Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.lisa Tsarelka, Plaintiff-appellant, v. Dana-farber Cancer Institute, Defendant-appellee, 978 F.2d 1253 (1st Cir. 1992)

Appellant Lisa Tsarelka filed an action in the United States District Court for the District of Massachusetts against the Dana-Farber Cancer Institute ("Dana-Farber"). After granting in forma pauperis status to appellant, the district court dismissed the complaint pursuant to 28 U.S.C. § 1915(d).¹  It first held that Dana-Farber did not qualify as a state actor for purposes of 42 U.S.C. § 1983. Second, it stated that appellant could not base her complaint on 42 U.S.C. § 1981 because she had not alleged that she had been discriminated against on the basis of race. We affirm.

BACKGROUND

In her complaint, appellant asserts that on October 6, 1988 and July 13, 1989, she "suffered medical neglect and abuse, both verbal and upon her person" at the Breast Evaluation Clinic at Dana-Farber. Specifically, she claims that she did not receive any medical evaluation on the above dates. On July 13, she avers, she was subjected to "cruel and unusual physical brutality" which was known to and sanctioned by two Dana-Farber physicians. As a result of this conduct, appellant's arthritic condition allegedly became aggravated. Further, she states, the staff refused to provide her with a neck brace or to avert, in any other way, the pain she was experiencing. She also claims that Dana-Farber refused to bill Medicaid for the costs of her medical care. As relief, she requested compensatory damages for loss of physical function and for the pain and suffering she endured; she also asked for punitive damages.² 

DISCUSSION

"It is black-letter law that a showing of interference with a constitutionally-protected right by someone acting under color of state law is a prerequisite to a § 1983 action." Malachowski v. City of Keene, 787 F.2d 704, 710 (1st Cir.) (per curiam), cert. denied, 479 U.S. 828 (1986). That is, § 1983 does not reach private conduct. Mendez v. Belton, 739 F.2d 15, 17 (1st Cir. 1984). The action of a private party may be treated as that of the state only where there is a "sufficiently close nexus between the State and the challenged action" of the private defendant. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974). "In short, the party seeking to establish that action of a private party violated the Constitution must be able to point to the specific act or actions of the government which in fact motivated the private action." Gerena v. Puerto Rico Legal Services, Inc., 697 F.2d 447, 450 (1st Cir. 1983).

Here, the only claim appellant makes is that the receipt of public funds by Dana-Farber renders it a state actor for purposes of § 1983. It has been clear since 1982, however, that the receipt of state funding, without more, does not convert a private defendant's conduct into state action. See West v. Atkins, 487 U.S. 42, 52 n.10 (1988) (citing Blum v. Yaretsky, 457 U.S. 991 (1982) and Rendell-Baker v. Kohn, 457 U.S. 830 (1982)).

For example, in Mendez we addressed the claim of a physician who alleged that a private hospital had discriminated against her based on sex and race in revoking her staff privileges. We held that she failed to demonstrate that the hospital had acted under color of state law even though it was extensively regulated by the state, received federal assistance under the Hill-Burton program, received financial support through annual appropriations from the Puerto Rico legislature, and received Medicaid and Medicare funds. Mendez, 739 F.2d at 17-18.

Essentially, what appellant is alleging here is that medical decisions made by the "purely private" staff of a "purely private" hospital caused her harm. See Spencer v. Lee, 864 F.2d 1376, 1377-78 (7th Cir. 1989) (decision to commit a mentally ill individual by private doctor and hospital not made under color of state law), cert. denied, 494 U.S. 1016 (1990). In Blum v. Yaretsky, 457 U.S. 991 (1982), the Supreme Court held that decisions which "ultimately turn on medical judgments made by private parties according to professional standards that are not established by the State" are not the equivalent of state action. Id. at 1008-09. Although such allegations may state a viable action for medical malpractice, there is no question that, absent state action, they cannot suffice to state a claim under § 1983.

Section 1981 forbids "all 'racial ' discrimination in the making of private as well as public contracts." Saint Francis College v. Al-Khazraji, 481 U.S. 604, 609 (1987) (emphasis added). As the district court correctly pointed out, appellant "has not alleged one fact in support of a claim of discrimination based on race...." Memorandum and Order at 3. Rather, she alleges discrimination on the basis of wealth. Such a claim may not be brought under § 1981.

CONCLUSION

Under Neitzke v. Williams, 490 U.S. 319 (1989), a district court may dismiss an action as frivolous under § 1915(d) if it "lacks an arguable basis either in law or in fact." Id. at 325. An action that lacks a basis in law is one that is premised on an "indisputably meritless legal theory." Id. at 327. As the above discussion demonstrates, the law at the time appellant filed her complaint clearly prohibited the type of civil rights claims she asserted against Dana-Farber. Even assuming, however, that there was some "arguable" foundation for her claim, appellant had the opportunity to correct the deficiencies listed in the district court's order of dismissal. Specifically, in her motion for reconsideration, she responds, point by point, to the reasons the district court gave for determining that her complaint was frivolous. Cf. Purvis v. Ponte, 929 F.2d 822, 826-27 (1st Cir. 1991) (per curiam) (where pro se plaintiff had opportunity to respond to magistrate's report and recommendation before district court dismissed his complaint, he received the " 'practical protections' " required by Neitzke) .

The judgment of the district court is affirmed.