Medina v. Rudman, No. 76-1057

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore COFFIN, Chief Judge, McENTEE and CAMPBELL; LEVIN H. CAMPBELL
Citation545 F.2d 244
PartiesGeraldine C. MEDINA, Plaintiff, Appellant, v. Warren B. RUDMAN et al., Defendants, Appellees.
Docket NumberNo. 76-1057
Decision Date09 November 1976

Page 244

545 F.2d 244
Geraldine C. MEDINA, Plaintiff, Appellant,
v.
Warren B. RUDMAN et al., Defendants, Appellees.
No. 76-1057.
United States Court of Appeals,
First Circuit.
Nov. 9, 1976.

Page 246

Leonard W. Yelsky, Cleveland, Ohio, with whom David A. Snow and Yelsky, Eisen & Singer Co., L.P.A., Cleveland, Ohio, were on brief, for appellant.

David H. Souter, Atty. Gen., Concord, N.H., with whom Thomas D. Rath, Deputy Atty. Gen., James C. Sargent, Jr., Atty., Concord, N.H., were on brief, for appellees.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Geraldine C. Medina appeals from a judgment of the District Court for the District of New Hampshire dismissing her complaint for damages and an injunction against the members of New Hampshire's State Greyhound Racing Commission (the "Commission") 1 and its Attorney General.

Page 247

Citing 42 U.S.C. §§ 1982, 1983, 1984, and 1985, Mrs. Medina requested the district court to order the Commission to approve her "participation" (by purchasing stock in the licensee) in an outstanding greyhound racing license that the Commission had issued to a corporation known as the New Hampshire Kennel Club, Inc. (the "Club"). Her complaint followed upon the Commission's refusal, on advice of the Attorney General of New Hampshire, to approve her "as a financial backer, owner or participant in any way" under the Club's license. 2

While Mrs. Medina's complaint cited several civil rights statutes, and included an unsuccessful request for a three-judge court to consider the alleged unconstitutionality of parts of New Hampshire's greyhound racing laws, this appeal is limited to the district court's determination that her complaint did not state a claim under 42 U.S.C. § 1983. Mrs. Medina contends chiefly that the Commission's disapproval of her participation without, as she asserts, "adequate notice and hearing on the merits of a controversy between herself and the unknown contents of the (Attorney General's) report", deprived her of due process of law under the fourteenth amendment, giving rise to a right of action under § 1983. The court below ruled that her interest in acquiring stock in a parimutuel greyhound racetrack was not protected liberty or property within the fourteenth amendment.

Before proceeding, we observe that the court below should either have treated defendants' motion to dismiss under Fed.R.Civ.P. 12(b)(6) as one for summary judgment, or else not given specific consideration, as it did in its opinion, to a number of facts outside the pleading, found principally in affidavits filed by the parties. See Fed.R.Civ.P. 12(b). O'Brien v. DiGrazia,544 F.2d 543 (1st Cir. 1976). Rule 12(b) provides that if "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." (The court had before it a separate motion for summary judgment that was argued simultaneously with the 12(b)(6) motion but chose to act under the latter.) The court's error was, however, harmless. The dismissal can be justified without reference to the extrinsic material which, while relevant, is not determinative. Cf. O'Brien v. Moriarty,489 F.2d 941 (1st Cir. 1974).

The events surrounding plaintiff's claim are clear enough. An Ohio resident, plaintiff is the principal shareholder of four Weight Watcher franchises there, and appears to possess substantial means. In the first half of 1975 she loaned $150,000 to the Club, which owned the New Hampshire real estate upon which a greyhound racing track was then in process of being built. A license to conduct greyhound races during the 1975 season had already been issued to the Club. After plaintiff's initial loan, the Club's two principal stockholders, Henry D. Bogatin, Jr. and Angelo Cassaro, assured plaintiff that, in view of her substantial financial position, they would sell her an approximately fifty per cent interest in the Club, but their undertaking to do so was explicitly made contingent upon her obtaining approval from the Commission. Pursuant to this informal understanding "in principle", but before she had obtained the Commission's approval, Mrs. Medina loaned

Page 248

more money to the Club, making her investment in the neighborhood of $700,000.

In August, 1975, Mrs. Medina, with the assistance of an attorney, made out and submitted to the Attorney General a form entitled "Individual Disclosure of Information", this being what Mrs. Medina calls in her complaint "an application to participate in the previously issued (Club's) Greyhound Racing license". The form on its face provided that it was "To be submitted to Attorney General under RSA 284:15-b" and "Must be filed by each individual . . . holding legal or beneficial ownership interest if the ownership interest of the above applicant or license holder is held by 25 or less persons . . . ." 3

On this form, Mrs. Medina indicated the Club as the "present license holder", and that she was presently a mortgagee of the Club which was indebted to her for $700,000. After detailing her financial condition, she went on to indicate that if approved by the Commission she hoped to participate through a limited partnership arrangement, and through stock ownership in the Club, which would be the General Partner, in the operation of a greyhound racing facility. Stock ownership in the Club "presently anticipated" was said to be as follows:

Plaintiff expressly noted that "voting control would remain in the hands of the present stockholders of the present licensee", viz. Bogatin and Cassaro.

Following submission of the so-called application, the state Attorney General conducted an investigation and, on September 26, 1975, the Commission wrote to the Club that "(b)ased upon a report from the office of the Attorney General, the Commission declines to approve Geraldine C. Medina as a financial backer, owner or participant in any way under the license granted to the New Hampshire Kennel Club." There is no allegation or evidence that Mrs. Medina at this juncture ever requested a Commission hearing. 4 But twelve days later, on October 7, 1975, she filed this action in the district court, seeking initially a temporary restraining order and preliminary injunction, which the court denied, ordering defendants to allow her to participate under the Club's license. 5

Page 249

In her district court complaint, plaintiff alleged that "subsequent to plaintiff's application to be licensed to participate in said Club license" the Attorney General conducted "some type of investigation" in which she cooperated; and that although the results of the investigation were kept secret from her, she believed this to be the basis for turning her down. She alleged that "she has a reputation unblemished in any way" and complies with "any of the standards as set forth in New Hampshire Revised Statutes Annotated, Chapter 284 and all related sections thereto." Plaintiff further alleged, in conclusory fashion, that defendants acted willfully, knowingly and improperly with the specific intent to deprive her of her constitutional rights, and that they conspired and acted arbitrarily, in abuse of their discretion.

In deciding whether Mrs. Medina had a claim cognizable under § 1983, the court below assumed that the only federal right that might arguably have been denied her by New Hampshire officials, under color of state law, was a right to due process. 6 The court focused on that question, rightly we think. There was clearly no issue of contract impairment under Art. I, § 10 of the Constitution, New Hampshire's greyhound racing laws being fully extant before she loaned money to the Club, South Terminal Corp. v. EPA, 504 F.2d 646, 680 (1st Cir. 1974); nor is there any equal protection issue, there being insufficient facts alleged to indicate a "purposeful discrimination" by state officials. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); see Cordeco Development Corp. v. Vasquez, 539 F.2d 256, 260, n.5 (1st Cir. 1976); Burt v. City of New...

To continue reading

Request your trial
67 practice notes
  • Payne v. Fontenot, Civil Action No. 95-308-B.
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • August 16, 1995
    ...basis standard. The Court only applies the strict scrutiny standard to illustrate the ridiculousness of the plaintiffs' claims. 27 545 F.2d 244 (1st Cir.1976), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 177 28 Medina v. Rudman, 545 F.2d at 251 (emphasis added). See also infra text......
  • Grendel's Den, Inc. v. Goodwin, Nos. 80-1653
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 7, 1981
    ...S.Ct. 507, 27 L.Ed.2d 515 (1971); Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Medina v. Rudman, 545 F.2d 244 (1st Cir. 1976), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 177 (1977); Raper v. Lucey, 488 F.2d 748 (1st Cir. 1973). Grendel's "du......
  • Martin v. Stewart, No. 06-1829.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 29, 2007
    ...of gambling laws is clearly a proper exercise of the state's police power in an effort to promote the public welfare."); Medina v. Rudman, 545 F.2d 244, 251 (1st Cir.1976) (same); Boynton v. Ellis, 57 F.2d 665, 666 (10th Cir.1932) State control over gambling has also been reinforced by Cong......
  • Bangor Baptist Church v. STATE OF ME., ETC., Civ. A. No. 81-0180-B.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • October 26, 1982
    ...the pleadings, not excluded by the Court, and is to be treated as a motion for summary judgment. Fed.R.Civ.P. 12(b). Medina v. Rudman, 545 F.2d 244, 247 (1st Cir.1976). The parties have supplemented the record, both before and after oral argument, with affidavits and memoranda of The plaint......
  • Request a trial to view additional results
68 cases
  • Payne v. Fontenot, Civil Action No. 95-308-B.
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • August 16, 1995
    ...basis standard. The Court only applies the strict scrutiny standard to illustrate the ridiculousness of the plaintiffs' claims. 27 545 F.2d 244 (1st Cir.1976), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 177 28 Medina v. Rudman, 545 F.2d at 251 (emphasis added). See also infra text......
  • Grendel's Den, Inc. v. Goodwin, Nos. 80-1653
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 7, 1981
    ...S.Ct. 507, 27 L.Ed.2d 515 (1971); Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Medina v. Rudman, 545 F.2d 244 (1st Cir. 1976), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 177 (1977); Raper v. Lucey, 488 F.2d 748 (1st Cir. 1973). Grendel's "du......
  • Martin v. Stewart, No. 06-1829.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 29, 2007
    ...of gambling laws is clearly a proper exercise of the state's police power in an effort to promote the public welfare."); Medina v. Rudman, 545 F.2d 244, 251 (1st Cir.1976) (same); Boynton v. Ellis, 57 F.2d 665, 666 (10th Cir.1932) State control over gambling has also been reinforced by Cong......
  • Bangor Baptist Church v. STATE OF ME., ETC., Civ. A. No. 81-0180-B.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • October 26, 1982
    ...the pleadings, not excluded by the Court, and is to be treated as a motion for summary judgment. Fed.R.Civ.P. 12(b). Medina v. Rudman, 545 F.2d 244, 247 (1st Cir.1976). The parties have supplemented the record, both before and after oral argument, with affidavits and memoranda of The plaint......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT