board violated her constitutional rights under the First and Fourteenth Amendments by propounding “false charges” against her in retaliation for certain actions she took as Captain and by failing to provide her with a proper hearing on the charges that led to her suspension. The district court granted the defendants' motion for summary judgment, concluding that Grogan had not established that the defendants' challenged conduct constituted “state action,” an essential prerequisite to her federal constitutional claims. The only issue on appeal is whether that conclusion was correct.⁴

DISCUSSION

Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). We review the district court's grant of summary judgment de novo, construing the evidence in the light most favorable to Grogan as the nonmoving party. Fabrikant v. French, 691 F.3d 193, 205 (2d Cir.2012).

“Because the United States Constitution regulates only the Government, not private parties,” a litigant like Grogan who alleges that her “constitutional rights have been violated must first establish that the challenged conduct constitutes ‘state action.’ ” Flagg v. Yonkers Sav. & Loan Ass'n, FA, 396 F.3d 178, 186 (2d Cir.2005) (additional quotation marks omitted); see also Fabrikant, 691 F.3d at 206 (“A plaintiff pressing a claim of violation of his constitutional rights under § 1983 is ... required to show state action.” (internal quotation marks omitted)); Cooper v. U.S. Postal Serv., 577 F.3d 479, 491 (2d Cir.2009) (“The Fourteenth Amendment, and, through it, the First Amendment, do not apply to private parties unless those parties are engaged in activity deemed to be state action.” (alterations, ellipsis, and internal quotation marks omitted)). The purpose of the state action requirement is, at bottom, to “preserve an area of individual freedom by limiting the reach of federal law” and avoid imposing “responsibility on a State for conduct it could not control” while, at the same time, ensuring that constitutional standards are available when it may be fairly said that the State is indeed responsible for the conduct of which the plaintiff complains. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (alteration and internal quotation marks omitted).

To demonstrate state action, a plaintiff must establish both that her “ ‘alleged constitutional deprivation [was] caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible, and that the party charged with the deprivation [is] a person who may fairly be said to be a state actor.’ ” Cranley v. Nat'l Life Ins. Co. of Vt., 318 F.3d 105, 111 (2d Cir.2003) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) ). The latter requirement, which is the only one we need address today, is met upon a showing that the “allegedly unconstitutional conduct is fairly attributable to the State.” Sullivan, 526 U.S. at 50, 119 S.Ct. 977. A plaintiff complaining that the actions of a nominally private entity violated her constitutional rights makes this showing by demonstrating that “there is such a ‘close nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State itself.’ ” Brentwood Academy, 531 U.S. at 295, 121 S.Ct. 924 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) ).

We begin the fair attribution inquiry by identifying “ ‘the specific conduct of which the plaintiff complains,’ rather than the general characteristics of the entity.”Fabrikant, 691 F.3d at 207 (quoting Sullivan, 526 U.S. at 51, 119 S.Ct. 977 ). Here, Grogan alleges that BGVAC violated her constitutional rights when it issued disciplinary charges against her and indefinitely suspended her without a proper hearing. Thus, the ultimate issue we must address is whether the decision of a private volunteer ambulance organization to charge and suspend one of its officers is fairly attributable to the State so as to subject the organization to the strictures of the Constitution when the organization has contracted with a municipality to provide emergency medical services, as authorized by state law. Cf. Sullivan, 526 U.S. at 51, 119 S.Ct. 977.

This determination “is a matter of normative judgment” that does not lend itself to brightline rules or “rigid” criteria. Brentwood Academy, 531 U.S. at 295, 121 S.Ct. 924. In...