EFTA01299150.pdf

Harry Beller
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Negative Media:
Space Daily
June 25, 2010 Friday
Enzyme Trio For Biosynthesis Of Hydrocarbon Fuels
BYLINE: Staff Writers
LENGTH: 766 words
DATELINE: Berkeley CA (SPX) Jun 25, 2010, 2010
If concerns for global climate change and ever-increasing costs weren't enough, the
disastrous Gulf oil spill makes an even more compelling case for the development of
transportation fuels that are renewable, can be produced in a sustainable fashion, and do
not put the environment at risk.
Liquid fuels derived from plant biomass have the potential to be used as direct
replacements for gasoline, diesel and jet fuels if cost-effective means of commercial
production can be found.
Researchers with the U.S. Department of Energy (DOE)'s Joint BioEnergy Institute (JBEI)
have identified a trio of bacterial enzymes that can catalyze key steps in the conversion of
plant sugars into hydrocarbon compounds for the production of green transportation fuels.
Harry Beller, an environmental microbiologist who directs the Biofuels Pathways
department for JBEI's Fuels Synthesis Division, led a study in which a three-gene cluster
from the bacterium Micrococcus luteus was introduced into the bacterium Escherichia coli.
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Enzyme Trio For Biosynthesis Of Hydrocarbon Fuels Space Daily June 25, 2010 Friday
The enzymes produced by this trio of genes enabled the E. coli to synthesize from glucose
long-chain alkene hydrocarbons. These long-chain alkenes can then be reduced in size - a
process called "cracking" - to obtain shorter hydrocarbons that are compatible with today's
engines and favored for the production of advanced lignocellulosic biofuels.
"In order to engineer microorganisms to make biofuels efficiently, we need to know the
applicable gene sequences and specific metabolic steps involved in the biosynthesis
pathway," Beller says. 'We have now identified three genes encoding enzymes that are
essential for the bacterial synthesis of alkenes. With this information we were able to
convert an E. coli strain that normally cannot make long-chain alkenes into an alkene
producer."
Working with Beller on this study were Ee-Been Goh and Jay Keasling. The three were the
co-authors of a paper that appeared earlier this year in the journal Applied and
Environmental Microbiology, titled "Genes Involved in Long-Chain Alkene Biosynthesis in
Micrococcus luteus."
It has long been known that certain types of bacteria are able to synthesize aliphatic
hydrocarbons, which makes them promising sources of the enzymes needed to convert
lignocellulose into advanced biofuels. However, until recently, little was known about the
bacterial biosynthesis of non-isoprenoid hydrocarbons beyond a hypothesis that fatty acids
are precursors.
JBEI researchers in the Fuels Synthesis Division, which is headed by co-author Keasling,
are using the tools of synthetic biology, and mathematical models of metabolism and gene
regulation to engineer new microbes that can quickly and efficiently produce advanced
biofuel molecules. E.coli is one of the model organisms being used in this effort because it
is a well-studied microbe that is exceptionally amenable to genetic manipulation.
"We chose to work with M. luteus because a close bacterial relative was well-documented
to synthesize alkenes and because a draft genome sequence of M. luteus was available,"
Beller says. "The first thing we did was to confirm that M. luteus also produces alkenes."
Beller and his colleagues worked from a hypothesis that known enzymes capable of
catalyzing both decarboxylation and condensation should be good models for the kind of
enzymes that might catalyze alkene synthesis from fatty acids.
Using condensing enzymes as models, the scientists identified several candidate genes in
M. luteus, including Mlut_13230. When expressed in E. coli together with the two adjacent
genes - Mlut_13240 and 13250 - this trio of enzymes catalyzed the synthesis of alkenes
from glucose. Observations were made both in vivo and in vitro.
'This group of enzymes can be used to make aliphatic hydrocarbons in an appropriate
microbial host but the resulting alkenes are too long to be used directly as liquid fuels,"
Beller says. "However, these long-chain alkenes can be cracked - a technique routinely
used in oil refineries - to create hydrocarbons of an appropriate length for diesel fuel."
The next step Beller says is to learn more about how these three enzymes work,
particularly Mlut_13230 (also called OleA), which catalyzes the key step in the alkene
biosynthesis pathway - the condensation of fatty acids.
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Enzyme Trio For Biosynthesis Of Hydrocarbon Fuels Space Daily June 25, 2010 Friday
'We're also studying other pathways that can produce aliphatic hydrocarbons of an
appropriate length for diesel fuels without the need for cracking," Beller says. "Nature has
devised a number of biocatalysts to produce hydrocarbons, and our goal is to learn more
about them for the production of green transportation fuels."
LOAD-DATE: June 25, 2010
LANGUAGE: ENGLISH
PUBLICATION-TYPE: Web Publication
Copyright 2010 Space Daily, Distributed by United Press International
Non-Negative Media:
No Information Found
Other Language Media:
Not Required
Public Records:
1 OF 1 RECORD(S)
FOR INFORMATIONAL PURPOSES ONLY
Copyright 2013 LexisNexis
a division of Reed Elsevier Inc All Rights Reserved.
Full Name Address County Phone
BELLER, HARRY I ROCKLAND
ROCKLAND COUNTY
ADDITIONAL PERSONAL INFORMATION
SSN DOB Gender aLet
Subject Summary
Name Variations
1: BELIER, HARRY I
2: BELLER. HARRY
3: BELLER. HARRY I
SSNs Summary
No. SSN State Iss. Date Isis. Warnings
Most frequent SSN attributed to subject:
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New York 1972-1974
DOBs
Reported DOBs:
Possible E-Mail Addresses
Address Summary - 4 records found
No. Address
1
ROCKLAND COUNTY
2:
KINGS COUNTY
3.
KINGS COUNTY
4:
KINGS COUNTY
Ad ress Details
Address
Other Associates
STERN SR. ROBERT M
Dates Phone
Census Data tor Geographical Region
Median Head of Household Age: 41
Median Income: $4Z 198
Median Home Value: $415.686
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Median Education 14 years
1.ciusehold Memmbeirs
Other Associates
None Listed
Dates Phone
Census Dab for Geographical Region
Median Head of Household Age: 43
Median Income: $43:768
Median Home Value: $597.222
Median Education 14 years
Household Members
Other Associates
STERN SR. ROBERT M
Dates Phone
Census Data for Geographical Region
Median Head of Household Age: 31
Median Income: $57:262
Median Home Value: $534.091
Median Education. 13 years
Household Members
None Listed
Other Associates
None Listed
Voter Registrations -1 records found
1: New York Voter Registration
Name:
Residential Address:
Home Phone:
SSN:
Date of Birth:
Gender: Male
Voter Information
Registration Date: 8/15/1996
Last Vote Date:
Party Affiliation:
Active Status: ACTIVE
Real Property - 3 records found
1: Assessment Record for ROCKLAND County, NY
Owner Information
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Name:
Address:
County/FIPS:
Pro ert Information
Address:
County/FIPS:
Data Source: B
Legal Information
Assessor's Parcel 392689 56.05-3-46
Number:
Assessment Information
Assessed Value: $86400
Total Market Value: $24400
2: Assessment Record for ROCKLAND County, NY
Owner Information
Name:
Address:
County/FIPS:
Pro erty Information
Address:
County/FIPS: ROCKLAND
Data Source:
Legal Information
Assessor's Parcel 392689 56.5-3-46
Number:
Assessment Information
Assessed Value: $86400
Total Market Value: $24400
3: Deed Record for ROCKLAND County
Buyer Information
Name:
Name:
Address:
County/FIPS:
Seller Information
Name:
Address:
County/FIPS:
omPro Information
Address:
County/FIPS: ROCKLAND
Data Source: B
Lender Information
Name: ASTORIA FSLA
Legal Information
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Contract Date: 09/18/1995
Recording Date: 09/21/1995
Document Number: 950921225682
Document Type: DEED
Book/Page: 752/1993
Sale Information
Sale Price: 5290000
Mortgage Information
Loan Amount: $150000
Title Company: CHICAGO TITLE
Motor Vehicle Registrations - 17 records found
1: NY MVR
Registrant Information
Registrant: R. HARRY I
DOB:
Address:
ROCKLAND COUNTY
Registration Information
Original Registration Date: 12/17/2010
Registration Date: 12/17/2010
Registration Expiration Date: 12/16/2012
Ion
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 2011
Make: Honda
Model: Accord
Series: ACCORD EX
Body Style: Sedan 4 Door
Weight: 3296
Plate Information
License Plate Type: Sib
License Plate Number:
Plate State: NY
2: NY MVR
Ion
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 2011
Make: Honda
Model: Accord
Series: ACCORD EX
Body Style: Sedan 4 Door
Weight: 3296
Owner Information
Name: R. HARRY I
DOB:
Address:
ROCKLAND COUNTY
Lienholder Information
Name: AMERICAN HONDA FINANCE CORP.
Address: 201 LITTLE FALLS DR
WILMINGTON. DE 19808-1674
NEW CASTLE COUNTY
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Title Information
Title Transfer Date: 1/7/2011
Title Issue Date: 1/7/2011
3: NY MVR
Registrant Information
Registrant: R, HARRY I
DOB:
Address:
ROCKLAND COUNTY
Registration Information
Original Registration Date: 1/6/2006
Registration Date: 12/4/2009
Registration Expiration Date: 1/5/2012
Vehicle Information
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 2000
Make: Honda
Model: Odyssey
Series: ODYSSEY EX
Body Style: Sport Van
Weight: 4170
Plate Information
License Plate Type:
Previous Plate Number:
Previous Plate State:
License Plate Number: If=
Plate State: NY
4: NY MVR
tion
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 2000
Make: Honda
Model: Odyssey
Series: ODYSSEY EX
Body Style: Sport Van
Weight: 4170
Owner Information
Name: R, HARRY I
DOB:
Address:
ROCKLAND COUNTY
Title Information
Title Transfer Date: 2/3/2006
Title Issue Date: 2/3/2006
5: NY MVR
Registrant Information
Registrant: R, HARRY I
DOB:
Address:
ROCKLAND COUNTY
Registration Information
Original Registration Date: 12/12/2007
Registration Date: 11/18/2009
Registration Expiration Date: 12/11/2011
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Vehicle Information
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 2004
Make: Nissan
Model: Altima
Series: ALTIMA/S/SL
Body Style: Sedan 4 Door
Color: Green
Weight: 2980
Plate Information
License Plate Type:
Previous Plate Number: Ilila
Previous Plate State:
License Plate Number:
Plate State: NY
6: NY MVR
Vehicle Information
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 2004
Make: Nissan
Model: Altima
Series: ALTIMA/S/SL
Body Style: Sedan 4 Door
Color: Green
Weight: 2980
Owner Information
Name: SE I FR, HARRY I
DOB:
Address:
ROCKLAND COUNTY
Title Information
Title Transfer Date: 2/20/2008
Title Issue Date: 2/20/2008
7: NY MVR
Registrant Information
Registrant: BELLER. HARRY I
DOB:
Address:
ROCKLAND COUNTY
Registration Information
Original Registration Date: 10/5/2007
Registration Date: 9/3/2009
Registration Expiration Date: 10/4/2011
Vehicle Information
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 2007
Make: Honda
Model: Accord
Series: ACCORD VALUE PACKAGE
Body Style: Sedan 4 Door
Weight: 3100
Plate Information
License Plate Type:
Previous Plate Number: NY
Previous Plate State: NY
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License Plate Number: •
Plate State: NY
8: NY MVR
Vehicle Information
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 2007
Make: Honda
Model: Accord
Series: ACCORD VALUE PACKAGE
Body Style: Sedan 4 Door
Weight: 3100
Owner Information
Name: R. HARRY I
DOB:
Address:
ROCKLAND COUNTY
Title Information
Title Transfer Date: 11/2/2007
Title Issue Date: 11/2/2007
9: NY MVR
Registrant Information
Registrant: R. HARRY I
DOB:
Address:
ROCKLAND COUNTY
Registration Information
Original Registration Date: 12/27/2004
Registration Date: 11/8/2006
Registration Expiration Date: 12/26/2008
fi jiemmIinformation
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 2001
Make: Toyota
Model: Camry
Series: CAMRY CE/LE/XLE
Body Style: Sedan 4 Door
Plate Information
License Plate Type: Priv
Previous Plate Number:
Previous Plate State:
License Plate Number: NY
Plate State: NY
10: NY MVR
metbn
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 2001
Make: Toyota
Model: Camry
Series: CAMRY CE/LE/XLE
Body Style: Sedan 4 Door
Owner Information
Name: R. HARRY I
DOB:
Address:
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ROCKLAND COUNTY
Title Information
Title Transfer Date: 1/31/2005
Title Issue Date: 1/31/2005
11: NY MVR
Registrant Information
Registrant: R, HARRY I
DOB:
Address:
ROCKLAND COUNTY
Registration Information
Original Registration Date: 10/28/2004
Registration Date: 10/28/2004
Registration Expiration Date: 12/16/2006
Vehicle Information
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 1996
Make: Ford
Model: Windstar
Series: WINDSTAR WAGON
Body Style: Extended Sport Van
Weight: 3665
Plate Information
License Plate Type:
Previous Plate Number:
Previous Plate State:
License Plate Number: NY
Plate State: NY
12: NY MVR
hide Information
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 1996
Make: Ford
Model: Windstar
Series: WINDSTAR WAGON
Body Style: Extended Spoil Van
Weight: 3665
Owner Information
Name: R, HARRY I
DOB:
Address:
ROCKLAND COUNTY
Lienholder Information
Name: VALLEY NATIONAL BANK
Address: 1445 VALLEY RD
WAYNE. NJ 07470-2088
PASSAIC COUNTY
Title Information
Title Transfer Date: 1/21/1999
Title Issue Date: 1/21/1999
13: NY MVR
Registrant Information
Registrant: Mr HARRY I
DOB:
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Address:
ROCKLAND COUNTY
Registration Information
Original Registration Date: 12/30/2002
Registration Date: 12/30/2002
Registration Expiration Date: 1/29/2005
Vehicle Information
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 1993
Make: Toyota
Model: Camry
Series: CAMRY XLE
Body Style: Sedan 4 Door
Plate Information
License Plate Type:
Previous Plate Number:
Previous Plate State:
License Plate Number: IT=
Plate State: NY
14: NY MVR
Vehicle Information
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 1993
Make: Toyota
Model: Camry
Series: CAMRY XLE
Body Style: Sedan 4 Door
Owner Information
Name: R, HARRY I
DOB:
Address:
ROCKLAND COUNTY
Title Information
Title Transfer Date: 3/1/2001
Title Issue Date: 3/1/2001
15: NY MVR
Registrant Information
Registrant: R. HARRY I
DOB:
Address:
ROCKLAND COUNTY
Registration Information
Original Registration Date: 1/3/2000
Registration Date: 1/3/2000
Registration Expiration Date: 1/24/2002
mati on
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 1987
Make: Nissan
Model: Sentra
Series: SENTRA
Body Style: Station Wagon
Plate Information
License Plate Type: Private
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Previous Plate Number:
Previous Plate State: NY
License Plate Number:
Plate State: NY
16: NY MVR
Vehicle Information
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 1987
Make: Nissan
Model: Sentra
Series: SENTRA
Body Style: Station Wagon
Owner Information
Name: BELLER, HARRY I
DOB:
Address:
ROCKLAND COUNTY
Title Information
Title Transfer Date: 1/2/1998
Title Issue Date: 1/2/1998
17: NY MVR
Registrant Information
Registrant: R. HARRY I
DOB:
Address:
ROCKLAND COUNTY
Registration Information
Original Registration Date: 3/31/1997
Registration Date: 3/31/1997
Registration Expiration Date: 5/6/1999
nation
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 1988
Make: Pontiac
Model: 6000
Series: 6000 LE
Body Style: Station Wagon
Weight: 3550
Plate Information
License Plate Type: 'ilia
License Plate Number:
Plate State: NY
Potential Relatives - 10 records found
1st Degree 9. 2nd Degree 1
No. Full Name Address/Phone
1.
SSN
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No. Full Name Address/Phone
2.
3.
4.
5
6.
7.
=om
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No. Full Name Address/Phone
8.A.
9.
Person Associates - 5 records found
No. Full Name Address SSN Phone DOB
1:
2:
3:
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No. Full Name Address SSN Phone DOB
4:
5:
Nei hbors - 10 records found
Name Address Phone
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Employment - 1 records found
1:
Company Name: CITIBANK
Name: RY I
SSN:
Confidence: Medium
Sources - 77 records found
All Sources 77 Source Document(s)
Deed Transfers 3 Source Document(s)
Email addresses 2 Source Document(s)
Historical Person Locator 4 Source Document(s)
Motor Vehicle Registrations 28 Source Document(s)
Person Locator 1 2 Source Document(s)
Person Locator 2 9 Source Document(s)
Person Locator 4 1 Source Document(s)
Person Locator 5 7 Source Document(s)
Person Locator 6 4 Source Document(s)
Phone 3 Source Document(s)
Tax Assessor Records 13 Source Document(s)
Voter Registrations 1 Source Document(s)
Important: The Public Records and commercially available data sources used on reports have errors. Data is sometimes
entered poorly, processed incorrectly and is generally not free from defect This system should not be relied upon as
definitively accurate. Before relying on any data this system supplies, it should be independently verified. For Secretary
of State documents. the following data is for information purposes only and is not an official record. Certified copies may
be obtained from that individual state's Department of State.
Your DPPA Permissible Use is: Debt Recovery/Fraud
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Your GLBA Permissible Use is: Legal Compliance
Copyright® 2013 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.
D&B:
Not Required
LEGAL RESULTS:
Court Cases:
*** THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY*"
SUPREME COURT CIVIL SUITS FOR KINGS COUNTY, NEW
YORK
CASE-NAME: BELLER,ANNA & HARRY BELLER
V.
CITY WILLETS POINT CONTRACTING CORP., & FRAND MASCALI
CONTRACTING CO., INC
STATUS: DISPOSED ON 06/30/1987; SETTLED BEFORE TRIAL
ACTION: OTHER TORTS NEGLIGENCE
REQUEST FOR JUDICIAL INTERVENTION: 02/25/1986
NOTE OF ISSUE FILED: 02/21/1986
INDEX-NUMBER: 0155871983
JURY REQUESTED BY: PLAINTIFF
JUDGE: PART 25 - JAMES W. HUTCHERSON
PLAINTIFF ATTORNEY: ROSENBERG & HOROWITZ, S & H
r
DEFENDANT ATTORNEY: PAIR A CROTTY CORP COUNSEL
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BELLER,ANNA v. CITY
Mark H. FELDMAN pro se, Plaintiff, v. JACKSON MEMORIAL
HOSPITAL, etc., et al., Defendants
No. 79-758-Civ.-JWK
UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA
509 F. Supp. 815; 1981 U.S. Dist. LEXIS 11119; 1981-2 Trade
Cas. (CCH) P64,165
February 23, 1981
r*ii
SUBSEQUENT HISTORY: As Corrected March 17, 1981.
CASE SUMMARY:
PROCEDURAL POSTURE: Defendants moved the court to dismiss plaintiffs complaint,
which alleged violations of 42 U.S.C.S. §§ 1983. 1985. and 1986, and 15 U.S.C.S. §§ 1
and 2
OVERVIEW: Plaintiff was denied membership on the medical staff. a privilege granted to
most licensed physicians. He sued defendants, alleging that they had willfully and
maliciously acted to prevent him from practicing podiatry in certain public and private
hospitals by withholding that privilege. Specifically. he alleged that defendants' actions had
deprived him of his civil rights in violation of 42 U.S.C.S. §§ 1983, 1985, and 1986. he also
argued that their behavior violated 15 U.S.C.S. §§ 1 and 2 as a conspiracy in restraint of
trade Defendants moved the court for dismissal. Noting that pro se pleadings mandated a
more lenient standard. the court held that dismissal of plaintiff's antitrust claims would have
been premature Accordingly, the court determined that it would determine the substance
of plaintiffs antitrust allegations after he had been afforded an opportunity to conduct
limited discovery into the issues. and to reply to the objections then raised by defendants.
Finding no federal right to membership on a hospital staff. the court granted defendants'
motion with respect to the civil rights allegations.
OUTCOME: The court concluded that plaintiff had no cognizable claim that his civil rights
had been violated, but refused to dismiss his complaint as to his antitrust claim.
Defendants' motion was thus granted in part and denied in part.
CORE TERMS: interstate commerce, SHERMAN ACT, podiatrist, conspiracy, staff,
administrators, orthopedic, jurisdictional, patients, doctors, medical staff, private hospitals,
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509 F. Supp. 815, *; 1981 U.S. Dist. LEXIS 11119, **;
1981-2 Trade Cas. (CCH) P64,165
membership, podiatry, cause of action, civil rights, federal right, deprived, training, state
law, pro se, involvement, class-based, profession, interstate, antitrust, invidious, licensed,
nexus, color
LexisNexis(R) Headnotes
Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections >
Motions to Dismiss
[HN1] When determining a motion to dismiss, courts are obliged to construe all of the
material allegations contained in the complaint in the light most favorable to the plaintiff
with those allegations accepted as true.
Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections >
Motions to Dismiss
[HN2] Dismissal of an action on a bare-bones pleading should always be carefully and
deliberately considered since it is a precarious option with a high mortality rate.
Civil Procedure > Parties > Self-Representation > Pleading Standards
[HN3] Pro se pleadings are to be held to a less stringent standard than those drafted by an
attorney.
Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections >
Motions to Dismiss
Civil Procedure > Pleading & Practice > Pleadings > Complaints > Requirements
[HN4] Fed. R. Civ. P. 8(a) enunciates the general standard that a pleading must meet in
order to withstand a motion to dismiss. The pleader is entitled to considerable latitude
regarding the mode of stating his claim for relief, provided the pleading gives reasonable
notice of the claim or claims asserted.
Constitutional Law > Congressional Duties & Powers > Commerce Clause >
Interstate Commerce > General Overview
Healthcare Law > Antitrust Actions > Facilities
Transportation Law > Interstate Commerce > Federal Powers
[HN5] The general scope of the Sherman Act ("Act"), 15 U.S.C.S. § 1, et seq.,
encompasses the entire regulatory power granted congress under the commerce clause.
Although the Act includes more than simply a restraint on trade motivated by a desire to
limit interstate commerce, federal enforcement must turn initially on whether or not the acts
alleged in the complaint could likely have a substantial and adverse effect upon interstate
commerce.
Antitrust & Trade Law > Sherman Act > Jurisdiction
[HN6] Even a wholly intrastate activity may be regulated by the Sherman Act, 15 U.S.C.S.
§ 1 et seq., where that activity would place an unreasonable burden on the free and
uninterrupted flow of interstate commerce.
Civil Rights Law > Section 1983 Actions > Scope
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[HN7] In order to sustain a 42 U.S.C.S. § 1983 claim, plaintiff must allege: that the
defendants deprived him of some right secured by the United States Constitution or laws
of the United States and that the defendants acted under color of state law.
Civil Rights Law > Section 1983 Actions > Elements > Protected Parties
Civil Rights Law > Section 1983 Actions > Scope
[HN8] Both elements of a 42 U.S.C.S. § 1983 action must be alleged and proven before
relief can be forthcoming.
Civil Rights Law > Section 1983 Actions > Elements > Color of State Law > General
Overview
Healthcare Law > Actions Against Healthcare Workers > General Overview
[HN9] Private entities are subject to the civil rights laws only if their activities are
significantly affected with state involvement.
Civil Rights Law > Section 1983 Actions > Scope
[HN10] A private hospital is subject to the provisions of 42 U.S.C.S. § 1983 and U.S.
Const. amend. XIV only if its activities are significantly affected with state involvement.
Civil Rights Law > Private Discrimination
Civil Rights Law > Section 1983 Actions > Scope
[HN11] Title 42 U.S.C.S. § 1983 and U.S. Const. amend. XIV do not preclude invidious
discrimination by private parties.
Civil Rights Law > Section 1983 Actions > Elements > Color of State Law > General
Overview
[HN12] The mere existence of some government tie to a private organization is not
sufficient to support a finding of state action where the state has not sufficiently involved
itself in the invidious discrimination. Moreover, the state must be involved in more than
some activity of the offending institution itself, it must have been involved with the activity
that caused the injury to plaintiff.
Civil Rights Law > Section 1983 Actions > Elements > Color of State Law > General
Overview
[HN13] The mere fact that a business is subject to state regulation does not by itself
convert its action into that of the state for purposes of U.S. Const. amend. XIV.
Civil Rights Law > Conspiracy > Knowing Nonprevention
[HN14] No claim for relief will lie under 42 U.S.C.S. § 1986 until a valid claim has been
established under 42 U.S.C.S. § 1985.
COUNSEL: Mark H. Feldman, pro se.
J. Elisabeth Middlebrooks, Richard B. Adams, A. Blackwell Stieglitz, Miami, Fla., for
defendants.
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OPINION BY: KEHOE
OPINION
p8161 MEMORANDUM ORDER ON MOTION TO DISMISS
Mark H. Feldman, a licensed podiatrist, has filed this pro se action against multiple
defendants, including many physicians, hospitals p8171 and medical administrators
located in the southern Florida geographical area. Central to plaintiffs cause is his
allegation that the defendants have willfully and maliciously acted to prevent him from
practicing podiatry I in certain public and private hospitals by denying him membership on
the medical staff normally granted licensed physicians. Plaintiff alleges that the
defendants' actions have amounted to a conspiracy in restraint of trade and that they have
deprived him of his constitutionally guaranteed civil rights.
1. "The diagnosis and treatment of foot disorders." J. Schmidt. Attorneys' Dictionary of Medicine and Word Finder (1960).
["2] Plaintiff's original 54 page Complaint was dismissed without prejudice on the
grounds that it was repetitious, redundant and violated rules 8 and 10 of the Federal Rules
of Civil Procedure. Plaintiff was subsequently permitted to amend his Complaint and filed
an Amended Complaint considerably abridged to 14 pages. The defendants have
responded to the Amended Complaint by renewing their original joint motion to dismiss
pursuant to Fed.R.Civ.P. 12(b) and adopting the arguments (with some supplementation)
contained therein. They contend that, notwithstanding its newly condensed format, the
Amended Complaint remains incurably defective since, inter alia, the Court lacks
jurisdiction over the subject matter of the action, and it fails to state a claim upon which
relief can be granted.
The Court reserved ruling on the matter until the defendants had an opportunity to depose
the plaintiff in order to ascertain more fully the specific allegations underlying his cause of
action. Plaintiff has now been deposed and accordingly, the motion to dismiss is ripe for
consideration by the Court.
I. THE STANDARD BY WHICH THE AMENDED COMPLAINT MUST BE MEASURED
Plaintiffs Amended Complaint is ["3] directed against numerous parties, among them
various doctors, medical administrators, public and private hospitals. 2 Plaintiff [' 818]
alleges: (a) that certain defendant physicians conspired with the defendant hospitals to
prevent him from competing in the medical marketplace by arbitrarily rejecting his
application to practice podiatry in those hospitals; (b) that the defendants conspired to ruin
plaintiffs podiatry practice and drive him out of business; (c) that the defendants interfered
with plaintiff's right to practice his chosen profession and to contract with patients
regarding medical services; (d) that the defendants maliciously discriminated against him
solely because he is a podiatrist and not a physician; and (e) that the defendants generally
violated his civil rights. Plaintiff seeks a judgment from the Court which would primarily rule
that he cannot be denied membership on the staff of the defendant hospitals, that would
allow him the use of the medical facilities of those hospitals, and that would enjoin the
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defendants from controlling or regulating the practice of podiatry in any way. Plaintiff also
seeks compensatory and punitive damages totaling 50 million [**4] dollars.
2. The Amended Complaint contains the following list of defendants: Jackson Memorial Hospital; The Board of Trustees. Public
Health Trust of Dade County. Florida: Fred J. Crowell. President. Public Health Trust: William W. Cleveland. M.D., President of
the Medical Staff: Robert Zeppa. M.D.. Chief of Surgery: Wiliam McCollough. M.D., Chief of Orthopedics; Agusto Sarrniento,
M.D.; Wallace Miller, M.D.; Harry Berrer, M.D.: Nan Cohen, M.D.: Edward CuNipher, M.D.; Harvey Grable, M.D.; Ledford
Gregory, M.D.; Michael Guyer. M.D.; Marshall Hall. M.D.; Claude Holmes. M.D.; Arthur Pearl, M.D.; Salvador Ramirez, M.D.;
Thomas Samartino, M.D.; Mario Stone, M.D.; Wiliam Terheyden, M.D.; Samuel Turek. M.D.; and Cedars of Lebanon Hospital
Corp.. Inc.; and Cedars of Lebanon Hospital Care Center. Inc.; Dr. Jay Ziskind; Rufus Broadaway, M.D., Chief of Surgery:
Marshall Hall. M.D.. Chief of Orthopedics: Eugene Konrad. M.D.. Chief of the Medical Staff: Harry BelIer, M.D.: Alan B. Cohen.
M.D.: Edward Cullipher. M.D.: Harvey Grable. M.D.; Salvador Ramirez. M.D.; Mario Stone. M.D.: and Mount Sinai Medical
Center. Inc.: Alvin Goldberg. Executive Director; Harold Glick. M.D.. Chief of the Medical Staff; Charles Weiss, M.D.. Chief of
Orthopedics; Sheldon Marne. D.P.M.. Podiatrist: Mario Stone. M.D.: Samuel Turek. M.D.: Alvin Tobis. M.D.: Lester Russin.
M.D.; and South Broward Hospital District. Memorial Hospital of Hollywood. Inc.: Maynard Abrams. Chairman. South Broward
Hospital District; S.A. Mudano, Administrator; Robert Berger, M.D., Chief of Staff; Harry Fisher. M.D., Chief of Orthopedics; Paul
Bind, M.D.: Larry Rosenbatrn, M.D.: Alfonso Petty. M.D.: George Crane. M.D.: Robert Niles. M.D.; North Broward Hospital
District, Inc.; North Broward Hospital Dstnct Board of Commissioners; Hamilton Forman. Chairman; Bernie Welch. District
Director and Hospital Administrator; Broward General Medical Center. Inc.; George F. Rahilly, M.D., Chief of Staff and
Orthopedic Surgeon; and North Broward Hospital, Inc.; Robed L. Kennedy. Administrator; B. McNierney, M.D.; J. Gamble.
M.D.; Nies Lestrange, M.D.: Peter Sciarrett. M.D.; Wylie Scott. M.D.; and Florida Medical Center Hospital. Inc.; Maxwell Dauer.
Ph.D.: Frank Stein. M.D.: Alvin Stein. M.D.; Gary Krulik, M.D.: and Bemett Community Hospital. Inc.: and Holy Cross Hospital.
Inc.; and North Beach Medical Center. Inc.; and Pembroke Pines General Hospital. Inc.; David Drant. M.D.; Martin Medelson,
M.D.: Alfonso Petti. M.D.; Robert Bronfman, M.D.: Neil Beinhaker, M.D.; Larry Rosenbaum. M.D.: and Imperial Point Hospital.
Inc.: George F. Rahily. M.D.: Sidney Cole. M.D.: Doctors General Hospital. Inc.; D. L. Gross. Administrator; E. Rockwood. D.O.:
International Hospital. Inc.; John Silver. Administrator; and North Miami General Hospital. Inc.; Robert Bruce. Administrator;
Lloyd Moriber, M.D.. Chief of Orthopedics; Melvyn Drucker. M.D.; and Cypress Community Hospital, Inc.; Barry Schochet.
Administrator; and North Ridge General Hospital, Inc.; David Cornell. Administrator. Some of the defendants have been listed
more than once in the style of the Amended Complaint.
One of the contentions raised by the defendants in their joint motion to dismiss is that not all defendants have been properly
served. The Court will reserve ruling on the service aspects of the motion to dismiss.
["5] Plaintiff invokes the Court's jurisdiction under 28 U.S.C. §§ 1343, 2201, 2202, 15
U.S.C. §§ 15, 26, and 42 U.S.C. §§ 1983, 1985 and 1986. The Court has jurisdiction to
decide all of the issues raised by the motion to dismiss.
[HN1] When determining a motion to dismiss, of course, the Court is obliged to construe
all of the material allegations contained in the Amended Complaint in the light most
favorable to the plaintiff with those allegations accepted as true. See, e.g., Jenkins v.
McKeithen, 395 U.S. 411, 89 S. Ct. 1843, 23 L. Ed. 2d 404 (1969); Voter Information
Project v. City of Baton Rouge, 612 F.2d 208 (5th Cir. 1980); 5 Wright & Miller, Federal
Practice and Procedure: Civil § 1363 (1969). Moreover, [FIN2] dismissal of an action on a
barebones pleading should always be carefully and deliberately considered since it is a
precarious option with a high mortality rate. Voter Information Project, supra; Barber v.
MN "Blue Cat," 372 F.2d 626 (5th Cir. 1967).
Plaintiff has proceeded pro se with his action from its inception despite the Court's
admonition that the assistance of counsel would be highly beneficial in this case, a cause
involving several subtle and complex issues of law. [**6] In considering the motion to
dismiss, however, the Court has not penalized plaintiff for proceeding in his own behalf
where the law mandates that [I-IN3] pro se pleadings are to be held to a less stringent
standard than those drafted by an attorney. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594,
30 L. Ed. 2d 652 (1972); Craft v. Texas Board of Pardons & Paroles, 550 F.2d 1054 (5th
Cir.), cert. denied, 434 U.S. 926, 98 S. Ct. 408, 54 L. Ed. 2d 285 (1977); Shaw v. Briscoe,
541 F.2d 489 (5th Cir. 1976), cert. denied, 430 U.S. 933, 97 S. Ct. 1556, 51 L. Ed. 2d 778
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(1977); Bruce v. Wade, 537 F.2d 850 (5th Cir. 1976); Williams v. McCall, 531 F.2d 1247
(5th Cir. 1976); Cook v. Whiteside, 505 F.2d 32 (5th Cir. 1974). Indeed, the Court finds
plaintiffs Amended Complaint to be rather skillfully drafted when considering the complex
issues raised and the fact that plaintiff has no prior legal experience.
3. Although these cases al arise in the context of prisoner pro se pleadings, the same standard should apply to a nonposoner
plaintiff where he chooses to proceed m his own behalf.
[""7] Following the guidance of these fundamental principles, the Court has conducted a
careful review of the Amended Complaint and concludes that plaintiff is unable to state a
claim upon which relief can be granted as to that portion of the Amended Complaint
asserting violations of his civil rights. As for the remainder of the Amended Complaint
alleging antitrust violations, [119] the Court concludes that it would be premature to
dismiss at the present stage of the proceedings. A discussion of the rationale behind this
determination is in order.
II. GENERAL PLEADING REQUIREMENTS
[HN4] Fed.R.Civ.P. 8(a) enunciates the general standard that a pleading must meet in
order to withstand a motion to dismiss. The pleader is entitled to considerable latitude
regarding the mode of stating his claim for relief, provided the pleading gives reasonable
notice of the claim or claims asserted. The Court considers the Amended Complaint
amply sufficient to meet the general notice requirements of Rule 8 by adequately setting
forth a claim and giving the defendants fair notice of its basis. Conley v. Gibson, 355 U.S.
41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); 5 Wright & Miller, Federal Practice and [nEl]
Procedure : Civil §§ 1216, 1217, 1286 (1969). °
4. OW of an abundance of caution and at the defendants' request, the Court ordered plaintiff deposed in order that the
underlying nature of his claim was more readily imderstood. As a result, the defendants were fully apprised of the nature of this
claim.
III. SHERMAN ACT ALLEGATIONS
The Sherman Act, 15 U.S.C. § 1 et seq., was enacted in 1890 to prohibit combinations and
conspiracies in restraint of trade (Section 1), and to regulate monopolies (Section 2).
Federal jurisdiction is predicated upon an allegation that the actions of the defendant have
some nexus or connection with interstate commerce. Before the federal court can acquire
jurisdiction, a plaintiff must show that the defendant's actions substantially and adversely
affect interstate commerce. Failure to satisfy this threshold jurisdictional prerequisite will
result in the dismissal of the complaint.
[HN5] The general scope of the Sherman Act encompasses the entire regulatory power
granted Congress [""9] under the Commerce Clause. Apex Hosiery Company v. Leader,
310 U.S. 469, 60 S. Ct. 982, 84 L. Ed. 1311 (1940). Although the act includes more than
simply a restraint on trade motivated by a desire to limit interstate commerce, federal
enforcement must turn initially on whether or not the acts alleged in the complaint could
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likely have a substantial and adverse effect upon interstate commerce. Hospital Building
Company v. Trustees of Rex Hospital, 425 U.S. 738, 96 S. Ct. 1848, 48 L. Ed. 2d 338
(1976); Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 95 S. Ct. 392, 42 L. Ed. 2d 378
(1974); Burke v. Ford, 389 U.S. 320, 88 S. Ct. 443, 19 L. Ed. 2d 554 (1967). If so, [HN6]
even a wholly intrastate activity may be regulated by the Sherman Act where that activity
would place an unreasonable burden on the "free and uninterrupted flow of interstate
commerce." Rex Hospital, supra, 96 S. Ct. at 1853. As one commentator described the
jurisdictional test to be applied in determining the sufficiency of a Sherman Act complaint:
(The) test applies when the chalenged conduct is not "in commerce:" it will nevertheless be subject to the Act if it
materially affects interstate commerce. In deciding r10) these issues. quantitative factors become pertinent. It is
necessary not only that there be a logical causal connection between the activity and the flow of commerce, it is also
necessary that the flow of commerce be affected in some substantial way: if the impact is trivial, the Sherman Act does
not apply. Thus. the oNy commercial activities beyond the reach of the Sherman Ad are those which are local in the
double sense that they are neither within nor have any sigrrficant effect on the flow of interstate commerce. (footnotes
omitted)
L. Sullivan, The Law of Antitrust (1977), § 233 at 710.
Plaintiffs allegations respecting interstate commerce are contained in paragraphs 24
through 28 of the Amended Complaint:
24. A significant number of patients, actual and potential of the plaintiff and defendant doctors and hospitals, are
covered by the Federal Medicare and State Medicaid Programs. Treatment of those patients generates millions of
dollars of interstate revenue.
rinoi
25. Defendant hospitals annually receive millions of dollars from insurance companies located outside of
I-,
Florida for medical and surgical services provided by defendant hospitals and doctors to non permanent
nonresident patients.
26. Defendant doctors and hospitals purchase millions of dollars of supplies and equipment from sons outside of the
state.
27. Rules and regulations promulgated by defendant doctors and hospitals to control the practice of Podiatrists. by
limiting the privileges, refusing admittance, came from out of state sources (sic), as in the instance of defendant
Jackson Memorial Hospital. whose GUIDELINES FOR PODIATRY came from THE DEPARTMENT OF ORTHOPEDIC
SURGERY at the Massachusetts General Hospital in Boston. Mass.
28. Cessation and interruption of Podiatry Clinics and Training programs in defendant hospitals deried to out of state
Podiatrists essential surgical training necessary to compete for surgical patients in their home States. Elimination of
said training programs by defendant hospitals and orthopedic surgeons prevented out of slate Podiatrists from coming
to Florida specifically for such surgical training programs.
Plaintiffs first jurisdictional hurdle is to establish the required nexus between the
defendants' challenged activity and interstate commerce. It is this Court's ("12]
determination that plaintiff has met this burden and properly invokes the Court's jurisdiction
under the Sherman Act.
The restraint that plaintiff opposes in his action is that involving an alleged conspiracy by
the defendants to deny podiatrists in general, s and the plaintiff in particular, a certain kind
of access to hospital facilities, that access accorded members of the hospital's medical
staff. Membership in the medical staff is usually limited to licensed physicians.
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5. There are no class action allegations contained in the Amended Complaint.
The hospitals involved in this action furnish medical care and services to the community in
a variety of ways: by caring for patients, training doctors and staff personnel, developing
research facilities, and extending staff privileges to private physicians. Much of this activity
happens to spill across the boundaries of Florida and into the stream of interstate
commerce.
It is this activity of providing medical care to patients that the defendants allegedly ["13]
seek to exclude plaintiff from participation and involvement. It is this activity that must be
connected with interstate commerce in order to sustain jurisdiction. Plaintiff must establish
that the medical services supplied by the defendants have the required effect on interstate
commerce. He is not required to show that the alleged conspiratorial actions of the
defendants have any connection with interstate commerce. To rule otherwise would vitiate
the intended scope of the law and impose an insuperable burden upon a plaintiff alleging
an anticompetition conspiracy. Such a conspiracy would seldom reach interstate
proportions though the object of the conspiracy might be federal in scope.
The Court's conclusion that the Amended Complaint is jurisdictionally sound is supported
by the recent decision of McLain v. Real Estate Board of New Orleans, 444 U.S. 232, 100
S. Ct. 502, 62 L. Ed. 2d 441 (1980), in which the Supreme Court held that the district court
erred in dismissing a complaint which alleged a price fixing conspiracy involving several
Louisiana real estate brokerage firms. The Court stated that the plaintiff could establish
the requisite jurisdiction under the Sherman r*14] Act by demonstrating that a substantial
effect on interstate commerce was generated by the defendants' brokerage activities.
Referring specifically to the requirement that plaintiff must allege a relationship between
the activity involved and some aspect of interstate commerce, the Court observed:
To establish the jurisdictional element of a Sherman Act violation it would be sufficient for petitioners to demonstrate a
r821] substantial effect on interstate commerce generated by respondents' brokerage activity. Petitioners need not
make the more particularized showing of an effect on interstate commerce caused by the alleged conspiracy to fix
commission rates. or by those other aspects of respondents' activity that are alleged to be unlawful. The validity of this
approach is confirmed by an examination of the case law. If establishng juisdiction required a shoving that the
unlawful conduct itself had an effect on interstate commerce, jurisdiction would be defeated by a demonstration that the
alleged restraint failed to have its intended artioompeblhe effect. ilia is not the rule of our cases. See American
rim
Tobacco Co. v. United States. 328 U.S. 781.811.66S. Ct. 1125. 1139. 90 L. Ed. 1575 (1946): Urited States v
Socony Vacuum Oil Co.. 310 U.S. 150. 225. n. 59. 60 S. Ct. 811. 846. 84 L. Ed. 1129 (1940)....
Id. 100 S. Ct. at 509.
Defendants have cited several cases in their memoranda which would appear to support
dismissal of the Amended Complaint: Wolf v. Jane Phillips Episcopal Memorial Medical
Center, 513 F.2d 684 (10th Cir. 1975); Riggall v. Washington County Medical Society, 249
F.2d 266 (8th Cir. 1957); Spears Free Clinic and Hospital v. Cleere, 197 F.2d 125 (10th
Cir. 1952). These cases all involved dismissals of complaints for defective jurisdictional
allegations under the Sherman Act in situations similar to that now before this Court. The
dismissed antitrust complaints in the cases cited appear to involve only general
jurisdictional allegations devoid of the specificity contained in plaintiff's Amended
Complaint. Furthermore, these cases explicitly reject the analysis described above which
links jurisdiction to the stream of interstate commerce by focusing upon the interstate
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nature of the defendants' business of providing hospital care and services. E. g. Wolfe,
supra at 687-688.
It is the Court's opinion that the ["16] proper standard to be used is that illustrated in the
recent Supreme Court cases, McLain, supra; Rex Hospital, supra, that place the emphasis
upon the interstate character of the defendants activities in general and not solely the
alleged conspiratorial acts, thereby precluding dismissal of a complaint before the plaintiff
has at least been accorded the opportunity of discovering facts in support of his claim. To
the extent that the cases cited by the defendants apply a contrary standard, the Court
declines to follow them.
The Court will determine the substance of plaintiffs antitrust allegations after he has had
an opportunity to conduct limited discovery into the issues and can prepare an adequate
response to the other objections raised by the defendants. Defendants will then be
allowed to renew their remaining objections to the Sherman Act claim in an appropriate
manner.
IV. CIVIL RIGHTS CLAIMS
(a) § 1983 allegations
Although 42 U.S.C. § 1983 is relatively simple and straightforward in its language, IFIN71
in order to sustain his claim plaintiff must allege: (1) that the defendants deprived him of
rin
some right secured by the Constitution or laws of the United States; and (2) that
the defendants acted under color of state law. Adickes v. S. H. Kress & Co., 398 U.S. 14-4,
90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Fadjo v. Coon, 633 F.2d 1172 (5th Cir. 1981);
Menchaca v. Chrysler Credit Corp., 613 F.2d 507 (5th Cir. 1980). [HN8] Both of these
elements of a § 1983 action must be alleged and proven before relief can be forthcoming.
An inspection of the Amended Complaint reveals that plaintiff can prove no set of facts that
will permit the relief he seeks since he has been deprived of no federal or constitutional
right. Nor have all of the defendants acted under color of state law.
6. "Every person wito, under color of any statute, ordinance, regtiation, custom, or usage, of any State or Territory, 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 liebte to the party injured in an action al law, suit
in equity. or other proper proceeding for redress."
[ *18] [822] The defendants' alleged willful and malicious exclusion of the plaintiff from
the medical staff simply does not constitute a violation of a federal right. Plaintiff has cited
the Court to no authority supporting the proposition that a podiatrist has a federal right to
membership on a hospital staff. Nor has the Court independently found any authority to
support plaintiffs civil rights claims. To the contrary, the Fifth Circuit recently held that a
podiatrist's constitutional rights went untrammeled when he was denied staff membership
at a public hospital. Shaw v. Hospital Authority of Cobb County, 614 F.2d 946 (5th Cir.),
cert. denied, 449 U.S. 955, 101 S. Ct. 362, 66 L. Ed. 2d 220 (1980).
7. Although this case arose as an action to remedy alleged due process and equal protection violations and was not brought
pursuer* to the civil rights laws. the Shaw court nonetheless found that Dr. Shaw suffered no violation of a federal right on facts
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nearly identical to those sib judge. The Court ruled that in the absence of a showing that the denial of staff privileges was not
rationally based, or that it was precipitated by invidious racial discrimination. It is not the province of this court to legislate the
final resolution of a problem indigenous to the medical profession.' Id. at 952.
There was also some indication given by plaintiff at his deposition that his cause of action really involved a due process and
equal protection claim. See plaintiff's deposition at 52.
[`*19] By adopting the memorandum decision of the district court, the Fifth Circuit found
no constitutional defect in excluding Dr. Shaw from membership on a hospital medical staff
by reason of his status as a podiatrist. The Court declined to interfere in an area that
traditionally has been the province of the medical profession and not ordinarily subject to
governmental regulation. In light of Shaw, the Court must reject plaintiff's invitation to find
that he has been deprived of a federal right in this instance.
The Court agrees with the private hospital and physician defendants that they are not
liable under § 1983 even if plaintiff had been deprived of some federal right. It is
established that (HN9] private entities are subject to the Civil Rights laws only if their
activities are significantly affected with state involvement:
The district court correctly held that (1-114101 a private hospital is subject to the provisions of 42 U.S.C. § 1983 and the
Fourteenth Amendment oNy if its activities are significantly affected with state involvement. [HN11) Section 1983 and
the Fourteenth Amendrnert do not preclude invidious discrimination by private parties. Civil Rights Cases, 109 U.S. 3.
it 3["20] S. Ct. 18.21. 27 L. Ed. 835.841 (1883).
Greco v. Orange Memorial Hospital Corporation, 513 F.2d 873, 877-878 (5th Cir.), cert.
denied, 423 U.S. 1000, 96 S. Ct. 433, 46 L. Ed. 2d 376 (1975).
[FIN12) The mere existence of some government tie to a private organization is not
sufficient to support a finding of state action where the state has not sufficiently involved
itself in the invidious discrimination. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S. Ct.
1965, 32 L. Ed. 2d 627 (1972). Moreover, the state must be involved in more than some
activity of the offending institution itself, it must have been involved with the activity that
caused the injury to plaintiff. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S. Ct.
449, 42 L. Ed. 2d 477 (1979) ("(T)he inquiry must be whether there is a sufficiently close
nexus between the State and the challenged action of the regulated entity so that the
action of the latter may be fairly treated as that of the State itself." 8); New York Jaycees v.
United States Jaycees, 512 F.2d 856 (2d Cir. 1975). Accord, Sims v. Jefferson Downs,
611 F.2d 609 (5th Cir. 1980).
8. Id 419 U.S. at 351. 95 S. Cl. at 453. also quoted in Sims v. Jefferson Down. infra at 611.
r21] Plaintiffs only reference to the state action nexus by the private hospital
defendants is that these hospitals are licensed by state law. [FIN13] "The mere fact that a
business is subject to state regulation does not by itself convert its action into that of the
State for purposes of the Fourteenth [1323] Amendment." Jackson v. Metropolitan Edison
Co., supra at 350, 95 S. Ct. at 453.
9. Paragraph 49 C of the Amended Complaint refers to FIa.Stat. Chap. 395 concerning Hospital Licensing and Regulation
procedures for hospitals situated in this state.
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Plaintiff's claims do not involve any racially discriminatory practices that might justify a
more expansive approach to the issue. Based upon the state action allegations contained
in the Amended Complaint, the private hospital and physician defendants are not subject
to suit under § 1983 for their actions against the plaintiff, actions involving the
administrative affairs of the hospitals.
r'22]
The policy of the Orange Memorial Hospital Corporation does not impinge upon the rights of a racial group
seeking admittance and treatment. but rather affects primarily only the interns? affairs of the facility. A secondary effect
of the corporation's policy is admittedly to discriminate against persons seeking to obtain and physicians desiring to
perform elective abortions. We feel, however, that the interest of the hospital in ordering its internal administrative
affairs outweighs the interest of the people disadvantaged in this case.
Greco, supra at 880.
What involvement the state may have through its licensing procedures is not actionable
unless these regulations somehow compelled the hospitals or physicians to act against
plaintiff in an unlawful manner. Waters v. St. Francis Hospital, 618 F.2d 1105 (5th Cir.
1980). There is no allegation to this effect in the Amended Complaint.
(b) § 1985 allegations
Plaintiff has no claim under 42 U.S.C. § 1985(3) since the Amended Complaint fails to
contain any allegations that would show both the private deprivation of the enjoyment of
the laws and an invidious class-based discriminatory motivation (usually, but not always,
involving racial bias). McLellan v. Mississippi Power [""23] & Light Co., 545 F.2d 919 (5th
Cir. 1977). "
10. "If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another.
for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any
State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws...." §
1985(1) and (2) are inapplicable.
11. This was an en bane decision in which the majority held that an employee discharged from private employment solely
because he filed a petition in voluntary bankruptcy has no cause of action under 42 U.S.C. § 1985(3). The majority
exhaustively analyzed the application of the statute by following the guidelines prescribed by the Supreme Court in Griffin v.
Breckenridge. 403 U.S. 88.91 S. Ct. 1790.29 L. Ed. 2d 338 (1971). The Supreme Court in Griffin held that § 1985(3) reaches
private conspiracies as well as those performed under color of state law and elucidated the necessary elements to successfully
maintain a cause of action under this section. In its opinion, the Fifth Circuit expressly reserved decision on whether Congress
intended only racial bias to activate the provisions of the statute but advised restraint when a court is confronted with class-
based discrirnination grounded in a non-racial animus. McLellan. supra at 929.
['*24] Plaintiff has not alleged and the Court fails to discern any illegal conduct committed
by the defendants in acting to deprive plaintiff of a position on the hospital medical staff. 17
Moreover, there has been no allegation of any racially motivated discrimination against
plaintiff by the defendants. He alleges a class-based animus against him as a podiatrist.
This discrimination is not actionable under the cases heretofore construing the reach of §
1985(3):
Federal Courts have recognized that those who are discriminated against because of political views or associations fall
with (sic) the protective scope of Section 1985(2) and (3). Courts have found a class-based animus sufficient to
support causes of action where the conspiracy is directed toward supporters of a particular political candidate.
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1981-2 Trade Cas. (CCH) P64,165
Cameron v. Brock, [M24] 473 F.2d 608 (6th Cir. 1973) and Means v. Wilson. 522 F.2d 833 (8th Cu. 1975). con.
denied. 424 U.S. 958. 96 S. Ct. 1436. 47 L. Ed. 2d 364 (1976): voters who were deceived about the actual effect of
their vote. Smith v. Cherry. 489 F.2d 1098 (7th Cir. 1973), cert. denied. 417 U.S. 910.94 S. Ct. 2607.41 L Ed. 2d 214
r'245]
(1974): individuals critical of the President and his policies. Glasson v. City of Louisville. 518 F.2d 899 (6th Cir.).
cert. denied. 423 U.S. 930.96 S. Ct. 280.46 L. Ed. 2d 258 (1975); members of a group advocating an unpopular
position. Puentes v. Sullivan. 425 F. Supp. 249 (W.D.Tex.1977); laborers who are not members of a union. Scott v.
Moore. 461 F. Supp. 224 (E.D.Tex.1978): members of the teaching profession who talk or associate with the CIA.
Selzer v. Berkowitz. 459 F. Supp. 347 (E.D.N.Y.1978): and students who exercise their first amendment rights by
joining certain organizations. Brown v Villanova University. 378 F. Supp. 342 (E.D Pa.1974).
Kimble v. D. J. McDuffy, Inc., 623 F.2d 1060, 1067 (5th Cir. 1980) (rehearing en banc
pending).
12. The Court excludes the Sherman Act court contained in the Amended Complaint which alleges an anticompetitive
conspiracy on the part of the defendants. If plaintiff sustains these allegations with proof, a remedy is already provided for by
that law. See 15 U.S.C. §§ 158, 26.
r26] For these reasons, plaintiff's § 1985 claim cannot be sustained.
(c) § 1986 allegations
[FIN14) No claim for relief will lie under 42 U.S.C. § 1986 13until a valid claim has been
established under § 1985. Hamilton v. Chaffin, 506 F.2d 904 (5th Cir. 1975); Zentgraf v.
Texas A & M University, 492 F. Supp. 265 (S.D.Tex.1980); Shore v. Howard, 414 F. Supp.
379 (N.D.Tex.1976). Plaintiff having established no § 1985 claim, the § 1986 claim must
also be dismissed.
13. This section extends liability in damages to those persons "who, having knowledge that any of the wrongs conspired to be
done, and mentioned in section 1985 ... are about to be committed, and having power to prevent or aid in preventing the
commission of the same. (neglect or refuse) so to do...."
(d) Summary
Whether plaintiff couches his claims for relief under the rubric of due process, equal
protection or the civil rights laws, the Amended Complaint alleging violations of plaintiffs
civil rights must be dismissed for failure to state a claim r271 upon which relief can be
granted.
V. CONCLUSION
After a thorough review of the applicable law, the Court concludes that plaintiff has no
cognizable claim under either 42 U.S.C. §§ 1983, 1985 or 1986. The Court further
concludes that it would be premature to dismiss the Amended Complaint as to the
Sherman Act claim without permitting plaintiff an opportunity to conduct limited discovery
and respond to the objections raised by the defendants, should they elect to renew them.
Accordingly, it is
ORDERED AND ADJUDGED that the defendants' joint motion to dismiss is GRANTED in
part and DENIED in part as follows:
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(a) that portion of the Amended Complaint alleging violations of 42 U.S.C. §§ 1983, 1985
and 1986 are hereby DISMISSED with prejudice;
(b) that portion of the Amended Complaint alleging violations of 15 U.S.C. §§ 1 and 2
presently meet the minimum jurisdictional requirements of the Sherman Act; and
(c) the remaining objections raised by the defendants to the Amended Complaint are
hereby DENIED without prejudice to renew at a later date upon proper motion.
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314 F. Supp. 442, *; 1970 U.S. Dist. LEXIS 11296, **
Steven L. WALKER, a minor, by and through his next friend,
natural guardian and legal guardian, his mother, Ann Walker
Reisman, and Ann Walker Reisman, individually, Plaintiffs, v.
Ralph J. GRANT and American Mutual Insurance Company of
Boston, Defendants
No. 68-1280-Civ-CA
UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA, MIAMI DIVISION
314 F. Supp. 442; 1970 U.S. Dist. LEXIS 11296
June 17, 1970
CORE TERMS: leg, backing, circle, driver, traffic, parked, lane, hazard, circumference,
motorcycle, prosthesis, inner, approaching, traveled, issue of liability, parking spaces, loss
of earnings, adjacent, angular, parking, artery, tibia
JUDGES: ["' 1] Atkins, District Judge.
OPINION BY: ATKINS
OPINION
r442J MEMORANDUM OPINION
ATKINS, District Judge.
What are the responsibilities of a driver backing his automobile, which had been parked at
a 39 degree angle around the inner circumference of a circle, into a lane of traffic at night
where the area is well lighted? The answer to this question resolves the issue of liability
as between the defendant Ralph J. Grant, the owner and operator of an Oldsmobile sedan,
and the plaintiff Steven r443J L. Walker, the owner and operator of a Honda motorcycle,
involved in an accident which occurred on December 11, 1966 about 7:50 p.m. in Young's
Circle at Hollywood, Florida. On the Circle in question the angular parking spaces were
surrounded by three traffic lanes. The Honda was proceeding counterclockwise in the
center of the lane nearest the parking area. Its speed was well within the maximum of the
25 mph. The lights on the motorcycle were burning.
Defendant Grant testified that he turned his lights on and started his motor. He then
looked back and to his left. There was a car parked, according to him, in the parking
space immediately adjacent on the left. Directing his vision [" 2] thru the rear window, as
well as to the left and over his right shoulder, Grant slowly backed into the lane which
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embraced the circle. His backing was cautious, he said. He had traveled the circle and
parked on the inner circumference a number of times previously.
Admittedly, Grant never saw or heard the approach of the Honda. There was credible
evidence that the angular parking on the inner circumference of the circle created a special
hazard. Particularly when a car was parked in an adjacent space, the vision of the
"backing" driver was impaired. This was compounded by the circular direction of the
roadway on which approaching traffic would operate. There was testimony proffered that
the driver of the Honda should be able to see the backing vehicle before the latter could
see the motorcycle.
The duty of a backing driver on a State Road (as this was) is delineated by Florida
Statutes, 1967, § 317.731, F.S.A. It required that such operation must not be done unless
it can be made "with safety and without interfering with other traffic." In amplification, this
driver must exercise every "means at his hand to protect life and property of others that
may be in his path." Green ["3] v. Atlantic Co., (Fla. 1952), 61 So. 2d 185, 186. In fine, it
is that operators duty to apprise the approaching vehicle of the contemplated entry and to
see, and to yield to, any vehicle so near as to constitute a hazard as the backing
automobile moves into the traveled way. Special hazards to vision only enhance that duty.
At the close of this non jury trial, I resolved the issue of liability against the defendant
Grant. Thus, there remains only the issue of damages sought by the injured plaintiff, who
is now 21, and his mother, who was awarded his custody in earlier divorce proceedings.
During a substantial part of the time since the injury, Steven has been confined in a state
institution for convictions of possession of marihuana.
Steven Walker sustained a compound commuted fracture of the left tibia and fibula. One
of the two (there are normally three) arteries in the leg was severed. Repair procedures,
complicated by the absence of the perineal artery, were abortive. Several separate
hospital confinements totalling 129 days were required. Psychiatric treatment was
necessary. Osteomalitis developed at the injury site. The leg is now one and one-half
inches shorter than ["4] the right. Steven limps and complains that the leg hurts
continuously. His treating physician and surgeon, Dr. Harry B. Orringer, found on April 17,
1970 a nonunion at the junction of the middle and lower thirds of the left tibia. The Court-
appointed physician, Dr. Harry Beller, found that this leg is useless and must be
amputated below the knee and a prosthesis supplied. This will result in a functional
extremity for practical purposes. He assigned a 35% permanent partial disability of the
body as a whole and 90% loss of the left leg. The total medical and related expenses to
date are $18,128.40. The amputation and prosthesis will cost between $2500 and $3000.
The injured plaintiff was not living with his mother at the time of the injury. He had moved
out following an altercation with his step-father. From [*444] the time he was 14 there
had been bitter disputes with his real father (from whom his mother was subsequently
divorced) resulting in his exhibiting hostility toward that parent. He manifested personality
problems and anti-social behavior before the subject accident.
The plaintiff Steven Walker's greatest need, aside from the leg operation, is motivation.
["5] He has the mental capacity to develop skills in an occupation which would not
require full physical capabilities in the left leg. He cannot perform heavy manual labor.
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The Court has assumed that the plaintiff mother, Ann Walker Reisman, has paid or
incurred obligation to pay the medical and related expense involved. Accordingly, she is
awarded Twenty Thousand Dollars ($20,000.00) to effect that reimbursement and payment
of damages for any nursing care, loss of companionship, and loss of earnings during
Steven's minority. The plaintiff Steven L. Walker is awarded Eighty Thousand Dollars
($80,000.00) for all recoverable losses of any kind, including but not limited to (a) past and
future loss of earnings, (b) mental anguish and pain and suffering, and (c) future medical,
hospital and prosthesis expenses.
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