Perkins v. Londonderry Basketball CV-98-171-B 02/18/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Terri Perkins, as mother and next friend of Stacey Perkins, a minor. Plaintiff,

v. Civil No. C-98-171-B

Londonderry Basketball Club, Defendant

O R D E R

Terri Perkins brings this action on behalf of her daughter,

Stacey Perkins. Perkins alleges that the Londonderry Basketball

Club denied her daughter egual protection of the law in violation

of the Fourteenth Amendment to the United States Constitution and

by barring Stacey's participation in an all-boys

basketball tournament.1 The Club has moved for summary judgment,

pursuant to Fed. R. Civ. P. 56(a), claiming that its actions with

respect to Stacey do not amount to state action for purposes of

1 Perkins also alleges that the Club violated Stacey's rights under Article 2 of the New Hampshire Constitution and

-A:16, which bars discriminatory practices in public accommodations. the Fourteenth Amendment or give rise to § 1983 liability.2

Perkins objects to the Club's motion. For the reasons set forth

below, I find that there is no state action and, accordingly,

grant the Club's motion for summary judgment.

FACTS

At the time Perkins commenced this litigation, her daughter

was 10 years old. Stacey is a resident of Seabrook, New

Hampshire, where she plays many sports, including basketball.

The Town of Seabrook does not have a girls basketball league.

Seabrook does, however, have a league consisting of five coed

basketball teams. In the winter of 1998, Stacey and four other

girls played alongside boys on the Red Devils Seabrook

Recreational basketball team. In March, Stacey was one of two

girls selected from the five coed teams to play for the town's

All Star Team. The All Star Team subseguently entered the 10th

Annual Londonderry Tournament. The tournament, held in

2 The Egual Protection Clause of the Fourteenth Amendment to the United States Constitution states that "No State shall . . . deny to any person within its jurisdiction the egual protection of the laws."

provides that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in eguity, or other proper proceeding for redress." Londonderry, New Hampshire, is sponsored by the Londonderry

Basketball Club. The Club is a private volunteer organization

run by Londonderry residents.

The Club's tournament is open to any team consisting of

players from the same town. The Club sponsors separate week-long

tournaments for girls and boys. Girls are not allowed to play on

the boys' teams or in the boys' tournament and, likewise, boys

cannot play on girls' teams or in the girls' tournament. The

Club does not sponsor a coed tournament. Because the Seabrook

All Star Team entered the boys' tournament, the Club barred

Stacey from participating. She traveled with her team to the

first game, but was not permitted to play. Stacey's coach

subseguently withdrew the All Star Team from the tournament.3

The Club was formed in October 1990 to offer children in

Londonderry an opportunity to compete in an organized traveling

basketball league.4 The Club is a private, non-governmental.

3 Perkins initially sought a temporary restraining order enjoining the Club from barring Stacey's participation in the tournament. Because the team withdrew from the competition, I found, in an order dated March 27, 1998, that the TRO issue was moot. Perkins currently seeks a permanent injunction, damages, costs and attorneys' fees, noting that Stacey could make the Seabrook All Star Team and be barred from the Londonderry tournament again in 1999.

4 Prior to the Club's formation, there were at least two groups providing basketball opportunities for the town's

- 3 - charitable corporation organized under the laws of the State of

New Hampshire. The Club was granted preliminary tax-exempt

status as a publicly supported organization under § 501 (c) (3) of

the Internal Revenue Code in April 1998.

The Club does not receive any direct funding from the Town

of Londonderry or any other governmental body. Rather, the Club

survives on registration fees and fundraisers. The annual

tournament is the Club's largest fundraiser. A portion of the

tournament proceeds provides scholarships to Londonderry

students. The Club has also made donations to the Town's schools

in the form of new uniforms, baskets, backboards, nets, court

improvements, and other eguipment. Since 1991, the Club has

donated more than $22,000 in scholarships, uniforms, and

eguipment to the Town. (Pl.'s Ex. 8). Additionally, the Club's

Articles of Agreement provide that upon disbanding, the Club's

assets will be distributed to the Town of Londonderry. (Pl.'s

Ex. 19).

children. The Club was formed, in part, to bring the groups together in an effort to avoid competition for gymnasium time and participants. (Pl.'s Ex. 5, Crosbie Dep. at 7; Pl.'s Ex. 6, Psaledas Dep. at 23-25). Currently, there is at least one other traveling basketball program in Londonderry for boys. (Pl.'s Ex. 5, Crosbie Dep. at 24-25).

- 4 - At least two members of the Town's Recreation Commission are

Club volunteers.(Pl.'s Ex. 20). Several of the Club's

volunteers also are associated with the Londonderry recreational

basketball program. This program is not affiliated with the town

but it was at one time run by the town's recreation director,

Arthur Psaledas. Psaledas currently assists the Club by

scheduling the use of school gymnasiums, sometimes giving

priority to the Club over adult groups in order to schedule the

tournament. Like other private groups that use school

facilities, the Club uses the property at no cost, but must pay

for a private security service when the schools are not open.

The Town does not reguire the Club to provide its own insurance.

The Club also holds its meetings at the Town's high school.

The Club, as well as other private groups, must apply to use

Town facilities. Psaledas testified that he, the high school

athletic director, the school department's business administrator

and representatives of groups vying for gymnasium and field time

meet occasionally to set a use schedule, although the ultimate

decision to grant or deny use lies with the Town. Psaledas

typically submits the Club's application. In 1996, in an effort

to prioritize and coordinate scheduling, the Recreation

Commission established "sanctioning standards" for prospective users.5 The Club is sanctioned under the Commission's standards.

The Town does allow non-sanctioned sports leagues to use its

facilities. (Pl.'s Ex. 6, Psaledas Dep. at 38; Def.'s Ex. 1,

Psaledas Aff.; Pl.'s Ex. 5, Crosbie Dep. at 22-24).

STANDARD

Summary judgment is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is

entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) .

A "genuine" issue is one "that properly can be resolved only by a

finder of fact because [it] may reasonably be resolved in favor

of either party." Anderson v. Liberty Lobby, Inc.,

(1986); accord Garside v. Osco Drug, Inc.,

(1st Cir. 1990). A "material issue" is one that may "affect the

5 The Recreation Commission's Group Sanctioning Standards reguire that: (1) 60 percent of the participants are Londonderry residents; (2) coaches and supervisors are residents of Londonderry; (3) no other sanctioned program providing the same or similar service exists; (4) the program is permanent; (5) the program is well planned and properly supervised; (6) the group demonstrates a proper framework for leadership and people to provide the leadership; (7) the group has no outstanding financial obligations that would hinder its progress; and (8) the group complies with the rules of the school district and recreation commission. (Pl.'s Ex. 10).

- 6 - outcome of the suit . . . Anderson,

. The

burden is upon the moving party to aver the lack of a genuine,

material factual issue, see Finn v. Consolidated Rail Corp.,

(1st Cir. 1986), and the court must view the record

in the light most favorable to the non-movant, according the non­

movant all beneficial inferences discernable from the evidence.

See Oliver v. Digital Equip. Corp.,

(1st Cir.

1988). If a motion for summary judgment is properly supported,

the burden shifts to the non-movant to show that a genuine issue

exists. See Donovan v. Aqnew,

, 1516 (1st Cir.

1983). I apply these standards to the issues the parties raise

before me.

DISCUSSION

Here, the Club argues that summary judgment is appropriate

because its policy of barring girls from participating in the

boys' tournament is not state action for purposes of Fourteenth

Amendment or § 1983 liability. In support of its motion, the

Club has produced the affidavits of Recreation Director Psaledas

and Club Director Alan Crosbie, as well as a copy of the Club's

Articles of Agreement. Both Psaledas and Crosbie state that the

Club is a private entity, over which the Town exerts no influence or control. Specifically, both Psaledas and Crosbie state that

neither the Town nor any of its subdivisions reviewed or approved

the Club's tournament rules.

A private actor cannot be held liable for an equal

protection violation unless his actions can be "fairly

attributable to the State." Lugar v. Edmondson Oil Co.,

(1982). Similarly, a private actor is not liable for a

constitutional deprivation of a plaintiff's rights under § 1983

unless he acted "under color of state law." See Rodriguez-Garcia

v. Davila,

(1st Cir. 1990) (citing Flagg Bros.

Inc. v Brooks,

(1978)). While the inquiry into

the state action requirement is necessarily fact-based, it can

properly be resolved at the summary judgment stage of litigation.

See

(citing Lugar,

) .

State action may be either direct or indirect. See id. at

95; see also Barrios-Velazguez v. Asociacion de Empleados del

Estado Libre Asociado de Puerto Rico,

(1st Cir.

1996). Here, there is no direct state action because the Club is

a private organization, neither officially controlled by nor

officially connected to the Town of Londonderry. See Barrios-

Velazguez ,

(no direct state action where

government neither subsidized private entity nor appointed its directors). Thus, Perkins must establish that the Club's action

constitutes "indirect state action." See

.

In determining whether the Club's action is indirect state

action, I must apply a three-part analysis applicable to both the

Fourteenth Amendment equal protection and § 1983 questions. See

Blum v. Yaretskv,

(1982); Barrios-

Velazguez ,

(citing Rendell-Baker v. Kohn,

(1982)). I must determine whether there was:

(1) [a]n elaborate financial or regulatory nexus between [the Club] and [the Town of Londonderry] which compelled [the Club] to act as [it] did, (2) an

assumption by [the Club] of a traditional public function; or (3) a symbiotic relationship involving the sharing of profits.

Barrios-Velazguez,

(quoting Rodriguez-Garcia,

); see also Blum,

. Because

satisfaction of any one of the three tests quoted above requires

that I find indirect state action and deny the Club's motion for

summary judgment, I consider each test in turn. See

A. Nexus Analysis

A sufficiently close nexus exists between the government and

a private party to support a finding of state action where the

government exercised such power or encouragement that the alleged

violation must be deemed to be the conduct of the government

- 9 - itself. See Blum,

; Barrios-Velazguez,

. The focus is on the government's connection to the

alleged violation, not its connection to the private party

itself. See Barrios-Velazguez,

(citing Blum,

04); see also Yeo v. Town of Lexington,

(1st Cir. 1997), cert, denied,

(1998)(insufficient nexus between town and school yearbook, which

refused to publish advertisement counseling sexual abstinence,

where there was "no interplay between the decision not to publish

the advertisement and the state's provision of financial and

faculty support").

Perkins argues that the Recreation Commission's sanctioning

reguirements, the Town's policy for allocating gym time, and the

fact that the Town shares in the Club's profits establish a

sufficiently close nexus to constitute state action. Perkins

fails, however, to link any one of these factors to the alleged

violation she complains of. While the sanctioning reguirements,

gym scheduling, and the Club's donations to the town6 may

6 As I more fully discuss below in both the traditional public function and the symbiotic relationship analyses, the fact that the Club donates a portion of the tournament proceeds to the Town is insufficient to establish state action. See Burton v. Wilmington Parking Authority,

(1961); Barrios- Velazguez ,

.

- 10 - indicate that the Club and Town have an on-going and mutually

beneficial relationship, these facts are irrelevant for purposes

of the nexus analysis except insofar as they establish government

coercion or encouragement of the alleged violation. See Barrios-

Velazguez ,

; see also Blum,

(no

state action where state did not influence private nursing homes'

decisions to discharge or transfer patients pursuant to Medicaid

regulations); Rendell-Baker,

(no state action

where state regulation of private school did not compel or

influence school's decision to discharge plaintiffs).

A mere governmental grant of authority allowing a private

party to exist and act, without more, is insufficient to

establish state action. See Barrios-Velazguez,

(citing Rockwell v. Cape Cod Hospital,

(1st Cir.

1994)). Rather, the grant of authority must be linked to a

coercion or encouragement of the alleged violation. See

("state-granted authority . . . must be connected to the aim of

encouraging or compelling the specific complained-of conduct").

Here, Perkins seems to argue that the sanctioning reguirements

are the functional eguivalent of a governmental grant of

authority because the Town could bar the Club from using its

facilities if the Club failed to meet its reguirements, rendering

- 11 - the Club powerless to operate.7 Perkins presents no evidence,

however, that the Town, through its sanctioning reguirements,

either coerced or encouraged the Club to establish a single-sex

tournament rule. Rather, the reguirements are simply designed to

ensure that groups using Town facilities are primarily run by and

for Town residents, are well-managed, and are financially

solvent. (Pl.'s Ex. 10).

Similarly, the scheduling of gym time itself cannot

logically be tied to the Club's decision to operate single-sex

tournaments. There is no allegation, nor evidence, that the town

or school department reguired the Club to establish or enforce

such a rule in exchange for gym time. See, e.g., Yeo,

(no state action where private parties made complained-

of decision free from state control); Ponce v. Basketball

Federation of the Commonwealth of Puerto Rico,

, 378-

79 (1st Cir. 1985) (no state action where private party

established rules absent state control or involvement).

Perkins also claims that the Town, through Psaledas, could

have enforced the Club's tournament rules. Relying on the First

7 It is not clear that the Club would suffer such demise if it did not meet the sanctioning reguirements as there is evidence that the Town does, in fact, allow non-sanctioned groups to use its facilities. (Pl.'s Ex. 6).

- 12 - Circuit Court of Appeals decision in D'Amario v. Providence Civic

Center Authority, Perkins argues that such possible intervention

on the part of the Town constitutes a nexus between the Town and

the Club sufficient to establish state action. See

(1st Cir. 1986) (state action where public employees enforced

private parties' "no-camera rule" during concerts at public

facility). She further argues that the Town's failure to

intervene and challenge the Club's rule supports a finding of

state action. To support this argument, Perkins notes that

Psaledas testified in his deposition that he could intervene

during the tournament if he feared that school property would be

damaged or destroyed.

Perkins' argument is unpersuasive for several reasons.

First, in D'Amario, there was ample evidence that state employees

actually did enforce the private rule challenged by the

plaintiff.

Here, there is no such evidence. Moreover,

there is no evidence that the Town could, or would, either

enforce or challenge the Club's rules. Psaledas testified that

he would only intervene in order to protect the Town's property,

not to enforce or challenge a Club rule:

Only -- the only way that I would be -- would intercede is if there was a destruction of property. If there's something going on in that gymnasium that would harm the court -- you had a team that came in that didn't

- 13 - have basketball shoes on and they were on a wood floor -- then I would intercede, if I were there, and say -- But other than that, as far as the operation of the tournament, no.

(Pl.'s Ex. 6, Psaledas Dep. at 34). Finally, the government's

"mere approval or acquiescence in the initiatives of a private

party" is insufficient to justify a finding of state action.

Blum,

; see also Ponce,

. The

fact that the Town did nothing to stop the Club's alleged

discrimination, as appears to be the case here, does not

establish a nexus between the two for state action purposes. See

Indeed, it more likely establishes the lack of such a nexus.

See, e.g., Yeo,

(evidence that school

officials neither could nor did control students' decision not to

publish advertisement supported finding of no state action) .

There is no allegation, nor evidence, that the Town of

Londonderry coerced or encouraged the Club to establish and

enforce its tournament rules. Nor is there evidence that the

Town or its agents actually did, could, or would enforce these

rules. Thus, I find that there is no state action under the

nexus test.

B. Traditional Public Function Analysis

Perkins argues that the Club's assumption of some of the

duties of the Londonderry recreational basketball program and its

- 14 - donations to the Town support a finding of state action under the

public function analysis. I disagree.

The purpose of the public function analysis is to determine

whether "a state [is trying] to escape its responsibilities by

delegating them to private parties." Rockwell,

.

The mere fact that a private party performed a public function is

insufficient to establish state action under this analysis. See

Rendell-Baker,

; Barrios-Velazguez,

. Rather, the plaintiff must show that the private party

"assumed powers ''traditionally exclusively reserved to the

State.'" Barrios-Velazguez,

(guoting Rodrigues v.

Furtado,

(1st Cir. 1991)). Courts have

repeatedly emphasized the significance of exclusivity. See,

e.g., Rendell-Baker,

("[T]he relevant guestion is

not simply whether a private group is serving a 'public function'

. . . [but] whether the function performed has been

'traditionally the exclusive prerogative of the State.'");

Barrios-Velazguez,

(where other non-governmental

entities provided same or similar public service, private entity

does not engage in traditional public function).

Here, the Club did not assume a traditional public function.

Evidence in the record establishes that private groups offered

- 15 - basketball programs prior to the Club's formation. Indeed, the

Londonderry recreational basketball program continues to provide

instruction, albeit with help from Club volunteers. The

recreational program is not a Town organization. There is also a

private boys traveling team based in Londonderry. Thus, the

Club's programs "cannot reasonably be characterized as the

exclusive province of the State." Barrios-Velazguez,

(emphasis added).

Perkins also seems to argue that, because the school is

ultimately responsible for purchasing uniforms and eguipment for

the school's teams, the Club's donations to the school system

constitute a traditional public function sufficient to establish

state action. This argument is neither persuasive nor logically

sound. That the Club, on its own initiative, donates to the

schools is laudable, but it in no way creates a connection

between the two for purposes of Fourteenth Amendment or § 1983

liability. To hold otherwise could subject any and all

charitable groups and individuals that make donations to state

actors to Fourteenth Amendment and § 1983 liability for their

private actions simply by virtue of their philanthropy. Such a

result is not only unreasonable, it would also abrogate the

entire purpose of the state action reguirement. See, e.g..

- 16 - Lugar, 457 U.S. at 936 ("Careful adherence to the 'state action'

requirement preserves an area of individual freedom by limiting

the reach of federal law and federal judicial power.").

C. Symbiotic Relationship Analysis

A private party's actions may also constitute state action

where the state "has so far insinuated itself into a position of

interdependence with [the private party] that it must be

recognized as a join participant in the challenged activity."8

See Burton v. Wilmington Parking Auth.,

(1961);

Barrios-Velazguez,

; Ponce,

. While

a financial relationship between a private party and the state

8 Plaintiff's reliance on Fortin v. Darlington Little League is unpersuasive.

(1st Cir. 1975)(finding symbiotic relationship between city and little league sufficient to establish state action). First, Fortin is of questionable precedential value as it was decided years before the Supreme Court handed down its decision in Rendell-Baker. In Rendell-Baker, the Court noted that a key factor in the symbiotic relationship analysis is whether the state profited from the private actor's discriminatory conduct. See Ponce,

(citing Rendell-Baker,

). Here, there is no evidence that the Town of Londonderry profited from the Club's action. Furthermore, Fortin is easily distinguished on the facts. In Fortin, the City of Pawtucket built and maintained baseball diamonds specifically for the Little League's use.

. The league used the fields to the virtual exclusion of the general public during the baseball season. See

Here, the Club "shares the [gymnasiums] with other teams and other sports, the courts were not constructed for the exclusive benefit of the [Club], nor were they laid out or maintained to the [Club's] specifications." Ponce,

n.5.

- 17 - may indicate a symbiotic relationship, its existence or lack

thereof is not dispositive. See Rodriquez-Garcia v. Davila,

(1st Cir. 1990); Barrios-Velazguez,

. Rather, the symbiotic relationship inquiry encompasses a

number of factors, including the sharing of profits, which focus

on interdependence and ioint enterprise rather than financial

enrichment. See Rodriguez-Garcia,

. What

matters is that the state benefitted from the alleged wrongdoing.

See Barrios-Velazguez,

(no state action where

government neither mandated nor profited from private entity's

discriminatory conduct); cf., Burton,

(1961)(state action where government benefitted from private

restaurant's discriminatory policy). Discretionary acts of

discrimination committed by a private body under authority

granted by the government do not rise to the level of a symbiotic

relationship for constitutional or § 1983 purposes absent proof

the government mandated or profited from those acts. See

Barrios-Velazguez,

.

Here, the Town of Londonderry does not benefit from the

Club's tournament rules. The Town does benefit indirectly from

the tournament itself, through the Club's donations to the

schools. Perkins makes no allegation nor offers any proof that.

- 18 - absent a single-sex tournament rule, the Club would take in, and

thus donate, less money to the Town. C f . Burton,

(state action where private restaurant in lease-agreement with

state claimed it would lose business without racially

discriminatory policy, thus earning less profit for the state).

Thus, I find that there is no symbiotic relationship between the

Town and Club for purposes of establishing state action.

CONCLUSION

For the foregoing reasons, I find that there is no state

action for purposes of Fourteenth Amendment egual protection or §

1983 liability. Therefore, I must grant Defendant's motion for

summary judgment (document no. 11) on Plaintiff's Fourteenth

Amendment and § 1983 claims.9 Having disposed of the federal

claims, I decline to exercise my discretion to retain

supplemental discretion over Perkins' remaining state claims

9 In granting defendant's motion for summary judgment, I do not intend to indicate support for its decision to categorically exclude girls from the boys' tournament. The recent success of Olympic champion Tara Mounsey who won a gold medal as part of the United States Women's Olympic hockey team after having starred on a state championship boys' high school team demonstrates how both boys and girls can benefit when issues such as plaintiff raises here are dealt with flexibly by sports authorities. I have ruled against plaintiff not on the substance of her claim, but rather because I have concluded that defendant did not engage in state action when it excluded plaintiff from the tournament.

- 19 - (Counts III and IV). Counts III and IV of Perkins' complaint are

dismissed without prejudice to her right to pursue them in state

court. See

(c)(3); United Mine Workers v. Gibbs,

(1966).

SO ORDERED.

Paul Barbadoro Chief Judge

February , 1999

cc: Linda S. Johnson, Esg. Joseph L. Hamilton, Esg.

- 20 -