Petition — Gresen v. Feikes

Supreme Court us

( FILED

| JAN 3 1978

DAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. . ee “9 5 4

ES TS PT

DR. ARTHUR GRESEN,

Petitioner,

— VS. —

DR. HAROLD FEIKES, DR. ROBERT WILLIAMS.

DR. T. W. CHRISTIANSEN, TOM ARMOUR,

THEODORE JACOBS, JOHN SCHALLEY,

MAURICE PEARLMAN, NATHAN ADELSON,

ALAN MILLER, DAVID BRANDSNESS, LESLIE

SOPER, C.J. ABDO, and SUNRISE HOSPITAL

and all members of the surgical committee set forth

as JOHN DOES | to 10,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF NEVADA

PATRICK R. DOYLE

R. PAUL SORENSON

323 Las Vegas Blvd. South

Las Vegas, Nevada 89101

Counsel for Petitioner

TABLE OF CONTENTS

TABLE OF CASES AND AUTHORITIES

OPINIONS BELOW . . . . «6 « « «

JURISDICTION . . « « «© «© «© « «

QUESTIONS PRESENTED. .... .

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED... .

STATEMENT OF THE CASE. ....

REASONS FOR GRANTING WRIT. ..

CONCLUSION. .~« «© « « «© «© © « «@

Appendix A

Order Dismissing Appeal. .

Appendix B

Order for Summary Judgment

and Judgment ....+. .. -»

Appendix C

Order Denying Rehearing. .

Appendix D

Complaint for Injunctive

and Declaratory Relief. .

Appendix E

Excerpt from the Record. .

- ii

vy Ww WwW W

1l

15

17

25

ii

iii

TABLE OF CASES AND AUTHORITIES ie

Authorities

Cases P

eee ee United States Code

Boston Stock Exch. v. State

Tax Comm., U.S. , 28 U.S.C. 1257(3). .. .-

97 S.Ct. 599 (1977). la 2 oa 42 0.8.C. 1983 - @ woe

Gibson v. Berryhill, 411 U.S.

/ . .: Poeun United States Constitution

Jackson v. Fulton-DeKalb ee mye yey to

Hospital Authority, 423 the 94 re ”

F.Supp. 1000 (N.D. Ga. Constitution oe e 8 s

ee re 2 Fourteenth Amendment,

McNeese v. Board of Education, Section 1, to the

United States

“373 Webbe 668 (1963) . . . . . . 6 Constitution ° e e ° °

Samuels v. Machell, 401 U.S.

66 (1971). . . 7 . . ” . . . . 5

Shulman v. Washington Hospital

Center, 348 F.2d 70 (D. C.

Cir. 1965) . . . . . - . . - . 9

Younger v. Harris, 401 U.S.37,

Bpvaec ceo ec eee eee es §

Westlake Comm. Hosp. v. Superior

Ct. of L.A. County,551 P.2d

oo: Sl he re

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

DR. ARTHUR GRESEN,

Petitioner,

)

)

)

)

DR. HAROLD FEIKES, DR. ROBERT )

WILLIAMS, DR. T. W. )

CHRISTIANSEN, TOM )

ARMOUR, THEODORE JACOBS, JOHN )

SCHALLEY, MAURICE PEARLMAN, )

NATHAN ADELSON, ALAN MILLER, )

DAVID BRANDSNESS, LESLIE SOPER,)

C. J. ABDO, and SUNRISE )

HOSPITAL and all members of )

the surgical committee )

set forth as JOHN DOES I to )

10, )

Respondents. )

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF NEVADA

Petitioner, Dr. Arthur Gresen, through

his counsel prays that a writ of certiorari

issue to review the judgment of the

Supreme Court for the State of Nevada in

the case of DR. ARTHUR GRESEN, Appellant

vs. DR. HAROLD FEIKES, et al., entered

on September 1, 1977 with rehearing denied

October 5, 1977.

2

OPINIONS BELOW

The opinion of the Supreme Court of the

State of Nevada is included in the Order

Dismissing Appeal, is unreported and is

printed in Appendix A hereto, infra, page

8 .- No opinion was rendered by the

District Court for the Eighth Judicial

District of the State of Nevada in and for

the County of Clark. The Order for Summary

Judgment and Judgment of said Court is

printed in Appendix B hereto, infra, page

11 .

JURISDICTION

The judgment of the Supreme Court

of the State of Nevada (Appendix A, infra,

page § ) was entered on September l,

1977. A timely petition for rehearing was

denied on October 5, 1977. (Appendix

C, infra, page ), and this petition

for Certiorari was filed within 90 days

of that date. The jurisdiction of

the Court is invoked under Title 28

USC, Section 1257(3).

QUESTIONS PRESENTED

1. Can a doctor seek judicial relief

in State\Court on federal grounds from

discharge from the staff of a hospital

3

acting under color of State law prior to

the exhaustion of administrative pro~- _—

ceedings on a showing that the proceedings

offered will cause irreparable harm and

are a sham devoid of minimal due process

and directed by competitors?

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

United States Constitution, Amendment

XIV, Section l.

Title 42, U.S.C., sec. 1983.

STATEMENT OF THE CASE

Petitioner, a Doctor on the staff of

Defendant, Sunrise Hospital, was summa r-

ily suspended without a hearing on

May 5, 1975. After demand, a hearing was

scheduled and commenced on May 14, 1975.

During the hearing petitioner obtained

a Restraining Order from the Nevada Dis-

trict Court on a verified, complaint,

infra., Appendix D, p.- 17,

alleging said hospital was

4

operating under color of state law and

that the hearing was a sham without mini-

mal due process both in procedure and the

makeup of the hearing board. The complaint

joined the hospital and its directors and

several members of the staff committees

and sought declarative injunctive relief.

The trial Court on defendant's motion

granted judgment dismissing the action on

the ground that the hospital is a

private hospital with insufficient nexus to

constitute color of state law under the

United States Constitution. R. p. 143,

144, infra, Appendix E, p. 25 _. This was

the only issue considered.

Petitioner appealed and only this issue

of color of state law was presented to

the Court. The Nevada Supreme Court, on

its own motion, dismissed the appeal on

the ground that petitioner had not

completed the proceedings offered in the

defendant hospital's bylaws, without

prejudice to rehear the action upon

their completion. The issue was raised

completely on the Court's own motion and

briefed on motion for rehearing which was

denied.

5

REASONS FOR GRANTING WRIT

This is an important case concerning

whether a state Court has power to inter-

'vene in a state administratrive proceeding

on federal grounds, that is, on due pro-

cess as guaranteed by the Fourteenth

Amendment. We believe that the Nevada

Supreme Court in bypassing the question

of whether or not there is the requisite

color of state law and insisting on a

prior completion of futile administrative

proceedings has decided the case in a

manner inconsistent with the recognized

decisions of this Court. Judiciai relief

should be forthcoming on a showing that

the proceedings offered are a sham

incapable of giving petitioner a fair and

timely hearing and that irreparable harm

will result.

Consideration of the question here is

important as the correlative to the poli-

cies of restraint in federal court inter-

vention into state matters on principles

of equity, comity and federalism as

enounciated in Younger v. Harris, 401

U.S. 37 (1971) and Samuels v. Machell,

401 U.S. 66 (1971) and as discussed in

Gibson v. Berryhill, 411 U.S. 564 (1973).

Gibson v. Berryhill, supra, considered but

did not decide whether or not in certain

cases exhaustion of state administrative

remedies may be necessary before federal

6

intervention under 42 U.S.C. sec. 1983

and indicated that that may well be the

case where they are adequate. There is

no per se exhaustion requirement. McNeese

v. Board of Education, 373 U.S. 668 (1963).

These policies of comity and federalism

presuppose the opportunity to raise and

have timely decided by a competent state

tribunal the federal issues involved.

Gibson v. Berryhill, 411 U.S. 564, 577

(1973). It is a recognition of the state

Courts as a co-egual and usually initial

guardian of our liberties. It accomplishes

little to encourage the State Court alter-

native if there is no assurance that relief

would be available upon a proper showing.

State Courts of general jurisdiction

have power to decide cases involving fed-

eral constitutional rights where neither

Constitution or statute withdraws such

jurisdiction. Boston Stock Exch. v.

State Tax Com'n., U.S. 7 oT

S.Ct. 599 (1977) Note that the Nevada

Supreme Court has not said that the

state Courts could not afford

relief on federal grounds but rather has

limited it by what we submit is an over-

stated exhaustion requirement. Thus,- it

is clearly a federal question.

Petitioner recognizes the almost

7

universal application of the rule that

administrative procedures normally must be

completed for judicial review. However,

petitioner intends to prove that the j

procedures here are a sham directed by his

competitors devoid of minimum due process

and that they will cause irreparable harm.

According to Gibson v. Berryhill, supra,

this showing would justify federal inter-

vention. Similar relief should be

available in state court if the court's

policy of minimum federal court interven-

tion is to be implemented. The above

stated policies regarding federal inter-

vention make this case important and

necessary to be considered.

CONCLUSION

For these reasons a writ of certiorari

should issue to review the judgment and

opinion of the Supreme Court for the State

of Nevada.

Respectfully submitted,

/s/ Patrick R. Doyle

PATRICK R. DOYLE

R. PAUL SORENSON

323 Las Vegas Blvd. So.

Las Vegas, Nevada 89101

Counsel for Petitioner

8

APPENDIX A

IN THE SUPREME COURT OF

THE STATE OF NEVADA

Filed September 1, 1977

No. 8853

DR. ARTHUR GRESEN,

Appellant,

vs.

DR. HAROLD FEIKES, DR.

ROBERT WILLIAMS, DR. T. W.

CHRISTIANSEN, TOM ARMOUR,

THEODORE JACOBS, JOHN

SCHALLEY, MAURICE PEARLMAN,

NATHAN ADELSON, ALAN MILLER,

DAVID BRADSNESS, LESLIE

SOPER, C. J. ABDO, and

SUNRISE HOSPITAL and all

members of the surgical

committee,

td

Respondents.

ORDER DISMISSING APPEAL

Following the suspension of his

provisional staff privileges at Sunrise

Hospital, appellant was afforded a

hearing pursuant to the hospital's by-laws.

Instead of participating in the hearing

and following the extensive "Hearing and

Appellate Review" procedures set forth

9

in Article VIII of the by-laws, appellant

obtained an injunction preventing the

hearing and commenced an action to compel

respondents to comport with minimum

requirements of due process. The district

court dismissed the suit on the grounds

that the hospital was a private institution

and no state action was involved. Here,

appellant reasserts his contention that the

hospital is "quasi-public" and therefore it

must comply with procedural due process.

However, because judicial intervention

at this juncture is premature, we do not

consider appellant's contention. It is

apparent, and counsel so acknowledged, that

appellant had and continues to have access

to internal remedies provided for in the

hospital's by-laws in which he could ques-

tion the suspension of his staff privi-

leges. If utilized, these remedies might

satisfy the requirements mandated by due

process which appellant seeks to have

judicially imposed upon the hospital.

Because these remedies have not been

exhausted, there is no present justiciable

controversy. See Shulman v. Washington

Hospital Center, 348 F.2d 70 (D. C. Cir.

1965). See also Jackson v. Fulton-DeKalb

Hospital Authority,423 F.Supp. 1000 (N.D.

Ga. 1976); Westlake Comm. Hosp. v. Superior

Ct. of L.A. County, 551 P.2d 410 (Cal.

1976). Accordingly we, sua sponte,

ORDER this appeal dismissed, without

10

prejudice to the rights of the parties

following exhaustion of their administrative

remedies.

/s/ Batjer , C.J.

Batjer ;

/s/ Mowbray o Je

Mowbray

/s/ Thompson e Je

Thompson

/s/ Gunderson , J.

Gunderson

/s/ Manoukian o Ge

Manoukian

cc: R. Paul Sorenson, Esq.

Patrick Doyle, Esq.

Messrs. Lionel Sawyer & Collins

Albert G. Marquis, Esq.

Loretta Bowman, Clerk

1l

APPENDIX B

IN THE EIGHTH JUDICIAL DISTRICT COURT

OF THE STATE OF NEVADA

IN AND FOR THE COUNTY OF CLARK

Filed March ll, 1976

Case Al42174

DR. ARTHUR GRESEN,

Plaintiff,

vs.

DR. HAROLD FEIKES, et al.,

Defendants.

i i de de ee

ORDER FOR SUMMARY JUDGMENT

AND JUDGMENT

ORDER FOR SUMMARY JUDGMENT

Defendant's motion for summary judgment

having come on regularly for hearing on

January 8, 1976, which hearing was continued

until February 19, 1976, in order to afford

the plaintiff the opportunity to take and

file the deposition of an employee of

Sunrise Hospital; the Court having heard

Oral argument on February 19, 1976,

Paul R. Sorenson, Esq. appearing on

behalf of the plaintiff and Albert G.

Marquis, Esq. of Lionel Sawyer & Collins

appearing on behalf of the defendants; the

Court having set this matter for decision

12

on February 27, 1976, and continued that

hearing until March 5, 1976, in order to

fully consider an additional affidavit

of the plaintiff filed on February 26,

1976; and the Court having considered the

pleadings and other documents on file in

this action, finds as follows:

1. Sunrise Hospital receives an

insignificant amount of funding, if

any, from the federal, state and

county governments;

2. Sunrise Hospital receives no

special state or federal tax

exemptions;

3. There is no governmental involve-

ment in the selection, control or

suspension of doctors on the

medical staff at Sunrise Hospital;

4. No exclusive privileges are

granted to Sunrise Hospital by the

State Comprehensive Health Planning

Commission; the commission merely

regulates the number of beds and

the type of equipment each hospital

in Clark County may have;

5. There is insufficient state or

federal involvement in the activi-

ties of Sunrise Hospital for the

conduct of Sunrise Hospital or its

medical staff to be viewed as state

action; and

13

6. That in viewing all matters ina

light most favorable to plaintiff,

there exists no genuine issue of

materiai fact, and defendants are

entitled to judgment as a matter of

law.

Based on the foregoing determinations,

and other good cause appearing therefor,

it is hereby

ORDERED that defendants' motion for

summary judgment be, and the same hereby

is, granted as to all issues, and it is,

FURTHER ORDERED that the complaint be,

and it hereby is, dismissed without leave

to amend, and that judgment be entered

dismissing the action with prejudice, and

it is

FURTHER ORDERED that this Order and

Summary Judgment shall not operate to the

prejudice of the plaintiff's right, if

any, to file a subsequent action based on

breach of contract.

JUDGMENT

Based upon the foregoing order for

summary judgment, it is hereby

ORDERED, ADJUDGED AND DECREED:

1. That the plaintiff's action

against the defendants be, and the same

hereby is, dismissed with prejudice;

14

2. That defendants recover of plaintiff

their costs.

DATED this 9 day of March, 1976.

/s/ John F. Mendoza

JUDGE JOHN F. MENDOZA

Submitted by:

LIONEL SAWYER & COLLINS

By

ALBERT G. MARQUIS

302 E. Carson Ave., Suite 800

Las Vegas, Nevada 89101

Attorneys for Defendants

15

APPENDIX C

IN THE SUPREME COURT OF

THE STATE OF NEVADA

Filed October 5, 1977

No. 8853

DR. ARTHUR GRESEN,

Appellant,

vs.

DR. HAROLD FEIKES, DR.

ROBERT WILLIAMS, DR. T. W.

CHRISTIANSEN, TOM ARMOUR,

THEODORE JACOBS, JOHN

SCHALLEY, MAURICE PEARLMAN,

NATHAN ADELSON, ALAN MILLER,

DAVID BRADSNESS, LESLIE

SOPER, C. J. ABDO, and

SUNRISE HOSPITAL and all

members of the surgical

committee,

de de de

Respondents.

ORDER DENYING REHEARING

Rehearing denied.

It is so ORDERED.

/s/ Batjer

Batjer

cc:

16

/s/ Mowbray o Je

Mowbray

/s/ Gunderson o Ge

Gunderson

/s/ Manoukian , J.

Manoukian

R. Paul Sorenson, Esq.

Patrick Doyle, Esq.

Messrs. Lionel Sawyer Collins

Albert G. Marquis, Esq.

17

APPENDIX D

IN THE EIGHTH JUDICIAL DISTRICT COURT

OF THE STATE OF NEVADA

IN AND FOR THE COUNTY OF CLARK

Filed June 10, 1975

Case Al42174

DR. ARTHUR GRESEN,

Plaintiff,

vs.

DR. HAROLD FEIKES, DR.

ROBERT WILLIAMS, DR.

T. W. CHRISTENSEN, TOM

ARMOUR, THEODORE JACOBS,

JOHN SCHALLEY, MAURICE

PEARLMAN, NATHAN

ADELSON, ALAN MILLER,

DAVID BRANDSNESS, LESLIE

SOPER, C. J. ABDO, and

SUNRISE HOSPITAL and ali

members of the surgical

committee set forth as

JOHN DOES 1 to 10,

Defendants.

me me ee ee ee ee ee et et ee ee eet ee et ee ee

COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF

COUNT ONE

Plaintiff above-styled complains of

18

Defendants, above-styled and for a cause

of action alleges as follows:

1. Plaintiff is a board certified

cardiovascular and thoracic surgeon duly

admitted to the State of Nevada as a

medical doctor, having been trained at

the Mayo Brothers Clinic in Rochester,

Minnesota and at the L.D.S. Hospital and

the University of Utah in Salt Lake City,

Utah.

2. Plaintiff has a contract with

Defendant, SUNRISE HOSPITAL, to perform

his services as a surgeon and physician

through use of their facilities.

3. Defendant, SUNRISE HOSPITAL, is

a state regulated, federally funded,

private hospital with sufficient federal

and state support and regulations to

invoke the color of state law nexus to

require Defendant, SUNRISE HOSPITAL, to

provide Plaintiff at least minimal pro-

cedural and substantive due process.

4. Defendants, DR. HAROLD FEIKES,

DR. ROBERT WILLIAMS, DR. DANIEL WILKES,

DR. T. W. CHRISTENSEN, TOM ARMOUR, THEODORE

JACOBS, JOHN SCHALLEY, MAURICE PEARLMAN,

NATHAN ADELSON, ALAN MILLER, DAVID

BRANDSNESS, LESLIE SOPER, C. J. ABDO,

and SUNRISE HOSPITAL and all members of

the surgical committee and executive

committee, set forth as JOHN DOES 1 to lO,

are licensed medical doctors, board mem-

bers of the staff of SUNRISE HOSPITAL,

19

Or members of the Ad. Hoc. surgery committee

and JOHN DOES 1 to 10, whose true names

are unknown to Plaintiff at this time.

5. That on April 2, 1975, a heart

patient of Plaintiff was scheduled for

Surgery, anesthetized, prepped, and draped

for surgery. Sudden unexpected water

failure in the operating room, caused by

excavating equipment, necessitated

cancelling of surgery for that day. The

patient, who was in great pain, demanded

surgery the following day; and on the

following day of April 3, 1975, actual

surgery was performed by Plaintiff,

however, the patient died on the operating

room table.

6. Without prior notice or consultation,

on April 4, 1975, Plaintiff, DR. ARTHUR

GRESEN, and CLIFF DAVENPORT, were called at

1:30 o'clock P.M. by DR. WILKES to view

pathology of the heart of patient,

No. 2133643. Plaintiff arrived in Sunrise

Hospital pathology lab, and at 1:50

o'clock P.M., whereupon Plaintiff met with

the Defendant, DR. WILKES. When Plaintiff

first arrived at the laboratory, there

was another body on the autopsy table and

another autopsy was in progress. Defendant,

DR. WILKES, only showed Plaintiff a

completely incredibly chopped up and

totally destroyed heart grafts, already

ripped and dissected apart. Although

Plaintiff vigorously objected to such non-

standard action, Defendant, DR. WILKES,

20

gave Plaintiff indefinite findings and

stated that he could actually not see

anything definite, except for a question

of the mammary artery graft. Defendant,

DR. WILKES, showed Plaintiff a gross

surgical probe (in excess of one milli-

meter). Defendant, DR. WILKES, represented

to the Piaintiff that he would get back to

NR. GRESEN about the micro-dissection;

said events in the laboratory all took place

in about three (3) to five (5) minutes.

7. On or about the 5th day of May,

1975, by letter from Defendant, DR. ROBERT

WILLIAMS, (See copy attached hereto and

marked Exhibit "A") Plaintiff was informed

without prior hearing and without prior

notice that he had been summarily suspen-

ded from the practice at SUNRISE HOSPITAL

by DR. WILLIAMS and his surgical committee,

whose names and addresses are presently

unknown to the Plaintiff, but are set

forth herein as JOHN DOES I to 10.

8. Thereafter, Plaintiff demanded a

fair and impartial hearing before the

Executive Committee of the medical staff,

whereupon an Ad. Hoc. Committee was formed

by Defendants without the benefit of due

process random selection of its members,

and in violation of Defendant, SUNRISE

HOSPITAL'S own rules and regulations, to-

wit: Rule 4(a).

21

9. At the start of the hearing before

the Ad. Hoc. Committee on the 14th day

of May, 1975, the Plaintiff was not

informed of the names of the persons

presiding as committee members, and was

denied any voice in their selection.

10. Plaintiff was and continues to

be denied the right to appear with legal

counsel, and Plaintiff was denied by

Defendants, and continues to be, denied

the right to tape record the hearing.

ll. Plaintiff has been denied the

right to have, purchase or see a copy of

the transcript of the beginning of the

hearing.

12. Plaintiff has been denied the

right to compel attendance of witness

and/or to take Deposition of witness and

otherwise conduct discovery, including

copy of Minutes of Suspension hearing.

13. Plaintiff's state constitutional

rights to due process are being totally

denied by a star chamber's proceedings

not likened under common law since

Henry the Eighth.

15. Defendants' actions are and con-

tinue to be arbitrary, capricious,

unreasonable and unconstitutional.

16. Defendants are enforcing Rules

Article VIII, Sec. l(a) of SUNRISE

HOSPITAL, which are arbitrary, capricious,

22

unreasonable and unconstitutional, in

that said rules provide that Plaintiff can-

not have counsel present.

17. Plaintiff, on information and

belief, alleges that Defendants are destroy-

int or will destroy vital evidence and

records relative to CASE NO. 2133643,

if not enjoined by this Court.

18. The above described actions, con-

duct and rules of Defendant, SUNRISE

HOSPITAL, are causing Plaintiff irreparable

harm and injury, and are denying Plaintiff

his constitutional rights without any

plain, speedy or adequate remedy at law.

19. Plaintiff seeks a temporary,

preliminary and permanent injunction against

the Defendants from holding any hearings

without counsel, without Court Reporters,

without public hearing, without fair and

impartial hearing board members randomly

selected to conform to due process.

20. Plaintiff seeks a temporary

Restraining Order and preliminary and

permanent injuncition against the

Defendants from doing or attempting to

directly or indirectly, the destruction,

tampering with or the mutilation of any

part of the post mortum remains of the

deceased patient, NO. 2133643, or the

destruction, mutilation, or alteration or

concealment or removal from the juris-

diction of this Court, of any records,

reports, correspondence, communication

between any doctor, surgeon or agent of

Defendants concerning the treatment,

23

diagnosis, surgery, Or post mortum diagnosis

upon the body of Patient, NO. 2133643.

WHEREFORE, Plaintiff prays that this

Honorable Court will issue a Temporary

Restraining Order, Preliminary and Perma-

nent Injunction against the Defendants,

their officers, directors, agents, servants,

employees and those persons acting in

concert or participation with them or

under their direction and control,

restraining and enjoining said Defendants

from the following:

1. From doing or attempting to directly

Or indirectly through any means or

instrumentaility in an matter whatsoever,

in the County of Clark or State of Nevada,

the destruction, tampering with, or mutila-

tion of any part of post mortum remains of

the deceased patient, NO. 2133643, or the

destruction, mutilation, or alteration

Or concealment or removal from the

jurisdiction of this Court of any records,

reports, correspondence, communication

between any doctor, nurse, or employee

of SUNRISE HOSPITAL, to any other doctor

surgeon, or agent of Defendants concerning

the treatment, diagnosis, surgery of

post mortum diagnosis upon the body of

patient NO. 2133643.

2. From holding any further hearings

concerning the Plaintiff or any further

hearing concerning patient, NO. 2133643

24

3. For such other further and different

relief as the Court deems just and proper

in the premises.

KERMITT L. WATERS and

R. PAUL SORENSON

By: /s/ R. Paui Sorenson

Attorneys for Plaintiff

323 Las Vegas Blvd. South

Las Vegas, Nevada 89101

STATE OF NEVADA )

) ss:

COUNTY OF CLARK )

DR. ARTHUR GRESEN, being first duly

Sworn, deposes and says:

That he is the Plaintiff in the above-

entitled action; that he has read the above

and foregoing COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF, and knows the

contents thereof; that the same is true

and correct to the best of his knowledge.

/s/ Arthur Gresen

Dr. ARTHUR GRESEN

SUBSCRIBED and SWORN to

before me this 10th day of

June, 1975.

/s/ Francette Liance

NOTARY PUBLIC in and for said

County and State.

25

APPENDIX E

EXCERPT FROM THE RECORD

I think the record is rather clear

there is no state action nor statement

involvement in the operation of this

hospital. I have read and reviewed all

the cases cited by Counsel, and the

case most recently denied by the Supreme

Court as to a possible issue where a

hospital received federal funding, etc.

The matter seems to be whether or not there

is this control or to classify this as a

public hospital. In my reading of the

many facts of this case I cannot find that

to exist.

The issue that has been raised inferen-

tially is the issue of whether or not the

hospital, in itself, has possibly violated

its own rules and regulations. It would

appear to the Court, howev2r, that the

principle issue raised in this motion is

the issue they have failed to comply with

the due process requirement of the U. S.

Constitution.

In this regard I find they are not

required to conform to those standards

Since they are a private hospital, and

there isn't sufficient connection

between state and federal control over

their private activities. For that

reason the motion for summary judgment

is granted.

—.

26

However, I do wish to add this comment

that the dismissal of this action is

without prejudice to bring whatever other

type of proceeding wherein Counsel anc

his Client believe that this co1cractual

right may have been violated because

that issue was not before the Court, and

since it is not before the Court I cannot

preclude Counsel from proceeding in 1 at

vein.

The motion for summary juc ™ ~~. is

granted, but limited to the i: ue of state

action.

27

CERTIFICATE OF MAILING

I hereby certify that two true and

correct copies of the foregoing Petition

for a Writ of Certiorari was served of

the following by mailing two copies

thereof, first class mail, postage

prepaid to:

Albert G. Marquis

LIONEL, SAWYER & COLLINS

1700 Valley Bank Plaza

300 South Fourth Street

Las Vegas, Nevada 89101

on the 3lst day of December, 1977.

/s/ Sarah S. Higgins

Sarah S. Higgins