Opinion
Civ. No. 05-1280 WPL/RLP.
April 13, 2006
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Cynthia and Perfecto Provencio filed suit under 42 U.S.C. § 1983 against Steven Wenrich, D.O., for refusing or failing to complete a sterilization procedure on Cynthia Provencio. The Provencios claim that Wenrich violated their constitutional rights of due process, privacy, and personal and familial integrity, and they bring several state law claims. This matter is before me on Wenrich's Motion for Summary Judgment [Doc. 12] and Memorandum in support of motion for summary judgment [Doc. 13], the Provencios' Response [Doc. 16], and Wenrich's Reply [Doc. 20]. Having considered the briefs, pleadings, and applicable law, I will grant Defendant's motion.
FACTUAL BACKGROUND
Cynthia Provencio was expecting her fourth child in Fall 2002. [Doc. 16 Ex. 1] She and her husband, Perfecto Provencio, decided that they did not want any more children and that Cynthia Provencio would undergo permanent sterilization through a left tubal ligation (salpingectomy). [Doc. 1 at 1]
Cynthia Provencio was receiving prenatal and obstetrical care from Steven Wenrich, D.O. [Doc. 16 Ex. 1] Wenrich was a board certified obstetrician/gynecologist in private practice in Alamogordo, New Mexico. [Doc. 13 Ex. A] In 2002 he was the owner and director of Women's Health Center, P.C., a private, for-profit corporation. Id. He has never been an employee of the State of New Mexico or any public entity. Id. Approximately thirty to forty percent of the income generated by his practice is for medical services rendered to patients covered by Medicaid. Id.
The Provencios could not afford a tubal ligation, but were told by Wenrich that Medicaid would pay for the procedure if performed in conjunction with the delivery of Cynthia Provencio's fourth child. [Doc. 16 Ex. 1] They were also told that the State of New Mexico would have to give prior approval for the procedure. Id. The Provencios worked with Wenrich's staff to complete the forms required for the procedure. Id. The Provencios consented to the procedure and Wenrich agreed to perform it. Id.
Wenrich delivered Cynthia Provencio's child on December 12, 2002, and proceeded to perform what he believed to be a tubal ligation of her left fallopian tube. Id. at 2. A pathology report concluded that Wenrich ligated Provencio's ligament, not her fallopian tube. Id. On December 18, 2002, Wenrich met with Cynthia Provencio for her first post-operative visit. [Doc. 13 Ex. A] He informed her that the tubal ligation may not have been successful and that she should obtain additional testing. [Doc. 13 Ex. A, Doc. 16 Ex. 1] Wenrich billed Medicaid for the services he provided to Cynthia Provencio. [Doc. 13 Ex. A]
Cynthia Provencio eventually became pregnant with her fifth child. [Doc. 16 Ex. 1] She submitted forms so that Medicaid could approve and pay for a sterilization procedure during the delivery of her fifth child. Id. Cynthia Provencio received this procedure when she delivered her fifth child and Medicaid paid for it. Id.
LEGAL STANDARDS
Federal district courts are courts of limited jurisdiction. Exxon Mobil Corp. v. Allapattah Servs., Inc., ___ U.S. ___, ___, 125 S. Ct. 2611, 2616 (2005). They are to presume that they lack jurisdiction, Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), and the party invoking jurisdiction bears the burden of proof. Penteco Corp. Ltd. P'ship — 1985A v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991). Federal Rule of Civil Procedure 12(b)(1) provides for challenges to the subject-matter jurisdiction of a federal court. FED. R. CIV. P. 12(b)(1); see Davis ex rel. Davis v. United States, 343 F.3d 1282, 1294 (10th Cir. 2003). "Rule 12(b)(1) motions generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based." Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). Wenrich states that he is making a factual attack on the Court's jurisdiction over the Provencios' § 1983 claims. [Doc. 13 at 3-4]"[W]here the complaint . . . is so drawn as to seek recovery directly under the Constitution or laws of the United States, the federal court, but for two possible exceptions later noted, must entertain the suit." Bell v. Hood, 327 U.S. 678, 681-82 (1946). The Tenth Circuit has stated that in such a case the merits and the question of the court's jurisdiction are intertwined. See Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995); Bloomer v. Norman Reg'l Hosp., No. 99-6074, 2000 WL 963336, at *2 (10th Cir. July 12, 2000) (unpublished). If the resolution of the jurisdictional question is intertwined with the merits of the case, a court must convert a Rule 12(b)(1) motion into a Rule 12(b)(6) motion or, after proper conversion, a Rule 56 summary judgment motion. See United States ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1159 (10th Cir. 1999); United States ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1518 (10th Cir. 1996). The state action requirement is ordinarily treated as an element of the claim. Elliott v. Chrysler Fin., No. 05-2073, 149 F. App'x 766, 768-69 (10th Cir. Sept. 2, 2005) (unpublished) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).
The Supreme Court identified two exceptions to the rule that a federal court possesses jurisdiction when a complaint is drawn to rely directly upon a federal statute. Bell, 327 U.S. at 6828-3. The action may be dismissed for lack of jurisdiction only if the claim "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous." Id.
The Provencios bring their claims pursuant to § 1983, and this Court has jurisdiction pursuant to 28 U.S.C. § 1331. See Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir. 1994); Amisub (PSL), Inc. v. State of Colo. Dept. of Social Servs., 879 F.2d 789, 790 (10th Cir. 1989). The Provencios' complaint is drawn to rely directly upon a federal statute. [Doc. 1] A § 1983 claim is subject to Bell since it relies directly upon a federal statute and the court's jurisdiction and the merits are intertwined. See White v. SPE Corperate [Sic] SVC, Inc., 393 F. Supp. 2d 1110, 1114 (D.N.M. 2005).
The claim here does not appear to be made solely to establish jurisdiction, nor is it wholly insubstantial and frivolous. It is appropriate in this case to take jurisdiction and decide the merits. See Bell, 327 U.S. at 681-82. Therefore, instead of treating Wenrich's motion as jurisdictional, I will treat it as a 12(b)(6) motion to dismiss converted to a motion for summary judgment since I will rely on affidavits. See Burnham v. Humphrey Hospitality Reit Trust, Inc., 403 F.3d 709, 713 (10th Cir. 2005); Century Healthcare, 90 F.3d at 1518.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The court examines the factual record and makes all inferences in a light most favorable to the non-moving party. Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1164 (10th Cir. 2000).
The party moving for summary judgment has the burden to demonstrate an absence of evidence supporting the non-moving party's case. Id. The moving party must identify the portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the non-moving party must identify specific facts showing the existence of a genuine issue of material fact. Munoz, 221 F.3d at 1164. A "material" fact is one "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). There is no genuine issue "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). It is not sufficient that the evidence brought forward by the non-moving party is "merely colorable" or anything less than "significantly probative." Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (quoting Liberty Lobby, 477 U.S. at 249-50).
THE PROVENCIOS' SECTION 1983 CLAIMS
To state a claim under § 1983, the Provencios must demonstrate that they "were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). "[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." Id. at 50 (internal quotations omitted). If conduct constitutes state action under the Fourteenth Amendment, then that conduct is also action under color of state law which would support a § 1983 claim. West v. Atkins, 487 U.S. 42, 49 (1988); Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 (1982). Courts therefore look to decisions interpreting the state action requirement when applying the under-color-of-state-law requirement. Jojola v. Chavez, 55 F.3d 488, 492 n. 5 (10th Cir. 1995).
"Application of the state action doctrine has been characterized as one of the more slippery and troublesome areas of civil rights litigation." Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995) (internal quotations omitted). The Supreme Court has noted that the state action inquiry "frequently admits of no easy answer," id. at 1447 (quoting Jackson v. Metro Edison Co., 419 U.S. 345, 350 (1974)), and that its state action cases "have not been a model of consistency," Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374, 378 (1995). It would be an "impossible task" to "fashion and apply a precise formula" for determining state action, and the Court has never attempted to do so. Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961). "Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." Id.
The ultimate question in the state action determination is whether the alleged violation of federal law is "fairly attributable to the State." Beedle v. Wilson, 422 F.3d 1059, 1065 (10th Cir. 2005). The Supreme Court has developed a two-part test to determine this issue. Lugar, 457 U.S. at 937. "First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible." Id. "Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor." Id. These two principles are related, but they diverge when the constitutional claim is directed against a private party. Id. "Only in rare circumstances can a private party be viewed as a `state actor' for section 1983 purposes." Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). I turn first to Lugar's second prong. See, e.g., Barnard v. Young, 720 F.2d 1188, 1189 (10th Cir. 1983).
In Tool Box v. Ogden City Corp., the Tenth Circuit reviewed four tests that the Supreme Court has employed to determine the "inherently murky calculation" of whether the conduct of a private party constitutes state action: (1) the public function test, (2) the nexus test, (3) the joint action test, and (4) the symbiotic relationship test. Tool Box v. Ogden City Corp., 316 F.3d 1167, 1175-77 (10th Cir. 2003), vacated on reh'g en banc, 355 F.3d 1236 (10th Cir. 2004). Under each of these tests, "the conduct allegedly causing the deprivation of a federal right" must be "fairly attributable to the State." Johnson v. Rodrigues (Orozco), 293 F.3d 1196, 1203 (10th Cir. 2002). The Court has taken a flexible approach to this question, applying a variety of tests to the facts of the case. Id. at 1202. "Whether these different tests are actually different in operation or simply different ways of characterizing the necessarily fact-bound inquiry that confronts the Court in such a situation need not be resolved here." Lugar, 457 U.S. at 939.
I include Tool Box because it discusses the application of Brentwood. Since it has been vacated, I cite it only for its informational value and persuasive effect. See DHX, Inc. v. Allianz AGF MAT, Ltd., 425 F.3d 1169, 1175-76 (9th Cir. 2005); Simes v. Huckabee, 354 F.3d 823, 829 n. 4 (8th Cir. 2004); Gould v. Bowyer, 11 F.3d 82, 84 (7th Cir. 1993). I note that the Tenth Circuit's substituted opinion did not affect the prior state action analysis; the substituted opinion appears to assume that the state action requirement was met. See Jornigan v. N.M. Mut. Cas. Co., No. CIV 03-0813, 2004 WL 3426437, at *18 n. 11 (D.N.M. April 19, 2004) (unpublished).
The Tool Box court noted that the Supreme Court expanded upon and clarified these four tests by invoking the concept of "entwinement." Tool Box, 316 F.3d at 1176; see Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288 (2001). In Johnson, the Tenth Circuit included the entwinement test in its discussion of the symbiotic relationship test, noting that its meaning appeared to be comparable to what the Court previously described as "symbiotic relationship." See Johnson, 293 F.3d at 1205. In Tool Box, the court applied only the entwinement test. See Tool Box, 316 F.3d at 1175-77. Because the Tenth Circuit has continued to use the four prior tests and the parties' arguments are based on these tests rather than entwinement, I will apply them in addition to the entwinement test. See, e.g., Jornigan v. N.M. Mut. Cas. Co., No. CIV 03-0813, 2004 WL 3426437, at *20-*21 (D.N.M. April 19, 2004) (unpublished). I will then consider the Provencios' arguments that the facts of this case are sufficiently similar to those in two other decisions to justify a finding of state action.
Entwinement
In Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, the Supreme Court considered the state action inquiry by reference to the concept of entwinement. See Brentwood, 531 U.S. at 291, 296-303. The issue was whether a statewide association with the purpose of regulating athletic competition among public and private schools engaged in state action when it enforced a rule against a member school. Id. at 290. The Court held that "the association's regulatory activity may and should be treated as state action owing to the pervasive entwinement of state school officials in the structure of the association." Id. at 291. The Court based this decision on several facts demonstrating the required degree of entwinement. Id. at 298-300. These include: the fact that eighty-four percent of the member schools were public; the organization was overwhelmingly composed of public school officials; public schools provided most of the association's financial support; state board of education members were assigned ex officio to serve as members of the association's board of control and legislative council; and the association's ministerial employees were allowed to participate in the state retirement system. Id.
The Court stated that the results of a different test for state action do not affect the result when "the relevant facts show pervasive entwinement to the point of largely overlapping identity." Id. at 303. The Court noted that no one fact can be a necessary condition to, nor is any circumstance absolutely sufficient for, a finding of state action. Tool Box, 316 F.3d at 1176. Rather, the four tests are tools for factual analysis of the fairness of attributing the challenged conduct to the government. See id. Brentwood directs courts to apply the tests only so far as they focus attention on the fact-intensive nature of the inquiry. See id.
The Tenth Circuit in Tool Box found state action where a business's application to lease property in a commercial and industrial park was denied by a review board. Id. at 1171-72, 1177. The mayor chose the three members of the review board, two of whom would be city employees and one of whom would be a land owner or her representative. Id. at 1172. The mayor had final authority over all appeals from the review board. Id. The court, applying Brentwood, held that the review board was a state actor. Id. at 1177. It noted that the facts closely resembled those of Brentwood and rejected the argument that the presence of a single non-municipal board member transformed the review board into a private actor. Id. The only way to find that the board's decision was that of a private actor, the court reasoned, "would be to turn a blind eye to structural realities — all of which point to the inescapable conclusion that the review board engaged in `conduct . . . fairly attributable to the State.'" Id. (quoting Lugar, 457 U.S. at 937).
The concept of entwinement cannot support a finding that Wenrich engaged in state action. Medicaid is not pervasively entwined in the operation of Wenrich's medical practice. Wenrich has never been an employee of any public entity. [Doc. 13 Ex. A] There is no evidence that Medicaid has any control over Wenrich's practice except with regard to the procedures it pays him to perform. Even regarding those procedures, Medicaid does not heavily regulate Wenrich's provision of medical care. [ See Doc. 16 at 3] The regulations identified by the Provencios are general, non-medical restrictions on what procedures may be performed. See id. They mainly relate to the age of the patient and informed consent. See id. Several of these regulations are no more than requirements already imposed on Wenrich. See, e.g., Woods v. Brumlop, 377 P.2d 520, 524-25 (N.M. 1962) (a physician has a duty to make a full disclosure to the patient of all facts pertinent to his illness and treatment).
To be sure, approximately thirty to forty percent of the income generated by Wenrich's practice is for services rendered to patients covered by New Mexico Medicaid. [Doc. 13 Ex. A] However, this demonstrates a situation similar to that of many other private entities that contract with the government to perform services. See Rendell-Baker v. Kohn, 457 U.S. 830, 840-41 (1982). In fact, the Supreme Court has found no state action where private entities derive a much larger percentage of their income from government programs. See id. at 832, 840; Blum v. Yaretsky, 457 U.S. 991, 1010-12 (1982). Wenrich and New Mexico Medicaid are not sufficiently entwined to support a finding that Wenrich is a state actor.
Public Function
A private party is a state actor if the state delegates to the private party a function "traditionally exclusively reserved to the State." Gallagher, 49 F.3d at 1456 (quoting Jackson, 419 U.S. at 352). This test is difficult to satisfy, because "[w]hile many functions have been traditionally performed by governments, very few have been exclusively reserved to the State." Id. (quoting Flagg Bros. v. Brooks, 436 U.S. 149, 158 (1978)) (internal quotations omitted).
In Blum v. Yaretsky, the Supreme Court considered whether decisions by private nursing homes to discharge or transfer residents without notice or an opportunity for hearing constituted state action. See Blum, 457 U.S. at 993-94. The Court rejected the residents' argument that the nursing homes performed a traditionally exclusive public function because federal law and the state constitution required the state to provide every Medicaid patient with nursing home care. Id. at 1011. The Court noted that these provisions only required the state to provide funding for the nursing home services; they did not require the state itself to provide the services. Id. "Even if respondents' characterization of the State's duties were correct, however, it would not follow that decisions made in the day-to-day administration of a nursing home are the kind of decisions traditionally and exclusively made by the sovereign for and on behalf of the public." Id. at 1011-12.
Wenrich's conduct was not state action under the public function test. The provision of medical care, including the provision of medical care specifically to the indigent, is not a function "traditionally exclusively reserved to the State." See Shannon v. Shannon, 965 F.2d 542, 547 (7th Cir. 1992) ("Clearly, hospital care, while serving the public, is not the exclusive prerogative of the State."); Newsom v. Vanderbilt Univ., 653 F.2d 1100, 1114 (6th Cir. 1981) ("Nor has the federal government ever exclusively reserved to itself [the] function [of providing free hospital services to those unable to pay]."). There has been no allegation that New Mexico or the federal government has reserved to itself this function. As in Blum, the state is required to provide funding for the procedure, not to provide the procedure itself. N.M. ADMIN. CODE 8.325.3.8 to .10, .15; [ See Doc. 16 at 2] The conduct the Provencios complain of does not constitute state action under the public function test.
Nexus
"Under the nexus test, a plaintiff must demonstrate that `there is a sufficiently close nexus' between the government and the challenged conduct such that the conduct `may be fairly treated as that of the State itself.'" Gallagher, 49 F.3d at 1448 (quoting Jackson, 419 U.S. at 351). A state may generally be held responsible for private conduct "only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Id. (quoting Blum, 457 U.S. at 1004). "The purpose of this requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains." Blum, 457 U.S. at 1004.
The Supreme Court has set out a number of general principles to guide this fact-specific inquiry. See Gallagher, 49 F.3d at 1448. The existence of government regulations, without more, will not provide the required nexus. Id. (citing Blum, 457 U.S. at 1004; Jackson, 419 U.S. at 350). Further, the fact that a private entity contracts with the government or receives government funds or other assistance does not automatically convert the entity's conduct into state action. Id. (citing Rendell-Baker, 457 U.S. at 840-42). Finally, "[m]ere approval of or acquiescence in the initiatives of a private party is not sufficient" for a finding of state action. Id. (citing Rendell-Baker, 457 U.S. at 1004-05).
In Blum, the Court found that the state was not responsible for nursing homes' decisions to discharge or transfer their residents. Blum, 457 U.S. at 993, 1012. In doing so, the Court considered several regulations imposed on the nursing homes. Id. at 1006-11. These regulations (1) required that nursing home physicians complete state-provided forms concerning patients' health; (2) required nursing homes to make all possible efforts to transfer patients to the appropriate level of care; (3) authorized the state to assess fines and other penalties against facilities that violate regulations; (4) required the state to approve or disapprove continued payments to nursing homes based on their decisions to discharge or transfer particular patients; and (5) authorized the state legislature to provide funds for the care of the indigent. Id.; Gallagher, 49 F.3d at 1448. The Court held that these regulations did not dictate the decision to transfer or discharge in a particular case. Blum, 457 U.S. at 1008-10. Rather, the decision "ultimately turn[s] on medical judgments made by private parties according to professional standards that are not established by the State." Id. Therefore, the regulations did not demonstrate a sufficient nexus to render the state responsible for the nursing homes' decisions. Id.
The Provencios allege that Wenrich "agree[d] to perform Plaintiff's sterilization procedure in accordance with the rules, regulations and laws of the State of New Mexico, and therefore was acting at all material times under color of State law." [Doc. 1 at 5] These regulations require that providers who furnish medical treatment must comply with all participation requirements. N.M. ADMIN. CODE 8.325.3.11. Providers must also verify that the individuals treated are eligible for Medicaid and determine whether they have other health insurance. Id. They must also maintain records sufficient to fully disclose the extent and nature of the services rendered. Id. To receive sterilization procedures, recipients must: (1) be at least 21 years of age at the time consent is given; (2) not be mentally incompetent; (3) not be institutionalized; (4) be given information regarding the procedure, including the risks and benefits of the procedure and the fact that it is irreversible; (5) be instructed that their consent may be withdrawn at any time before the procedure and that they will not lose any Medicaid benefits as result of their decision to have or not to have the procedure; and (6) voluntarily give informed consent to the sterilization procedure. Id. 8.325.3.12.
The state action analysis must focus on "the specific conduct of which the plaintiff complains." Sullivan, 526 U.S. at 51 (quoting Blum, 457 U.S. at 1004). This specific conduct is Wenrich's alleged refusal or failure to complete the tubal ligation. [ See Doc. 1 at 5; Doc. 16 at 1] The fact that Wenrich is subject to state regulations, standing alone, will not provide the required nexus. Gallagher, 49 F.3d at 448. Like the regulations in Blum, the regulations here did not dictate Wenrich's alleged refusal or failure to complete the tubal ligation. The Provencios have not demonstrated that the state exercised coercive power or significantly encouraged Wenrich's conduct such that it must be deemed that of the state. See id. (quoting Blum, 457 U.S. at 1004); see also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173-77 (1972) (finding no state action where the state statutes and regulations the defendant was subject to did not encourage discrimination).
The Provencios argue that the Tenth Circuit's decision in Nieto v. Kapoor supports their contention that the nexus test was satisfied. [Doc. 16 at 10-11]; see Nieto v. Kapoor, 268 F.3d 1208 (10th Cir. 2001). In Nieto, the medical director of the radiation oncology department of a public hospital was sued by department employees for racial and sexual harassment. Id. at 1212-15, 1218. The medical director was not an employee of the hospital but worked under a contractual agreement. Id. at 1212. The court held that the medical director was a state actor. Id. at 1212, 1217. "[Defendant] was able to harass Plaintiffs because of his state authority as the Medical Director of a public radiation oncology department and because he supervised their work." Id. at 1217.
Wenrich's refusal or failure to complete the tubal ligation was not due to any authority granted to him by the state. Medicaid did not give Wenrich authority similar to that exercised by the defendant in Nieto. Medicaid's approval of funding for the tubal ligation does not establish a sufficient nexus for a finding of state action.
Joint Action
The joint action test is met if "a private party is a `willful participant in joint action with the State or its agents.'" See Gallagher, 49 F.3d at 1453 (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)). Courts generally "examine whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights." Johnson, 293 F.3d at 1205. In applying this test, courts have considered whether "both public and private actors share a common, unconstitutional goal." See Gallagher, 49 F.3d at 1454. State action is also present if "there is a substantial degree of cooperative action between state and private officials," or there is "overt and significant state participation in carrying out the deprivation of the plaintiff's constitutional rights." Id. (internal citations and quotations omitted). It is not sufficient that a state official merely acquiesced in the actions of a private party. Gallagher, 49 F.3d at 1453.
In Gallagher, a concert promoter leased a facility on a public university campus for a concert and hired a private firm to provide security services. Id. at 1444-45. Claiming that they had been subject to unconstitutional searches, concert attendees sued the promoter, the director of the concert facility, and the security firm. Id. at 1446. The plaintiffs claimed that the promoter and security firm acted in concert with university officials. Id. at 1455. To establish this concerted action, they argued that the university and the private actors shared a common goal of "produc[ing] a musical concert from which each would benefit financially." Id. The Tenth Circuit found that even if the parties did share this goal, it was insufficient to establish joint action. Id. The court noted that the "state and private entities must share a specific goal to violate the plaintiff's constitutional rights by engaging in a particular course of action." Id. (citing Cunningham v. Southlake Ctr. for Mental Health, 924 F.2d 106, 108 (9th Cir. 1991)). There was not sufficient evidence that the parties shared a common goal of performing pat-down searches on concert patrons. Id. Nor was there any indication that the policy of performing the searches was influenced by any university official. Id.
There is not sufficient evidence to conclude that Wenrich was a willful participant in joint action with Medicaid. Wenrich and Medicaid did not share the common goal of Wenrich's refusal or failure to perform the tubal ligation. Medicaid later paid for Cynthia Provencio to receive a tubal ligation when she delivered her fifth child. [Doc. 16 at 5] Even if Wenrich had the goal of refusing to perform the procedure, there is no evidence to allow a rational juror to conclude that Medicaid shared this goal. Nor was there sufficient coercion or influence to treat any refusal or failure to perform the tubal ligation by Wenrich as an action for which the state is responsible.
Symbiotic Relationship
"State action is also present if the state `has so far insinuated itself into a position of interdependence' with a private party that `it must be recognized as a joint participant in the challenged activity.'" Gallagher, 49 F.3d at 1451 (quoting Burton, 365 U.S. at 725). This test, though based upon the analysis in Burton, was christened in Moose Lodge, in which the Supreme Court referred to "the symbiotic relationship between lessor and lessee that was present in Burton." Id. (quoting Moose Lodge, 407 U.S. at 175).
In Burton, the Court held that a privately owned restaurant which refused to serve an African-American customer was engaged in state action because it leased space in a parking facility owned by a state agency. Burton, 365 U.S. at 717, 722-26. The Court found that the commercial leases were a "physically and financially integral and, indeed, indispensable part of the State's plan to operate its project as a self-sustaining unit." Id. at 723-24. It noted that the "peculiar relationship" of the restaurant and the parking facility "confer[ed] on each a variety of mutual benefits." Id. at 724. The Court found that the "profits earned by discrimination not only contribute to, but also are indispensable elements in, the financial success of a governmental agency." Id. It held that the state had "so far insinuated itself into a position of interdependence with [the restaurant] that it must be recognized as a joint participant in the challenged activity." Id. at 725.
Subsequent Supreme Court decisions have read Burton narrowly. Gallagher, 49 F.3d at 1451 (citing 1 MARTIN A. SCHWARTZ JOHN E. KIRKLIN, SECTION 1983 LITIGATION: CLAIMS, DEFENSES, AND FEES § 5.11, at 274 (2d ed. 1991) ("The present Supreme Court . . . has not found state action in any case that has relied upon Burton.")). "The Court has held that extensive state regulation, the receipt of substantial state funds, and the performance of important public functions do not necessarily establish the kind of symbiotic relationship between the government and a private entity that is required for state action." Id. "Post- Burton decisions have emphasized the Burton Court's finding that the restaurant was an indispensable part of a state project and that the state profited from the restaurant's discrimination." Id.
Approximately thirty to forty percent of the income generated by Wenrich's practice is for services related to patients covered by Medicaid. [Doc. 13 Ex. A] In Rendell-Baker, however, the Court distinguished Burton even where a far larger percentage of the private entity's revenues came from the state, noting that the private entity's status was not significantly different from many private companies contracting with the government. Rendell-Baker, 457 U.S. at 32, 42-43. Wenrich is no different from other medical providers receiving substantial funds from the government in return for medical services. Nor is state regulation sufficient to find a symbiotic relationship between Medicaid and Wenrich. The relationship between Wenrich and Medicaid conferred some benefits on each party. Any benefits from Provencio's services, though, were not an indispensable part of the financial success of Medicaid. Further, Medicaid did not profit from Wenrich's decision; Medicaid paid for the same procedure when Cynthia Provencio delivered her fifth child. [Doc. 16 at 5] The facts of this case do not justify a finding of state action under the symbiotic relationship test.
Comparison to Precedent
The Provencios also argue that the facts of this case are sufficiently similar to those in two other cases for a finding of state action. They first argue that the Supreme Court's decision in West v. Atkins supports their contention that Wenrich was engaged in state action. [Doc. 16 at 7-9]; see 487 U.S. 42. They also argue that a finding of state action is supported by the Tenth Circuit's holding in Nieto v. Kapoor. [Doc. 16 at 9-11]; see Nieto, 268 F.3d 1208.
In West, an inmate sued a private physician who provided medical care to inmates under a contract with the state. West, 487 U.S. at 43-45. He alleged that even though the physician acknowledged that surgery would be necessary to treat his condition, the physician refused to schedule it. Id. at 44. The inmate was not allowed to see a physician of his own choosing due to his administrative classification. Id. He sued under § 1983 for violation of his Eighth Amendment right to be free of cruel and unusual punishment, alleging that the physician was deliberately indifferent to his medical needs by failing to provide adequate treatment. Id. at 45.
The Court held that the physician acted under color of state law for purposes of § 1983 when he treated the inmate's injury. Id. at 54. The Court first rejected the court of appeals' reliance on Polk County v. Dodson, which held that a public defender did not act under color of state law when representing a defendant in a criminal proceeding because his role was independent of and in opposition to the state. Id. at 50; Polk County v. Dodson, 454 U.S. 312 (1981). The Court distinguished Polk County because, in contrast to the public defender, the physician had a cooperative relationship with the prison officials. Id. at 50-51.
The Court stated that its holding was implicit in its decision in Estelle v. Gamble, which held that "deliberate indifference to a prisoner's serious medical needs, whether by a prison doctor or a prison guard, is prohibited by the Eighth Amendment." Id. at 48, 54; see Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). It then quoted Estelle for the proposition that inmates must rely on prison officials to treat their medical needs, and if the prison officials fail to do so "those needs will not be met." West, 487 U.S. at 54 (quoting Estelle, 429 U.S. at 103). The Court noted that under state law the inmate could receive treatment only from physicians provided by the state. West, 487 U.S. at 55. It rejected the argument that the fact that the physician was employed by contractual arrangement altered the analysis. Id. at 55-56. The Court stated, "It is the physician's function while working for the State, not the amount of time he spends in performance of those duties or the fact that he may be employed by others to perform similar duties, that determines whether he is acting under color of state law." Id. at 56.
The Provencios argue that "[i]ndigent persons in our State are in exactly the same position [as the inmates in West] with respect to medical care needed to ensure that they can exercise their constitutionally protected right to choose whether or not to undergo permanent sterilization." [Doc. 16 at 7-9] They contend that citizens who rely on public assistance will not have access to sterilization without "mutual cooperation and trust between the state and private physicians." See id. at 8.
The Provencios' comparison of this case to West does not withstand scrutiny. The Provencios had a choice of physicians [ see Doc. 16 at 12], although this choice may have been more limited than patients who were not enrolled in Medicaid. The inmate in West could not choose his physician. West, 487 U.S. at 44. Further, West distinguished the facts of that case from the ordinary doctor-patient relationship. Id. at 56 n. 15. The physician in West "carried out his duties at the state prison within the prison hospital." Id. The Court noted that "prisons and jails are inherently coercive institutions that for security reasons must exercise nearly total control over their residents' lives and the activities within their confines." Id. "[T]hese factors can, and most often do, have a significant impact on the provision of medical services in prisons." Id. Though they relied on the state to pay for Cynthia Provencio's sterilization procedure, the Provencios were not in custody. The provision of health care to Medicaid recipients does not require the same degree of cooperation between state officials and private physicians as does the provision of health care to inmates. The Provencios' analogy to West is insufficient for a finding of state action.
The Provencios also compare the facts of this case to those in Nieto v. Kapoor. [Doc. 16 at 9-12]; See Nieto, 268 F.3d 1208. In Nieto, the Tenth Circuit held that the facts were sufficiently similar to those in West to support a finding of state action. See id. at 1216. The Tenth Circuit reasoned that "[w]hile not `incarcerated' in their jobs, [the employees] could not choose to whom they would answer." Id. at 1216. It noted that hospital hierarchies are well-established and that the medical director was "the only person to whom [the employees] could look for orders and training." Id. It also stated that just as the outsourcing of medical treatment in West did not relieve the state of its obligation to provide adequate medical treatment to inmates, hiring a private doctor to perform supervisory duties did not relieve the state of its duty to provide equal protection to its employees. Id.
The facts of this case do not justify a finding of state action based on a comparison to Nieto. The Provencios emphasize that the Tenth Circuit held that the state could not outsource its duty to provide equal protection to its employees. [Doc. 16 at 9-10] However, the facts here are too removed from those in Nieto for the language the Provencios cite to bear the weight they ascribe to it. The Provencios state that they were "just as `incarcerated' in having to go to Defendant or someone like him as were the employees in [ Nieto]." [Doc. 16 at 12] There were others, though, to whom the Provencios could look for medical care. As they suggest, they could have gone to "someone like [Wenrich]." Id. The Provencios were not as "incarcerated" as were the employees in Nieto. A comparison of the facts of this case and those in Nieto fails to demonstrate that Wenrich was a state actor.
Conclusion
I conclude that a refusal or failure by Wenrich to complete the tubal ligation is not "fairly attributable to the State." See Beedle, 422 F.3d at 1065. There is no genuine issue of material fact which would preclude granting summary judgment. Because Wenrich was not a state actor, he is entitled to judgment as a matter of law. I will therefore dismiss the Provencios' § 1983 claims. Having determined that Wenrich was not a state actor, I need not address the first prong of Lugar. See Barnard, 720 F.2d at 1189-90. I also need not determine whether Wenrich's alleged conduct violated any of the Provencios' constitutional rights. See id.
THE PROVENCIOS' STATE LAW CLAIMS
The Provencios assert what appear to be state law claims for wrongful conception and battery, and they seek punitive damages. [Doc. 1 at 4-5] A court may decline to exercise supplemental jurisdiction over an otherwise unrelated claim when "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). When a federal claim no longer supports supplemental jurisdiction, the ordinary response will be to dismiss the state claims without prejudice. See Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1237 (10th Cir. 1997); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). Because I will dismiss the Provencios' federal claims, I decline to exercise jurisdiction over their state law claims and will dismiss them without prejudice.DISPOSITION
IT IS THEREFORE ORDERED that Wenrich's Motion for Summary Judgment [Doc. 12] is GRANTED. IT IS FURTHER ORDERED THAT the Provencios' § 1983 claims are DISMISSED WITH PREJUDICE and their state law claims are DISMISSED WITHOUT PREJUDICE.