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May 23, 1974

William A. BARRETT, M.D., Plaintiff,
UNITED HOSPITAL et al., Defendants

Bauman, District Judge.

The opinion of the court was delivered by: BAUMAN

BAUMAN, District Judge.

In this action for declaratory, injunctive, mandamus and monetary relief, the plaintiff physician alleges violations of the First, Fifth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution and of the Civil Rights Act of 1871 *fn1" by the defendant Hospital, its Board of Directors, employees, committees and staff members. All the defendants now move to dismiss under Rules 12(b) (1) and 12(b) (6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. In effect, both of these motions present the identical contention that the absence of "state action" in the violations alleged by plaintiff in his complaint is fatal to his cause of action.


 For purposes of this motion, plaintiff's version of the facts are taken as true. *fn2"

 The plaintiff is a physician who, for almost twenty years, was a member of the staff of United Hospital, a private hospital located in Port Chester, New York. In 1966, he was indicted and charged with the crime of criminal abortion. *fn3" Upon his subsequent plea of guilty to assault in satisfaction of all charges, plaintiff's license to practice medicine in New York was revoked as were all his staff privileges at the defendant Hospital. *fn4" On February 4, 1971, the Commissioner of Education restored plaintiff's license to practice medicine within the state effective July first of that year. Thereupon plaintiff immediately applied for the restoration of his privileges at United Hospital.

 The by-laws of the Hospital in effect at that time, relating to appointments to the Medical Staff, prescribed the following procedure: Applications are considered first by a "Credentials Committee" which makes a recommendation to a "Medical Council of the Medical Staff" which in turn makes a recommendation to the Board of Trustees. If the application is denied, the applicant may avail himself of the right to a hearing before a "Joint Conference Committee" which, following the hearing, makes its recommendations to the Board of Trustees.

 Following the denial of his application plaintiff requested a formal hearing which was finally held on February 16, 1972. *fn5" The hearing resulted in an affirmation of the prior actions of the various committees and a recommendation to the Board of Trustees that plaintiff be denied staff privileges. The Board of Trustees thereafter accepted this recommendation and plaintiff was so advised on May 3, 1972. Almost one year later the complaint was filed in the instant case, charging that the defendants, as members of the various committees which considered and passed upon Dr Barrett's application, *fn6" had violated his civil rights and various constitutional protections in denying him admittance to the Hospital staff. Specifically the complaint alleges:

 (1) That the hearing procedures followed by the Joint Conference Committee denied plaintiff due process (para. 61).

 (2) That the defendants had created a scheme to prevent plaintiff from being granted privileges at either United Hospital or at other hospitals in neighboring areas (para. 62).

 (3) That the denial of staff privileges was without basis in law or fact, was beyond defendants' authority, and was arbitrary, capricious, vindictive and an abuse of discretion (para. 64).

 (4) That certain of the defendants had conspired to destroy plaintiff's reputation and professional practice (para. 69).

 (5) That certain of the defendants had communicated false and malicious statements concerning plaintiff to administrators and professional staff at other hospitals and had used influence and pressure to cause patients, hospitals and other colleagues to shun and exclude plaintiff (para. 70).

 Based on these specific allegations plaintiff contends that his constitutional rights have been violated in that he has been prevented from associating freely *fn7" and privately *fn8" with his patients and thereby has been deprived of due process *fn9" and equal protection *fn10" and subjected to cruel and unusual punishment. *fn11" Therefore, plaintiff argues, defendants' activities have deprived him of "rights, privileges [and] immunities secured by the Constitution" in violation of Title 42 U.S.C. §§ 1983, 1985 and 1986.

 The complaint before me seeks an order directing the defendants to admit plaintiff to the Medical Staff of United Hospital, an injunction restraining the defendants from refusing to grant him privileges at the Hospital as well as from taking any action to prevent him from being granted professional privileges at other hospitals and money damages.


 Defendants have moved to dismiss the complaint on the grounds that it fails to state a cause of action and that there is no subject matter jurisdiction. *fn12" Before proceeding to an examination of the merits of these contentions there is a procedural question which must be disposed of.

 Defendants have supported their motions to dismiss by affidavits and therefore purport to come within the last sentence of Rule 12(b) which provides that where "matters outside the pleading" are considered by the court such motions shall be treated as motions for summary judgment. *fn13" Plaintiff argues that these affidavits are "argumentative" and suggests that they be treated as memoranda rather than as having presented "matters outside the pleading." This I decline to do. While it is true that Rule 12(b) allows the court the option of disregarding the extrinsic material and deciding the motion on the pleadings, where, as here, factual matters are presented in the affidavits which are relied on by the court, the better practice is to treat the motion as one for summary judgment. Thompson v. New York Central Railroad Company, 361 F.2d 137 (2d Cir 1966). Accordingly the motion before me will be disposed of as provided in Rule 56. *fn14"


 This brings me to the core of the case before the court: the presence or absence of "state action" or "action taken under color of state law". Although the various constitutional and statutory claims presented by plaintiff require somewhat different treatment, the majority of them are completely dependent upon a finding of the requisite state involvement. *fn15" The only major exceptions to this are the claims under 42 U.S.C. § 1985 and § 1986 with which I shall deal later. *fn16"

 Defendants contend that what is involved here is purely private action by a private hospital:

"The United Hospital is a private, self-governing nonprofit organization. It is governed by a Board of Trustees which is composed of various doctors on the staff. . . . Neither the state nor the Federal Government is involved in the governing of the internal affairs of the Hospital or in the decisions relating to appointments to the Medical Staff." *fn17"

 Needless to say, the plaintiff disagrees. He asserts several factors which, it is argued, conclusively establishes that the actions of the Hospital and its staff constitute "state action": *fn18"

 1. The Hospital is performing a public function. The State of New York has merely delegated the Hospital to perform its constitutional duty to provide health care services for its citizens.

 2. The Hospital has received extensive "Hill-Burton Hospital Construction Program" funds from the federal government.

 3. The Hospital has been granted tax exemptions by both the state and federal government. *fn1 ...

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