# Petition — Batt v. Marion Heights, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2407%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 440 U.S. 971 ## Text | a Supreme Court, U, FILED’ 78-1181 | } JAN 29 1979 IN THE j° MICHAEL RODAK, JR., CLERK SUPREME COURT OF THE UNITED-STATES7———— October Term, 1978 No. PATRICK BATT, Petitioner, Vv. MARION HEIGHTS, INC., et al, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT DAVID L. WALTHER JOHN SUNDQUIST Attorneys for Petitioner Of Counsel: WALTHER & HALLING 222 East Mason Street Milwaukee, Wisconsin 53202 (414) 271-3400 INDEX Page ee Oe. Ck eee oe ee 2 JURI SDICT ION . . . . . . . > . . . . . . . 2 QuEstaens ORUSEETER. 2. wi ccc we «(CO STATUTORY PROVISIONS INVOLVED. ...... 3 STATEMENT OF THE CASE. . . . «© 2 « e e « « - REASONS FOR GRANTING THE WRIT. ...... 9 I. Respondent, Marion Heights, II. Although Nominally A Private Health Care Facility, Is, For The Purposes Of Sec. 1983, A Public Entity Due To Its Heavy Governmental Funding, Pervasive Regulatory Scheme And Applicable Provisions Of State Law Which Convert It To A State Agent In Certain Instances. Furthermore, The Respondent Performed A Public Function In The Care Of Its Elderly And Infirm Residents And As A Provider Of Employment Training _And Opportunities For Welfare Recipients And Unemployed Persons ... 9 The Decision Below Conflicts With The Law In Other Cicuits As To Whether The Receipt Of Federal Funds Under The Yill-Burton Act By A Health Care Facility Renders Such ii Recipient A Government Instrumentality So That Its Actions Are Governed By The Constitutional Requirements Generally Applicable To The State And Federal Government. .. +++ -s >» III. "State Action" Decisions Of The Seventh Circuit Have Imposed Overly Strict Pleading Requirements Resulting In The Erroneous Dis~ missal of Petitioner's Complaint For Failure To State A Claim Upon Which Relief May Be Granted. ..... CONCLUSION. 2 se se eo eee eee ee 0 8 ot ee ee ee ee CITATIONS Cases: Amalgamated Food Employees Union v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968) . . . 7 . . . . . * . * >. 7 . * Braden v. University of Pittsburgh, 447 F* 68+: SU) ee ee Burton v. Wilmington Parking Authority, ae Gules PES GAUOA)s « 0 $$ 0 6 0 8 8 Citta v. Delaware Valley Hsopital, 313 F. Supp. 301 (E.D. Pa. 1970) ..... Page 28 30 34 App. 1 16, 17 33, 34 12, 14 31, 32 29 1ii Cohen v. Illinois Institute of Technology, 524 F.2d 818 (7th Cir. 1975), cert. denied, 425 U.S. 943 twa ee 6 6 wh eb ee we Conley v. Gibson, 355 U.S. 41 (1957). . Doe v. Bellin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973) .. Doyle v. Unicare Health Care Services, Inc., 399 F. Supp 69 (N.D. I1l. 1975), aff'd. mem., 541 F.2d 283 c7eh Cit. I97G). « « Evans v. Newton, 382 U.S. 296 (1966)... Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978) i oe er i ko oe ‘ ee @ Gilmore v. Montgomery, 417 U.S. 556 (1974). Ginn v. Mathews, 533 F.2d 477 (9th Cir. (1976) ek Se a on oe A ee oe ae ee ee a a Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974). ee e tet 6 © 8 © Jackson v. Norton-Children's Hospital, Inc., 487 F.2d 502 (6th Cir. 1973). ‘+ 6 64 2.4% .8- 3 Jackson v. The Statler Foundation, 496 Dome Gad €20-COE. 2OTads 0 6 6 ee Page 11, 12 13 31 16, 29 15, 17 9, 14, 15, 26 Ne ee ov McQueen v. Druker, 438 F.2d 781 (lst Cir. 1971). ° . ° . . 7 e ° om e ° ° ° ° . . Marsh v. Alabama, 326 U.S. 501 (1946) .. . Mercy Medical Center v. Winnebago County, 58 Wis.2d 260, 206 N.W.2d 198 (1973) . Morrison v. Henke, 165 Wis. 166, 160 N.W. 173 (1917)... Norton v. Macy, 417 F.2d 1161 (D.C. Cir. 1969) Lis a2 ££ & 8 21 eK, 2S RO OS OS Perez v. Sugarman, 499 F.2d 761 (2d Cir. 1974) . . . . . . . * . . . . 7 e . . Pitts v. Department of Revenue, 333 F. , Supp. 662 (B.D. Wis. 1971). ..... Robinson v. Price, 553 F.2d 918 (5th Cir. 1977) e ° . ° . . ° . . . ° ° ° . . . Ruffler v. Phelps Memorial Hospital, 453 F. Supp. 1062 (S.D. N.Y. 1978)... . Sams v. Ohio Valley General Hospital Association, 413 F.2d 826 (4th Cir. 1969) . ° . 7 ° . - . . 7 ° o +. * e . Scott v. Macy, 349 F.2d 182 (D.C. Cir. 1965) eo 6 2 & oases & Oe O28 02 &@ @ Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938 (1964):. . . . Page 20 16, 17 21 21 28 20 32 19 23 29 28 16, 29 Vv vi Page Page Taylor v. St. Vincent's Hospital, 424 Wisconsin Administrative Code H 32. .... ll U.S. 948 (1976), denying cert. to 523 F. 2d 775 (9th Cir. 1976) . e <3 . ° ° 30 Terry v. Adams, 345 U.S. 461 (1953). ....417 Wahba v. New York University, 492 F.2d 96 (2d Cir. 1974), cert. denied, 419 U.S. 874 (1974). . 7-_ °©« © @ ._ 6¢ @ . 27 Ward v. St. Anthony's Hospital, 476 F.2d 671 (10th Cir. 1973) *-_ e* © © @© @ © # @ ae 16 Weise v. Syracruse University, 522 F.2d Soe uae Gas. 20peees o ww 6 6 ee ore Bg Ze STATUTES: . 42 U.S.C. See. 190 es i ee 42 U.S.C. Sec. 1983 . . 2. 2 «2 « « ces Passim Wis. Stat. Sec. 231.02. . . «2. 6 eeeee 22 Wis. Stat. See. Bakse 0 et ee 6 4 tee. OTHER AUTHORITIES: 45 CFR Sec. 224.13. . . «© © © © we ew © ow @ 2S | 45 CFR Sec. 224.40(c) (4). . «© «© «© «© ow ow ow @ 25 } U.S. Civil Service Commission F.P.M. Letter 731-3 (July 3, 1975) 44 U.S. Law Week 2032 (1975) . .. . «+ « « « 28 ae Wty fee Steere te + - IN THE . i 9 SUPREME COURT OF THE UNITED STATES October Term, 1978 OPINION BELOW The opinion of the Court of Appeals for the No. Seventh Circuit affirming the order of the District Court for the Eastern District of Wisconsin dismiss- ing the petitioner's complaint is reported at 586 PATRICK BATT, Petitioner, F.2d 59. A copy appears in the appendix hereto. ¥. A copy of the petitioner's complaint is also in- MARION HEIGHTS, INC., et al, Respondents. | cluded. i JURISDICTION The judgment of the Court of Appeals for the PETITION FOR A WRIT OF CERTIORARI TO THE Seventh Circuit was entered on November 2, 1978. UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT This petition for certiorari was filed within ninety (90) days of that date. This court's jurisdiction is invoked under 28 U.S.C. Sec. 1254(1). The petitioner, Patrick Batt, respectfully i QUESTIONS PRESENTED prays that a writ of certiorari issue to review | l. Is the action of a nominally private the judgment and opinion of the United States nie nursing home, in dismissing from employment its Court of Appeals for the Seventh Circuit, affirmative action officer, action under color of entered in this proceeding on November 2, 1978. law, for purposes of 42 U.S.C. Sec. 1983 where it receives the majority of its funding from govern- mental sources, including Hill-Burton, Medicare, Medicaid, and the Work eoniees Program, is regula- ted in every facet of its operation; and by being totally responsible for the care and welfare of its elderly residents has become the functional equivalent of a "company town! 2. Whether the instant complaint was properly dismissed for failure to affirmatively allege that "the governmental funding and regula- ‘ tions" have "fostered the challenged activities of [the] private health care facilities." STATUTORY PROVISIONS INVOLVED United States Code, Title 42: Sec. 1983 Every person who, under color of any statutes, iebtiininna. regulation, 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 immuni- ties secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit and equity, or other proper proceedings for redress. STATEMENT OF THE CASE Petitioner commenced this action against re- spondent Marion Heights, Inc., and its directors, Sister Lillian Van Domlen, Sister Rosalie Klein, Sister M. Mel O'Dowd, Sister Angiola Strickelmaier, Sister Peyton Ryan, Delores Gencuski, Mrs. A. Boehm, John Conway, Robert Hackett and Gerald Falci. Also named as a defendant was the administrator of Marion Heights, Inc., Roger 5. teedtien. The suit was filed in the United States District Court for the Eastern District of Wiscon- sin, the ee Robert W. Warren, District Judge, presiding, seeking equitable relief and money damages for violations of 42 U.S.C. Sec. 1983, and the United States Constitution. Federal District Court jurisdiction was grounded on 28 U.S.C. Sec. 1343 and 28 U.S.C. Sec. 1331. The amount in controversy, exclusive of interest and costs, exceeds $10,000.00. Respondents filed a Rule 12(b)(1) and (6) motion to dismiss on the grounds that respondents had not acted under color of state law. In a mem- orandum decision and order dated Janaury 18, 1978, the District Court granted this motion. Final judg- ment was entered on January 25, 1978, dismissing the action. Timely appeal was taken to the Court of Appeals for the Seventh Circuit. The case was argued before the court on September 15, 1978, and the lower court's order was affirmed by judg- ment entered November 2, 1978. Petitioner Patrick Batt (Batt), seeks equi- table relief and money damages for his unlawful discharge from employment as personnel director of Marion Heights, Inc. (Marion Heights), solely be- cause of his homosexual lifestyle. Regarding state action, the complaint alleges that Marion Heights is a Wisconsin non-profit cor- poration operating a health care facility subject ee extensive state regulation. (Complaint, Par. 7, Pet. App. p. 14). The majority of operating funds for Marion Heights is pee by the federal government to the State of Wisconsin, in the form of Medicare and Medicaid benefits. | (Complaint, Par. 8, Pet. App. p. 14). Marion Heights parti- cipates in the WIN Employment Training Program, funded by the United States and administered by the State of Wisconsin. (Complaint, Par. 9, Pet. App. p- 15). The occupational and physical therapy programs at Marion Heights are funded by the United States Government. (Complaint, Par. 10, Pet. App. p. 15). Respondent Hamilton, the administrator, is licensed by the State of Wisconsin as a health care admin.strator (Complaint, Par. 11, Pet. App. p- 15), and acting under the direction of the Board of Directors, caused plaintiff's termination. (Complaint, Pars. 14-16, Pet. App. pp. 17-19). The other named respondents are members of the Board of Directors and are responsible for plaintiff's termination. (Complaint, Pars. 14-16, Pet. App. pp- 17-19). Batt was employed by Marion Heights as Per- sonnel director from August 2, 1976, until his termination on May 6, 1977. As personnel direc- tor, Batt was responsible for the recruitment, placement and employment of the work force at the nursing home, for the management of the employees’ relation program, for the coordination of the educational training programs at the facility, for wage and salary administration be ‘ and for the interns audit program. (Complaint, Par. 12, Pet. App. p. 16). More snpoxtentiy, Batt, under Hamilton's supervision, was primarily responsible for the administration of various state and federal programs and regulations. (Complaint, Par. 13, Pet. App. pp. 16-12). Batt was the affirmative action officer for Marion Heights, primarily responsible under Hamilton's supervision for Marion Heights" compliance with EEO regulations and litigation. Batt was pedunetiy responsible for Marion Heights' compliance with OSHA regulations; and was primarily responsible for administration of the WIN Program at Marion Heights. (Id.) Batt alleged that respondents" actions deprived him of freedom of speech and association, of the right to privacy, of equal protection of the law, and the due process of the law, all in violation of the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Consti- tution. REASONS FOR GRANTING THE WRIT I. RESPONDENT, MARION HEIGHTS, ALTHOUGH NOMINALLY A PRIVATE HEALTH CARE FACILITY, IS, FOR THE PURPOSES OF SEC. 1983, A PUBLIC ENTITY DUE TO ITS HEAVY GOVERNMENTAL FUNDING, PERVASIVE REGULATORY SCHEME AND APPLICABLE PROVISIONS OF STATE LAW WHICH CONVERT IT TO A STATE AGENT IN CERTAIN INSTANCE. FURTHERMORE, THE RESPONDENT PERFORMED A PUBLIC FUNCTION IN THE CARE OF ITS ELDERLY AND INFIRM RESIDENTS AND AS A PROVIDER OF EMPLOYMENT TRAINING AND OPPORTUNITIES FOR WELFARE RECIPIENTS AND UNEMPLOYED PERSONS. There are several avenues to a finding of state action for Sec. 1983 purposes. Jackson v. The Statler Foundation, 496 F.2d 623 (2d Cir. 1974), _ sets forth an oft-quoted analysis as follows: " (1) "(2) The degree to which the ‘private’ organization is dependent on govern- mental aid; The extent and intru- siveness of the govern- mental regulatory scheme; Mite nics wis, 4 my 10 "(3) Whether that scheme connotes government approval of the activity or whether the assis- tance is merely provided to all without such connotation; "(4) The extent to which the organization serves a public function or acts as a surrogate for the state; "(5) Whether the organiza- tion has legitimate claims to recognition as a ‘private’ associa- tional or other consti- tutional terms." Id. 496 F.2d at 629. Petitioner urges that under those standards Marion Heights was acting under color of law in dismissing Batt from its employ. Marion Heights’ operating budget is derived from state and federal funding. Batt contends that the public support of the nursing home has reached the level where it is "so heavily dependent on the State as to be considered the equivalent 1l of a public [institution] for all purposes and in all of its activities." Cohen v. Illinois Insti- tute of Technology, 524 F.2d 818 (7th Cir. 1975) cert. denied, 425 U.S. 943 (1976). Accompanying the governmental funding is a comprehensive regulatory scheme which oversees _ every aspect of respondent's operation. See, e.g., Wisconsin Administrative Code H 323 42 U.S.C. Sec. 1396 et. seq. While the mere existence of detailed regulations does not make every act of tin “petite entity" action of the State, Cohen, 524 F.2d at 825, it does make such a private entity more susceptible to a finding of state _ action. Jackson v. Metropolitan Edison Company, 419 U.S. 345, 351 (1974). -The third factor in a state action analysis was examined in Jackson v. Metropolitan Edison Company, 419 U.S. at 351: "(T]he inquiry must be whether there is a sufficiently close nexus 12 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." See also, Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). The Seventh Circuit cases with regard to this suatie "the nexus requirement" have exceeded the Supreme Court standards. Cohen states the rule in the Seventh Circuit: "Unless it is alleged that the regulatory agency has encouraged the practice in question, or at least given its affirmative approval to the practice, the fact that a business or an institution is sub- ject to regulation is not of de- cisive importance." Id., 524 F.2d at 826. Complaints which fail to allege such a "nexus" are being uniformly dismissed at the district court level in the Seventh Circuit, e.g., Doyle v. Unicare Health Care Services, Inc., 399 F. Supp. 69 (N.D. Ill. 1975), aff'd. mem. 541 F.2d 283 (7th Cir. 1976). 13 The decision of the Seventh Circuit in this case adheres to the Cohen rationale that the sole route to a finding of state action on the part of a heavily regulated "private" entity is through a finding of state encouragement or control of the challenged activity. (Pet. App. p. 5 ). Petitioner's complaint does contain suffi- cient allegations to meet the "nexus" requirement. Batt was emp loyed by Marion Heights to ensure its compliance with the realm of governmental cesnle~ tions applicable to it. He supervised respondent's participation in the WIN Program. He was respon- sible for compliance with OSHA regulations. As a recipient of Medicare and Medicaid benefits, Marion Heights was required to maintain an affir- mative action program. Batt was the affirmative action officer. Respondent employed Batt, as it was required to do, to ensure that it obeyed federal and state Tce 14 law. It, in turn, must not be allowed to set criteria for such a "private policeman" that con- travene federal law, because the practice of the policeman will affect the nature of the compliance. An examination of Supreme Court opinions re- veals that the Seventh Circuit is erroneously ex- ‘ cluding other viable routes to a finding of state action when dealing with a governmentally regulated "private" institutions. For example, in Jackson v. Metropolitan Edison Company, 419 U.S. at 352-53, this court stated that a private entity would be acting under color of law when it exercises delegated powers "tradi- ' The court tionally associated with sovereignty.’ in Burton indicated that a consideration of all relevant factors, in light of the facts and cir- cumstnces of each case, must be undertaken in any state action analysis. See also, Jackson v. The Statler Foundation, 496 F.2d at 629. The singular 15 approach followed by the Seventh Circuit leads to the erroneous conclusion that no state action exists when in fact governmental regulation and/or funding «has esstiieed the point where an otherwise private insitution is converted into a public : institution for constitutional purposes. See Ward v. St. Anthony's Hospital, 476 F.2d 671, 675 (10th Cir. 1973). Petitioner contends that the court below gave only cursory treatment to the fourth factor in * state action analysis: "The extent to which the organization serves a public function or acts as a surrogate for the State." Jackson v. The Statler Foundation, 496 F.2d at 629. In Evans v. Newton, 382 U.S. 296, 299 (1966), this court stated: "[c]onduct that is formally 'private' may become so entwined with govern- mental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state actions." 16 Batt is aware that actions of private hospitals have frequently been challenged under Sec. 1983 and that the courts are divided in their response to such challenges. Compare, Doe v. Bellin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973); Ward v. St. Anthony's Hospital, 476 F.2d 671 (10th Cir. 1973); with Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938 (1964). However, Batt contends that this court should examine the conduct of nursing homes in a somewhat different light than that of private hospitals. Nursing homes are often a permanent and final residence for many elderly citizens. Surely a "private" nursing home could not ignore the con- stitutional rights of its residents. Batt argues that the rationale employed by the Court in Marsh v. Alabama, 326 U.S. 501 (1946), and subsequent “public function" cases, Amalgamated Food Employees Union v. Logan Valley Plaza, Inc., 391 U.S. 308 17 (1968); Terry v. Adams, 345 U.S. 461 (1953); and Evans v. Newton, 382 U.S. 296 (1966), should be considered in this instance. While geographically not a town as in Marsh, nor a business district as in Logan Valley, realistically, for its patients, the nursing home is their town, their community. A nursing home provides its residents with all the essential services that the company town did in Marsh. Moreover, the primary source of funding for these services is the government via Medicare, Medicaid and lenient tax treatment afforded the nursing home. Petitioner urges this court to consider Justice Black's statement in Marsh v. Alabama: "Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the 18 statutory and consitutional rights of those who use it." Id. 326 U.S. at 508. The court below held that the petitioner's public function argument must fail because the "(clare of the elderly and infirm has traditionally been a function associated with the family, not with sovereignty." The court cited this court's recent decision in Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, (1978) and concluded that petitioner's complaint failed to meet both the standards espoused by the majority in Flagg Brothers: "traditionally and exclusively a state function", and the standard espoused by the four dissenting justices: "tra- ditionally and historically associated with sovereignty." Batt, 586 F.2d at 63. (Pet. App. p. 8). Petitioner respectfully submits that the con- clusion of the Seventh Circuit is erroneous in 19 two respects. First, it directly conflicts with decisions from other circuits wherein a private insitution charged with welfare-related duties, such as care and education of the indigent, has been found to be acting with a public purpose and performing a public function. In Robinson v. Price, 553 F.2d 918 (5th Cir. 1977), the court distinguished Jackson v. Metropolitan Edison Company on the basis that Jackson did not involve "the exercise by a private entity of powers or functions tradi- tionally associated with sovereignty. The handling of welfare-related problems, however, ‘ has been a function that has been traditionally dealt with by the state." Robinson, 553 F.2d at 920. The Ninth Circuit voiced similar sentiments in Ginn v. Mathews, 553 F.2d 477 (9th Cir. 1976), wherein it stated: 20 "[W]hen a specific governmental function is carried out by heavily subsidized private firms for individuals whose freedom of decision-making has, by contract and the reserved govern- mental power of continuing over- sight, been circumscribed substan- tially more than that generally accorded an independent contractor, the coloration of state action fairly attaches." Id. at 481 (quoting McQueen v. Druker, 438 F.2d 781 (1971)) (discussing the Federal Headstart funding of a private entity). The public function theory was also applied in Perez v. Sugarman, 499 F.2d 761 (2d Cir. 1974): "In certain circumstances the actions of private entities may be considered to be infused with ‘state action’ if those private entities are perform- ing a function public or governmental in nature and which would have to be performed by the Government but for the activities of the private parties." Id. 499 F.2d at 765. 21 In Wisconsin, providing medical care and services to the needy is an essential public function. Even before state and federal medical assistance programs, Wisconsin courts have held that non-profit, private hospitals "perform a quasi-public function in administering to the poor and the sick" and liken those services to the exercise by a municipality of a governmental function. Morrison v. Henke, 165 Wis. 166, 116 N.W. 173 (1917). In Mercy Medical Center v. Winnne- bago County, 58 Wis.2d 260, 206 N.W.2d 198 (1973), the Wisconsin Supreme Court held that "the health of individual citizens is a legitimate public .concern" and that "today's cost of medical and hospital care has reached such heights that the means of payment necessitate such social devices as Medicare, medical and hospital insurance, and public relief." Id. 58 Wis.2d at 268, 206 N.W.2d at 201. 22 Legislative approval of this public nature of health care in Wisconsin is evidenced by Chapter 231 of the Wisconsin Statutes. Accord- ing to Sec. 231.05(1), ". . .[I]t is the intent of the legislature to provide assistance and alternative methods of financing to non-profit health ‘ietieakties to aid them in providing needed health services consistent with the state's health plan." Participating health facilities may be appointed an agent of the state health authority for funding purposes. Under such circumstances Marion Heights is, by statutory definition, an agent of a "public instrumentality. . . perform[ing].. . an essential public function." Sec. 231.02(1), Wis. Stats. Federal courts must look to state law to determine whether certain activities undertzcken 23 by private institutions are in fact state functions. Jackson v. Metropolitan Edison Company, 419 U.S. at 353. It is clear from Wisconsin law that private nursing homes provide an essential, dele- gated public function. Cases holding that private colleges and uni- versities are aoe wabdel with a public function are not controlling in the health care field. There is no analagous legislative provision for a unitary educational system. This is not the case in the area of health care, especially health care for the elderly. In the field of mental health care a private ‘ hospital has been recognized as performing a "public function". In Ruffler v. Phelps Memorial Hospital, 453 F. Supp. 1062 (S.D. N.Y¥., 1978), the fact that "the State expressly depends on the use of private facilities to effectuate its public policy of providing treatment for those 24 who need it" led to a finding of ane action on the part of a private mental hospital. Id. 453 F. Supp. at 1067. A private mental hospital is not unlike a private nursing home in that both provide long-time twenty-four hour total care for its patients. Both perform an essential function which, if they did not, must be assumed by the State. Secondly, the concept of "public function" is not a static and inflexible notion. As the size and complexity of society has grown, it cannot be disputed that government has assumed growing responsibilites formerly dealt with by ' the private sector. The private nursing home has become an integral part of the public welfare scheme and should be recognized as such. In addition to the public functions performed by respondent with regards to its residents, the 25 nursing home has also involved itself in other governmental activities which lend support to a finding of state action. Under the Federal Work Incentive Program (WIN), Title IV of the Social Security Act, respondent re- ceives federal and matching state funds and tax credits to subsidize employment and training of welfare recipients. According to 45 CFR Sec. 224.13, a participating non-profit private employer must be one "organized for a public purpose." (Emphasis added). See also, 45 CFR Sec. 224.40(c) (4): "An eligible employer. . .any private nonprofit organization established to serve a public service." (Emphasis added). Respondent, by virtue of Title VII and its Status as a federal contractor, is also required to establish and implement affirmative action guide- lines. Provisions such as the WIN Program, and 26 affirmative action programs dealing with work training and employment for the indigent, unemployed and minorities constitute services traditionally reserved to the state. Respondent, in exchange for liberal tax benefits and governmental funding, per- forms these services for the state. Petitioner was primarily responsible for the administration of both the WIN and affirmative action programs at Marion Heights. His discharge must be subject to consti- tutional scrutiny in view of his intimate involve- ment with the respondent's participation in the governmental programs. The fifth area of inquiry under the Statler ‘Foundation analysis involves a balancing between the right of a "private" insitution to retain its private status and the nature of the right in- fringed upon. Weise v. Syracuse University, 522 F.2d 397 (2d Cir. 1975). Respondent's claim to retain its private status pales in comparison to 27 the fundamental consitutional rights of petitioner which it has violated. Wahba v. New York University, 492 F.2d 96 (2d Cir. 1974), cert. denied, 419 U.S. 874 (1974); Weise v. Syracuse University, 522 F.2d at 405. No substantial private interests are involved in this case. Respondent, by entering the nursing home field, voluntarily submits to multitudinous governmental regulation. It provides health care services in the same manner as any other public health care facility. Any claim to private status is miniscule. On the other hand, petitioner represents a substantial minority of citizens who stand to suffer permanent exclusion from employment. The clear trend is to provide consitutional protection for homosexuals, at least where sexual preference does not have a detrimental effect upon the employment relationship. Federal courts have been almost unanimous in reversing discharges 28 involving civil service employees dismissed on the grounds of homosexuality. See, Norton v. Macy, 417 F.2d 1161 (D.C. Cir. 1969); Scott v. Macy, 349 F.2d 182 (D.C. Cir. 1965). In response to such litigation, the Civil Service Commission has recently promulgated guidelines forbidding discharge of homosexuals solely on the basis of homosexuality. U.S. Civil Service Commission, F.P.M. Letter 731-3 (July 3, 1975), 44 U.S.L.W. 2032 (1975). II. THE DECISION BELOW CONFLICTS WITH THE LAW IN OTHER CIRCUITS AS TO WHETHER THE RECEIPT OF FEDERAL FUNDS UNDER THE HILL-BURTON ACT BY A HEALTH CARE FACILITY RENDERS SUCH RECIPIENT A GOVERNMENT INSTRUMENTALITY SO THAT ITS ACTIONS ARE GOVERNED BY THE CON- STITUTIONAL REQUIREMENTS GENERALLY APPLICABLE TO THE STATE AND FEDERAL GOVERNMENT. This case presents the Courts with yet another opportunity to resolve a 15-year old conflict among the several circuits. 29 In Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938 (1964), the Fourth Circuit took the position that receipt of Hill-Burton monies was sufficient to convert an otherwise private health care facility into a public one for purposes of the Fourteenth Amendment. This remains the law in the Fourth Circuit. See also Sams v. Ohio Valley General Hospital Association, 413 F.2d 826 (4th ‘Cir. 1969). The reasoning of the Fourth Circuit has also been followed by district courts in other circuits, e.g., Citta v. Delaware Valley Hospital, 313 F. Supp. 301 (E.D. Pa. 1970). A contrary view has been taken by at least three other Circuits: Doe v. Bellin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973); Ward v. St. Anthony's Hospital, 476 F.2d 671 (10th Cir. 1973); Jackson v. Norton-Children's Hospital, Inc., 487 F.2d 502 (6th Cir. 1973). This conflict 30 in the law should not be allowed to continue. Such diverse interpretations of the effect of a federal program clearly runs contrary to the idea that all citizens are to be treated alike in the eyes of the law. In this instance, the geographic location of the "eyes of the law" is determinative of the fate of the constitutional rights being threatened. Such fundamental inequity demands that this court "consistent with a responsible exercise of its certiorari jurisdiction" resolve the conflict. Taylor v. St. Vincent's Hospital, cert. denied 424 U.S. 948 (1976) (Mr. Justice White and Chief Justice Burger dissenting from denial of certiorari). III. "STATE ACTION" DECISIONS OF THE SEVENTH CIRCUIT HAVE IMPOSED OVERLY STRICT PLEADING REQUIREMENTS RESULTING IN THE ERRONEOUS DISMISSAL OF PETITIONER'S COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED. 31 In Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, this court, in addressing the issue of state action said: "Only by sifting facts and weighing circumstances can the nonobvious involve- ment of the State in private conduct be attributed its true significance." More recently in Jackson v. Metropolitan Edison Company, 419 U.S. 345, 351, Mr. Justice Rehnquist wrote: "The true nature of the state's involvement may not be immediately obvious, and detailed inquiry may be required in order to determine whether the test is met." | Those statements are consistent with the well- established rules of notice-pleading. A complaint must not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957). 32 Complaints against nominally private insti- tutions and allegations of state action present a difficult judicial task upon a motion to dismiss. Findings of state action rest totally on the unique factual circumstances of each case. Courts "cannot decide in the abstract or in a vacuum the issue of whether sufficient state action exists to impregnate private conduct with governmental character so as to proscribe that conduct under the Fourteenth Amendment." Pitts v. Department of Revenue, 333 F. Supp. 662, 669 (E.D. Wis. 1971). See also, Gilmore v. Montgomery, 417 U.S. 556 (1974), where this court after citing the Burton requirement of "sifting the facts. . .to determine the nonobvious involvement of the State", remanded a state action to the district court level for factual development. The Court below upheld the dismissal of petitioner's complaint, holding that it "fail[ed] 33 to allege any set of facts supporting the conclu- sion or inference that defendants have either acted as a state instrumentality, performed traditionally exclusively sovereign functions, or been compelled or even encouraged by the state to.make the decisions challenged in these suits." 586 F.2d at 63, ~ (Pet. App. pp. 8-9). Petitioner respectfully submits that the Seventh Circuit erred in its dismissal. This case is unique both in terms of governmental involvement with respondent and the constitutional rights claimed by the petitioner. Petitioner suggests that the court should have heeded the words of the Third Circuit in Braden v. University of Pittsburgh, 447 F. 2d 1 (3rd Cir. 1973): "It would perhaps be possible for us to decide this last issue state action on the present record but we think we should not do so. Very important con- stitutional questions are presented and the Supreme Court has repeatedly in- formed us that such difficult issues 34 should not be decided exempt lenin a full record and after adequate hearing." Id., 447 F. 2d at 4. The court below, by imposing overly strict pleading requirements has made it nearly impossible to achieve reasoned results in the already difficult area of state action. Inequitable and premature dismissals of serious claims of constitutional violations leave petitioner and other claimants without any means of judicial recourse. CONCLUSION For these reasons, a writ of certiorari should issue to reivew the judgment and opinion of the Seventh Circuit. Respectfully submitted, WALTHER AND HALLING By David L. Walther John Sundquist APPENDIX In the Gnited States Court of Appeals For the Seventh Circuit - Plaintiff-Appellant, Vv, MARION HEIGHTS, INC., SISTER LILLIAN VAN DOMLEN, SISTER ROSALIE KLEIN, SISTER M. MEL O’Dowp, SISTER ANGIOLA STICKELMAIER, SISTER PEYTON RYAN, DELORES GENCUSKI, MRS. A. BOEHM, JOHN CONWAY, ROBERT HACKETT, GERALD FALCI, and ROGER N. HAMILTON, Defendants-A ppellees. Appeal from the United States District Court for the Eastern District of Wisconsin, No. 77-C-380—Robert W. Warren, Jucye. No. 78-1248 STEPHEN J. KAVKA, M.D., Plaintiff-Appellant, Vv. EDGEWATER HOSPITAL, INC., Defendant-A ppellee. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 77-C-3378—Joseph S. Perry, Judge. (Caption continued on following page) 2 Nos. 78-1216, 78-1248 & 78-1302 No. 78-1302 JOSEPH Musso, Plaintiff-A ppellant, Vv RAFFAELE SuRIANO, Dean, Loyola University School of Dentistry, JOHN MapDoniA, Associate Dean, Loyola Uni- versity School of Dentistry, and LOYOLA UNIVERSITY SCHOOL OF DENTISTRY, Defendants-A ppellees. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 77-C-4014—George N. Leighton, Judye. ARGUED SEPTEMBER 15, 1978—DECIDED NOVEMBER 2, 1978 Before SPRECHER, Circuit Judge, NICHOLS, Judge* and BAUER, Circuit Judge. SPRECHER, Circuit Judge. These three cases have been consolidated for opinion on the recurring issue of when the actions of a private entity can properly be characterized as occurring “under color of state law” allowing maintenance of an action under 42 U.S.C. § 1983. I In all three cases, the district court granted defen- dant’s motions to dismiss the complaints for lack of sub- ject matter jurisdiction. In each case the district court eld that there were insufficient allegations of state or federal action.! * Honorable Philip Nichols, Jr., Associate Judge, United States Court of Claims, is sitting by designation. 1 Allegations of governmental action are necessary to confer federal jurisdiction under 28 U.S.C. § 1343. See note 8 infra. "= ee ee ee Nos. 78-1216, 78-1248 & 78-1302 3 In Batt v. Marion Heights, Inc., — Patrick Batt brought suit for damages against the defendant nursing home, its Board of Directors and an individual serving as administrator of the facility. Batt had been employed by Marion Heights as personnel director. On May 6, 1977, Batt was discharged, allegedly for the sole reason that he was a homosexual. Batt claims his dismissal on this ground deprived him freedom of speech and associa- tion, his right to privacy, due process, and equal protec- tion in violation of the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitu- tion. In support of his charge that he was terminated “under color of state law,” Batt relies principally on two factors: 1) Marion Heights receives extensive state and federal funding under Medicare and Medicaid as well as through specific governmental programs; and 2) Marion Heights is regulated and licensed by the State of Wisconsin. Plaintiff does not allege that this funding or regulation encouraged or required the defendants’ deci- sion to discharge homosexual employees. In Kavka v. Edgewater Hospital, Inc., Dr. Stephen Kavka alleges that the hospital acted under color of state law in suspending him from the hospital staff for failure to self-insure against malpractice. This dismissal was alleged to be in violation of his rights to due process and equal protection secured by the Fifth and Fourteenth Amendments. State action, as formulated in the complaint, is supported by allegations of substantial state and federal funding to the defendant under Medicare, Medicaid, and the Hill Burton Act. Dr. Kavka does not allege any relation between the governmental funding and the hospital rule requiring staff physicians to maintain malpractice insurance. In_ plaintiff's memorandum in opposition to the defendants’ motion to dismiss, and in his brief to this court, plaintiff expands the allegations of his complaint. He alleges that the State of Illinois in addition has undertaken to regulate the field of malpractice and has prohibited hospitals from using exculpatory clauses. Furthermore, he argues that the federal and state governments, in the course of regulating participants eligible for Medicare and Medicaid programs, have effectively approved the use of 4 Nos. 78-1216, 78-1248 & 78-1302 the insurance requirement imposed by Edgewater.’ But again, the plaintiff fails to demonstrate any relation eta these actions of the State and the decision of the ospital. In the third case, Musso v. Suriano, a dental student at Loyola University brought an action alleging that he was expelled by the University without a hearing, in violation of due process rights secured him by the Fifth and Fourteenth Amendments to the United States Con- stitution. It is argued that this expulsion was conducted under color of state law since Loyola receives substantial state and federal funding—allegedly fifty percent of its budget. Additionally, it is stated that the Illinois Depart- ment of Registration and Education monitors the curriculum and graduation requirements of the Dental School. Plaintiff, however, does not allege any impact cf governmental funding on Loyola’s decision xot to provide plaintiff with a pre-expulsion hearing. II In two recent cases, Cannon v. University of Chicago, 559 F.2d 1063 (7th Cir. 1976), cert. granted, 46 U.S.L.W. 3803 (July 3, 1978), and Cohen v. Illinois Institute 4 Technology, 524 F.2d 818 (7th Cir. 1975), cert. denied, 425 U.S. 943 (1976), this court outlined the elements of “state action” prerequisite to any 42 U.S.C. § 1983 civil ¢ Specifically, plaintiff charges that the Department of Health, Education and Welfare requires hospitals par- ticipating in Medicare and Medicaid programs to have an “effective governing body legally responsible for the conduct of the hospital” which has “adopted bylaws in accordance with legal requirements.” 20 C.F.R. § 405.1021 (1977). Plaintiff deduces from this that by allowing Edgewater to participate in the programs, the government has concluded that Edgewater’s malpractice regulation is necessarily in accord with “legal requirements.” Plaintiff did not amend his com- plaint to reflect this theory of state action. Nevertheless, a re- mand on the issue is unnecessary since we do not — plain- tiff’s construction of the HEW regulation, nor would plain- = construction satisfy the elements of state action discussed infra. Nos. 78-1216, 78-1248 & 78-1302 5 rights action.? Cohen and Cannon, fairly read, leave no doubt as to the prevailing legal requirements for a sec- tion 1983 claim. Nonetheless, actions are still being filed, as represented by the three complaints in issue here, without regard to the dictates of those decisions, necessitating another admonition concerning the allegations essential to establish state action. The plaintiffs in each of these three actions on appeal Support their allegation of state (or federal) action . primarily through reliance on the distribution of sub- stantial state and federal funds to defendants and the imposition of accompanying regulatory measures.‘ The allegations of governmental funding and general regulation, standing alone, however, cannot support a finding of state action. The courts, including this one, have uniformly dismissed claims of state action ground- ed merely on governmental funding and regulation where neither has fostered the challenged activities of Hp health care facilities such as defendants dgewater Hospital and Marion Heights, Hodge v. Paoli Memorial Hospital, 576 F.2d 563 (3d Cir. 1978); Schlein v. Milford Hospital, Inc., 561 F.2d 427 (2d Cir. 1977); Greco v. Orange Memorial Hospital Corp., 513 F.2d 873 (5th Cir.), cert. denied, 423 U.S. 1000 (1975); Doe v. 3 42 U.S.C. § 1983 states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities, secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress. ‘ The central question presented is that of action b par- ticular states. Nonetheless, plaintiffs have also invoked federal action at various points in their argument. Since state and federal action share similar factual prerequisites, we do not afford a separate discussion of the relevant principles. See Cannon v. cog hg, of Chicago, 559 F.2d at 1671 n.8. But as we pointed out in Cannon, although state and federal actions must be viewed analogously, federal funding is not relevant to the existence of state action under section 1983. Jd. 6 , Nos. 78-1216, 78-1248 & 78-1302 Bellin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973); Mills v. Fox, 421 F. Supp. 519 (E.D.N.Y. 1976) (nursing home); Doyle v. Unicare Health Service, Inc., 399 F. Supp. 69 (N.D. Ill. 1975), affd mem., 541 F.2d 283 (7th Cir. 1976) (nursing home), or of educational institutions such as defendant Loyola University. Lamb v. Rantone, 561 F.2d 409 (1st Cir. 1977); Cannon v. University of Chicago, 559 F.2d 1063 (7th Cir. 1976); Cohen v. Illinois Institute of Technology, 524 F.2d 818 (7th Cir. 1975), cert. denied, 425 U.S. 943 (1976); Spark v. Catholic University of America, 510 F.2d 1277 (D.C. Cir. 1975); Sanford v. oward University, 415 F. Supp. 23 (D.D.C. 1976), affd mem., 549 F.2d 830 (D.C. Cir. 1977). Cannon and Cohen, adhering to Supreme Court decisions in Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) and Jackson v: Metropolitan Edison Co., 419 U.S. 345 (1974), established that a claim under section 1983 must be based on no less than the state’s “affirmative support” of the private conduct challenged. Cannon v. University of Chicago, 559 F.2d at 1069; Cohen v. Illinois Institute of Technology, 524 F.2d at 825-26. The Supreme Court’s most recent opinion on state action, Flagg Brothers, Inc. v. Brooks, 46 U.S.L.W. 4438 (May 15, 1978), leaves open the question whether even “affir- mative support” short of compulsion will suffice to render a private act attributable to the state. The ques- § In Flagg Brothers, four justices voted to affirm the district court judgment that a warehouseman’s ——— sale of bailed oods pursuant to a procedure ed in the New York Uniform Commercial Code § 7-210 was not state action. The opinion affirms on the ground that the proposed sale was neither a traditionally exclusive sovereign function nor a sale “compelled” by the state statute. Statutory permission of such a sale was considered insufficient nexus to render the action attributable to the state. The four dissenting justices, although suggesting that statutory authorization rather than compul- sion might be sufficient, found state action by characterizin § 7-210 as the delegation of a function traditionally associate with sovereignty. It is also not clear whether actual compul- sion would be required by the four affirming justices when the state activity might be characterized as an affirmative act rather than mere “inaction.” Nos. 78-1216, 78-1248 & 78-1302 7 tion need not be reached here, however, since plaintiffs have not established any degree of state encouragement of the challenged activity. Plaintiffs have not claimed that state regulations encouraged, or that state funds were conditioned upon, defendants’ dismissal of homosex- ual employees, suspension of hospital physicians who refuse to carry malpractice insurance, or denial of hearings to dental students expelled for disciplinary reasons. Plaintiffs have failed to allege any “nexus.” Dis- missal of the complaints on that ground by the respec- tive district courts was therefore proper. Plaintiffs argue that the level of state support of defendant institutions is so high that they are relieved of the necessity for pleading or proving a nexus, citing our decision in Cohen. We do not suggest that nexus is the exclusive means of establishing state action. Cohen and Cannon held that under certain limited circumstances the on need not establish a nexus between the state funding and/or regulation and the challenged act. The language of reservation in the cases cannot be ex- trapolated, as the plaintiffs have done here, however, to support the assertion that a high level of financial sup- port, without more, gives rise to state action. The passage in Cohen cited by plaintiffs states that IIT “is not so heavily dependent on the State as to be considered the equivalent of a public university for all purposes and in all its activities,” and then goes on to distinguish in a footnote cases of other courts where financial support was far greater. 524 F.2d at 825 & n.18. _The alternative to nexus referred to in Cohen suf- ficient to sustain a claim of state action is not simply a higher level of state support. Rather, nexus can be avoided only by an allegation of facts suggesting that the ostensibly private entity has acted as a state instrumen- a or a “joint participant,” in the language of Burton v. Wilminaton Park Authority, 365 U.S. 715, 725 (1961). Such, an allegation is dependent upon more than fund- ing; it is dependent 7 facts suggesting control. This interpretation of the Cohen reservation is buttressed by Judge (now Justice) Stevens’ citation of Powe v. Miles, 407 F.2d 73 (2d Cir. 1968). Cohen v. Illinois Institute of Technology, 524 F.2d at 825 n.19. In Powe, Judge 8 Nos. 78-1216, 78-1248 & 78-1302 Friendly found that the state of New York’s comprehen- sive financing and administration of the New York State College of Ceramics allowed a finding of state ac- tion. Judge Friendly emphasized however that the State had concrete ability to control all the policies of the college, even though that control had not been specifical- ly exercised in Powe. 407 F.2d at 83. Recent decisions premised on an instrumentality theory of state action Support our conclusion here that mere allegations of state funding and general regulation, without some evidence of state administration or practical control, are insufficient. See Chalfant v. Wilmington Institute, 574 F.2d 739 (3d Cir. 1978) (en banc); Downs v. Sawtelle, 574 F.2d 1 (lst Cir. 1978); Braden v. University of Pittsburgh, 552 F.2d 948, 965, 970 (3d Cir. 1977) (con- curring opinion); Hollenbaugh v. Carnegie Free Library, 545 F.2d 382 (3d Cir. 1976); Kerr v. Enoch Pratt Free Library, 149 F.2d 212 (4th Cir. 1945). Thus, the com- plaints in the instant actions cannot be sustained on an instrumentality theory. _ A third route to state action is also available by depict- ing the private activity as a public function. Plaintiff Batt relies heavily on this characterization of nursing homes. Whether measured by the test of a “traditionally exclusive state function” forwarded by the four justices writing the opinion for the court in Flagg Brothers, Inc. v. Brooks, 46 U.S.L.W. 4488, 4440 (May 15, 1978), or a function “traditionally and historically associated with sovereignty,” adopted by the four dissenting justices, 46 U.S.L.W. at 4444, plaintiff’s claim must obviously fail.® Care of the elderly and infirm has traditionally been a function associated with the family, not with sovereign- ty. Finally, plaintiffs also challenge the procedural propriety of dismissal based on the insufficiency of the allegations. We are not imposing rigid pleading re- quirements. Plaintiffs’ complaints simply fail to allege * It should be noted that this circuit has used the exclusivity test. See Anastasia v. Cosmopolitan National Bank of Chicago, Cio7 é) .2d 150, 157 (7th Cir. 1975), cert. denied, 424 U.S. 928 7 OR peer Nos. 78-1216, 78-1248 & 78-1302 9 t of facts supporting the conclusion or inference that detenduats wee either acted as a state instrumen- tality, performed traditionally exclusive sovereign func- tions, or been compelled or even encouraged by the state to make the decisions challenged in these suits. Dis- missal of the complaints was therefore appropriate. As we stated in Cohen: We agree that plaintiff is entitled to the fullest opportunity to adduce evidence in support of her claim. But she is not entitled to a trial, or even to discovery, merely to find out whether or not there may be a factual basis for her claim which she has not made. Her complaint omits any allegation of state support or approval of the defendants’ dis- criminatory conduct, and the detailed facts set forth in the complaint, even if wholly true and liberally construed in her favor, do not warrant the conclu- sion that I.I.T. is a public university. It is clear beyond doubt that the claim which she has alleged does not entitle her to relief. 524 F.2d at 827. In some cases, extensive discovery and trial will be necessary to adequately determine whether state action existed. See Braden v. University of Pittsburgh, 552 F.2d 948 (3d Cir. 1977); Weise v. Syracuse University, 522 F.2d 397 (2d Cir. 1975). But in cases such as these where plaintiffs’ claim that state action, if present, has taken the form of statutes or regulations, it is entirely ap- propriate to resolve the issue on a motion to dismiss the complaint. The procedure has been affirmed by the Supreme Court in comparable cases. Flagg Brothers, Inc. v. Brooks, 46 U.S.L.W. 4438 (May 15, 1978); Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).’ 7 The district court opinion affirmed in Jackson dismissed the complaint finding: No state official participated in the practice complained of, nor is it alleged that the state re- uested or cooperated in the suspension of service.” 348 F. Save. 954, 958 (M.D. Pa. 1972) (emphasis added). 10 Nos. 78-1216, 78-1248 & 78-1302 Furthermore, there is no showing that the plaintiffs in any of the actions requested to amend their complaints or to delay judgment on the motions until discovery had been completed. The judgments are affirmed.® AFFIRMED. A true Copy: Teste: Clerk of the United States Court of Appeals for the Seventh Circuit _Plaintiff Kavka has requested this court to modify the dis- trict court judgment to reflect a dismissal without prejudice. We do not consider such a modification necessary since the order is phrased in jurisdictional terms, and a dismissal for insufficient gy mi oe of state action is ordinarily construed as a dismissal or lack of subject matter jurisdiction in any event. See Flagg Brothers, Inc. v. Brooks, 46 U.S.L.W. 4438, 4439 (May 15, 1978); Carter v. Telectron, Inc., 554 F.2d 1369 oth Cir. 1977): Schlein v. Milford Hospital, Inc., 561 F.2d 427 2d Cir. 1977); Sparks v. Catholic University of America, 510 2d at 1281. Feb. R. Civ. P. 41(b) clearly provides that a dis- missal for lack of jurisdiction is a dismissal without prejudice. Carter v. Telectron, Inc., 554 F.2d at 1370. USCA 4412—Midwest Law Printing Co.. Inc.. Chicago—11-2-78—300 11 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN PATRICK BATT 1628 North Franklin Place #22 Milwaukee, Wisconsin 53202, Plaintiff, COMPLAINT Ve MARION HEIGHTS, INC. Case No. 77-C-380 3333 West Highland Blvd. Milwaukee, Wisconsin 53208, SISTER LILLIAN VON DOMLEN, SISTER ROSALIE KLEIN, SISTER M. MEL O'DOWD, SISTER ANGIOLA STICKELMAIER, SISTER PEYTON RYAN, DELORES GENCUSKI, MRS. A. BOEHM, JOHN CONWAY, ROBERT HACKETT, GERALD FALCI, and ROGER N. HAMILTON 9024 North 70th Street Milwaukee, Wisconsin, Defendants. Now comes the plaintiff, Patrick Batt, by his attorneys, Walther & Halling, and alleges and shows to the Court as follows: 12 JURISDICTION 1. This action seeks equitable relief and damages against detendents pursuant to 42 U.S.C.A. Sec. 1983 on the grounds that defendants; actions deprive plaintiff of freedom of speech and association, of the right to privacy, of equal protection of the laws, and the due process of the law, all in violation of the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution. 2. The jurisdiction of this court is based upon 42 U.S.C.A. Sec. 1983, 29 U.S.C.A. Sec. 1343, and 28 U.S.C.A. Sec. 1331. The amount in controversy, exclusive of interest and costs, exceeds $10,000.00. PARTIES 36 Plaintiff, Patrick Batt, is a citizen of the United States and resides at 1628 North Franklin Place, Milwaukee, Wisconsin 53202. 13 4. Defendant, Marion Heights, Inc., 3333 West Highland Blvd., Milwaukee, Wisconsin 53208, is a non-profit Wisconsin corporation operating a health care facility. At all material times, defendant Marion Heights, Inc., acted through its agents and representatives under color of state law. 5. Defendants, Sister Lillian Van Domlen, Sister Rosalie Klein, Sister M. Mel O'Dowd, Sister Angiola Stickelmaier, Sister Peyton Ryan, Delores Gencuski, Mrs. A. Boehn, John Conway, Robert Hackett, and Gerald Falci, are members of the Board of Directors of Marion Heights, Inc., and are sued individually, and in their capacity as members of the Board of Directors. At all material times defendant members of the Board of Directors of Marion Heights, Inc., acted under color of state law. 14 6. Defendant Roger N. Hamilton, 9024 North 70th Street, Milwaukee, Wisconsin 53223, is the administrator for Marion Heights, Inc. He is sued in his capacity as administrator and as an individual. At all material times defendant Hamilton acted under color of state law. STATEMENT OF FACT 7. Defendant, Marion Heights, Inc., is a private, non-profit corporation, incor- porated under the laws of the State of Wisconsin. As a health care facility it is subject to extensive regulation by the State of Wisconsin pursuant to Ch. 456, Wis. Stats., and the Wis- _consin Administrative Code, Health & Social Services, H 32. 8. The majority of the operating funds for defendant Marion Heights, Inc., are pro- vided by the U.S. Department of Health, Education 15 and Welfare, through the State of Wisconsin, in the form of medicare and medicaid benefits, pur- suant to 42 U.S.C.A. Sec. 1395. 9. Defendant, Marion Heights, Inc., participates in the WIN Employment Training Program, funded rf the United States Department of Labor, Manpower Administration and the State of Wisconsin, and administered by the State Department of Industry, Labor and Human Relations, pursuant to 28 U.S.C.A. Secs. 630-644. 10. The occupational and physical therapy programs at defendant, Marion Heights, Inc., health care facility are funded by the United States government, pursuant to 42 U.S.C.A. Sec. 1395. ll. Defendant Hamilton is licensed by the State of Wisconsin pursuant to Ch. 456 Wis. Stats. as a health care administrator. 16 12. From August 2, 1976, to May 6, 1977, plaintiff was employed by defendant Marion Heights, Inc., as personnel director. In that capacity, plaintiff was responsible for the recruitment, placement and employment of the work force throughout the nursing home, for the management of the employee relations program, for the coordination of the education and training program at the facility, for wage and salary administration, and for the internal audit program. 13. Under the supervision of defendant Hamilton, plaintiff had extensive and primary responsibility for the administration of state and federal programs and regulations: A. Plaintiff was the affirmative action officer for the center and in that capacity he was re- sponsible for compliance with sine piastc a es eet etre, 17 Equal Employment Opportunity regulations and for replying to EEOC complaints filed against defendant, Marion Heights, Inc. B. Plaintiff was primarily respon- sible for the facility's compliance with all Occupational Safety and Health Administration regulations. C. Plaintiff was primarily responsible for the administration of the WIN Program at the facility. 14. On May 6, 1977, defendant Hamilton, acting for defendant Marion Heights, Inc. and ‘acting under the direction of the defendant Board of Directors, informed plaintiff that de- fendant Board of Directors had asked for his resignation. Defendant Hamilton stated that 18 ‘the reason for the request was the objection of the Board to plaintiff's homosexual life- style. Plaintiff stated that he had no inten- tion of quitting and would resist any effort to force his resignation, since he had been performing competently and had been guilty of no wrongdoing. 15. At all times during the course of his employment with Marion Heights, Inc., plaintiff performed his duties as personnel director in an exemplary fashion; at no time did his lifestyle intrude upon his duties. | Furthermore, at no time was there any suggestion that plaintiff's performance as personnel director was less than completely satisfactory. 16. Some time later on May 6, 1977, plaintiff was called into defendant Hamilton's office and was again asked to resign. At that time, defendant Hamilton stated that defendant ee 19 Board of Directors was prepared to offer plaintiff one month's severance pay and a good performance recommendation in’ exchange for plaintiff's immediate resignation. When plaintiff refused to resign, defendant Hamilton fired him and told him to be out of the building by 5:00 p.m. that afternoon. When plaintiff requested a reason for his discharge, defendant Hamilton stated that the reason was his homo- sexual lifestyle. Plaintiff left the building at 7:30 p.m. on May 6, 1977. CAUSES OF ACTION 17. At all material times, all defendants acted under color of state law to willfully deprive plaintiff of rights, privileges and immunities secured by the Constitution of the United States in the following respects: A. Acting under color of state law, defendants deprived plaintiff of 20 freedom of speech and associ- ation as guaranteed by the First Amendment. f B. Acting under color of state law, defendants deprived plaintiff of the right to privacy as guaran- teed by the First, Rierch:, Ninth and Fourteenth Amendments. '€. Acting under color of state law, defendants deprived plaintiff of the right to due process of law and equal protection of the laws as guaranteed by the Fifth and Fourteenth Amendments. WHEREFORE, plaintiff respectfully prays that the court assume jurisdiction in this case, and, A. That a permanent injunction be issued 21 enjoining defendants, their agents, successors, employees, attorneys, and those acting in concert with them, or under their direction, from con- tinuing or maintaining the policy of dis- criminating against plaintiff in employment on the basis of sexual preference, in contravention of his constitutional rights under the First, Fourth, Fifth, Ninth and Fourteenth Amendments. That a permanent injunction be kena compelling plaintiff's reinstatement to his former position with defendant Marion Heights, Inc., or a comparable post, with back pay, and all other seniority and employment benefits. C. That damages be awarded to plaintiff in the amount of $25,000.00. D. That plaintiff be awarded actual attorneys fees pursuant to 28 U.S.C.A. Sec. 1988. 22 E. That such further relief be granted as the court may deem just and proper. Respectfully submitted, /s/ David L. Walther David L. Walther /s/ John Sundquist John Sundquist Attorneys for Plaintiff WALTHER & HALLING 222 East Mason Street Milwaukee, Wisconsin 53202 (414) 271-3400 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2407%3A1. Public record. Not legal advice.