# Petition for Writ of Certiorari — Untracht v. Fikri (No. 07-932) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0514%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text ee Mai U.S. is 07-932 JAN11 2008 No. 08- OFFICE OF THE CLERK IN THE Supreme Court of the Anited States STEVEN H. UNTRACHT, M.D., PH.D., F.A.C.S, Petitioner. v. ERDEN FIKRI, M.D., ET AL, Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit PETITION FOR A WRIT OF CERTIORARI STEVEN H. UNTRACHT, M.D. 123 Tank Drive Johnstown, PA 15904 (814) 535-7875 Petitioner pro se LEGAL PRINTERS, Washington DC e 202-747-24 e¢ legalprinters.com QUESTIONS PRESENTED 1. Does state action, as contemplated by 42 U.S.C. § 1983, apply to private conduct undertaken pursu- ant to mandatory governmental statute? Does 42 U.S.C. § 1981 protect against discrimina- tion by national origin? 3. Does the issuance of judicial opinions as “non- precedential” violate the Constitutional guaran- tee of equal protection of the laws? COMPLETE LIST OF RESPONDENTS Petitioner was Plaintiff/Appellant in the Courts below, whereas the Respondents were all Defendants/Appellees: Erden Fikri, M.D. Dinesh Mathur, M.D Vincent Fiorica, M.D. Terry Wahl, M.D. David R. Davis Sanders Ergas, M.D. P. James Ridella, M.D. Bhaskaran Murali, M.D. Will H. Farthing, M.D. Brian Gunnlaugson, M.D Richard Cartwright, M.D. Denise Weisbrodt, R.N. Richard Saluzzo, M.D. Jacob Kolff, M.D. Bruce Duke, M.D. Narendra Pai, M.D. William Fritz, M.D. Paul Weygandt, M.D. William M. Carney, M.D. Harvey Slater, M.D. George H. Benz, Jr., M.D. Robert D. Fry, M.D. Associated Anesthesiologists of Johnstown UPMC (University of Pittsburgh Medical Center) Health System, Inc. (““UPMC”) UPMC Lee Regional Hospital Lee Regional Health System, Inc. Lee Regional Health System Foundation, Inc. Conemaugh Health System Memorial Medical Center. TABLE OF CONTENTS QUESTIONS PRESENTED COMPLETE LIST OF RESPONDENTS TABLE OF CONTENTS ER OE FUP ERI IIR Bs wien sencnncneccsunneiustananiepseansntans Vv INTRODUCTION THE OPINIONS AND ORDERS BELOW JURISDICTION STATUTES INVOLVED ee Sse lada, Oe i atenacinnsiusinsatucsusccnecuseannesbammaucatmaiaa 1 Oe eee Bi oosasaescisceecesetoed eee 2 The Health Care Quality Improvement Act............ 3 STATEMENT OF THE CASE 7 A. The Health Care Quality Improvement Act and the National Practioner Data Bank B. C. REASONS FOR GRANTING THE WRIT..........00..0...... A. The Third Circuit’s ruling on § 1981 legitimizes PerseCcutiON. ..............ccccccsssesceescsseesecee B. The Third Circuit’s ruling on § 1983 violates longstanding precedent of the PUN rain circa eae ec tes tivevds Senexenixecnssans C. The decision below leaves no remedy for physicians or patients injured by sham SE IIE i daiicnckigns Andceassatdadeinondiseae ke ieee 29 D. The Constitution guarantees every person the protection of his or her civil rights, which the courts below have deprived of RES NaS BERG e AEN CSE ROU RS PORT era ORE OP ee 31 CONCLUSION Untracht v. Fikri, 454 F.Supp.2d 289, W.D.Pa., 2006. Aug 30, 2006 Untracht v. Fikri, 368 F.Supp.2d 409, W.D.Pa., April 6, 2005 Third Circuit Order, October 30, 2007, Denying Petition for Rehearing En Banc Brief of Amicus Curiae, the Association of American Physicians and Surgeons, to the kes vases caer oe rea aoes ees 107a TABLE OF AUTHORITIES Cases A.B. Small Co. v. American Sugar Refining Co., 267 U.S. 233 (1925) Anastasof v. United States, 223 F.3d 898, 899 (CA8) Ash v. Tyson Foods, Inc., 546 U.S. 454, 126 S. Ct. 1195 (2006) (per curiam) Bell v. Cone, 543 U.S. 447, 459-60 (2005) (per - | __ RNC RREN Ee DLE REID RT Ce ean re Sect Oe Cn aa 32 Berberian v. Lancaster Osteopathic Hospital Association, 395 Pa. 257, 149 A.2d 456 (1959) Bradshaw v. Richey, 546 U.S. 74, 126 S. Ct. | RG mS MC eT Bay eA emer tee oT 31 Brosseau v. Haugen, 543 U.S. 194, 198 n. 3 (2004) (per curiam) California Democratic Party v. Jones, 530 U.S. 567, 573 (2000) City of Chicago v. Morales, 527 U.S. 41 (1999) City of San Diego v. Roe, 547 U.S. 77 (2004) (per curiam) Coover v. Saucon Valley School Dist., 955 F. Supp. 392 (3d Cir. 1997) Craig v. Boren, 429 U.S. 190, 211 (1976) CERRITO II ao oivinid ccs csenscnsnessevsseecennen 26 Dye v. Hofbauer, 546 U.S. 1, 126 S. Ct. 5 Se Te BUFO sas ccon dernnseinecedeadasavianccunasanhines 31 Eberhart v. United States, 546 U.S. 12, 126 S. Ct. 403, 407 (2005) (per curiam) Evans v. Buchanan, 555 F.2d 373, 378 (3d Cir. 1977) Gonzales v. Thomas, 547 U.S. 183, 126 S. Ct. EG Eas CZOOG) COEF CRF UTI) ainsi vase cccccgsccvscssssnacansenes 31 Government of the Virgin Islands v. Paniagua, 922 F.2d 178 (3rd Cir. 1990) Grayned v. City of Rockford, 408 U.S. 104 NESE ei Oe es On Nee ey aa aA eee 28 Holland v. Jackson, 542 U.S. 649 (2004) (per ladimarco v. Runyon, 190 F.3d 151, 161 (3d Cir, 1999) lilinois v. Fisher, 540 U.S. 1174 (2004) (per curtam) Kane v. Garcia- Espitia, 546 U.S 407 (2005) (per curiam) Kolender v. Lawson, 461 U.S. 352 (1983) Middleton v. McNeil, 541 U.S. 433 (2004) (per curiam) Milkovich v. Lorain Journal, 497 U.S (1990) Miller v. Indiana Hospital, 277 P 370, 419 A.2d 1191 (1980) Ministry of Defense and Support for . Arme od Forces of Islamic Republic of Iran v. Elahi, 946 U.S. 450, 126 S. Ct. 1193 (2006) (per (SSE aT Oe SD SPP A IR rT SCTE T OTE ‘ Mitchell v. Esparza, 540 U.S. 12, 15 (2003) (per curtam) ...... Murray v. Silberstein, 882 F.2d 61 (3rd Cir. Posner v. Lankenau Hosp., 645 F.Supp. 1102, 1106 (E.D.Pa. 1986). ............ ecenialla debe iateah ealeidicilse aiahisiebi Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355 (3rd Cir. Pa.), San Filippo v. Bongiovanni, 961 F.2d 1125 (3d Cir. 1992) Scarano v. Central R. Co. of New Jersey, ‘ F.2d 510, 513 (8d Cir. 1953) Schriro v. Smith, 546 U.S. 6, 126 S. Ct. 7 a a 31 Silkwood v. Kerr-McGee Corp., 464 U.S. 238, i a ae a a a 29 Smith v. Allwright, 321 U.S. 649, (1944) Smith v. Texas, 543 U.S. 37 (2004) (per STINT nc saniciidhecscanakiesencbaaaeaiinasaandamadelendasatidandnentane® 32 Stenberg v. Carhart, 530 U.S. 914 (2000) Terry v. Adams, 345 U.S. 461 (1953)... 26 Yarborough v. Gentry, 540 U.S. 1 (2003) (per ici ciiidiienidasbisetianstendden ciaciadedamacsudandsansuaees aaa Constitutional Provisions First Amendment 27, 33 Fifth Amendment ............... gi ee Fourteenth Amendment............ 21, 24, 26, 27. 33. ; Statutes 28 U.S.C. § 1254(1) 28 U.S.C. § 1331 | | Be BO issseviksnncntecrsnscccenctreaniesnoriesdaciibncabosonss 21 ek Toe 2. | eae .... 2, 4, 20, 22, 24, 25 yy yy 42 U.S.C. § 1983 ......... ad caasehaieaniaeaidanir = Medical Care Availability and Reduction of Error Act, “MCARE,” 40 Pa.C.S. § Pow ig 8 | INR LS AAEM a A PED 2 ne re ans evi paanddauuinbadekunwees The Health Care Quality Improvement Act of 1986, as amended 01/26/98, 42 USC §§ T2101 of aoe. CTHOCGIA )...nccccccccsccscccccsecess ¢ 3, 7, ! Rules F.R.C.P. 26(a)(1) F.R.C.P. 37(c)(1) Supreme Court Rule 10(a)....................... supreme Court Mule 1006). .................ccccccscceccccereses 24 SPUPU I SOUS TERMI BG occ ccciscccnccccnscncnccsscosecccasces 31 ‘ ‘ 4 9 » Ae ( ) 9 & q &d Other Authorities Association of American Physicians and Surgeons, Peer-review Amicus Briefs, http://www.aapsonline.org/ peerreview- cases.htm, (last accessed 1/3/2008) Cole, J. and Bucklo, E.E., A Life Well Lived: An Interview with Justice John Paul Stevens, 32 No. 3 Litigation 8, 67 (Spring RE PLR De SRT A oct 34 David W. Townend, Hospital peer review is a kangaroo court, Medical Economics (Feb. 7, 2000), http://www.memag.com/memag/content/prin tContentPopup.jsp?id=122302 (last accessed SITIES Si cisdinaciardundniunaatatensiedesisa dein alate 8 Edmund Burke Gail Weiss, Is Peer Review Worth Saving?, Medical Economics (Feb. 18, 2005), http://www.memag.com/memag/content/prin tContentPopup.jsp?1d=147405 (last accessed eo TS LAN LEST Mae. 8 Jeff Chu, Doctors Who Hurt Doctors, Time 52 (Bhatt, BI Fe ivicnncdvasiinas pekinese eee 9 John G. Roberts, Jr., Senate Confirmation Hearings, September 12-15, 2005, http://frwebgate.access.gpo.gov/cgi- bin/getdoc.cgi?dbname=109 senate hearing s&docid=f:23539.wais, (last accessed RD: ci cssisinsnsinet OMenensas tseanndaces 1, 23, 26, 27, John Zicconi, Due Process or Professional Assassination?, Unique Opportunities (March/April 2001) Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. App. Prac. & Process 219, Be CR iadistitiecsatimicsispsdaea ae 34 Ron Wood, Jury says hospital defamed doctor, harmed him financially, The Morning News (Jan. 13, 2004) Samuel A. Alito, Jr., Senate Confirmation Hearings, January 9, 2006, http://frwebgate.access.gpo. gov/cgi- bin/getdoc.cgi?dbname=109 senate hearing s&docid=f:25429.wais, (last accessed 1/4/2008). .......... isudideadiinibadaaetetsinisieieens ae Starzl, T.E ., The Puzzle People, Memoirs of a Transplant Surgeon, University of Pittsburgh Press, 1992. ...................... See ee Steve Twedt, The Cost of Courage, Pittsburgh Post-Gazette, http://www.post- gazette.com/pg/03299/234499.stm, (last accecessed 1/3/2008) Supreme Court, The Court and Constitutional Interpretation: http://www.supremecourtus.gov/about/const itutional. pdf, (last accessed 1/3/2008). ..... Wilham W. Parmley, Clinical Peer Review or Competitive Hatchet Job, 36 Journal of the American College of Cardiology No. 7 / (2000) INTRODUCTION This case—a shocking tale of greed, ego and even life and death among doctors, hospitals and the unwitting patients entrusted to their care—appeals to the most sacred obligations of this Court: defining the perimeters of our civil rights and assuring to every person within its jurisdiction the benefits guaranteed by the Constitution, in the words of the Chief Justice, to “uphold[] the rule of law and safe- guard[} those liberties that make this land one of endless possibilities for all Americans.” John G. Roberts, Jr., Senate Confirmation Hearings, September 12-15, 2005 (opening statement) (emphasis added). THE OPINIONS AND ORDERS BELOW 1. Untracht v. Fikri, 2007 WL 2868028 (3rd Cir. (Pa.)) (Not selected for publication in the Federal Reporter) 3rd Cir. (Pa.) Oct 01, 2007. (Reproduced in the Appendix at p. la.) 2. Untracht v. Fikri, 454 F.Supp.2d 289 W.D.Pa. Aug 30, 2006. (Reproduced in the Appendix at p. 4a.) 3. Untracht v. Fikri, 368 F.Supp.2d 409 W.D.Pa. Apr 06, 2005. (Reproduced in the Appendix at p. 90a.) JURISDICTION The court of appeals entered judgment in this matter on October 1, 2007. On October 30, 2007, that court denied Plaintiffs petition for rehearing en banc (Pet. App. p. 105a). This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1). STATUTES INVOLVED 42 U.S.C. § 1983 12 U.S.C. § 1983 provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be hable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . 42 U.S.C. § 1981 42 U.S.C. § 1981 provides: (a) Statement of equal rights All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to hke punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (b) “Make and enforce contracts” defined For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the con- tractual relationship. (c) Protection against impairment The rights protected by this section are pro- tected against impairment by nongovernmen- tal discrimination and impairment under color of State law. The Health Care Quality Improvement Act The Health Care Quality Improvement Act of 1986, as amended 01/26/98, 42 USC §8§ 11101 et seq. (““HCQIA”), provides in relevant part (emphasis added): Title 42 - The Public Health And Welfare Chapter 117 — Encouraging Good Faith Pro- fessional Review Activities Sec. 11101. Findings The Congress finds the following: (1) The increasing occurrence of medical mal- practice and the need to improve the quality of medical care have become nationwide prob- lems that warrant greater efforts than those that can be undertaken by any individual State. (2) There is a national need to restrict the abil- ity of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or in- competent performance. (3) This nationwide problem can be remedied through effective professional peer review. (4) The threat of private money damage liabil- ity under Federal laws, including treble dam- age hability under Federal antitrust law, un- reasonably discourages physicians from par- ticipating in effective professional peer review. (5) There is an overriding national need to provide incentive and protection for physicians engaging in effective professional peer review. Sec. 11111. Professional review (a) In general (1) Limitation on damages for professional re- view actions If a professional review action (as defined in section 11151(9) of this title) of a professional review body meets all the standards specified in section 11112(a) of this title, except as pro- vided in subsection (b) of this section - (A) the professional review body, (B) any person acting as a member or staff to the body, (C) any person under a contract or other for- mal agreement with the body, and (D) any person who participates with or assists the body with respect to the action, shall not be liable in damages under any law of the United States or of any State (or political sub- division thereof) with respect to the action. The preceding sentence shall not apply to damages under any law of the United States or any State relating to the civil rights of any person or persons, including the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq. and the Civil Rights Acts, 42 U.S.C.§ 1981, et seg. Nothing in this paragraph shall prevent the United States or any Attorney General of a State from bringing an action, in- cluding an action under section 15c of title 15, where such an action is otherwise authorized. (2) Protection for those providing information to professional review bodies Notwithstanding any other provision of law, no person (whether as a witness or otherwise) providing informa- tion to a professional review body regarding the competence or professional conduct of a physician shall be held, by reason of having provided such information, to be hable in damages under any law of the United States or of any State (or political subdivision thereof) unless such information is false and the person providing it knew that such information was false. (b) Exception - If the Secretary has reason to believe that a health care entity has failed to report information in accordance with section 11133(a) of this title, the Secretary shall con- duct an investigation. If, after providing notice of noncompliance, an opportunity to correct the noncompliance, and an opportunity for a hearing, the Secretary determines that a health care entity has failed substantially to report information in accordance with section 11133(a) of this title, the Secretary shall pub- lish the name of the entity in the Federal Reg- ister. The protections of subsection (a)(1) of this section shall not apply to an entity the name of which is published in the Federal Reg- ister under the previous sentence with respect to professional review actions of the entity commenced during the 3-year period beginning 30 days after the date of publication of the name. Sec. 11133. Reporting of certain profes- sional review actions taken by health care entities (a) Reporting by health care entities (1) On physicians Each health care entity which— (A) takes a professional review action that ad- versely affects the clinical privileges of a phy- sician for a period longer than 30 days; (B) accepts the surrender of clinical privileges of a physician— (i) while the physician is under an in- vestigation by the entity relating to pos- sible incompetence or improper profes- sional conduct, or (ii) in return for not conducting such an investigation or proceeding; or (C) in the case of such an entity which is a pro- fessional society, takes a professional review action which adversely affects the membership of a physician in the society, shall report to the Board of Medical Examiners, in accordance with section 11134 (a) of this title, the infor- mation described in paragraph (3). (3) Information to be reported The information to be reported under this sub- section is— (A) the name of the physician or practitioner involved, (B) a description of the acts or omissions or other reasons for the action or, if known, for the surrender, and (C) such other information respecting the cir- cumstances of the action or surrender as the Secretary deems appropriate. (c) Sanctions (1) Health care entities A health care entity that fails substantially to meet the requirement of subsection (a)({1) of this section shall lose the protections of section 11111 (a)(1) of this title if the Secretary pub- lishes the name of the entity under section 11111 (b) of this title. STATEMENT OF THE CASE A. The Heaith Care Quality Improvement Act and the National Practioner Data Bank In passing the HCQIA, Congress deeply insinuated it- self into hospital staff governance and explicitly bestowed on hospitals, most of which are private entities, powers theretofore exclusively reserved for the States: to declare physicians incompetent and “to restrict the ability of in- competent physicians to move from State to State” (42 U.S.C. § 11101, above). Hospitals exercise these powers through local peer review of its doctors and the reporting of consequential adverse privileging actions pursuant to 42 U.S.C. §§ 11133 and 11134. The federal government estab- lished the National Practitioner Data Bank (“Data Bank”) as a central repository to receive these adverse reports. The Data Bank operates as a blacklist. Virtually no physician entered into it can survive professionally. By law, when a physician applies for clinical privileges the hospital queries the Data Bank and the hospital refuses to admit the physician to its staff if there is an adverse entry. With hospitals fending off litigation, they have little reason to see past a black mark in the Data Bank to allow a black- listed physician to use its facilities. A surgeon like Peti- tioner cannot practice his profession without hospital privileges. 8 B. Sham Peer Review, a Mask for Evil Disgruntled doctors and hospital administrators all too often abuse the awesome power of HCQIA as a salve for their own personal failings, character defects and profes- sional impotence. See, e.g., Gail Weiss, Is Peer Review Worth Saving? Medical Economics (Feb. 18, 2005) (http://www.memag.com/memag/content/printContentPopu p.jsp?id=147405); Ron Wood, Jury says hospital defamed doctor, harmed him financially, The Morning News (Jan. 13, 2004); John Zicconi, Due Process or Professional Assas- sination?, Unique Opportunities (March/April 2001); Wil- liam W. Parmley, Clinical Peer Review or Competitive Hatchet Job, 36 Journal of the American College of Cardiol- ogy No. 7 (2000); David W. Townend, Hospital peer review is a kangaroo court, Medical Economics (Feb. 7, 2000), (http://www.memag.com/memag/content/printCotentPopup. jsp?id=122302). Respondent UPMC’s own world-famous transplant surgeon, Dr. Tom Starzl, pointedly denounces these practices as “administrative murder:” The most bitter of these struggles occur in medical universities and hospitals, for stakes which cannot be divulged because they are too ignoble to admit. Who wants to concede that money, academic territory, vanity, or control of the talents and ideas of one’s colleagues is the reason for the conflict? These motives are painted over and presented as generosity, vir- tue, morality, humility, institutional purpose, and concern for society in general. If one in- tends to permanently remove an adversary from the field of endeavor, one must do so se- cretly so as to avoid being accused of adminis- trative murder—the termination of someone’s professional career. ! 1 Starzl, T.E., The Puzzle People, Memoirs of a Transplant Surgeon, University of Pittsburgh Press, 1992, p. 267. Like anyone else, physicians and hospitals strive to maximize their “utility,” including revenues, profits and ego. When abused, HCQIA and the Data Bank provide a shortcut to the pot of gold by empowering those so inclined to inflict pain and confiscate property, livelihood, career and peace of mind, all without notice, due process or reper- cussion. The economic incentive for abuse of peer review is obvious and undeniable. If there are a few surgeons’in a market, then elimination of one them will cause the in- comes of the others to increase dramatically. Similarly, if a physician blows the whistle on serious medical errors that could cost hospitals and doctors millions of dollars in mal- practice hability or government fines, then the torture and ruin of that physician will dissuade other potential whistle- blowers and save the errant hospitals and doctors a fortune. See, Steve Twedt, The Cost of Courage, Pittsburgh Post- Gazette, 2003 (http://www.post-gazette.com/pg/03299/2344 99. stm), This growing misuse of peer review and the Data Bank has become so widespread that it has acquired a descriptive name: “sham peer review.” What purports to be “peer review” under the pretext of protecting patients is really a transparent mask for evil and a fig leaf for evildo- ers. The incentive for misusing this power is even greater when a greedy doctor suffers a drop in income or loss of pride because he has a more successful competitor. See, e.g., Jeff Chu, Doctors Who Hurt Doctors, Time 52 (Aug. 15, 2005) (“Th[e] system is too open to manipulation and needs reform, says the 4,000-member American Association [sic] of Physicians and Surgeons.”). If a similar type of peer review were available to retail stores, then 1t would be in the self-interest of a struggling K-Mart to try “sham peer review’ to end the competition from Wal-Mart. A respected national organization, the Association of American Physicians and Surgeons (“AAPS”) dedicates much of its resources to studying and combating this men- acing problem. After a thorough review of the complete 10 record of the proceedings at Respondent UPMC Lee Re- gional Hospital (“Lee”), and after its own statistician evalu- ated the total clinical outcome data from 1990 through 2002 for Petitioner and his detractors for every patient that these physicians ever treated at any hospital in Pennsylvania— data that the hospitals themselves provided to the Com- monwealth—AAPS felt compelled to provide the Third Circuit with its objective factual findings and expertise in an amicus curiae brief, reproduced in the Appendix starting at page 107a, below. AAPS values its longstanding credibil- ity and submits amicus briefs very selectively. See, http://www.aapsonline.org/peerreview-cases.htm. It does not represent Petitioner, but rather a membership commit- ted to the best interests of its patients. If necessary to achieve this goal, it even submits amicus curiae briefs opposing the doctor. See, e.g., Stenberg v. Carhart, 530 U.S. 914 (2000). AAPS concluded definitively that the Respon- dents all victimized Petitioner, Dr. Steven H. Untracht, with a classical sham peer review. C. Factual background and proceedings below? In October 1994, a senior UPMC Lee Regional (“Lee”) surgeon had retired and his associate Dr. Robert McKay resigned his clinical privileges and relocated. Lee, therefore, sought to recruit Petitioner to fill the impending void, telling him that the quality of the remaining surgeons was inadequate to prevent a continued loss of patients to Re- spondent Conemaugh Health System’s Memorial Medical Center (“Conemaugh”). Lee was particularly concerned with the other surgeons’ unwillingness to treat critically ill 2 Because the Respondents refused to provide any mandatory disclosures pursuant to F.R.C.P. 26(a)(1), to attend their deposi- tions or to provide any probative discovery, the facts are taken from evidence admitted in administrative hearings at the two Respondent Johnstown, PA, hespitals and from other evidence properly entered by Petitioner into the case below according to the Federal Rules of Civil Procedure. 11 patients or to adopt advanced techniques of minimally invasive surgery. The other general surgeons objected to another col- league coming to Johnstown, PA, and, as documented in Lee’s own meeting minutes, they complained to the hospi- tal’s then CEO on September 4, 1994, that there would not be adequate work for them if another surgeon came to town. Those minutes state: A concern was expressed regarding the hospi- tal recruiting a general surgeon to replace Dr. Robert McKay. It was noted that it was the opinion of the general surgeons currently on staff that the volume in Johnstown does not warrant another general surgeon. It was felt that prior to recruitment the surgical depart- ment should have an opportunity to express their opinion. (Lee Hearing Exhibit U-189). Over these objections, Petitioner was appointed to Lee’s and Conemaugh’s medical staffs in early 1995. From the day Petitioner arrived he was subjected to major hostil- ity from some of these competing general surgeons, who lost considerable business. By 1998 Respondent Fikri’s inpa- tient surgical caseload had declined by 35% since Petitioner arrived in Johnstown, corresponding to a net income de- cline of 50%. At about that time, Respondent Fikri com- plained to Respondent Dinesh Mathur that Mathur was referring too much work to Petitioner and not enough to Fikri. Additionally, for his entire tenure, Petitioner had been the only active general surgeon excluded from Lee’s surgi- cal quality review committee (““SQRC,” the hospital’s com- mittee charged with carrying out peer review), despite his annual requests for a seat on that committee. Instead, the other general surgeons, especially Respondents Fikri and Murali, populated the SQRC and turned it into a “star- chamber” proceeding against Petitioner, secretly singling 12 out his cases and labeling them with “quality concerns’— often not specifying what were those concerns and, unfath- omably, even where the patient suffered no morbidity or mortality. Concurrently, these competitors on the SQRC reviewed their own cases and passed them off with no quality concerns, even in cases with major morbidity and mortality. They excluded Petitioner from the proceedings, despite explicit provisions in Lee’s medical staff bylaws, Article [V — Part E: Section 2. (a) (1996), which require: Any medical staff appointee whose clinical work is scheduled for discussion at a regular departmental meeting shall be so notified and shall be expected to attend such meeting. If such individual is not otherwise required to at- tend the meeting, the chairman of the depart- ment shall give the individual advance written notice of the time and place of the meeting at which attendance is expected. Whenever ap- parent or suspected deviation from standard clinical practice is involved, the notice to the individual shall so state, shall be given by cer- tified mail, return receipt requested and the individual’s attendance at the meeting at which the alleged deviation is to be discussed shall be mandatory. (Emphasis added). Petitioner never received any notice specified by this provision, contrary to what the Lee would have done were they truly interested in “patient safety,” providing fair investigation or improving the quality of healthcare. Nonetheless, while Respondent Fikri’s practice was shrinking, Petitioner flourished, aided by restraints im- posed on his detractors by Dr. George Wheeling, chairman of the Lee’s surgery department during Petitioner's first four years there. Dr. Wheeling gave the baseless complaints against Petitioner the full benefit of any doubt and had them evaluated in two independent extramural reviews by 13 a surgeon who found no deviations from the standard of care by Petitioner and praised Petitioner’s clinical results. Dr. Wheeling testified: Q: During the course of since you were in- volved with Dr. Untracht’s [{] situation . . . for several years [] while these charts were being sent out and so forth, did at any time, in your opinion, 1s there anything selective about that, Dr. Untracht being singled out or targeted or whatever? You know, I don't want to use a [pejorative] term? THE WITNESS: Yes, I would have to say that there was a general feeling of adversity to- wards Dr. Untracht, as opposed to many other members of the surgical department. And I can’t give you any specific reason. The im- pression was that it was political and person- alities entered largely into many of the com- plaints that arose or resulted in this review. (Lee Hearing Tr. 12/1/01, p. 118). Dr. Wheeling further testified: Q Doctor, . . . were you familiar at that time with the type of cases that Dr. Untracht un- dertook? A Yes, we did review that. That was part of our review and we came to the conclusion that he did treat an older population and he did, in fact, participate in surgery which is complex and that his results were quite good and there was no basis upon which we could censure him or reduce his privileges. .. . [Y]ou would an- ticipate in the older population with more complex diseases .. . a greater morbidity anda greater mortality and, in fact, we did not find 14 that to be the case, in Dr. Untracht’s [pa- tients]. (Lee Hearing Tr. 12/1/01, p. 109, em- phasis added). That review found that whereas Petitioner met the standard of care, one of his competing surgeons did not. As if unconcerned with furthering quality, Lee took nn, reme- dial action to correct the deficient practice of that substan- dard competing surgeon. In October 1998, Petitioner submitted his second bi- ennial reappointment application to Lee’s medical staff. Dr. Wheeling, saw no reason not to reappoint him without restriction. But the next month Dr. Wheeling retired and was replaced as chief of Lee’s surgery department by Re- spondent Fikri, Petitioner’s direct competitor. In one of his first acts as chief, Fikri reviewed Peti- tioner’s credentials file and then secretly withdrew Peti- tioner’s reappointment application and sequestered the file from the hospital’s committees and trustees for more than seven months, violating Pennsylvania law and Lee’s by- laws, Article VIII Part A § 4 (b) (1996), which states that the department chairman shall review and comment upon the applicant’s qualifications and return the reappointment papers within fifteen days.* Instead, and despite lack of any prior notice as mandated by the bylaws Article IV - Part E: Section 2. (a) (1996), page 12 hereinabove, Fikri appeared before the Lee’s credentials committee in July 1999 with SQRC chairman, Respondent Fiorica, and de- manded that Petitioner not be reappointed to the medical staff because of alleged deviation from standard clinical practice. Fikri and Fiorica justified their recommendation by contending that during the 1997-1998 appointment term 3 In 2001, Pennsylvania's Department of Health investigated this issue, complaint # PITO01C390J, and concluded by clear and convincing evidence that Lee violated its bylaws by permitting Fikri to sequester Petitioner's reappointment application 15 Petitioner had six cases in which the SQRC found quality concerns. One of those six cases was that of an elderly man made despondent by a botched, ill-advised hemorrhoidec- tomy performed by Fikri himself. Because of Fikri’s refusal to correct the problem, this patient sought refuge from Petitioner. Petitioner promptly cured the painful complica- tion, without incident. To this day, the Lee has yet to reveal their “quality concern” with Petitioner’s treatment of this elderly man. According to the July 12, 1999, credentials committee minutes, based on Fikri and Fiorica’s comments Lee re- solved to create an objective “summary of peer comparisons including major procedures performed, infection rates, blood loss, etc.” “to isolate the depth of concern” about Petitioner (Lee Hearing Exhibit U-190). This type of com parison is a national gold standard for assessing quality of care and constitutes the sine qua non for alleging substan- dard practice. Lee suppressed that comparison, because Petitioner’s clinical results were the very best in the sur gery department. When asked for a copy of it, the hospital refused to provide it, responding, “the report was not pre- pared.” Lee next sent the records of the contested cases to Dr. J. Milburn Jessup, a UPMC cancer surgeon chosen by Fikri himself to “rubber stamp” Fikri’s allegations. Instead, Dr. Jessup returned his report on September 1, 1999, in which he found no deviation from accepted standards of care in Petitioner’s handling of those six cases. Respondents Wahl and Ergas, then Lee’s medical director and credentials committee chairman, respectively, reviewed Dr. Jessup’s report with Petitioner on Thursday, September 2, 1999, and told Petitioner that they saw no problem with anything in Dr. Jessup’s report and would ask Fikri to sign off on Petitioner's reappointment application promptly. 16 Instead of signing off on Petitioner’s reappointment, Fikri and Fiorica returned to the credentials committee on October 4, 1999—as the minutes of that meeting state—‘“to discuss the issues,” and insisted that the committee disre- gard Dr. Jessup’s report and not allow Petitioner to practice surgery. This lobbying violated Lee’s bylaws, Article IV, Part B, § 8 (1996), which specify: In any instance where a department chairper- son, or member of any medical staff committee has a conflict of interest in any matter involv- ing another medical staff appointee that comes before such individual or committee, or in any instance where such an individual brings the complaint against that appointee, such indi- vidual shall not participate in the discussion or voting on the matter, and shall absent him- self from any meeting concerning the ap- pointee in question, although that individual may be asked, and may answer, any questions concerning the matter before leaving. (Empha- sis added). Betraying economic motives, the minutes of that Octo- ber 1999 credentials committee meeting also reveal that the committee, Fikri and Fiorica resolved that Petitioner's competitors at Lee were to “proctor” Petitioner, who “would have to pay the physician who is proctoring.” Fikri continually refused to sign Petitioner’s reap- pointment application, in an ongoing violation of Article VIII Part A § 4 (b), supra, unless Lee devised a stratagem to remove Petitioner from the medical staff and report him to Data Bank. Lee refused to enforce its own bylaws. Instead, Lee and various of the other Respondents continually besmirched Petitioner’s character and compe- tence—especially at medical staff committee meetings, from which they wrongfully excluded Petitioner—with falsehoods that they expanded and repeated incessantly despite being 17 dispelled by each of the hospital’s several outside surgeon reviewers. Fikri and Murali then compelled Lee to deny equal access of Petitioner’s patients to its operating rooms and to change the hospital’s bylaws specifically to prejudice Petitioner retroactively. Next, when Petitioner failed to provide his detractors with even a single surgical complication or bad clinical result, between noon, Saturday, October 14 and 8 a.m., Tuesday, October 17, 2000, Lee then resorted to stripping the insulation from one of Petitioner’s surgical instruments, a cautery electrode that the hospital reserved for his exclu- sive use, knowing that such sabotage would likely cause a fatal complication. Although Petitioner single-handedly averted mortality in the patient injured that fateful Tues- day by the tampered surgical equipment, 59-year-old Mr. George Fesko, Lee used this one complication—a crisis of their own creation—to initiate a sham peer review against Petitioner.‘ In ushering in the sham discipline, glaring evidence further proves that Lee ignored the conflict-of-interest clause, Article IV, Part B, § 8 (1996). Not only does the attendance record for a July 10, 2001, meeting of Lee’s executive committee (the committee that advises the hospi- tal’s board on medical staff privileging issues) not state that any of the general surgeons were asked to leave the meet- ing and not participate in the discussion about Petitioner, who was never permitted to appear before the committee, 4 A subsequent review involving the defective surgical equipment by Pennsylvania’s Department of Health, Complaint # PIT01C407J, concluded by clear and convincing evidence that Lee was culpable in its procedures regarding this instrument. The tampering is obvious from surgical video recordings of the clectrode’s use on October 14, 2000, unknown to Lee until it already started administrative hearings against Petitioner. In 2002, Mr. Fesko and his wife sued Lee, but not Petitioner, for the injuries caused by the damaged cautery probe. Subsequent evaluation of the cautery electrode by the Fesko’s engineer confirmed the defects and alteration in the instrument. 18 that very document (Lee Hearing Exhibit H-139, introduced by Lee for other purposes, unaware of this significance) reveals that Respondent Murali, Petitioner’s direct com- petitor, was permitted to vote to restrict Petitioner’s prac- tice of surgery! Ultimately, through vague, disparate and arbitrary criteria, Lee revoked Petitioner’s clinical privileges and terminated his career in September 2003, with a defama- tory report to the Data Bank. Lee took this draconian action despite the conclusion of its own hearing panel, which urged that Petitioner should be permitted to practice surgery at the hospital, and despite having denied Peti- tioner the right to call witnesses in opposition to the revoca- tion. See Pet. App. p. 131la. vt seq. Lee was all too eager to destroy a surgeon’s career on false pretense, because pur- suant to Petitioner’s whistle blowing to Mr. Fesko’s family and regulatory agencies the hospital suffered litigation and sanctions from the Joint Commission for the Accreditation of Healthcare Organizations and Pennsylvania’s Depart- ment of Health. All along, Conemaugh reviewed Lee’s allegations and found them baseless® until mid 2002 when it began negoti- ating with Respondent UPMC Health System, Inc., to acquire Lee, which had collapsed financially because of executive mismanagement and its poor clinical results 5 In a subsequent lawsuit filed by a patient’s family (that of Mr. E., see below) against Conemaugh for not having suspended Petitioner’s clinical privileges on the basis of the ongoing allegations at Lee, Cone- maugh certified that it had reviewed all of Lee’s accusations against Petitioner, saw nothing in them that warranted restricting his surgical privileges and that “up to and including November 22, 2002,” Petitioner “appeared to be a competent surgeon.” Conemaugh prevailed in that lawsuit; hence, judicial estoppel applies to any inconsistent assertions in this matter. Scarano v. Central R. Co. of New Jersey, 203 F.2d 510, 513 (3d Cir. 1953), Ryan Operations G.P. v. Santiam-Midwest Lumber Co.,, 81 F.3d 355 (3rd Cir. Pa.), 1996), Government of the Virgin Islands vu. Paniagua, 922 F.2d 178 (3rd Cir. 1990); Murray v. Silberstein, 882 F.2d 61 (3rd Cir. 1989). 19 reported by Pennsylvania’s governmental healthcare qual- ity agency.® Several months later, November 22, 2002, Conemaugh and some of its employees, together with Respondents Pai and Fritz (both of whom were employed by Respondent Associated Anesthesiologists of Johnstown), then caused the death of one of Petitioner’s elderly patients with a lethal combination of intravenous drugs and thereafter threatened Petitioner that if he wanted to continue his career, he had “better make an 11th-hour deal with Lee,” and settle all claims against UPMC and Lee on their terms. When (and because) Petitioner failed to do so, Cone- maugh then resolved to revoke his clinical privileges by accusing him of having caused the death of his 85-year-old patient. Ultimately, Conemaugh’s own attorney agreed at the end of an intra-hospital hearing, on May 21, 2003, that Petitioner had proven to a high burden that he had not mistreated Mr. E., the patient who died, and had not used bad clinical judgment, but maintained that: Doctor Untracht acknowledged during my Cross Examination that in his meetings with the E family after this unfortunate incident involving Mr. E that he had instructed them that Mr. E’s death resulted from the actions of the anesthesia department. He had assisted them in retaining the services of a malpractice attorney to represent the family against those doctors. And we would submit that that ad- mission, which is part of the record, is a clear demonstration that Doctor Untracht has not demonstrated the collegiality and professional 6 In August 2005, Pennsylvania’s attorney general charged that these merger negotiations violated the antitrust laws. The merger was permitted to consummate only after Conemaugh conceded control of some of its business practices to the Commonwealth. 20 conduct required of a doctor under the bylaws. (Conemaugh Hearing Tr. 5/21/2003). For this very reason alone,” Conemaugh revoked Peti- tioner’s clinical privileges in August 2003 and immediately thereafter submitted a false, defamatory report to the Data Bank. Conemaugh took this action notwithstanding that it constitutes illegal retaliation against whistleblowers under Pennsylvania’s Medical Care Availability and Reduction of Error Act, “MCARE,” 40 Pa.C.S. § 1303.307(b)(4), which requires open, honest communication between a physician, his patient and his patient’s family.® Consequently, in May 2003 Petitioner filed a lawsuit against the Respondents in the district court. Pursuant to Respondents’ motions the pleadings were amended. In addition to various state-law claims and a request for relief under MCARE, Petitioner stated federal claims of civil rights violation under 42 U.S.C. §§ 1983 and 1981 (reverse 7 The district court later confirmed the factual finding that “[t]he Conemaugh hearing panel determined revocation of Plaintiff's privi- leges was warranted based on the unprofessional nature of Plaintiffs communications with EE’s family.” Pet. App. p. 38a, below. This disparate treatment of Petitioner contrasts with Conemaugh’s appeasement of Fikri. In October 2002 Fikri operated on the wrong side of a young woman’s neck at Conemaugh, then falsified the medical record to conceal the misdeed and lied to the patient that he removed her symptomatic tumor. When this poor woman’s symptoms continued unabated, on December 12, 2002, (just six days before Conemaugh resolved to revoke Plaintiffs clinical privileges for what it called “unprofessional conduct”) Fikri’s then former patient needed to undergo another major surgical operation by another surgeon at Conemaugh, this time on the correct side of her neck. Conemaugh took no discipli- nary action against Fikri, even after the patient sued. 8 In its reports to the Data Bank, Conemaugh stated, notwithstand- ing its own official conclusions to the contrary and without describing the acts or omissions or other reasons for the action (per § 11133(a)(3)(B), p. 6, above), that Petitioner had caused the death of Mr. I. by poor medical judgment, that after having caused the death Petitioner behaved unethically and that after due process Conemaugh revoked Petitioners clinical privileges. 21 national origin discrimination by Fikri, Murali, Mathur and Pai) and antitrust violations under the Sherman Act §§ 1 and 2. The case was venued in the United States District Court for the Western District of Pennsylvania according to 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1367 (supplemental jurisdiction). Petitioner explicitly stated in paragraph 99 his Com- plaint that the Defendants’ mandatory reporting to the Data Bank pursuant to the HCQIA makes them state actors under § 1983: These Defendants, as state actors, acted under color of Pennsylvania state law while exercis- ing their peer review responsibility pursuant to federal law (HCQIA) and the 14th Amend- ment of the United States Constitution. Each Respondent refused to appear for his or her deposition, to provide Petitioner with any meaningful discovery or even to provide any mandatory disclosures pursuant to F.R.C.P. 26(a)(1), despite lacking protective orders. Instead, after close of discovery the Defendants moved for summary judgment, which the district court granted as to each federal claim, in a 69-page opinion issued on August 30, 2006, reproduced in the Appendix beginning on p. 4a. Almost without exception, the district court copied verbatim the statements of facts as pled by the Respondents in their motions for summary judgment and then deemed those allegations as undisputed for the pur- pose of disposing the case. In its opinion, the district court not once mentioned the Respondents’ refusal to provide Petitioner with discov- ery or disclosure, despite Petitioner having preserved his rights and emphasized these violations repeatedly and by the requisite affidavit in his submissions opposing sum- mary judgment. Although the district court acknowledged Petitioner’s claim that state action applied because of the Data Bank reporting pursuant to HCQIA (Pet. App. p. 63a 22 {FN14]), it immediately dismissed the claim by stating only, “.. the Court finds that Plaintiff fails to create a genuine issue of material fact that any of the § 1983 Defendants are state actors...” (id.). Likewise, the district court disposed of the § 1981 reverse national-origin discrimination claim by ruling, “Section 1981, however, does not recognize claims for national origin discrimination. 42 U.S.C. § 1981. There- fore, Plaintiffs assertion of reverse national origin dis- crimination under § 1981 fails to state a claim upon which relief can be granted” (Pet. App. p. 81a). In the case of the antitrust claims, despite the ongoing, illegal anticompeti- tive merger discussions between Conemaugh, Lee and UPMC and Conemaugh’s direct threat to Petitioner that he had “better make an 11th-hour deal with Lee,” the district court ruled, “[ojther than bare allegations, Plaintiff offers no evidence of a conspiracy, an essential part of an anti- trust violation” (Pet. App. p. 50a). About Conemaugh’s undisputed threat, the district court stated, “[t}]he allega- tion borders on the absurd... .” (Pet. App. p. 62a).9 Petitioner timely appealed to the Third Circuit on Sep- tember 22, 2006, thereafter supported by AAPS’s amicus curiae brief. After review by the merits panel, the Third Circuit scheduled the matter for oral argument, which was heard on September 26, 2007. Five days later, on October 1, 2007, the Third Circuit affirmed the district court without comment. The opinion, attached hereto, states only, “[wje have carefully considered the very thorough, 69 page memorandum opinion of the District Court, the appellate 9 Because the Respondents refused to provide Petitioner with any discovery before moving for summary judgment, Petitioner did not learn until long after he opposed the motion that the acquisition of Lee by Conemaugh violated antitrust laws. However, when it dismissed Petitioner’s case the district court knew about the antitrust violations because Pennsylvania’s lawsuit against UPMC, Lee and Conemaugh was filed in the same venue in August 2005. Petitioner did, nonethe- less, make the Third Circuit aware of the Commonwealth’s claims against the Respondents and the prejudice caused by the Respondents’ refusal to provide discovery and disclosure. 23 the appellate briefs of the parties, and the oral argument before this Court. For the reasons stated by the District Court, we will affirm its August 26, 2006, judgment in favor of the defendants” (Pet. App. p. 3a). In taking this extraordinary step, the panel failed to address any of Petitioner’s federal issues, each of which rests firmly on well-settled precedent of the Third Circuit itself and of this Honorable Court. On October 30, 2007, the Third Circuit declined to rehear the appexi en banc. REASONS FOR GRANTING THE WRIT The record below vividly abrogates the standard of “Equal Justice Under Law.” It lacks “evenhandedness, predictability, stability, [and] the appearance of integrity in the judicial process” that the adherence to rules and prece- dent guarantee. John G. Roberts, Jr., Senate Confirmation Hearings, September 12-15, 2005 (response to Sen. Spec- ter). Among the troubling lst of transgressions, we could find no other case where a district court (even the district court below) adjudicated a summary judgment motion by accepting as true and undisputed the facts as pled by the moving party, discarded the non-movant’s evidence as “absurd,” and then entered summary judgment for the very party that refused to attend its own deposition or even to provide any mandatory F.R.C.P. 26(a)({1) disclosures. Under F.R.C.P. 37(c)(1) the Respondents’ refusal to disclose pur- suant to Rule 26(a)(1) required the district court to deny their motions: “A party that without substantial justifica- tion fails to disclose information required by Rule 26(a)... is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.” Rule 37(c)(1). According to the Third Circuit’s own precedent, abuse of discretion exists “when the judicial action is arbitrary, fanciful, or unreason- able, or when improper standards, criteria, or procedures are used.” Evans v. Buchanan, 555 F.2d 373, 378 (3d Cir. 24 1977). Yet, under such bizarre circumstances, the Third Circuit chose to say only “we affirm” and call it a day. We also could not find another case from the Third Circuit where the court affirmed an opinion below without comment, especially a case that the circuit’s own merits panel selected for oral argument, and especially following argument by less than one week. Third Circuit opinions are routinely issued more than two months after argument. Thusly was Petitioner denied his Fourteenth Amend- ment right to equal protection of law and ejected from court without a single reason ever being mentioned as to why state action under § 1983 does not apply to activities man- dated by the government, or why § 1981 does not protect against discrimination by national origin or why the Re- spondents need not have appeared at their own depositions or even provided the disclosures required of all litigants. The courts below have arbitrarily and capriciously rendered a decision in favor of the defaulting parties, both profoundly wrong and intolerably harsh in result; the Third Circuit has so far departed from the accepted and usual course of judicial proceedings, and sanctioned such a departure by the district court, as to call for an exercise of this Court’s supervisory power. SUP. CT. R. 10(a). Beyond these extreme departures, this case presents important, fundamental questions of federal law regarding civil rights under §§ 1981 and 1983 that either have not been, but should be, settled by this Court or have been decided in a way conflicting with this Court's relevant decisions. Most importantly, this matter presents a serious Constitutional issue that affects everyone and begs for this Court’s attention. SUP. CT. R. 10(c). A. The Third Circuit’s ruling on § 1981 legitimizes persecution. Under Pennsylvania law, a hospital’s bylaws consti- tute a contract between each medical staff member and the 25 hospital (Berberian v. Lancaster Osteopathic Hospital Association, 395 Pa. 257, 149 A.2d 456 (1959); Miller v. Indiana Hospital, 277 Pa.Super. 370, 419 A.2d 1191 (1980), Posner v. Lankenau Hosp., 645 F.Supp. 1102, 1106 (E.D.Pa. 1986)), and their violations at Lee and Conemaugh by foreign-born Fikri, Murali, Mathur and Pai—as painstak- ingly detailed herein above (p. 10 et seq.)—are just the sort of wrongs that § 1981 was meant to redress by mandating that all persons shall have equal rights to “make and en- force contracts.” According to the district court and, hence, the Third Circuit, “[a] plaintiff also carries the initial burden to establish a prima facie case for reverse racial discrimina- tion in that he must show that the employer is treating similarly situated people less favorably than others because of their race; however, a claim for national origin discrimi- nation is not a viable claim under § 1981.” Pet. App. p. 79a, (emphasis original). Ignoring the statute’s plain wording and the Third Circuit’s own precedent in Jadimarco v. Runyon, 190 F.3d 151, 161 (3d Cir, 1999) (“the plaintiff must be able to pro- duce sufficient evidence . . . that the defendant treated plaintiff less favorably than others because of his race, color, religion, sex, or national-origin”), the ruling below presumes that 42 U.S.C. § 1981 really means to say “[a]ll persons within the jurisdiction of the United States, other than those who differ only by religion, sex, or national origin, shall have the same right in every State and Terri- tory to make and enforce contracts, to sue, be parties, give evidence . . . as is enjoyed by white citizens. . .” Ergo, acting on ethnic hatred or misogyny are permissible under § 1981, provided the abuser and victim share the same pigmenta- tion. Such are the unsustainable consequences of the dis- trict court and Third Circuit’s ruling, by their abusing the tiers of scrutiny and imposing such divisive limitations on 26 our civil rights laws (see, e.g., Craig v. Boren, 429 U.S. 190, 211 (1976) (concurring opinion)), thereby providing those so inclined with the most subtle, most efficacious means to unravel the fabric of American society. As explained by the Chief Justice, “there are areas in which you think it is almost never the case that distinctions that are drawn can be legitimate, distinctions based on race or ethnicity .... it is perfectly appropriate to apply the Equal Protection Clause to issues of gender and other types of discrimination beyond the racial discrimination that was obviously the driving force behind it.” John G. Roberts, Jr., Senate Con- firmation Hearings, September 12-15, 2005 (responses to Sens. Durbin and Grassley, respectively) (emphasis added). B. The Third Circuit’s ruling on § 1983 violates longstanding precedent of the Supreme Court. This Court settled the question of state action in 1944, by holding that when private parties undertake statute- mandatory actions that damage other individuals, those private parties are state actors. “The party takes its charac- ter as a state agency from the duties imposed upon it by state statutes; the duties do not become matters of private law because they are performed by a [private] party.” Smith v. Allwright, 321 U.S. 649, 663, 64 S.Ct. 757, 765 (1944); see also, Terry v. Adams, 345 U.S. 461, 463 (1953) (public function test). This Court has not since disturbed this important holding. See, e.g., California Democratic Party v. Jones, 530 U.S. 567, 573 (2000) (“when a State prescribes a[ ] process that gives a special role to [private] parties, the parties’ discriminatory action becomes state action‘). Smith concerned a private political party in its con- duct of primary elections under mandate by state law. Smith was deprived by the private Texas Democratic Party of the ability to vote in the Party’s primary election, con- ducted pursuant to Texas law. This Court held that the Democratic Party, although a private entity, was a state actor. 27 Even more immediate than the right to vote, Peti- tioner was deprived of his good name, livelihood and cher- ished medical career by the actions of private hospitals and doctors conducted pursuant to the special role conferred by HCQIA. In quoting Shakespeare’s Othello, Chief Justice Rehnquist spoke for this Court about the centuries-old injunction against character assassination: “he that filches from me my good name—Robs me of that which not en- riches him,—And makes me poor indeed.” Milkovich v. Lorain Journal, 497 U.S. 1 (1990). In the words of his successor, the dismissal for lack of state action of Peti- tioner’s § 1983 claim constitutes “[a]n overruling of a prior precedent[, which] is a jolt to the legal system.” John G. Roberts, Jr., Senate Confirmation Hearings, September 12- 15, 2005 (response to Sen. Specter). If private hospitals became state actors for reporting a physician to the Data Bank and for other activities man- dated by HCQIA, a physician aggrieved by wrongful report- ing would, as Congress ostensibly intended, have automatic standing to bring a federal lawsuit under § 1983. Such a lawsuit would not be subject to the qualified immunity of HCQIA § 11111(a) (1)(D). Thus, Petitioner could sue Cone- maugh under § 1983 for violating his First Amendment right to free speech. Furthermore, because rogue hospitals necessarily premise sham peer review on vague, disparate criteria of healthcare quality—as did Lee against Peti- tioner—a physician so shammed could base his civil-rights claim on the void-for-vagueness doctrine. The void-for-vagueness doctrine under the Fourteenth Amendment Due Process Clause arose in the context of challenges to the clarity of criminal statutes. See, Kolender v. Lawson, 461 U.S. 352, 357 (1983); Coover v. Saucon Valley School Dist., 955 F. Supp. 392, 401 (3d Cir. 1997). By failing to articulate the proscribed conduct fully, unconsti- tutionally vague laws offend notions of fair warning, a fundamental aspect of due process protection. City of Chi- cago v. Morales, 527 U.S. 41, 56 (1999); Grayned v. City of 28 Rockford, 408 U.S. 104, 108-09 (1972); San Filippo v. Bongiovanni, 961 F.2d 1125, 1135 (3d Cir. 1992). This Court explained that: Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary in- teligence a reasonable opportunity to know what is prohibited, so that he may act accord- ingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be pre- vented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the at- tendant dangers of arbitrary and discrimina- tory application. Grayned, 408 U.S. at 108-09. Because the same fairness concerns arise in the course of civil litigation, the void-for- vagueness doctrine also applies to civil cases. See generally A.B. Small Co. v. American Sugar Refining Co., 267 U.S. 233 (1925); San Filippo, 961 F.2d 1125. Thus, under the void-for-vagueness doctrine, which Petitioner properly pled, a state-actor hospital may not remove a good-quality physi- cian from its medical staff on the basis of cloudy, nonspe- cific post-hoc criteria, but must follow well-defined, well- recognized, objective standards of medical quality. For these reasons, by affirming that Data Bank re- porting is state action this Court would not only respect precedent; it would coincidentally promulgate the perfect remedy for sham peer review. State action provides equal, potent protection for doctors (against sham peer review) and for hospitals (against frivolous lawsuits in response to good-faith peer review). Hospitals could not remove good doctors from their staffs. But also, hospitals could not 29 remove only some poor doctors while permitting other, favorite substandard physicians to continue practicing. They would need to apply proper standards equally to all medical staff members. In this way, such a ruling would conform to this Court’s entrenched precedent and permit HCQIA to accomplish precisely what Congress intended, to the public’s ultimate benefit. C. The decision below leaves no remedy for physi- cians or patients injured by sham peer review. The plain wording of the HCQIA (p. 3, above) makes abundantly clear that Congress did not intend to empower private hospitals to practice sham peer review, but rather expected them to use the same standards and criteria in evaluating its doctors as those used by the states them- selves; otherwise the law would achieve a result counter to its purpose, as was the situation with Petitioner. Yet, without the ability of a wrongfully blacklisted doctor to sue a hospital under § 1983, HCQIA’s immunity provisions (§ 11111fa]{1]) leave no legal remedy not only for the doctor, but also for patients harmed by the effects of the sham. “Congress would [not], without comment, remove all means of judicial recourse for those injured by illegal conduct.” Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251 (1984). After an exhaustive review of the record and a rigor- ous statistical evaluation of clinical outcome data, AAPS found that Petitioner cared for the most critically ill pa- tients with the most difficult clinical problems, patients that Fikri, Murali and the other Lee surgeons refused to treat (Pet. App. p. 117a). Yet, even then, Petitioner achieved clinical results significantly better than those of his detractors, who ruined Petitioner simply because they were incapable of competing with him. As a result, with false Data Bank reports they deprived the United States, not just Johnstown, PA, of a superior doctor, committing Petitioner's unwitting potential future patients to signifi- cantly higher likelihood of morbidity and mortality under 30 treatment by other surgeons.'° Unless this Court grants a writ of certiorari in this matter, these patients and their loved ones will continue to have no protection or recourse against those who deprived them, via sham peer review, of a physician who likely would have avoided their morbidity or untimely death. This defeats what Congress intended. Although such foul play might be standard practice in the countries in which Fikri, Murali, Mathur and Pai were born and educated, America can and should enforce higher standards. If this case were only about the “administrative mur- der” of a single doctor, the stakes would not be so high. Caught in the middle of this conflict are the innocent pub- lic, people like Mr. George Fesko, Mr. E. and the young woman whose throat Fikri cut for naught (n. 7, p. 20), each of whom suffered because of the toxic atmosphere fomented by sham peer review. Everyday people like these through- out the entire country—not just doctors like Petitioner— depend on the integrity of the system to protect them when in need of modern medicine or simple justice. By granting a writ of certiorari and defining yet again the boundaries of our civil rights, this Court has a unique and rare opportu- nity to stop medical peer review from becoming primarily a struggle for money and power, leveraged against patients who serve as nothing more than commodities and bargain- ing chips. 10 Pennsylvania’s medical licensing board undertook its own investi- gation into the revocation of Petitioner’s clinical privileges at Lee and Conemaugh. Based on the facts, including Petitioner’s superior clinical outcomes, Pennsylvania took no action against Petitioner's medical license, which remains in good standing. The licensing board, however, has no authority to order the reinstatement of Petitioner’s clinical hospital privileges; only the courts can do so. 31 D. The Constitution guarantees every person the protection of his or her civil rights, which the courts below have deprived of Petitioner. If this Court were disinclined to order full merits brief- ing out of concern for its limited resources, it should none- theless consider summary reversal, perhaps with a well- deserved judgment of default against the Respondents, so as to protect paramount Constitutional guarantees and to fix a travesty in the administration of justice. Supreme Court Rule 16.1 provides that this Court may resolve a petition for certiorari by issuing a “summary disposition on the merits.” SUP. CT. R. 16.1. Summary dispositions, invariably reversals, occur quite regularly. During the 2006 Term there have been more than eight summary reversals (not counting a confsssion of error by the government).!! Four of those eight suinmary reversals involved unpublished opinions in the courts of appeals. During this Court’s 2004 Term there were four summary 11 Gonzales v. Thomas, 547 U.S. 183, 126 S. Ct. 1613 (2006) (per curiam) (grant of cert. and summary reversal of en banc Ninth Circuit due to obvious error); Ash v. Tyson Foods, Inc., 546 U.S. 454, 126 S. Ct. 1195 (2006) (per curiam) (granting cert. and vacating unpublished Eleventh Circuit decision due to error in standard applied); Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Elahi, 546 U.S. 450, 126 S. Ct. 1193 (2006) (per curtam) (granting cert. and summarily vacating decision of Ninth Circuit for error in failing to consider a critical legal issue underlying its decision); Bradshaw uv. Richey, 546 U.S. 74, 126 S. Ct. 602 (2005) (per curiam) (granting cert. and vacating decision of Sixth Circuit due to error); Kane v. Garcia- Espitia, 546 U.S. 9, 126 S. Ct. 407 (2005) (per curiam) (granting cert. and reversing unpublished Ninth Circuit decision based on error); Eberhart v. United States, 546 U.S. 12, 126 S. Ct. 403 (2005) (per curiam) (granting cert. and reversing Seventh Circuit decision based on error); Schriro v. Smith, 546 U.S. 6, 126 S. Ct. 7 (2005) (per curiam) (granting cert. and vacating unpublished order of Ninth Circuit based on error in ordering state court trial); Dye v. Hofbauer, 546 U.S. 1, 126 S. Ct. 5 (2005) (per curiam) (granting cert. and reversing unpublished Sixth Circuit decision based on error). 32 reversals.!2 And during the 2003 Term there were five summary reversals, two of which were of unpublished court of appeals decisions.!3 Over these three Terms, therefore, summary reversals account for between 5% and 14% of this Court’s published dispositions on the merits. This Court thus is quite willing to use summary reversal as a more efficient alternative to full review in appropriate cases. In this matter, where the answer to cach of the first two questions presented for review herein is clearly and unde- niably “Yes” and free of doubt, any lesser action would be tantamount to a decision on the merits and turn Petitioner into a second-class citizen. In light of the extreme departures of the courts below, however, Equal Justice begs for more than the Band-Aid of a mere remand. This Petition does not concern erroneous factual findings or the misapplication of a properly stated 12 Bell v. Cone, 543 U.S. 447, 459-60 (2005) (per curiam) (granting cert. and reversing Sixth Circuit based on error in giving insufficient deference to prior state court decision); Brosseau v. Haugen, 543 U.S. 194, 198 n. 3 (2004) (per curiam) (granting cert. and reversing Ninth Circuit decision “to correct a clear misapprehension of the qualified immunity standard”); City of San Diego v. Roe, 547 U.S. 77 (2004) (per curiam) (granting cert. and reversing Ninth Circuit decision based on fact-bound error); Smith v. Texas, 543 U.S. 37 (2004) (per curiam) (granting cert. and reversing Texas Court of Criminal Appeals based on error concerning jury instruction). 13 Holland v. Jackson, 542 U.S. 649 (2004) (per curiam) (granting cert. and reversing unpublished Sixth Circuit decision based on error regarding fact-specific application of law); Middleton v. McNeil, 541 U.S. 433 (2004) (per curiam) (granting cert. and reversing Ninth Circuit decision based on error in evaluating particular jury instruc- tions); Illinois v. Fisher, 540 U.S. 1174 (2004) (per curiam) (granting cert. and reversing seemingly unpublished Appellate Court of Illinois decision based on simple misapplication of law); Mitchell v. Esparza, 540 U.S. 12, 15 (2003) (per curiam) (granting cert. and reversing Sixth Circuit decision based on court having “failed to cite, much less apply,” controlling statutory provision); Yarberough v. Gentry, 540 U.S. 1 (2003) (per curtam) (granting cert. and reversing Ninth Circuit decision based on fact-specific analysis of the objective adequacy of a closing argument by defense counsel). 33 rule of law. Rather, the actions of the Respondents and then those of the courts below have deprived the Petitioner of his irrevocable civil rights as guaranteed by the First, Fifth and Fourteenth Amendments to the United States Consti- tution. The judicial result of constricting the boundaries of Petitioner’s civil rights (as detailed above at p. 23 et seq.) has sanctioned conduct utterly intolerable in a civil society (e.g., pp. 17, 19, above), inflicted by powerful, politically connected Respondents (UPMC, Lee and Conemaugh) allied to four naturalized aliens (Fikri, Murali, Mathur and Pai) who swore an oath not to instigate any of these wrongs in return for the privilege of becoming Americans! In effecting such a perverse, apocalyptic outcome, the Third Circuit cocooned its actions within the confines of a non-precedential opinion. That the Third Circuit failed to publish its decision is just another reason to view that decision with great skepticism. The use of unpublished decisions lacking precedential force is inconsistent with the judicial function. See Anastasof v. United States, 223 F.3d 898, 899 (CA8) (R. Arnold, J.) (“We hold that the portion of Rule 28A(i) that declares that unpublished opinions are not precedent is unconstitutional under Article III, because it purports to confer on the federal courts a power that goes beyond the judicial.”), vacated as moot, 235 F.3d 1054 (CA8 2000) (en banc). As stated most succinctly by the Chief Justice, “judges operate as judges when they are confined by the law.” John G. Roberts, Jr., Senate Confirmation Hearings, September 12-15, 2005 (response to Sen. Grassley). Unpublished opinions seem too often to function as an excuse or tactic for less than rigorous analysis of the is- sues—in Petitioner’s case, no analysis at all. In praising a more open and candid approach by the Seventh Circuit, this Court has implicitly criticized decisions, much like this one, that “bur[y] the issue by proceeding in a summary fashion.” Eberhart v. United States, 546 U.S. 12, 126 S. Ct. 403, 407 (2005) (per curiam) (praising court of appeals for ruling 34 squarely on an issue in a manner that “facilitated our review,” and not “burfying] the issue by proceeding in a summary fashion”). A panel’s use of an unpublished opinion allows it to ignore inconvenient precedent within the circuit or else- where, tends to insulate a decision from review by this Court by failing to generate a true “split,” and can be a means of using purportedly fact-dependant rulings to undermine legal principles and even inviolable rights that a court may wish to vitiate but cannot reject explicitly. Cf. Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. App. Prac. & Process 219, 223 (1999) (use of unpublished opinions creates the “temptation” to ignore inconvenient precedent and “encourages” sweeping difficulties of a de- sired disposition “under the rug”). By definition, a non- precedential opinion creates law that applies only to the parties in the dispute under consideration and, therefore, violates the Fourteenth Amendment. Justice Stevens has recognized, “occasionally judges will use the unpublished opinion as a device to reach a deci- sion that might be a little hard to justify.” Cole, J. and Bucklo, E.E., A Life Well Lived: An Interview with Justice John Paul Stevens, 32 No. 3 Litigation 8, 67 (Spring 2006). In this instance the decision is much more than a little hard to justify; it is utterly outrageous. By acting summarily and non-precedentially in this matter, the Third Circuit has carved out an exception to the Constitution for the Liti- gants alone, uniquely stripping Petitioner of inalienable rights and turning him into a disenfranchised, defrocked pariah in the country of his birth, permitting Murali, Mathur and Pai to import the caste system under which they were born and use it at will to declare Petitioner an “untouchable.” As stated by the Court itself and conveyed in the words carved into the architrave of its building’s en- trance, “Equal Justice Under Law” (see, http://www. supre- mecourtus.gov/about/constitutional.pdf), this Court bears 35 the ultimate responsibility to defend the Constitution against such mockery and rape. During his ascent to this Court from the Third Circuit, Justice Alito told the world: And there is nothing that is more important for our republic than the rule of law. No per- son in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law. Samuel A. Alito, Jr., Senate Confirmation Hearings, Janu- ary 9, 2006. “[W]ithout the rule of law,” explained Chief Justice Roberts, “any rights are meaningless.” John G. Roberts, Jr., Senate Confirmation Hearings, September 12- 15, 2005 (opening statement). Hence, the Court of last resort cannot deny this Petition without betraying the foremost reason for its very existence. As cautioned 250 years ago by Edmund Burke—a long-serving member of the British Parliament who supported the American colonies in the dispute that ultimately gave birth this Court—“[al]ll that is necessary for the triumph of evil is that good men do nothing.” CONCLUSION The Supreme Court should grant a writ of certiorari in this matter, or, in the alternative, a summary reversal. Respectfully submitted, STEVEN H. UNTRACHT, M.D. 123 Tank Drive Johnstown, PA 15904 (814) 535-7875 Petitioner pro se January 11, 2008 APPENDIX UNTRACHT V. FIKRI, 2007 WL 2868028 United States Court of Appeals, Third Circuit. Steven H. UNTRACHT, M.D., PH.D., F.A.C.S. v. M.D. Erden FIKRI;M.D. Dinesh Mathur; M.D. Vincent Fiorica; M.D. Terry Wahl; David R. Davis; M.D. Sanders Ergas; M.D. P. James Ridella; M.D. Bhaskaran Murali; Will H. Farthing, M.D.; Brian Gunnlaugson, M.D.; Rich- ard Cartwright, M.D.; Denise Weisbrodt, R.N.; Richard Saluzzo, M.D.; Jacob Kolff, M.D.; Bruce Duke, M.D.; Narendra Pai, M.D.; William Fritz, M.D.; Paul Weygandt, M.D.; Nicholas Jacobs; James Church, M.D.; Robert D. Fry, M.D.; Larry Kaiser, M.D.; William M. Carney, M.D.; Harvey Slater, M.D.; George H. Benz, Jr., M .D.; Univer- sity of Pennsylvania; Cleveland Clinic Foundation; Stew- art M. Flam; R. Joseph Federowicz; Dickie Mccamey & Chilcote, a Professional Corporation; Associated Anesthe- siologists of Johnstown; UPMC Health System, Inc.; UPMC Lee Regional Hospital; Conemaugh Health Sys- tem; Memorial Medical Center; Windber Medical Center; John Does 1-20; Lee Regional Health System, Inc.; Lee Regional Health System Foundation, Inc. Steven H. Untracht, Appellant. No. 06-4221. Argued Sept. 26, 2007. Opinion Filed Oct. 1, 2007. On Appeal from the United States District Court for the Western District of Pennsylvania, (D.C. No. 08-cv- 00199J), District Judge: Hon. Kim R. Gibson. 2a Russell J. Heiple, Esq. (Argued), Johnstown, PA, for Appellant. Alyson J. Kirleis, Esq. (Argued), Dickie, McCamey & Chilcote, Pittsburgh, PA, for Appellees Lee Regional Health System, Inc.; Lee Regional Health System Foun- dation, Inc.; UPMC Lee Regional Hospital; UPMC Health System, Inc.; Dickie, McCamey & Chilcote; R. Joseph Federowicz; Stewart M. Flam; George H. Benz, Jr.; Har- vey Slater; William M. Carney; Denise Weisbrodt; Rich- ard Cartwright; Brian Gunnlaugson; Will H. Farthing; Bhaskaran Murali; P. James Ridella; Sanders Ergas; David R. Davis; Terry Wahl; Vincent Fiorica; Dinesh Mathur; Erden Fikri. William J. Rogers, Esq. (Argued), Thomson, Rhodes & Cowie Pittsburgh, PA, for Appellees Memorial Medical Center; Conemaugh Health System; William M. Carney; Robert D. Fry; William Fritz; Narendra Pai; Bruce Duke; Jacob Kolff; Richard Saluzzo. Andrew L. Schlafly, Esq., New York, NY, for Amicus- Appellant Association of American Physicians & Sur- geons, Inc. Before AMBRO, JORDAN and ROTH, Circuit Judges. 3a OPINION ROTH, Circuit Judge: *1 Dr. Steven H. Untracht brought an action in U.S. District Court against 29 physicians, health care profes- sionals, medical groups, health systems, and medical facilities, claiming violation of his civil rights under 42 U.S.C. §§ 1981 and 1983, federal antitrust violations, defamation, and other state law causes of action, includ- ing intentional infliction of emotional distress, tortious interference with existing and prospective contractual relations, civil conspiracy, breach of contract, and more. After numerous proceedings, including a transfer of venue from the Eastern District to the Western District of Pennsylvania, the District Court entered summary judg- ment for all defendants on Dr. Untracht’s Sherman Act Section 1 claim, Sherman Act Section 2 claim, 42 U.S.C. § 1983 claim, and 42 U.S.C. § 1981 claim for retaliation. The court dismissed with prejudice Dr. Untracht’s 42 U.S.C. § § 11112 claim and his 1981 reverse discrimina- tion claim and dismissed his remaining claims over which the court had supplemental jurisdiction. The District Court denied Dr. Untracht’s Cross Motion for Summary Judgment, Injunctive Relief and for the Court’s assump- tion of Supplemental Jurisdiction. Dr. Untracht appealed. The District Court had jurisdiction of this case under 28 U.S.C. §§ 1331 and 1367. We have jurisdiction of this appeal under 28 U.S.C. § 1981. We have carefully consid- ered the very thorough, 69 page memorandum opinion of the District Court, the appellate briefs of the parties, and the oral argument before this Court. For the reasons stated by the District Court, we will affirm its August 26, 2006, judgment in favor of the defendants. C.A.3 (Pa.),2007. Untracht v. Fikri Slip Copy, 2007 WL 2868028 (8rd Cir.(Pa.)) 4a UNTRACHT V. FIKRI, 454 F.SUPP.2D 289, W.D.PA., 2006. AUG 30, 2006 United States District Court, W.D. Pennsylvania. Steven H. UNTRACHT, MD, PhD, FACS Plaintiff, Ve Erden FIKRI, MD, et al. Defendants. No. Civ.A. 03-199J. Aug. 30, 2006. Background: Surgeon, whose staff privileges at two hospitals were terminated, brought action against thirty- six defendants, including individual physicians and health care professionals, a university, a law firm, two lawyers, an anesthesiology group, two health systems, four medical facilities and 20 John Doe defendants, alleg- ing Sherman Act violations, Section 1983 civil rights violations, tortious interference with prospective economic advantage, negligence, perjury and defamation. Defen- dants filed motions to dismiss, or, in the alternative, for summary judgment. Surgeon filed cross motion for sum- mary judgment, injunctive relief and for the court’s as- sumption of supplemental jurisdiction. Holdings: The District Court, Gibson, J., held that: (1) hospital was not judicially estopped by a statement it made in its answer in malpractice case filed against surgeon and hospital and position taken in related arbi- tration proceedings; (2) arbitration result in malpractice case was not entitled to collateral estoppel effect; (3) surgeon did not have antitrust standing to bring Sherman Act claim against hospitals; (4) surgeon failed to establish Sherman Act claim against either hospital or their doctors; (5) surgeon failed to establish Sherman Act conspiracy to monopolize claim; 5a (6) hospitals and doctors who recommended and/or par- ticipated in peer review actions against surgeon were not state actors for § 1983 purposes; and (7) surgeon’s alleged whistleblower activities were not protected under § 1981. Defendants’ motions granted. West Headnotes [1] KeyCite this headnote 157 Evidence 1571 Judicial Notice 157k10 Geographical Facts 157k10(6) k. Distances Between Places. Most Cited Cases A court can take judicial notice of distances. [2] KeyCite this headnote 170A Federal Civil Procedure 170AXVII Judgment 170AXVII(C) Summary Judgment 170AXVII(C)3 Proceedings 170Ak2533 Motion 170Ak2533.1 k. In General. Most Cited Cases A motion to dismiss may be converted to a motion for summary judgment if the materials submitted warrant a conversion and the parties had adequate notice. [3] KeyCite this headnote 228 Judgment 6a 228XVII Foreign Judgments 228k828 Effect of Judgments of State Courts in United States Courts 228k828.9 Nature of Judgment 228k828.9(4) k. Decision on Pleadings. Most Cited Cases 228 Judgment KeyCite this headnote 228XVII Foreign Judgments 228k828 Effect of Judgments of State Courts in United States Courts 228k828.22 k. Pleading, Evidence and Enforcement. Most Cited Cases Surgeon’s claims before district court, which were raised in one of his previously filed state court cases which were dismissed on the basis of preliminary objections, were not barred by collateral estoppel or claim preclusion since orders dismissing state court cases did not specify on which preliminary objection the cases were dismissed and there was no argument that the preliminary objections constituted an adjudication on the merits. [4] KeyCite this headnote 156 Estoppel 156111 Equitable Estoppel 156ITI(B) Grounds of Estoppel 156k68 Claim or Position in Judicial Proceedings 156k68(2) k. Claim Inconsistent with Previous Claim or Position in General. Most Cited Cases 7a Doctrine of judicial estoppel prevents a litigant from asserting a position that is inconsistent with one prev- ously taken before a court or agency. [5] KeyCite this headnote 156 Estoppel 156I1II Equitable Estoppel 156111(B) Grounds of Estoppel 156k68 Claim or Position in Judicial Proceedings 156k68(2) k. Claim Inconsistent with Previous Claim or Position in General. Most Cited Cases Application of judicial estoppel doctrine involves a three- part test: 1) whether the party’s present position is irrevo- cably inconsistent with the position it asserted in the prior proceeding; 2) whether the party changed its posi- tion in bad faith; and 3) whether the use of judicial estop- pel is tailored to address the affront to the court’s author- ity or integrity [6] KeyCite this headnote 156 Estoppel 156111 Equitable Estoppel! 156I11(B) Grounds of Estoppel 156k68 Claim or Position in Judicial Proceedings 156k68(2) k. Claim Inconsistent with Previous Claim or Position in General. Most Cited Cases In surgeon’s suit against hospital arising from termina- tion of his clinical privileges, hospital was not judicially estopped by a statement it made in its answer in the malpractice case filed against surgeon and hospital and position taken in related arbitration proceedings, that it was not negligent in credentialing surgeon through No- 8a vember, 2002; there was nothing inconsistent between hospital’s defense that it was not negligent in credential- ing surgeon between 1995 and November, 2002, and surgeon’s removal from hospital’s medical staff subse- quent to November, 2002, and there was no evidence that hospital’s assertions were accepted or adopted by any court in the course of the litigation so as to evidence bad faith on the part of hospital for deviating from those assertions. [7] KeyCite this headnote 156 Estoppel 1L56III Equitable Estoppel L56I1I(B) Grounds of Estoppel 156k68 Claim or Position in Judicial Proceedings 156k68(2) k. Claim Inconsistent with Previous Claim or Position in General. Most Cited Cases Judicial estoppel is an extraordinary remedy that should be used only when a party’s inconsistent behavior would result in a miscarriage of justice. [8] KeyCite this headnote 25T Alternative Dispute Resolution 25TII Arbitration 25TII(H) Review, Conclusiveness, and Enforcement of Award 25Tk381 Conclusiveness of Adjudication 25Tk382 k. In General. Most Cited Cases Arbitration result in malpractice case was not entitled to collateral estoppel effect in surgeon’s suit against hospital arising from termination of his clinical privileges; al- though the issue of surgeon’s negligence was likely at the 9a forefront of the matters litigated in the arbitration pro- ceeding, arbitrator did not offer any explanation as to why he reached the decision he did, but simply entered an award in favor of the malpractice case defendants, which resulted in the malpractice case plaintiff receiving the “low” end of the high-low arbitration. [9] KeyCite this headnote 29T Antitrust and Trade Regulation 29TXVII Antitrust Actions, Proceedings, and Enforce- ment 29TXVII(B) Actions 29Tk959 Right of Action; Persons Entitled to Sue; Standing; Parties 29Tk963 Injury to Business or Property 29Tk963(1) k. In General. Most Cited Cases To prove antitrust standing a plaintiff must show that: 1) he has suffered the type of injury the antitrust laws were intended to prevent; and 2) the injury ilows from that which makes the defendant’s acts unlawful. [10] KeyCite this headnote 29T Antitrust and Trade Regulation 29TXVII Antitrust Actions, Proceedings, and Enforce- ment 29TXVII(B) Actions 29Tk959 Right of Action; Persons Entitled to Sue; Standing; Parties 29Tk963 Injury to Business or Property 29Tk963(1) k. In General. Most Cited Cases 10a Factors to be employed in an antitrust standing analysis include: 1) the causal connection between the antitrust violation and the harm to the plaintiff and the intent by the defendant to cause the harm, with neither factor alone conferring standing; 2) whether the plaintiffs alleged injury is of the type for which the antitrust laws were intended to provide redress; 3) the directness of the in- jury, which addresses the concerns that liberal applica- tion of standing principles might produce speculative claims; 4) the existence of more direct victims of the alleged antitrust violations; and 5) the potential for duplicative recovery or complex apportionment of dam- ages. {11] KeyCite this headnote 29T Antitrust and Trade Regulation 29TXVII Antitrust Actions, Proceedings, and Enforce- ment 29TXVII(B) Actions 29Tk959 Right of Action; Persons Entitled to Sue; Standing; Parties 29Tk963 Injury to Business or Property 29Tk963(1) k. In General. Most Cited Cases Recovery by a private plaintiff on an antitrust claim can only be had where the loss stems from a competition- reducing aspect or effect of the defendant’s behavior. [12] KeyCite this headnote 297 Antitrust and Trade Regulation 29TXVII Antitrust Actions, Proceedings, and Enforce- ment 29TXVII(B) Actions lia 29Tk959 Right of Action; Persons Entitled to Sue; Standing; Parties 29Tk963 Injury to Business or Property 29Tk963(3) k. Particular Cases. Most Cited Cases Surgeon, whose staff privileges at two hospitals were terminated, did not have antitrust standing to bring Sherman Act claim against hospitals; there was no show- ing that hospitals acted in concert, and surgeon was not shut out from competing in the market by hospitals’ actions, rather, surgeon had an active avenue of competi- tion, his staff privileges at a third hospital, that he chose to voluntarily foreclose. Sherman Act, § 1, 15 U.S.C.A. § 1. [13] KeyCite this headnote 29T Antitrust and Trade Regulation 29TXVII Antitrust Actions, Proceedings, and Enforce- ment 29TXVII(B) Actions 29Tk959 Right of Action; Persons Entitled to Sue; Standing; Parties 29Tk963 Injury to Business or Property 291Tk963(1) k. In General. Most Cited Cases Voluntary foreclosure of one’s own opportunities for competition is not the type of antitrust injury for which the antitrust laws were designed to provide redress. [14] KeyCite this headnote 29T Antitrust and Trade Regulation 29TVI Antitrust Regulation in General 29TVI(B) Cartels, Combinations, Contracts, and Con- spiracies in General 12a 29Tk537 k. In General. Most Cited Cases To establish a Sherman Act violation for contract, combi- nation, or conspiracy in restraint of trade, a plaintiff must prove: 1) concerted action by the defendants; 2) that produced anti-competitive effects within the relevant product and geographic markets; 3) that the concerted actions were illegal; and 4) that he was injured as a proximate result of the concerted action. Sherman Act, § 1,15U.8.C.A. § 1. {15] KeyCite this headnote 29T Antitrust and Trade Regulation 29TVI Antitrust Regulation in General 29TVI(B) Cartels, Combinations, Contracts, and Con- spiracies in General 29Tk542 Participants 29Tk543 k. In General. Most Cited Cases Unilateral action does not support liability under Sherman Act for contract, combination, or conspiracy in restraint of trade no matter what the motivation; there must be evidence that tends to exclude the possibility of independent action, meaning that the evidence reasona- bly tends to prove that the alleged conspirators had a conscious commitment to a common scheme designed to achieve an unlawful objective. Sherman Act, § 1, 15 LSC. A. & 1. {16] KeyCite this headnote 29T Antitrust and Trade Regulation 29TVI Antitrust Regulation in General 29TVI(E) Particular Industries or Businesses 29Tk593 k. Medical Services. Most Cited Cases 13a Surgeon, whose staff privileges at two hospitals were terminated, failed to establish Sherman Act claim against either hospital or their doctors; surgeon did not demon- strate that, as a result of the peer review actions at both hospitals, either the doctors on staff at one hospital or the doctors on staff at the other coerced their respective hospitals into revoking surgeon’s privileges or that hospi- tals engaged in concerted activity coercing one another to revoke surgeon’s privileges. Sherman Act, § 1, 15 U.S.C.A. _e9 [17] KeyCite this headnote 29T Antitrust and Trade Regulation 29TVI Antitrust Regulation in General 29TVI(C) Market Power; Market Share 291Tk555 Relevant Market 29Tk557 k. Product Market. Most Cited Cases 29T Antitrust and Trade Regulation KeyCite this head- 29TVI Antitrust Regulation in General 29TVI(C) Market Power; Market Share 29Tk555 Relevant Market 29Tk558 k. Geographic Market. Most Cited Cases In Sherman Act case, anticompetitive effects within the relevant geographic and product market may be proven by proving the existence of actual anticompetitive effects or by the defendant’s market power. Sherman Act, § 1, 15 U.S.C.A. § 1. [18] KeyCite this headnote 29T Antitrust and Trade Regulation l4a 29TVI Antitrust Regulation in General 29TVI(E) Particular Industries or Businesses 29Tk593 k. Medical Services. Most Cited Cases Surgeon, whose staff privileges at two hospitals were terminated, failed to establish that the alleged concerted action resulted in anticompetitive effects in the relevant geographic and product market, and therefore failed to establish Sherman Act claim against either hospital or their doctors; surgeon’s voluntary choice to resign his privileges at a nonparty hospital in the geographic market ultimately created the anticompetitive effects, if any, on the market. Sherman Act, § 1, 15 U.S.C.A. § 1. [19] KeyCite this headnote 29T Antitrust and Trade Regulation 29TXVII Antitrust Actions, Proceedings, and Enforce- ment 29TXVII(B) Actions 29Tk959 Right of Action; Persons Entitled to Sue; Standing; Parties 29Tk963 Injury to Business or Property 29Tk963(2) k. Causation. Most Cited Cases In antitrust cases, a plaintiff must prove injury of the type the antitrust laws were intended to prevent and that flows from that which makes the defendants’ acts unlaw- ful. Sherman Act, § 1, 15 U.S.C.A. § 1. [20] KeyCite this headnote 29T Antitrust and Trade Regulation 29TVIT Monopolization 15a 29TVII(B) Cartels, Combinations, Contracts, and Conspiracies 29Tk625 k. In General. Most Cited Cases In a conspiracy to monopolize claim under the Sherman Act, plaintiff must prove: 1) an agreement or understand- ing between two or more parties; 2) a specific intent to monopolize; and 3) overt acts in furtherance of the alleged conspiracy. Sherman Act, § 2, 15 U.S.C.A. § 2. [21] KeyCite this headnote 29T Antitrust and Trade Regulation 29TVII Monopolization 29TVII(E) Particular Industries or Businesses 29Tk688 k. Medical Services. Most Cited Cases Surgeon, whose staff privileges at two hospitals were terminated, failed to establish Sherman Act conspiracy to monopolize claim against hospitals and its doctors since he failed to show that the doctors and hospitals conspired to end his surgical career. Sherman Act, § 2, 15 U.S.C.A. § [22] KeyCite this headnote 78 Civil Rights Sill Federal Remedies in General 78k1323 Color of Law 78k1325 k. State or Territorial Action, or Individual or Private Action, in General. Most Cited Cases To satisfy the state action requirement under § 1983, a plaintiff must prove that the alleged violations are fairly attributable to the state and courts require careful adher- ence to the state action requirement because it preserves an area of individual freedom by limiting the reach of 16a federal law and federal judicial powers. 42 U.S.C.A. § 1983. [23] KeyCite this headnote 78 Civil Rights 78III Federal Remedies in General 78k1323 Color of Law 78k1324 k. In General. Most Cited Cases A plaintiff bringing a civil rights claim for damages under § 1983 must demonstrate that the defendant was a person acting under color of state law; if the record does not reflect that the defendant acted under color of state law when engaged in the alleged misconduct, a claim for violation of civil rights under § 1983 must fail as a matter of jurisdiction and there is no need for the court then to determine whether a federal right has been violated. 42 U.S.C.A, § 1983. [24] KeyCite this headnote 78 Civil Rights 78III Federal Remedies in General 78k1323 Color of Law 78k1325 k. State or Territorial Action, or Individual or Private Action, in General. Most Cited Cases In § 1983 actions, state action is shown if: 1) the depriva- tion of federal rights was caused by the exercise of some right or privilege created by the state or by a person for whom the state is responsible; and 2) the party charged with the deprivation was a person who may fairly be said to be a state actor. 42 U.S.C.A. § 1983. [25] KeyCite this headnote 78 Civil Rights 17a 78III Federal Remedies in General 78k1323 Color of Law 78k1325 k. State or Territorial Action, or Individual or Private Action, in General. Most Cited Cases Regardless of the approach used in § 19838 actions, the heart of the state action inquiry is to discern if the defen- dant exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. 42 U.S.C.A. § 1983. [26] KeyCite this headnote 78 Civil Rights 78111 Federal Remedies in General 78k1323 Color of Law 78k1326 Particular Cases and Contexts 78k1326(3) Private Persons or Corporations, in General 78k1326(5) k. Cooperation with State Actor. Most Cited Cases 92 Constitutional Law KeyCite this headnote 92VII Constitutional Rights in General 92VII(B) Particular Constitutional Rights 92k1073 k. Fourteenth Amendment in General. Most Cited Cases (Formerly 92k82(5)) Under symbiotic relationship test for determining exis- tence of state action in § 1983 case, a symbiotic relation- ship exists where a state has so far insinuated itself into a position of interdependence with the actor that it must be 18a recognized to be a joint participant in the challenged activity which, on that account, cannot be considered so purely private as to fall outside the scope of the Four- teenth Amendment; the interdependence between the state and the private actor must be pronounced before the law will transform the private action into state action. U.S.C.A. Const.Amend. 14; 42 U.S.C.A. § 1983. [27] KeyCite this headnote 78 Civil Rights 78III Federal Remedies in General 78k1323 Color of Law 78k1326 Particular Cases and Contexts 78k1326(3) Private Persons or Corporations, Genera! 78k1326(4) k. In General. Most Cited Cases Close nexus test for determining existence of state action in § 1983 case requires that a plaintiff demonstrate that there is a sufficiently close nexus between the government and the private party; primary issue to be examined under the nexus test is not whether the state was in- volved in some manner in the relevant events, but whether there is a sufficiently close nexus between the state and the challenged action of the private party so that the action of the private party may be fairly attribut- able to the state. 42 U.S.C.A. § 1983. [28] KeyCite this headnote 78 Civil Rights 7T8III Federai Remedies in General 78k1323 Color of Law 78k1326 Particular Cases and Contexts 19a 78k1326(6) k. Schools; Education. Most Cited Cases Private hospitals, which were distinct and separate entities from state university, were not state actors for § 1983 purposes under the symbiotic relationship or close nexus test. 42 U.S.C.A. § 1983. [29] KeyCite this headnote 78 Civil Rights 78III Federal Remedies in General 78k1323 Color of Law 78k1326 Particular Cases and Contexts 78k1326(9) k. Pursuit of Private or Judicial Reme- dies. Most Cited Cases Private hospitals’ action of lawfully seeking the revocation of a preliminary injunction put in place by state court at the surgeon’s request in order to comply with their statu- tory duty of reporting to National Practitioners Data Bank (Data Bank) in no way made the hospitals state actors subject to hability under § 1983 for terminating surgeon's staff privileges. 42 U.S.C.A. § 1983. [30] KeyCite this headnote 78 Civil Rights 78III Federal Remedies in General 78k1323 Color of Law 78k1326 Particular Cases and Contexts 78k1326(6) k. Schools; Education. Most Cited Cases Private hospital’s contractual relationship with university which had been held to be a state actor did not make hospital a state actor for purposes of surgeon’s 1983 claim arising from termination of his staff privileges; 20a affiliation agreement between university and hospital did not create a relationship of such a level that it would transform hospital’s internal staffing decisions into ac- tions that could in any way, let alone fairly, be attribut- able to university. 42 U.S.C.A. § 1983. [31] KeyCite this headnote 78 Civil Rights 78III Federal Remedies in General 78k1323 Color of Law 78k1326 Particular Cases and Contexts 78k 1326(6) k. Schools; Education. Most Cited Cases Individual doctors at private hospital, who recommended and/or participated in peer review actions against surgeon which resulted in revocation of his staff privileges, could not be considered state actors for purposes of surgeon’s § 1983 claim by virtue of fact that doctors held faculty positions at universities which had been deemed to be state actors. 42 U.S.C.A. § 1983. [32] KeyCite this headnote 78 Civil Rights 78III Federal Remedies 1n General 78k1323 Color of Law 78k1326 Particular Cases and Contexts 78k1326(6) k. Schools; Education. Most Cited Cases Regardless of whether individual doctors at private hospi- tal, who recommended and/or participated in peer review actions against surgeon which resulted in revocation of his staff privileges at universities which had been deemed to be state actors, they could not be held hable on sur- geon’s § 1983 claim since there was no evidence showing 21a that any of them utilized power possessed by virtue of state law or their positions as clinical professors at either university when they recommended and/or participated in peer review actions against surgeon as members of the medical staffs at their respective hospitals. 42 U.S.C.A. § > this heacinote 78 Civil Rights 78I1 Employment Practices 78k1118 k. Practices Prohibited or Required in Gen- eral; Elements. Most Cited Cases Elements of a prima facie case under § 1981 are the same as those under Title VII. 42 U.S a .§ 1981; Civil Rights Act of 1964, § 701 et seq., 42 U. A. § ZU00e et seq. [34] KeyCite this headnote 78 Civil Rights 781 Rights Protected and Discrimination Prohibited in General 78k1007 Bases of Discrimination and Classes Pro- tected 78k1009 k. Race, Color, Ethnicity, or National Origin Most Cited Cases 78 Civil Rights KeyCite this headnote 781 Rights Protected and Discrimination Prohibite Genera! 78k1030 Acts or Conduct Causing Deprivation 8k1033 Discrimination in General 78k1033 (3) k. Affirmative Action and Reverse crimination. Most C ited C ases Claims for national origin discrimination or reverse national origin discrimination are not viable claims under § 1981. 42 U.S.C.A. § 1981. KeyCite this headnote [35] 78 Civil Rights 781 Rights Protected and Discrimination Prohibited in General 78k1030 Acts or Conduct Causing Deprivation 78k1033 Discrimination in General 78k1033(1) k. In General. Most Cited Cases Whistleblower activities are not protected under § 1981; rather a claim for retaliation for such conduct must be brought under the appropriate whistleblower statute. 42 U.S.C.A. § 1981. [36] KeyCite this headnote 198H Health 198HI Regulation in General 198HI(C) Institutions and Facilities 198Hk268 Staff Privileges and Peer Review 198Hk274 k. Liability or Immunity. Most Cited Cases Purpose of immunity provision of the Health Care Quality Improvement Act (HCQIA) is to grant immunity from monetary damages to those persons participating in professional peer review activities in order to deter anti- trust suits by disciplined physicians. Health Care Quality Improvement Act of 1986, § 411, 42 U.S.C.A. § 11111. [37] KeyCite this headnote 13 Action 131 Grounds and Conditions Precedent 13k3 k. Statutory Rights of Action. Most Cited Cases Section of Health Care Quality Improvement Act (HCQIA) establishing guidelines for assuring that those involved in the peer review process receive immunity does not create the basis of a cause of action for a physician who has been subject to a peer review process. Health Care Quality Improvement Act of 1986, § 412, 42 U.S.C.A. § 11112. [38] KeyCite this headnote 170B Federal Courts L7OBI Jurisdiction and Powers in General 170BI(A) In General 170Bk14 Jurisdiction of Entire Controversy; Pendent Jurisdiction 170Bk14.1 k. In General. Most Cited Cases Although a district court assumes supplemental jurisdic- tion over some claims, a district court does not assume supplemental jurisdiction over claims that a plaintiff chooses to bring in state court separately from the claims he brings in federal court. 28 U.S.C.A. § 1367 [39] KeyCite this headnote 334 Removal of Cases 334III Citizenship or Alienage of Parties 334k44 k. Parties Entitled to Remove in General Cited Cases 24a Only defendants may remove an action to federal court. 28 U.S.C.A. § 1446. *294 Russell J. Heiple, Johnstown, PA, for Plaintiff. Alyson J. Kirleis, Frederick W. Bode, III, Kristen Hock Prex, Dickie, McCamey & Chilcote, P.C., David R. John- son, William James Rogers, Thomson, Rhodes & Cowie, David _J. Porter, Buchanan Ingersoll, Pittsburgh, PA, Mary Kay Brown, Buchanan Ingersoll, Philadelphia, PA, for Defendants. MEMORANDUM OPINION and ORDER OF COURT GIBSON, District Judge. SYNOPSIS This matter comes before the Court on the following motions: Motion to Dismiss Plaintiffs Second Amended Complaint [FN1] by Erden Fikri, Dinesh Mathur, Vincent Fiorica, Terry Wahl, David R. Davis, Sanders Ergas, P. James Ridella, Bhaskaran Murali, Will H. Farthing, Brian Gunnlaugson, Richard Cartwright, Denise Weis- brodt, William M. Carney, Harvey S!ater, George H. Benz, Jr., Stewart M. Flam, R. Joseph Federowicz, Dickey McCamey & Chilcote, P.C., UPMC Health System and UPMC Lee Regional (hereinafter sometimes referred to as “Lee Defendants”) (Document No. 136), their Brief in Support (Document No. 137) and their Revised Exhibits in Support (Document No. 142); Motion to Amend the Caption by Richard Saluzzo, Jacob Kolff, Bruce Duke, Narendra Pai, William Fritz, Paul Weygandt, William M. Carney, Robert D. Fry, Conemaugh Health System and Memorial Medical Center (hereinafter sometimes referred to as “Conemaugh Defendants”) (Document No. 138); Motion to Dismiss, or, in the Alternative, for Summary Judgment with Respect to Plaintiffs Second Amended Complaint by Conemaugh Defendants (Document No. 139), their Brief in Support (Document No. 140) and their Appendix to their Brief in Support (Document No. 141); Plaintiff's Cross Motion for Summary Judgment, Injunc- 25a tive Rehef [FN2] and for the Court’s Assumption of Sup- plemental Jurisdiction (Document No. 146) and his Brief in Support (Document No. 147); Conemaugh Defendants’ Response to Plaintiffs Cross Motion for Summary Judg- ment, Injunctive Relief and for the Court’s Assumption of Supplemental Jurisdiction (Document No. 151) and their Brief in Support (Document No. 152); Lee Defendants’ Response to Plaintiffs Cross Motion for Summary Judg- ment, Injunctive Relief and for the Court’s Assumption of Supplemental Jurisdiction (Document No. 154) and their Brief in Support (Document No. 155); and Motion to Dismiss Plaintiffs Second Amended Complaint by Lee Regional Health Systems, Inc. and Lee Regional Health System Foundation, Inc. *295 (Document No. 161) and their Brief in Support (Document No. 162); and Plaintiffs Brief in Opposition to Lee Regional Health Systems, Inc. and Lee Regional Health System Foundation, Inc.’s Motion to Dismiss (Document No. 163). For the reasons stated herein, the Defendants’ Motions are granted, except the Motion to Amend the Caption which is ren- dered moot, and Plaintiff's Motions are denied. FN1. As explained in Analysis, II. Legal Standard of this opinion, this pleading is also treated as a motion for summary judgment. FN2. Despite Plaintiffs caption, he makes no claim for injunctive relief in his motion, therefore, his motion for injunctive relief is denied herein without additional discussion. (See Doc. No. 146). JURISDICTION Jurisdiction is proper in the United States District Court for the Western District of Pennsylvania pursuant to 28 U.S.C. § 1331 based on federal question jurisdiction and § 1367 based on supplemental jurisdiction. 26a PARTIES For purposes of this Memorandum Opinion and Order the Court has broken the Defendants into three groups based on their representation. The Lee Defendants, the Cone- maugh Defendants, and Lee Regional Health Systems, Inc. and Lee Regional Health System Foundation, Inc. The main purpose of the breakdown is for ease of refer- ence when the Court must refer to all of the Defendants in a particular group. The Court may, however, at times refer to a Defendant individually, refer to all Defendants or refer to a different, but clearly identified, group of Defendants as necessary in the circumstances. BACKGROUND I. MATERIAL FACTS [FN3] FN3. The parties failed to submit proposed state- ments of Material Facts Not in Dispute in comphiance with Local Rule 56.1, therefore, the Court assessed the record and determined the relevant material facts. Plaintiff began his medical career in New Jersey with the Garden State Medical Staff. Untracht v. West Jersey Health System, et al., 803 F.Supp. 978, 980 (D.N.J.1992). In Apri! 1990, Plaintiffs Garden State Medical Staff privileges were suspended. /d. In addition, his staff privi- leges at the remaining West Jersey Health System divi- sions were also suspended. Jd. Plaintiff filed at least four lawsuits in state and federal court related to this turn of events. Id.; (Doc. No. 141, Exs. 19, 20, 22, 24). Plaintiffs federal lawsuit in New Jersey alleged violations of § 1983, the Health Care Quality Improvement Act (hereinafter “HCQIA”), Sherman Act § 1 and § 2 and tortious interfer- ence with prospective economic advantage. /d. at 981. The lawsuit was dismissed by the New Jersey District Court. Untracht v. West Jersey Health System, et al., 803 F.Supp. 978, 978 (D.N.J.1992), affd Untracht_v. Wei Jersey Health Systems, 998 F.2d 1006 (3d _Cir.1993); see also Untracht uv. Weimann, 141 Fed.Appx. 46, 47-49 (3d Cir.2005) (affirming the district courts dismissal of 27a Untracht’s Complaint and holding that the Complaint, which claimed violations of § 1983 resulting from defen- dants’ alleged violations of his due precess and equal protection rights by denying his reappointment applica- tion, was inextricably intertwined with his prior adjudica- tion). Plaintiff subsequently went to work for Corning Hospital in New York. (Doc. No. 147, p. 3). After a short time at Corning Hospital, Plaintiff applied for privileges at hospi- tals in the Johnstown, Pennsylvania area. (Doc. No. 147, Ex. 1--Pl. Aff. 4 20). Plaintiff applied for clinical privileges at UPMC Lee Regional Hospital (hereinafter “Lee”), Conemaugh Memo- rial Medical Center (hereinafter “Conemaugh”’) and Windber Medical Center (hereinafter “Windber”). (Doc. No. 147, Ex. 1--Pl. Aff. 20). Plaintiff was granted staff privileges at Lee in late 1994. (Doc. No. 133, p. 6, {| 29). Although Plaintiff alleges he was recruited by Lee in order to help them *296 compete against Conemaugh, he admits he applied for and was granted privileges at Conemaugh in early 1995, only a few months later. (Doc. No. 133, p. 6, 99 25, 29). By 1996, Windber had also granted Plaintiff staff privileges. (Doc. No. 147, p. 4 & Ex. 1--P]. Aff. 4] 20, 22). Plaintiff was reappointed at Lee in 1997. (Doc. No. 147, Ex. 1--Pl. Aff., § 22). He was reap- pointed at Conemaugh in 1996, 1998, 2000 and 2002 and at Windber in 1998, 2000 and 2002. Jd. At the 2000 and 2002 reappointments by Conemaugh and Windber, Plain- tiff informed the respective hospitals of the actions Lee was taking against his clinical privileges that began in 1999 and provided each hospital with full documentation about every allegation that Lee had raised against him. (Doc. No. 147, Ex. 1--Pl. Aff. at § 23). After reviewing the allegations, Conemaugh and Windber both reappointed him without restrictions in 2000 and 2002. (Doc. No. 147, Ex. 1--Pl. Aff.9] 23, 24). A. LEE When Plaintiff reapplied for surgical privileges at Lee in January of 1999, the Department of Surgery Chairman, 28a Dr. Fikri, did not recommend a reappointment. (Doc. No. 155, Ex. A--p. 8). As a result, the Lee Medical Staff Cre- dentials Committee (hereinafter referred to as the “Cre- dentials Committee”) hired Dr. Milburn Jessup to provide an outside review of Plaintiffs cases. (Doc. No. 155, Ex. A, p. 8). Dr. Jessup offered a report dated September 1, 1999, in which he found that Plaintiff displayed poor judgment in two of the nine cases submitted to him for review, both of which involved fatalities. (Doc. No. 155, Ex. A, p. 8). Upon receipt of Dr. Jessup’s report, the Credentials Committee reviewed his recommendations. (Doc. No. 155, Ex. A, p. 8). By letter dated November 15, 1999, the Chairman of the Board of Directors of Lee informed the Plaintiff that his surgical privileges were being renewed for an abbreviated appointment term through July 2000 with certain requirements for continuing peer review and a request for a series of supervised operations by surgeons at UPMC Presbyterian Hospital. (Doc. No. 133, pp. 8-9, 42); (Doc. No. 155, Ex. A, p. 8). Plaintiff was required to have a second surgeon present when pancreatic or liver resections were conducted. (Doc. No. 155, Ex. A, p. 8). This became a requirement that was imposed on all surgeons at Lee at the time. (Doc. No. 155, Ex. A, p. 8). On February 23, 2000, Plaintiff filed a Complaint in Equity in the Court of Common Pleas of Cambria County, Pennsylvania (Case No. 2000-646) (hereinafter “Untracht I’), against, two of the Defendants in this federal action, UPMC Health System, Inc. (hereinafter “UPMC”) and Lee. (Doc. No. 142, Ex. A). The Complaint sought to enjoin UPMC and Lee from carrying out the peer review activi- ties outlined in the November 15, 1999 letter to Plaintiff from the Chairman of the Board of Directors at Lee and sought money damages for the alleged breach of Lee’s Bylaws by UPMC and Lee. [F-N4] Id. FN4. On or about December 22, 2003, the Honorable Thomas A. Swope, Jr., of the Court of Common Pleas of Cambria Countv. entered an Order of Court sus- 29a taining Defenaants’ Preliminary Objections which dismissed Plaintiffs Complaint in Equity with Preju- dice. (Doc. 142, Ex. G--Order Sustaining Defendant’s Preliminary Objections Case No. 2000-646). By letter dated March 10, 2000, the Lee Board of Direc- tors (hereinafter referred to as the “Lee Board”) modified its actions relating to Plaintiff. (Doc. No. 137, p. 8). The Lee Board granted Plaintiff unrestricted clinical privi- leges for a two-year *297 period retroactive to February 1, 1999. (Doc. No. 137, p. 8). The Lee Board also requested that prior to Plaintiffs next recredentialing in January 2001, Plaintiff arrange to have a series of major surgeries monitored by a surgeon not employed by Lee. (Doc. No. 137, p. 8). By letter dated March 23, 2000, signed by Lee’s Medical Director, the Chairman of the Credentials Committee and Lee’s President, Plaintiff was informed that Dr. George Benz had been selected to monitor six to ten of Plaintiffs major abdominal surgeries. (Doc. No. 155, Ex. A, p. 8). The letter also informed Plaintiff that because of concerns Plaintiff had previously raised concerning peer review activities by the Lee Surgical Quality Review Committee, future issues involving Plaintiffs care of patients at Lee would be referred to Dr. Benz for review. (Doc No. 155, Ex. A, p. 8). [FN5] Dr. Benz was to submit a written and verbal report to the Credentials Committee prior to its consideration of Plaintiff's next recredentialing in Janu- ary 2001. (Doc. No. 155, Ex. A, p. 8). FN5. Dr. George Benz was recommended by Dr. Marshall Webster, a prominent surgeon at UPMC Presbyterian Hospital. (Doc. No. 155, Ex. A., p. 8) Dr. Benz graduated from the University of Pitts- burgh School of Medicine in 1967, did his internship and residency at the University of Pittsburgh School of Medicine, Department of Surgery and was Board certified in general surgerv. (Doc. No. 155. Ex. A.. p. 30a 8). He had been an assistant professor .of Clinical Surgery at the University of Pittsburgh in the Surgi- cal Department since 1975. (Doc. No. 155, Ex. A., p. 8). Dr. Benz retired in July of 2001, but maintained his medical license and remained Board certified in general surgery since 1973. (Doc. No. 155, Ex. A., p. 8). He had been on the staffs of Presbyterian Univer- sity Hospital, Montefiore Hospital, and Forbes Health Systems since 1975. (Doc. No. 155, Ex. A., p. 8). Forbes Regional Hospital is located in Monroeville, Pennsylvania, has 300 beds and approximately 20 to 25 surgeons on staff. (Doc. No. 155, Ex. A., p. 8). Dr. Benz was the Chief of the Section of General Surgery for seven years at Forbes, was on the Medical Execu- tive Committee for 20 years and was the Coordinator of Surgical Teaching at the Forbes Family Practice Program from 1978 to 1995. (Doc. No. 155, Ex. A., p. 8). He was Chairman of the Operating Room Com- mittee from 1987 to 1992 and Chairman of the Department of Surgery from 1990 to 1998. (Doc. No. 155, Ex. A., p. 8). He was also President of the Medi- cal Staff from 1986 to 1987. (Doc. No. 155, Ex. A., p. 8). He had been involved in the prior review of sur- geons including a protracted review of a surgeon in Meadville, Pennsylvania, where he scrubbed with the doctor to observe the surgical techniques and he also monitored other surgeons at Forbes in his role as Chief of Surgery and has extensive peer review experience. (Doc. No. 155, Ex. A., p. 8-9). Addition- ally, he was involved in at least five or six reviews of surgeons at Forbes. (Doc. No. 155, Ex. A., p. 9). Throughout the period between May 2000 and February 2001, Dr. Benz observed Plaintiff perform six surgeries and reviewed the medical records of six other patients on whom Plaintiff had performed surgery. (Doc. No. 155, Ex. A, pp. 8-9, 14-18). On April 8, 2001, following the review 3la of Plaintiffs cases, Dr. Benz wrote a letter to Terry Wahl, M.D., the Medical Director of Lee, in which he recom- mended that a second board certified surgeon be involved with Plaintiff in all major abdominal procedures. (Doc. No. 155, Ex. A, p. 9). Dr. Benz’ recommendation was based upon his review of the records, as well as his per- sonal observation of six operative procedures, four of which were major abdominal surgeries. (Doc. No. 155, Ex. A, p. 9). On May 7, 2001, after Plaintiff had an opportunity to review Dr. Benz’ recommendation, his request to appear before the Credentials Committee to rebut the recom- mendation was granted. (Doc. No. 155, Ex. A, p. 18). Subsequent to reviewing Plaintiffs thirty-three page letter, submitting *298 it to Dr. Benz for comment and listening to Plaintiffs oral argument, the Credentials Committee recommended to the Lee Medical Staff Execu- tive Committee (hereinafter the “Executive Committee”) that Plaintiffs grant of clinical privileges be subject to the second surgeon requirement recommended by Dr. Benz. (Doc. No. 155, Ex. A, p. 18). Lee further selected Dr. Harvey Slater to “review the reviewers.” (Doc. No. 155, Ex. A, p. 9). Dr. Slater reviewed the cases under a “totality of circumstances basis.” (Doc. No. 155, Ex. A, p. 10). Dr. Slater believed that the cases should not be reviewed in isolation and, in light of all the matters that he reviewed, believed the recommendation to be appropriate. (Doc. No. 155, Ex. A, p. 10). On July 25, 2001, Plaintiff filed a Complaint for damages against Erden Fikri, M.D., Vincent Fiorica, M.D., Terry Wahl, M.D., David R. Davis, and Lee in the Court of Common Pleas of Cambria County, Pennsylvania (Case No. 2001-2718) (hereinafter “Untracht IT”). (Doc. No. 142, Ex. B). All Defendants in Untracht II are Responding Defendanis in this federal action. (Doc. No. 142, Ex. B). This law.s1t set forth virtually identical factual allega- tions and claims against the individually named defen- dants as were contained in Untracht I, and reiterated causes of actions against Lee and UPMC despite the existence of Untracht I. [FN6] (Doc. No. 142, Ex. B). 32a FN6. Preliminary Objections were sustained by Judge Swope in Untracht II on December 22, 2003, which dismissed the various Counts against the various defendants with prejudice. (Doc. 142, Ex. G-- Order Sustaining Defendants’ Preliminary Objections Case No. 2001-2718). As noted earlier, Judge Swope also sustained preliminary objections in Untracht I on December 22, 2003. See Footnote 3. By letter dated July 13, 2001 from Lee’s President and CEO, David R. Davis, Plaintiff was informed that the Executive Committee had voted to recommend to the Board of Directors that Plaintiffs clinical privileges be subject to the restriction that a second surgeon be in- volved in all major abdominal surgeries. (Doc. No. 155, Ex. A, p. 1). The letter also informed Plaintiff that under the Medical Staff Bylaws, Plaintiff could request a hear- ing before a panel of physicians prior to the recommenda- tion being forwarded to the Board. Id. On August 8, 2001, Plaintiff filed a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0514%3A1. Public record. Not legal advice.