*1 court district will be judgment conspir- on the to the conviction affirmed acquittal on judgment count.
acy 4, 5, 9, 11, counts: Counts
the substantive vacated will be district be remanded will
matter proceedings. The cross-
court at Nos. 76-2565 the defendants
appeals of will be dismissed. 76-2566 Shirley WALKER
Brown, Appellants, M.D., PIERCE, al., et H.
Clovis
etc., Appellees.
Virgil WALKER and Brown, Appellees, Butzner, opinion filed dissenting part. concurring PIERCE, M.D., Appellant, Clovis M.D., etc., Poda,
George et A.
al., Defendants. 75-2212 and 75-2213.
Nos. Appeals,
United States Court
Fourth Circuit.
Argued March 26, 1977.
Decided *2 BRYAN,
Before Senior Circuit RUSSELL, and BUTZNER and Judges. BRYAN,
ALBERT V. Senior Circuit Judge: laid, rights1
Violation of their civil in this action for damages declaratory and injunctive by relief Walker and Shir- Brown, females, ley black to Clovis Atlanta, (H. Christo- Bradley, Neil Ga. Pierce, attending obstetrician at Atlanta, Ga., Levin, Coates, Joseph J. pher County Hospital Aiken in South Carolina Ala., Wulf, Montgomery, Melvin L. New them, so, for threatening or to do Athens, Ga., Emily Calhoun, City, York on solely account of their race and number Columbia, C., brief), Bagby, on Carlton S. children, receiving of their while appellees 75-2212 appellants for in and for medical assistance pro- under in 75-2213. gram.2 defendants, The other the Chair- man of the Board of Trustees Hospi- of the Morrison, Stephen Columbia, (R.C. G. S. tal, Administrator, its the Director of the Jr., Shaw, Davies, Bruce Nelson Wm. S. of Social Services of Aiken Mullins, Columbia, Scarborough, Grier & S. County, the State Commissioner of the De- C., Johnson, Jr., B. Henderson & Williams of partment Social of Services South Caroli- Johnson, C., Aiken, brief), S. on Edward E. na and the charged are with con- Poliakoff, Atty. Gen., Jr., Lynn, Asst. W. G. or spiring acting in concert with Dr. Pierce Aiken, (Daniel McLeod, Gen., R. Atty. S. C. imputed in the unlawful acts to him. Goolsby, Jr., Atty. Gen., C. Tolbert Deputy Choate, Atty. Gen., Columbia, John L. Asst. Verdicts, those .directed and those re- C., brief), appellees S. in by 75-2212 the jury, turned went for the defendants for appellants in 75-2213. against whom the as- They predicate imputations liability priving, directly indirectly, of any person or First, Fourth, Fifth, Ninth, Eighth, on the persons Thir- equal protection or class of of the of laws, teenth and Fourteenth and 42 equal privileges Amendments or of and immunities 1985(3) laws; U.S.C. §§ and 2000d: any under the ... in case of con- section, spiracy set forth in this if one or more Section 1981 persons engaged do, therein or cause to be persons jurisdiction All within the done, any act object in right furtherance of the of United have the in ev- States shall same conspiracy, whereby injured such ery Territory another is in State and to make and enforce person contracts, evidence, property, deprived sue, parties, give or or be of exercising any equal right privilege or to the full and benefit of all laws and of a citizen States, proceedings security persons party injured of the United deprived may of so or citizens, enjoyed property by recovery as is white have an action for the subject punishment, pen- damages, by pains, injury dep- shall alties, like of be occasioned such or licenses, taxes, every rivation, against any and exactions or one more of the con- kind, spirators. and to no other. Section 1983 Section 2000d who, any Every person person stat- shall, in No the United States ute, ordinance, custom, regulation, usage, of race, color, ground origin, or national be any Territory, subjects, to be State or or causes in, participation excluded from denied subjected, any citizen of the United States or of, subjected or be benefits to discrimination jurisdiction person thereof other within the any program activity receiving Feder- deprivation any rights, privileges, or im- al financial assistance. laws, munities secured Constitution 2. Medicaid is a of health service fi- party injured shall an action be liable to approximately nanced the Federal 75% law, proceed- equity, proper suit other Government and the remainder the State ing for redress. administering the latter it. 42 U.S.C. 1985(3) part: pertinent Section reads in —this seq. et persons any If or Terri- two or more tory conspire purpose . . of de- asserts, plaintiff in favor of as a direct damages consequence of $5.00 sessed according- passed Judgments acts of the Brown. defendants under policy. declaratory and in- including denial of ly, Now to follow are the facts as elicited appeals we plaintiffs’ relief. On junctive evidence, from their but de- affirm; we reverse. on the obstetrician’s nied by the inculpations defendants as *3 them. Complaint brief: faultlessly put plaintiffs’ Plaintiff Walker was that complaint “The essence of completed Walker had the seventh being required were to recipients grade, was separated from her husband and ligation they a tubal if undergo to consent receiving to Depend- Aid Families with living child.” delivering a third were ent Children3 Medicaid benefits. Ex- Centering controversy policy is child, pecting her fourth she first went to constantly pur- announced and previously January Pierce on 1972. During this doctor, testified to practice by sued consultation, he family discussed planning by him as follows: policy. and his sterilization Walker refused people was with who were “My policy again up to consent. The issue came at the themselves, financially support unable to she again second visit and declined. Walk- just they on Medicaid or un- whether er testified that Pierce threatened to have bills, pay they to their own able her State assistance terminated unless she child, they vol- request a third to cooperated. doctor, called another She but untarily following submit to sterilization taking patients. he was not new they child. If delivery of the third 4, 1972, February Spears, not wish this as a condition for Depart- did On a care, requested they seek an- then I ment of Social Services caseworker as- myself.” Walker, than signed other other to received a note from Pierce’s office that he asking talk with professional question There is no Walker about sterilization. Thereupon, qualifications experience. Spears, according to his testimony, spoke plaintiffs, he is As drawn 17th, February with her on offering get to is incursion arch-offender. The accusation hand, her a second doctor. On the other privacy, rights upon Constitutional Spears Walker stated that had said there process equal protection law and due nothing he could do. Then she re- statutory privi- of their the law as well as to Pierce and subsequently signed turned a on account of leges discrimination consent form sterilization. color, by subjecting all their race and as citizens of the Her fourth child was delivered at threatening 16,1972 involuntary County Hospital April steriliza- Aiken with United States Burke, say, Billy an obstetrician who deprivations, they These substituted tion. the effectuation of Pierce’s for Pierce on occasion. Burke are the result of discussed law, is, ligation tubal with Walker. Her response under color of State policy administered was that she did not want additional the Medicaid chil- codefendants, His dren and understood that it would be a Carolina. by South conspiring permanent sterilization. Two more impleaded are consent repeat, him, signed. performed with and for ac- forms were then acting in concert operation April 42 the protested his unlawful conduct. 1972. She quiescing in because, 1985(3) and 2000d. no further she it would have U.S.C. §§ suffered, each injury has been been futile. Personal pendent parents program, this welfare children and the relatives
3. As with the strengthen family Federally plan with whom live to funded life. assistance assistance, seq. provides 601 et It financial U.S.C. § administered. needy de- and other services to rehabilitation newspaper fees appearing bills and doctor’s accounts in the local Walker’s Under South paid by Medicaid. papers. He reported it the Chief of operated by the plan Carolina Obstetrics and Gynecology Services, patient-physician re- Social but at that time he received no answer as to one choice for both lationship is of free anything he should do. under no physician, contract parties. Poore, Defendant Director of the Aiken State, bill simply submits his when County Department of Social Services since concluded the Medicaid in- treatment origi- March testified that he also of the patient. carrier instead surance nally press learned of Pierce’s items on 1973. He called staff Plaintiff Brown meeting arranged doctor Au- regarding Brown consulted Pierce gusta, Georgia to see obstetric She, too, pregnancy. separat- third Transportation provided by for them was *4 job from her husband and had taken ed Department. the maternity leave from Seminole Mills. On visit, paid Brown her initial Pierce $50.00. Ellis, Defendant State Commissioner of was not discussed. A $250.00 Sterilization DSS, became of poli- aware the sterilization due his fee was satisfied in balance cy through July, 1973 news accounts. Brown partially by and husband and Pierce, fixed a meeting for 26 between plan health insurance at the mill. the a deputy attorney and a State 1973, August At the end of quali- general. Brown investigation An a re- included for Medicaid benefits. was fied She deliv- of view of records Hospital third at ered of her child the Sep- recipients interviews with steri- 2, a doctor other tember than lized the Hospital at the first six months bills, fees, hospital Pierce. The not Pierce’s of 1973.4 Early September, and a Ellis paid by were to be Medicaid. After the attorney general met with Pierce and delivery, requested Pierce his nurse to ob- his attorney. sign Ellis asked Pierce to an Brown’s tain consent to sterilization. stating affidavit that he would not discrimi- refusal, Upon Brown refused. word of her against nate Pierce de- Pierce saw no necessity .hospital- Finally Septem- clined. Ellis wrote Pierce discharge ization and ordered her and re- 27, ber his continued refusal from the Hospital. lease sign the affidavit forced the intervened, offering Her mother to pay a impose non-payment sanction for Pierce’s bill, September but Brown the left longer submitted Medicaid bills. Pierce no something might happen “afraid patients. From January treated Medicaid her.” Protest was made to the defendant 30, 1972 to the June doctor had Nesbit, Administrator, Hospital who sug- $60,000 in received Medicaid fees. gested complaint she file with Board Trustees since he had no control over a Judgments The Verdicts and trial, discharge patients. At doctor’s Poda, attorney conceded that she sus- The claims Chairman of the Brown’s damages leaving no actual tained Board of the were withdrawn. In Hospital. the Walker action under section 1981 ver- dicts were directed all of defendants
The Defendants
Pierce,
individually
Dr.
except
Nesbit
as
Hospital
Administrator
Nesbit stated that
first
Defendant
itself,
jury
July,
but the
returned
learned of Pierce’s
a.ver-
separated,
eight
investigation
nine
married
revealed 50 Medicaid deliv-
and one wid-
4. The
during
ligations
Medicaid tubal
owed. Sixteen women sterilized were black
eries and 18
Forty
single
separated;
period.
and 17
one
white
of the deliveries
was
separated
ligations
Of
one
black
were done
Pierce.
the 50
and married.
black,
deliveries,
single,
42 women
defendants;
in the Walk-
statute inhibiting
for the latter
this personal
diet
economic
section
verdicts were
philosophy.
action under
Particularly
er
is this so when all
except
persons coming
all defendants
to him patients
directed
are sea-
Nesbit,
acquitted
sonably
fully
but the verdict
made
profession-
aware of
Brown’s action under section
al attitude
two.
In
toward
increase in offspring
and his
granted
prevail.
verdicts were
for all
determination to see it
directed
At
no
time is he shown to
except
Poore and the
have forced his view
defendants
upon any
Indeed,
mother.
jury
quite
oppo-
found for them.
In
Hospital, but
appears.
site
In
single
occasion in this
action under section
verdicts
Brown’s
doctor,
case of a sterilization by this
instructed for all defendants
just one but three
However,
formal written consents
jury
and Poore.
Dr. Pierce
were obtained —the first before delivery against Dr. Pierce as-
found for Poore but
the fourth child and two afterwards.
“Nominal Dam-
sessing damages
$5.00
ages”.
But if his conduct is nevertheless
Court,
judged
to be
the factors
weighed by
evidence
of section
Dr. Pierce was not a
permit
finding
sufficient to
of a
violator. He
was not
was not
and,
acting under color of
1985(3),
there-
State law
conspiracy under section
when treat
ing
only
fore,
plaintiff,
successful
the case was not submitted to the
Brown.
His fee for her delivery
count,
by her
going
directed verdicts
for all
her employer’s insurance plan;
there
Judgments,
costs,
the defendants.
no use of Medicaid money.
Incidentally, he
accordingly. Motions for new trials
went
*5
her;
did/not sterilize
the tort
denied,
charged to
judgment
as was a motion for
discharge
is his
and release of her
him
from
Previously
Dr. Pierce.
the
by
n. o. v.
Court
the
an accepted procedure there.
plaintiffs’ request
for a class
had denied
Receipt by
the
of Hill-Burton
23(a), (b)(1)
(b)(2)
Rule
and
action under
funds, 42
291 et seq.
U.S.C.
did not convert
F.R.Civ.P.
Dr.
participant
Pierce into a
in a Federal
The claim for a class action was not ar-
program and thus in State action. Ascher
the court but
the
gued before
man v. Presbyterian Hospital, 507 F.2d
point.
that
reserved the
The
noted
(9
1974).
Cir.
No decision has
did not abuse its discretion in re-
Court
been advanced holding
physician
that a
the
fusing
request
the
and
record confirms
simply
in
practicing
such an institution acts
the soundness of this resolution. Nor is
under color of State law. Certainly the
apparent
error
in the directed verdicts.
Fourth Circuit did not do so in its line of
proof
adequate
The
was not
to establish
question
decisions on the
terminating in
discrimination,
otherwise,
racial or
conspir-
Doe
Center,
v. Charleston Area Medical
faith,
acy,
good
or recklessness or want of
Inc.,
(1975).
He came
he
sufficiently
in and
hadn’t examined me
close nexus between the State
anything.
laying
or
I
the table.
and the challenged action of
.
[the
And,
said,
young
person
“Listen here
lady.”
scrutiny]
under
so that the action of
said,
money
is
tax
paying
may
fairly
He
“This
latter
treated as that something
like this.” He
“I am the
itself.”
Metropolitan
Jackson v.
351,
449,
Co.,
function when he
grant
95 S.Ct.
conditions the
Edison
U.S.
(1974). Action under
denial of Medicaid
requirements
In These facts and circumstances fully war- readily apparent. questioned activity rant the judge’s district conclusion that Dr. benefits grant acting or denial of Medicaid Pierce was under color of state law. patient’s reasons unrelated to a The nexus between the state for fiscal and Dr. Pierce statute, was sufficient to establish that Under the Medicaid his steriliza- health. ascertaining tion of responsible which for economic rea- sons not receive Medicaid ben- related to their fairly women are entitled to health can be fact, treated as the action of the delivery of their children. Be- state. In efits for patients’ Dr. Pierce was his important most activity the state is involved in the cause program. Therefore, contact with the state scrutiny, applying one criterion for I would affirm judge’s the district ruling 1983 is satisfied. that Dr. Pierce acting Furthermore, evidence discloses that law meaning within the of 42 U.S.C. § a state function. Dr. Pierce assumed South directly with does not contract Carolina Medicaid; rath-
physicians participate
er, are free to Med- qualified doctors choose. Under this patients,
icaid woman can select
arrangement, pregnant choice, doctor of her participating *7 Roby TEAGUE, Appellant, L. reject patient. can doctor part phy- of both Freedom of choice on patient is assured as an essential sician and Joseph CALIFANO, Secretary A. When program. Health, Education and patient, the state is not accepts a Medicaid Welfare, Appellee. relationship until the made aware of the No. 77-1214. agent to the state’s presented bill is doctor’s (a company) process- Appeals, insurance United States Court of procedures Fourth Circuit. payment. By ing delegates much of its administrative Argued May 1977. operation of the Med- responsibility for Aug. Decided to individual doctors. There- icaid fore, himself to the represents who a doctor practitioner qualified as a
public administrative public a state or
assumes