
USCA1 Opinion

	




          November 2, 1992                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1738                                     LISA TSARELKA,                                 Plaintiff-Appellant,                                          v.                            DANA-FARBER CANCER INSTITUTE,                                 Defendant-Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                                                         Torruella, Selya and Cyr,                                   Circuit Judges.                                   ______________                                 ____________________            Lisa Tsarelka on brief pro so.            _____________                                 ____________________                                 ____________________                      Per Curiam.    Appellant  Lisa  Tsarelka  filed  an                      __________            action  in the United States  District Court for the District            of Massachusetts  against  the Dana-Farber  Cancer  Institute            ("Dana-Farber").  After granting in forma pauperis status  to            appellant,  the  district   court  dismissed  the   complaint            pursuant to 28 U.S.C.    1915(d).1  It first held that  Dana-            Farber  did not qualify as  a state actor  for purposes of 42            U.S.C.    1983.  Second,  it stated that  appellant could not            base her  complaint on 42  U.S.C.   1981 because  she had not            alleged that she had been discriminated against on  the basis            of race.  We affirm.                                      BACKGROUND                                      __________                      In her complaint, appellant asserts that on October            6,  1988 and July 13, 1989, she "suffered medical neglect and            abuse, both  verbal  and  upon  her  person"  at  the  Breast            Evaluation Clinic at Dana-Farber.   Specifically, she  claims            that  she did not receive any medical evaluation on the above            dates.   On July 13,  she avers, she  was subjected to "cruel            and unusual  physical  brutality"  which  was  known  to  and            sanctioned by  two Dana-Farber  physicians.   As a result  of            this  conduct,  appellant's  arthritic   condition  allegedly            became aggravated.  Further, she states, the staff refused to            provide her with a neck brace or to avert, in  any other way,                                            ____________________            1.  Section 1915(d) provides, in pertinent part: "The court .            .  . may  dismiss the  case if  the allegation of  poverty is            untrue,  or if  satisfied  that the  action  is frivolous  or            malicious."            the  pain she was experiencing.   She also  claims that Dana-            Farber  refused to bill Medicaid for the costs of her medical            care.  As relief, she requested compensatory damages for loss            of  physical  function and  for  the pain  and  suffering she            endured; she also asked for punitive damages.2                                      DISCUSSION                                      __________                      A. The   1983 Claim                         ________________                      "It  is  black-letter   law  that   a  showing   of            interference  with  a  constitutionally-protected   right  by            someone  acting under color of state law is a prerequisite to            a    1983 action."   Malachowski v.  City of Keene,  787 F.2d                                 ___________     _____________            704,  710 (1st Cir.) (per curiam), cert. denied, 479 U.S. 828                                               ____________            (1986).   That  is,    1983 does  not reach  private conduct.            Mendez  v. Belton,  739 F.2d  15, 17  (1st Cir.  1984).   The            ______     ______            action of a private party may be treated as that of the state            only  where there is a  "sufficiently close nexus between the            State and  the challenged  action" of the  private defendant.            See  Jackson v.  Metropolitan Edison  Co., 419 U.S.  345, 351            ___  _______     ________________________            (1974).    "In short,  the  party seeking  to  establish that                                            ____________________            2.  Before filing the federal action, appellant had initiated            an action  in the Suffolk Superior  Court against Dana-Farber            on July 17, 1989.  The  court allowed her to proceed in forma            pauperis and  subsequently referred  the matter to  a medical            malpractice  tribunal.   See M.G.L.c.  231,    60B.   After a                                     ___            hearing at which appellant did not appear, the tribunal found            in favor of Dana-Farber.  The court reduced the amount of the            bond necessary to pursue her action in the state court.  When            appellant failed  to file the  bond, the court  dismissed the            case on February 7, 1992.  Appellant did not pursue any state            appellate remedies.                                         -3-            action of a private  party violated the Constitution  must be            able  to  point  to  the  specific  act  or  actions  of  the            government  which  in  fact  motivated  the  private action."            Gerena v. Puerto Rico Legal Services, Inc., 697 F.2d 447, 450            ______    ________________________________            (1st Cir. 1983).                      Here, the  only claim  appellant makes is  that the            receipt of  public funds  by Dana-Farber  renders it a  state            actor for  purposes of   1983.  It has been clear since 1982,            however,  that the  receipt of  state funding,  without more,            does  not convert  a private  defendant's conduct  into state            action.   See West  v. Atkins,  487 U.S.  42, 52  n.10 (1988)                      ___ ____     ______            (citing Blum  v. Yaretsky, 457  U.S. 991 (1982)  and Rendell-                    ____     ________                            ________            Baker v. Kohn, 457 U.S. 830 (1982)).            _____    ____                      For example, in Mendez we  addressed the claim of a                                      ______            physician   who   alleged  that   a   private   hospital  had            discriminated  against her based on  sex and race in revoking            her staff privileges.  We held that she failed to demonstrate            that the hospital  had acted  under color of  state law  even            though it  was extensively  regulated by the  state, received            federal  assistance under  the Hill-Burton  program, received            financial  support  through  annual appropriations  from  the            Puerto Rico legislature,  and received Medicaid and  Medicare            funds.  Mendez, 739 F.2d at 17-18.                    ______                      Essentially,  what appellant  is  alleging here  is            that medical decisions  made by the "purely private" staff of                                         -4-            a  "purely private" hospital caused her harm.  See Spencer v.                                                           ___ _______            Lee,  864 F.2d  1376, 1377-78  (7th  Cir. 1989)  (decision to            ___            commit  a  mentally  ill  individual by  private  doctor  and            hospital not made  under color of  state law), cert.  denied,                                                           _____________            494  U.S. 1016  (1990).   In Blum  v. Yaretsky, 457  U.S. 991                                         ____     ________            (1982),  the   Supreme  Court   held  that   decisions  which            "ultimately turn on medical judgments made by private parties            according to professional standards that  are not established            by the State" are not the equivalent of state action.  Id. at                                                                   ___            1008-09.  Although such allegations may state a viable action            for medical  malpractice, there  is no question  that, absent            state  action, they cannot suffice  to state a  claim under              1983.                       B. The   1981 Claim                         ________________                      Section 1981 forbids  "all 'racial'  discrimination                                                  ______            in the making of private as well as public contracts."  Saint                                                                    _____            Francis  College v.  Al-Khazraji,  481 U.S.  604, 609  (1987)            ________________     ___________            (emphasis added).   As  the district court  correctly pointed            out,  appellant "has  not alleged  one fact  in support  of a            claim of discrimination based on race. . . ."  Memorandum and            Order  at 3.  Rather, she alleges discrimination on the basis            of wealth.  Such a claim may not be brought under   1981.                                      CONCLUSION                                      __________                      Under Neitzke  v. Williams, 490 U.S.  319 (1989), a                            _______     ________            district court  may dismiss  an action  as frivolous under                                            -5-            1915(d) if  it "lacks an  arguable basis either in  law or in            fact."  Id. at 325.   An action that lacks a basis in  law is                    ___            one  that is  premised  on an  "indisputably meritless  legal            theory."   Id. at 327.  As the above discussion demonstrates,                       ___            the law  at the  time appellant  filed her  complaint clearly            prohibited  the  type of  civil  rights  claims she  asserted            against Dana-Farber.  Even  assuming, however, that there was            some "arguable"  foundation for her claim,  appellant had the            opportunity  to  correct  the  deficiencies  listed   in  the            district court's  order of  dismissal.  Specifically,  in her            motion for reconsideration, she  responds, point by point, to            the reasons the district court  gave for determining that her            complaint  was frivolous.  Cf. Purvis v. Ponte, 929 F.2d 822,                                       ___ ______    _____            826-27 (1st Cir.  1991) (per curiam) (where  pro se plaintiff            had  opportunity  to  respond  to   magistrate's  report  and            recommendation before district court dismissed his complaint,            he   received  the  "'practical   protections'"  required  by            Neitzke).            _______                      The judgment of the district court is affirmed.                                                             ________                                         -6-
