Full opinion text
ORDER RAMIREZ, District Judge. On September 25, 1985, the above-entitled matter came on regularly for hearing before the undersigned on defendants’ motions for summary judgment. Ralph Dray-ton, Esq. and Gerald Gottlieb, Esq., appeared as counsel for plaintiff, RENEE WRIGHT. Thomas E. Lotz, Esq., appeared as counsel for defendants, MAMMOTH HOSPITAL DISTRICT, INC., OTIS CLASBY, JAMES VAWTER, M.D., and KAREN TIERNEY, M.D. Raymond R. Moore, Esq., appeared as counsel for defendant, FLOYD B. PARKS, M.D. Having read and considered the voluminous briefs and arguments presented by respective counsel, the court herein renders the following ruling: PROCEDURAL AND FACTUAL BACKGROUND The original complaint in the underlying action was filed on May 20, 1983. After considering defendants’ motions to dismiss and plaintiffs motion for reconsideration, a third amended complaint was filed by plaintiff on December 17, 1984. The following pertinent facts are gleaned from the third amended complaint as well as from the briefs, depositions, declarations, and exhibits filed by respective counsel: 1. The Civil Rights Violations In July 1981, the original plaintiff and now deceased Jan Stehlik began the practice of medicine in Mammoth Lakes, California. See Plaintiff’s Vol. III, p. 29-30. At said time and place, defendant, Mammoth Hospital District, Inc. (Mammoth Hospital), was a public hospital in Mammoth Lakes, California, and was the only hospital within forty miles of the Mammoth community. Initially, Stehlik belonged to a group of physicians collectively known as the “Alpine Group” whose offices were located approximately one-half mile from Mammoth Hospital. The named defendants and alleged co-conspirators, known collectively as the “Mammoth Group,” maintained their respective offices on the premises of the hospital itself. Plaintiff’s Yol. I, p. 29. Although the relationship between the “Alpine Group” and “Mammoth Group” is unclear, the working rapport Stehlik had with his fellow physicians is the subject of facts which are strenuously disputed. See Deposition of Dr. Thomas Merry, p. 60 (“very easygoing and easy to work with”); Deposition of Dr. George Kibler, p. 71 (considered Stehlik to have a fine reputation); contra Dr. Craig Paulson, letter of June 6, 1982 (Stehlik accused of severely breaching good interprofessional conduct and physically threatening Dr. Paulson, his wife, and unborn child); Dr. James Vawter, letter of June 9, 1982 (Stehlik verbally threatened Vawter and told him “he was going to make life miserable for [Vawter] in Mammoth.”) In the spring of 1982, Stehlik apparently became concerned over the quality of medical care at Mammoth Hospital. In particular, Stehlik criticized the performance of Drs. Tierney, Vawter, and Lovell. See Depositions of Dr. Lovell, February 22, 1985, p. 39-40 (Dr. Tierney had “mismanaged” births), May 17, 1985, p. 80 (rate of caesarean sections, abnormally high); Plaintiffs Vol. I, p. 24 (Drs. Tierney, Vawter, and Lovell did not finish their residencies in their respective fields of concentration); Report to the California State Board of Medical Quality Assurance by Dr. Paul Hildebrand, March 20, 1983 (“a great deal of moderate to high risk obstetrics is done including c-sections on primips [sic] by Dr. Vawter who ... has had no significant obstetrical training” ... “Forcep deliveries are performed by Dr. Tierney who has had very little training in obstetrics ... ”); Letter of Barbara W. Phillips, Plaintiff’s Vol. IV A, p. 19-20, (detailing an attempted therapeutic abortion performed by Drs. Tierney and Vawter in November 1980 on a patient who returned in January 1981, still pregnant, and who had a second abortion performed on a 15 to 18 week old fetus). On or about May 20, 1982, Stehlik contacted Mammoth Hospital Board Chairman, “Chip” Van Nattan and requested permission to make the Board aware of his belief as to the lack of proper medical care at Mammoth Hospital. See Declaration of Renee Wright, September 8, 1985, at 6; Plaintiff’s Vol. I, p. 36; Letter of Dr. Steiger to Dr. Hildebrand, dated May 21, 1982, Plaintiff’s Vol. Ill, p. 73. On May 22, 1982, Dr. David Matthews, a member of the “Mammoth Group” and Dr. Stehlik engaged in a fist fight behind closed doors in the radiology suite at Mammoth Hospital. While there were no eyewitnesses to the altercation, each combatant claimed that the other had started the fight. On May 24, 1982, an emergency meeting was held by the medical staff at Mammoth Hospital. Dr. Stehlik attempted to attend the meeting with his attorney but was advised by hospital counsel that his attorney could not be present. Stehlik declined to partake of the meeting. See Bylaws of the Medical Staff of Mammoth Hospital (hereinafter Bylaws), X, 2(b). Dr. Matthews, however, attended the meeting, gave his version of the altercation, and recommended a one-year probationary period for Dr. Stehlik during which period no harassment, abuse, or verbal threats could be made. The majority of the medical staff concurred with Matthews’ recommendation, but agreed to continue the meeting to June 14, 1982, to allow Dr. Stehlik an opportunity to attend. Board Minutes of Lois Melton, May 22, 1982. Although granting a continuance, the minutes of the meeting reflect that the following terms of probation were unanimously approved for Dr. Stehlik: 1. No threats verbal or physical or any harassment of the Medical Staff be made by Dr. Stehlik for a period of one year following May 24, 1982. 2. No discussion of the issues or events occurring on May 22, 1982 be carried out with any person other than the individual’s legal counsel. By letter dated May 26, 1982, Otis Clasby, administrator of Mammoth Hospital informed Dr. Stehlik he had a “right to a hearing.” On May 28, 1982, this advice was retracted by hospital counsel Michael A. Ross who advised Stehlik that no right to a hearing existed because Stehlik’s hospital privileges had not been affected. (Bylaws, VII 1(d), state that a probationary recommendation is not considered to be an “adverse” recommendation warranting an appeal.) Local newspapers carried the story of the Matthews-Stehlik scuffle indicating that it had been an apparent “mutual combat” situation. The newspapers went on to state, however, that only Dr. Stehlik was placed on a one-year probationary term. Mono Herald, May 27, 1982, p. 1; Mono Review, May 27, 1982, p. 1. On June 14 and 15, 1982, additional meetings of the medical staff were conducted at which time counsel for Stehlik attempted to participate and tape record the meeting. These actions were prohibited by the majority of the medical staff and counsel left the meeting. Thereafter Stehlik and Matthews told their respective versions of how the fight began and presented witnesses and letters on each of their behalves. The medical staff decided that since there were no independent eyewitnesses to the altercation, no adverse action could be taken against either party. Both doctors were rebuked and instructed to write letters of apology to the Board. However, because the staff had received five letters from Drs. Tierney, Vawter, Matthews, Lovell, and Paulson of the “Mammoth Group,” requesting corrective action against Dr. Stehlik, Stehlik was placed on probation subject to the following terms: 1. Probation effective May 24, 1982. 2. Probation duration of one year. 3. No further threats or harassment will be tolerated toward other members of the staff. 4. All record of the probation and letters of corrective action will be removed from his file upon successful completion of the probationary period, or if for any reason, Dr. Stehlik voluntarily terminates his staff membership. Minutes of Floyd Parks, M.D., June 16, 1982. 2. The Antitrust Violations On July 1, 1982, the Hospital District contracted with Dr. Lovell to provide exclusive anesthesiologist services to Mammoth Hospital. Dr. Lovell was chosen over a group of five rotating board-certified anesthesiologists apparently on the basis that the hospital could not afford the services of the group. Deposition of Lois Melton, June 24, 1985, p. 12. Dr. Lovell’s credentials are disputed. Deposition of Dr. Lovell, February 22, 1985, p. 102-07 (not a board-certified anesthesiologist, yet with experience gathered over time came to the same level of competence as a boarded anesthesiologist). In the fall of 1982, Dr. Lovell told Stehlik and the medical staff at Mammoth Hospital that he would not work with Dr. Stehlik and therefore not provide him anesthesiological services. Deposition of Dr. Lovell, February 22, 1985, p. 194; See also, letter dated January 23, 1983 from Lovell to Tierney, requesting that the medical staff terminate Stehlik’s probation “and expel him from its ranks.” On July 1, 1982, Dr. Vawter entered into an exclusive contract with the Hospital District to provide 24-hour coverage in the emergency room of Mammoth Hospital. Vawter agreed to direct, organize, and administer a group of physicians and surgeons who would guarantee that not less than one member of the group be readily available in the emergency room, 24 hours per day, every day of the year with no exceptions. Prospective group members included: Drs. Vawter, Tierney, Cary, and Lovell of the “Mammoth Group,” and Drs. Merry and Hildebrand of the “Alpine Group.” While Vawter offered Hildebrand a position in the emergency room, he chose not to offer the co-physician, Dr. Merry, a contract presumably based on two medical cases in which Dr. Merry participated. On March 30, 1983, Dr. Hildebrand rejected Vawter’s offer emphasizing the unfairness to Merry and the community “to arbitrarily exclude him without some sound basis and peer review or supervised practice.” Letter of March 30, 1983, from Hildebrand to Vawter. In November 1982, Dr. Cole, an orthopedic surgeon arrived in Mammoth Lakes and joined the “Mammoth Group.” Prior to that time, Dr. Stehlik was the only orthopedic surgeon in the Mammoth area. On March 16, 1983, the Hospital District entered into a “Preferred Provider Contract” with Mammoth Mountain Ski Area which provided, inter alia, the following: (1) that Mammoth Hospital would be the exclusive provider of emergency or other medical services for the Ski Area; (2) an option to extend the agreement for an additional successive term not to exceed forty years; (3) the Hospital would agree to provide free transportation, via an ambulance van, of patients from emergency rooms at the Ski Area to Mammoth Hospital; (4) the van would not stop at the Alpine Clinic, but would come directly to Mammoth Hospital; (5) in exchange, the employees at the Ski Area would be guaranteed free medical services at Mammoth Hospital as a fringe benefit of their employment. The owner of the Ski Area, Dave McCoy, who signed the exclusive contract, was a member of the Hospital Board. Deposition of James Vawter, M.D., January 28, 1985, p. 116-18. See also Deposition of Paul Hildebrand, M.D., February 19,1985, p. 83 (Alpine Clinic business cut 80 to 90% due to Preferred Provider Contract and ambulance service.) On April 1, 1983, Dr. Stehlik received a letter from the American Board of Orthopedic Surgery, Inc., indicating he was declared ineligible to take the 1983 board examination. The letter advised that “this action was based on information received that you are currently on probation at Mammoth Hospital and because of questionable references received.” In this regard, the deposition testimony of Margaret Cary, M.D., February 21, 1985, pp. 89-90, 127-28, indicated that Dr. Tierney of the “Mammoth Group” had written letters to the Board to keep Stehlik from being board certified. Based on the foregoing, plaintiff, RENEE WRIGHT, administratrix of the estate of Dr. Stehlik, instituted the present proceedings alleging the following seven causes of action against the defendants: (1) deprivation of civil rights under 42 U.S.C. § 1983, namely the right of freedom of expression, the right to freedom from illegal seizure of the person, the right to be free from interference with liberty without due process of law, the right to be free from deprivation of property without due process of law, the right to counsel, the right to equal protection of the laws, the right to freedom from invasion of privileges and immunities, the right to privacy, the right to be free from cruel and unusual punishment, and the right to be free from deprivation of life without due process of law; (2) violation of the Sherman Act, 15 U.S.C. § 1; (3) common law conspiracy; (4) false imprisonment; (5) battery; (6) defamation; and (7) interference with prospective business interests. In relief, plaintiff seeks damages of $10 million for deprivation of civil rights, $10 million trebled for the anti-trust claim, $1 million each for the battery and false imprisonment claims, punitive damages of $6 million against all defendants on the federal claims and against only the individual defendants on the pendent claims, $10 million for lost earnings, medical and incidental expenses and compensatory damages according to proof, and reasonable attorney’s fees and costs. DISCUSSION 1. Civil Rights Claims As a general rule, a party seeking summary judgment under F.R.Civ.P. 56, must demonstrate that there are no genuine material issues of fact in dispute and that said party is entitled to judgment as a matter of law. Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir.1984). The burden of demonstrating the absence of an issue of material fact lies with the moving party. Zoslow v. MCA Distributing Corp., 693 F.2d 870, 883 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983). When the moving party proffers competent evidence tending to prove its version of the facts, the opposing party must produce competent evidence tending to prove the contrary; in short, an opposing party cannot resist a motion for summary judgment relying on the mere allegations or denials contained within the pleadings. Scoggins v. Boeing Co., 742 F.2d 1225, 1230 (9th Cir.1984). a. State Action Defendants first argue that plaintiff’s civil rights claims under 42 U.S.C. § 1983 cannot be maintained because plaintiff can neither establish the jurisdictional prerequisite of “state action” nor that any “right,” “privilege,” or “immunity” had been denied to the decedent, Dr. Stehlik. Section 1983, Title 42 U.S.C. provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... 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 equity, or other proper proceeding for redress. By its terms, the plaintiff must establish that some person denied decedent a federal constitutional right and that that same person acted under color of state law. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980). Section 1983, which was enacted pursuant to the authority of Congress to enforce the fourteenth amendment, prohibits interference with federal rights under color of state law. Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 2769, 73 L.Ed.2d 418 (1982). In United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 1157 n. 7, 16 L.Ed.2d 267 (1966), the Supreme Court stated: In cases under § 1983, “under color” of law has consistently been treated as the same thing as the “state action” required under the Fourteenth Amendment. See Halet v. Wend Investment Co., 672 F.2d 1305, 1309 (9th Cir.1982). However what constitutes sufficient state participation to attribute activity to the state under § 1983 has proven to be an extremely difficult question. Krynicky v. University of Pittsburgh, 742 F.2d 94, 97 (3d Cir.1984). To date, the Supreme Court has not developed a uniform test for determining when state action exists and has stated no such unitary test is possible. Reitman v. Mulkey, 387 U.S. 369, 378, 87 S.Ct. 1627, 1632, 18 L.Ed.2d 830 (1967). The ultimate question has been whether the alleged infringement of federal rights is “fairly attributable to the State?” Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982). In Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held “that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents.” Id. at 2037. Instead liability could be imposed for injuries inflicted pursuant to a “government policy and custom.” Id. More recently, the Supreme Court has stated “[a]t the very least there must be an affirmative link between the policy and the particular constitutional violation alleged.” Oklahoma City v. Tuttle, — U.S. —, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985). Defendants factually argue that the placement of Dr. Stehlik on probation “was done by the medical staff, a self-governing separate legal entity from the Hospital District.” Defendants’ Point & Authorities, at 26. Moreover, defendants maintain that pursuant to Bylaws, VII, 1(d) and (e), a probationary recommendation which does not affect a physician’s clinical privileges can properly and exclusively be made by the medical staff and does not require final authority of the Hospital District. Therefore, defendants contend, the complained of conduct was done by private individuals without regulation and/or control by a state entity. In opposition; plaintiff argues the color of state authority marked the acts of each and all the defendant/co-conspirators. Plaintiff’s Vol. II, p. 83. Plaintiff contends that Stehlik wished to focus attention on the “Mammoth Group’s” medical incompetence, id. at 42; that not only did defendants foreclose Stehlik’s opportunity to speak on the issue of competence but conspired amongst and between themselves to drive Stehlik out of the Mammoth Lakes area, to his eventual suicide, while at the same time greatly impeding the financial success of the “Alpine Group.” Plaintiff specifically points to Board Member Dave McCoy, who participated in the Preferred Provider Contract and approved the exclusive contracts for anesthesiology and emergency room care. In the case at bar, defendants have wrongly characterized Stehlik’s injuries as a mere one-year probationary period which limited Stehlik from fighting and harassing members of the medical staff. In truth, the claims of the plaintiff go far beyond this mere allegation and implicate a conspiracy between the individual defendants and Mammoth Hospital. It is ludicrous to argue, as defendants do, that the medical staff was a separate entity from the hospital district, as it is the hospital district which prescribes the duties and powers of the hospital employees and hospital administrators. CalHealth & Safety Code § 32121(h). It is undisputed that the Mammoth Hospital is a public hospital organized and governed by “The Local Hospital District Law.” Cal.Health & Safety Code § 32000, et seq. Furthermore, [tjhere is no question that when those in charge of the affairs of a public hospital deal with staff members ... the dealings must conform to the requirements and prohibitions of the fourteenth amendment. And, if the authorities of a public hospital, acting under color of law, deprive a person of a federally protected right, he may seek redress under § 1983. Briscoe v. Bock, 540 F.2d 392, 394-95 (8th Cir.1976). See also, Kay v. North Lincoln Hospital District, 555 F.Supp. 527, 529 (D.Or.1982) (hospital administrator’s acts to discharge chief x-ray technician may fairly be said to represent official policy). In summary, this court finds that defendants’ actions were performed pursuant to state code provisions detailing the hiring and firing of hospital employees. Said actions amount to an “affirmative link” between the individually named defendants, the hospital district’s policies and decisions and the constitutional deprivations claimed. Hence, this court finds that the jurisdictional requirement of “state action” pursuant to § 1983 has been satisfied and defendants’ motion for summary judgment is therefore DENIED. b. Liberty and Property Interests Although plaintiff has enumerated ten different deprivations of purported civil rights, defendants’ moving papers focus primarily on plaintiff’s claims that liberty and property interests were infringed. Hence this court will first examine the liberty and property challenges and thereafter briefly address the other nine claims. Defendants assert that the newspaper accounts of plaintiff’s probation are insufficient to give rise to a liberty interest as they do not impute moral turpitude, but rather an inability to get along with others. Furthermore, defendants propound that the imposition of probation by the medical staff is insufficient to give rise to a property interest cognizable under the Constitution. In Stretten v. Wadsworth Veterans Hospital, 537 F.2d 361 (9th Cir.1976), the court set forth a two-prong analysis by which to evaluate Dr. Stehlik’s constitutional claim. First, this court must determine whether Stehlik’s interest rises to the level of a “liberty” or “property” interest. Second, if such an interest is found, the court must then weigh the competing interests of the individual and the state to determine what process is constitutionally required. Id. at 365. See also, Lew v. Kona Hospital, 754 F.2d 1420, 1424 (9th Cir.1985). In analyzing a plaintiff’s claim of a deprivation of a liberty interest, the Supreme Court has recognized that a liberty interest is implicated where “a person’s good name, reputation, honor or integrity is at stake.” Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). Following this rationale, the Ninth Circuit has stated: In the context of Roth-type cases, a charge which infringes one’s liberty can be characterized as an accusation or label given the individual by his employer which belittles his worth and dignity as an individual and, as a consequence is likely to have severe repercussions outside of professional life. Liberty is not infringed by a label of incompetence, the repercussions of which primarily affect professional life, and which may well force the individual down one or more notches in the professional hierarchy. The distinction is not perfect; our utility affects our dignity and worth whether viewed from within or without. However, implicit in such a distinction is the notion that the constitutional need for procedural protection is not strong when the charge (e.g., incompetence) involves a matter which is peculiarly within the scope of employer-employee relations and when the likely results of even a false charge are reduced economic returns and diminished prestige, but not permanent exclusion from, or protracted interruption of gainful employment within the trade or profession. (footnotes omitted) Stretten, 537 F.2d at 366. In Stretten, the court of appeals held that plaintiff’s termination of residency in pathology at a veterans hospital did not infringe any liberty interest. While terminated “for unsatisfactory performance,” id. at 363, and “an unwillingness or inability to deal with his coworkers in a professional manner,” id. at 366, the court ruled “[t]hese are not the kind of charges which are likely to preclude Dr. Stretten from practicing medicine.” Id. Moreover, the charges did not preclude him from staying in his speciality, as he was offered a pathology residency in another hospital. Id. at 366 n. 14. The Ninth Circuit, however, on other occasions has held that charges made against a part-time staff physician by a hospital rose to the level of “moral turpitude” and implicated a liberty interest. Orloffv. Cleland, 708 F.2d 372, 378 (9th Cir.1983). In Orloff the physician was terminated for having allegedly been on duty at two hospitals at the same time and hence having received over $3,000.00 for services he did not render. The court of appeals reversed the summary judgment of the trial court, finding material issues of fact remained concerning whether the charges of wrongdoing were true and whether the hospital had publicized them. Id. See also Kay v. North Lincoln Hospital Dist., 555 F.Supp. 527, 530 (D.Or.1982) (“publication of the notice of [the chief x-ray technician’s] termination, coupled with the allegation that he had been guilty of a ‘gross violation of proper conduct,’ infringed Kay’s liberty interest in employment as a stigmatizing change prior to an opportunity to refute the charge.”) Here, the media leak concerning Stehlik’s one-year probation indicated that the vote had been “unanimous” and that “other alleged incidents involving Dr. Stehlik ... had gone unreported.” Plaintiff’s Vol. Ill, p. 105. While the press stated Stehlik’s probation required him to “refrain from verbally or physically threatening other staff members ...,” no mention was made of any punishment to the other combatant, Dr. Matthews. Id. Hence, Dr.. Stehlik by inference is portrayed as the troublemaker. According to plaintiff, these are precisely the type of charges that limited his practice of medicine in the ski community of Mammoth Lakes. This same charge of probation, moreover, was compounded by the fact that the charge delayed Dr. Stehlik’s chances to take the board examination to become certified in orthopedic surgery, a necessary prerequisite at some hospitals. Clearly, the court is confronted not with mere economic loss but a “protracted interruption of gainful employment within the trade or profession.” Stretten, 537 F.2d at 366. Hence while defendants are correct in pointing to the isolated probation as merely inferring that Stehlik had difficulty getting along with others, this charge was later enlarged arguably to foreclose his opportunity to practice orthopediatry. Although the court perceives the issue as close, the court is of the opinion that the issue is one best left to the decision making processes of the trier of fact. For this reason, the court finds that the accusations against Stehlik, given by the defendants, not only “belittled his worth and dignity as an individual ...,” but caused “severe repercussions outside of professional life.” Id. In summary, this court finds that defendants’ actions raise genuine issues of material fact as to whether Stehlik’s interest rises to the level of a constitutionally protected “liberty” interest. As for plaintiff's claim of a deprivation of a property interest, the plaintiff is required to demonstrate an entitlement to a benefit. “Entitlements are created by ‘rules or understandings’ from independent sources, such as statutes, regulations, and ordinances, or express or implied contracts.” Orloff, 708 F.2d at 377; Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). “An entitlement may spring from an understanding if the understanding is ‘mutually explicit.’ ” Board of Regents v. Roth, 92 S.Ct. at 2709; Orloff, 708 F.2d at 377. In Orloff, the Ninth Circuit reversed an order of summary judgment finding material factual disputes remained concerning whether a “mutually explicit” understanding arose between Dr. Orloff and the veterans’ hospital. Although Orloff’s appointment had expired “there may have arisen an understanding of continued employment based on prior treatment of Orloff or other VA employees sufficient to constitute a de facto property interest under Perry v. Sindermann.” Orloff, 708 F.2d at 377. This decision was premised on the fact that the hospital did not implement its termination decision until four months after Orloff’s appointment had terminated or that it had indefinitely extended his appointment. Id. See Stretten, supra (resident physician who was advised at time of appointment that he would be employed for four years “unless sooner terminated, and subject to periodic review by resident review board,” was deemed to have a property interest in his residency.) Plaintiff’s primary claims may be summarized as follows: that Stehlik had a property interest in the good will and reputation of his medical practice; Plaintiff’s Vol. II, p. 36; that the press releases indicated Stehlik and Matthews had gotten into a fist fight and that Stehlik alone was put on probation; that this information arguably affected his ability to attract patients and treat them at Mammoth Hospital; that the denial of Stehlik’s chance to take the orthopedic boards, based on letters from the defendants, further exasperated Stehlik’s chances to practice his medical specialty; that the exclusive contracts entered into by defendants which cut Stehlik off from the emergency room and anesthesiological services and the van ambulance which directed patients away from the “Alpine Group” all but eliminated his livelihood in surgery. Hence, while defendants argue they merely placed Stehlik on a behavioral probation, which did not expressly limit his ability to practice orthopedics, this court finds genuine issues of material facts are raised concerning a de facto denial of his property interest. See, e.g., Wyatt v. Ta hoe Forest Hospital Dist., 174 Cal.App.2d 709, 715, 345 P.2d 93 (1959) (“it is common knowledge that a physician or surgeon who is not permitted to practice his profession in a hospital is as a practical matter denied the right to fully practice his profession [as m]uch of what a physician or surgeon must do can only be performed in a hospital.”) See also Ezekial v. Winkley, 20 Cal.3d 267, 273, 142 Cal.Rptr. 418, 572 P.2d 32 (1977) (“A hospital’s staff membership decisions contain [the] potential for arbitrary impairment of the physician’s right to engage in activities authorized by his license.”) Accordingly, this court finds defendants’ acts raise genuine issues of material fact as to whether Stehlik’s interest in his medical practice rises to the level of a constitutionally protected “property” interest. Having ascertained the establishment of a liberty and property interest, this court is called upon to balance the “process which is due” to protect said interests. The Supreme Court has held such a determination: generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Due process is regarded as a flexible concept and its procedural requirements vary upon the particular deprivation. In Stretten, the court of appeals found that while the resident physician had a property interest in his residency, he was not entitled to a full adversary hearing either before or after his termination. 537 F.2d at 369. In Stretten, the plaintiff was afforded not only a hearing before a three-member Review Board, but the opportunity to confront adverse witnesses and to have an attorney present. Moreover, three months prior to his termination, Stretten was advised that his termination would be sought and provided with the reasons why his superiors felt he should be terminated. Therefore, Stretten received the essentials of minimum due process. Such was not the case in regard to the plaintiff in Orloff. While assuming arguendo that a post-termination hearing would suffice, the Ninth Circuit held there remain factual disputes concerning whether the VA accorded Orloff any hearing at all. We note the initial notice of termination stated specifically that he had no appeal within the VA. It is unclear, even after the VA extended the termination date, whether the VA actually reviewed the merits of the termination decision or merely assured itself that its own procedural requirements, if any, had been followed. There is no indication in the record that Orloff was invited to submit evidence, even in the form of affidavits, on his behalf or to examine the evidence against himself, [citation omitted] Moreover, although due process does not always require a full adversary hearing [citation omitted] it is unclear without first determining the nature of Orloff’s property or liberty interest whether such a hearing would be warranted in these circumstances, or to what extent various procedural safeguards, e.g., the right to confront and cross-examine witnesses, should be sacrificed. 708 F.2d at 379. Similarly in Kay, supra, the district court concluded the chief x-ray technician was not given minimal due process. Kay was summoned before his superior with no notice of the charges against him. He was told to write out his version of the events, but was not allowed to confront the evidence upon which his superiors relied. The next day he was fired and the notice was posted. 555 F.Supp. at 532. In balancing the Mathews v. Eldridge factors in the context of Dr. Stehlik’s sitúation at Mammoth Hospital, this court must review the extent and timing of the procedures, if any, afforded Dr. Stehlik in protecting his liberty and property interest as an orthopedic surgeon at Mammoth Lakes. Obviously, the private interest affected by the defendants’ official actions goes to the very core of Dr. Stehlik’s chosen field of medicine — his reputation and ability to practice orthopedic surgery. Plaintiff contends and the record supports the fact that defendants’ acts to place Stehlik on probation and recommend that he not be able to take the orthopedic board examination severely impeded his medical practice. On the other side of the coin is the intent of the hospital itself. As stated in Stretten, not only does a hospital have “a special interest in protecting its patients from treatment by one who is professionally incompetent,” but a hospital staff is highly interdependent, both in the sense that one doctor depends upon the professional skill of other doctors and in the sense that the collegial nature of the body makes tolerable working relationships an absolute prerequisite to effective staff performance. The necessity for a healthy working relationship is a function of the nature of the work to be done. Incompatible workers on farms, ranches, or in certain types of factories can function reasonably well although even there it is doubtful that full efficiency is achieved. Effective performance by physicians on the staff of a hospital, whose tasks require a high degree of cooperation, concentration, creativity, and the constant exercise of professional judgment, requires a greater degree of compatibility. The Hospital must recognize this necessity. This enhances its interest in quickly dealing with incompetence and debilitating personal frictions. 537 F.2d at 368. See, e.g., Jefferson Parish Hospital Dist. v. Hyde, 466 U.S. 2, 104 S.Ct. 1551, 1568, 80 L.Ed.2d 2 (1984) (“the hospital [h]as unquestioned right to exercise some control over the identity and the number of doctors to whom it accords staff privileges.”) In the instant case, there are no charges before the court that Dr. Stehlik’s competence to perform surgery was anything but good. Rather the official charges against him were more in the nature of his inability to get along with fellow medical staff members. However, this court perceives the one-year probation for harassment and fighting to have implicitly, if not explicitly, raised concerns over Stehlik’s proficiency in the operating room. This view is supported by the fact that the American Board of Orthopedic Surgery declared him ineligible to take the 1983 board examination and other doctors refused to work with him. Finally, this court is required to weigh the risk of erroneous deprivation of interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards. Defendants assert that assuming arguendo liberty or property interests were infringed, due process safeguards were observed. Defendants point to the fact Stehlik was requested to attend the May 24, 1982 medical staff meeting, which resulted in probation, but declined to attend. At the second meeting, defendants maintain plaintiff was permitted to hear the charges against him, examine witnesses, and submit his own evidence and witnesses. Defendants’ Points and Authorities, at 43. These factors, argue defendants, amount to minimal due process. The two sets of minutes from the May 24, 1982 meeting shed light on the issue but nonetheless cause this court some concern. The minutes of Hospital Board member, Lois Melton indicate that Stehlik was advised not to attend the meeting. Prior to the start of the meeting, Bill Lampi, attorney for Dr. Stehlik stated that he had been talking to Mike Ross, hospital attorney, and Mr. Ross had advised him to advise his client not to attend the meeting. Dr. Floyd Parks’ minutes, however, state: Prior to the commencement of the meeting Jan Stehlik, M.D., came and was present with his attorney. A short discussion was held during this time the attorney and Dr. Stehlik read Dr. Matthew’s [sic] letter requesting a corrective action. They then left the meeting stating that Dr. Stehlik would not be present. Dr. Stehlik was telephoned by Wade Eckert in an attempt to have him present his side of the story. However, Dr. Stehlik felt he would not be able to come without contacting his lawyer and declined to come to the meeting____ In reviewing the minutes of Lois Melton, there is mention that “Dr. Matthews recommended a probationary period of one year for Jan____ The majority felt this was a fair solution and voted to continue the meeting on June 14, 1982 allowing time for Dr. Stehlik to attend.” (emphasis added). A fair reading of these minutes would allow one to assume that no action was then taken on May 24,1982, but that probation would be seriously considered on the subsequent meeting of June 14, 1982. In reviewing the minutes of Dr. Floyd Parks, however, a striking inconsistency becomes apparent. The Parks’ minutes state, “It was unanimously approved that probation be utilized as the action by the Medical Staff as well as a second Staff meeting to be held June 14, 1982.” (emphasis added). In short, the Parks’ minutes demonstrate that indeed a term of probation had been decided upon and in fact imposed, and that the staff “unanimously decided that the statement of the terms of probation be placed in Dr. Stehlik’s staff file.” The above mentioned inconsistencies in this court’s opinion raise genuine issues of material fact as to whether Stehlik was dissuaded from attending and defending his actions at the staff meeting in which he was placed on probation. In regard to the meeting of June 14, 1982, there are again inconsistencies which may be gleaned from the minutes of the medical staff meeting. Melton’s minutes indicate Stehlik was given the right to present his side of the story, with witnesses and testimony. Parks’ minutes make no mention of this, albeit state that the “Medical Staff feels that because the events of May 22 were not witnessed, that no specific blame can be placed with certainty. Therefore, no adverse action can be taken against either party.” (emphasis original). Parks’ minutes, however, state [t]he Medical Staff received five letters requesting corrective action against Dr. Stehlik for harassment and threatening behavior against certain members of the staff. These letters and supporting testimony were considered grounds for [one year probation]. A review of the medical staff minutes not only raises material issues as to the timing and basis of the imposition of probation, but implicates a possible “set-up” to deprive Dr. Stehlik of his chance to confront his accusers and present evidence. While Parks’ minutes indicate no blame could be placed on either Stehlik or Matthews “with certainty,” it is Dr. Stehlik who is placed on probation, arguably for the fighting incident. As a side note, this court recognizes that no procedural safeguards were provided Dr. Stehlik in regard to the recommendation by defendants that he not be afforded the chance to take the orthopedic board examination. The court finds on the evidence adduced in support of and in opposition to the motion for summary judgment that the procedures utilized by the defendants do not appear to have satisfied minimal procedural due process requirements insofar as plaintiff’s property and liberty interests were concerned. While this court recognizes the importance of harmonious hospital staffs, the court believes the risk of deprivation to Dr. Stehlik’s interests were potentially higher and that additional and substitute procedural safeguards could have easily been afforded with minimal fiscal and administrative burden. For these reasons, defendants’ motion for summary judgment on plaintiff’s § 1983 cause of action in regard to the deprivation of procedural due process afforded Dr. Stehlik’s liberty and property interests is DENIED. c. Freedom of Expression Plaintiff’s claims for deprivation of first amendment freedom are based principally on the contention that Dr. Stehlik wished to “blow the whistle” on the incompetence of the “Mammoth Group,” but was foreclosed from doing so by the imposition of a probationary term and a condition of probation that he not discuss the matter with anyone but legal counsel. In essence, plaintiff believes that the term of probation was a “gag order” of sorts that divested him from “disclospng] the truth or his version to the public, to his associates, to the nurses, or to his patients.” Plaintiff's Vol. II, at 46. In response, defendants' papers are devoid of any contrary evidence to plaintiff’s claims and do not set forth any rationale why Stehlik was not to discuss his probation with anyone but legal counsel. At oral argument, defendants maintained that this condition of probation was appropriate in light of the Hospital District’s duty to serve the public and privately deal with hospital matters. In United States v. O’Brien, the Supreme Court held that government regulation affecting speech is justified only if “(1) it is within the constitutional power of the government; (2) it furthers an important or substantial government interest; (3) the government interest is unrelated to the suppression of the speech; and (4) the incidental restriction on first amendment freedom is no greater than essential to further that intent.” Playtime Theaters, Inc. v. City of Renton, 748 F.2d 527, 535 (9th Cir.1984), citing United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). After considering the parties arguments the court finds a genuine issue of material fact is raised as to the constitutionality of the probation limitation. The court perceives a conflict between the limitation placed on decedent to defend his actions, refute the charges of Dr. Matthews and other staff members, and convince the community of Mammoth Lakes of his proficiency in medicine as against the ability of Mammoth Hospital to deal with staff members. The court cannot determine as a matter of law the importance of the government’s interest, its relationship to the suppression of decedent’s speech, and whether the restriction is incidental or fundamental to first amendment freedom. Accordingly, defendants’ motion for summary judgment as to plaintiff’s claims under § 1983 for infringement of first amendment rights is DENIED. d. The Other Alleged Deprivations While substance has been found in plaintiff’s alleged deprivations of liberty and property without procedural due process, and limitation of plaintiff’s freedom of expression, the panoply of other alleged deprivations of constitutional rights are less worthy. 1. Illegal Seizure Plaintiff claims that Dr. Stehlik’s fourth amendment right to be free from illegal seizure without a warrant was infringed by reason of the battery committed by Dr. Matthews on Dr. Stehlik in the radiology suite on May 22, 1982. In this regard, the court notes that 42 U.S.C. § 1983 protects only violations of rights protected by the Constitution, “not violations of duties of care arising out of tort law. Remedy for the latter type of injury must be sought in state court under traditional tort-law privileges.” Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695-96, 61 L.Ed.2d 433 (1979). Here, the court finds the record devoid of any evidence that would support the proposition that a fight between Drs. Stehlik and Matthews was orchestrated by and as a result of some sort of a conspiracy amongst and between the defendants. Rather, all evidence points to the conclusion that the fight was nothing more than an isolated feud between two physicians. Moreover, the fact Dr. Matthews fought with Dr. Stehlik simply does not rise to the level of a deprivation of a constitutional right. At most, plaintiffs allegation arises out of a state tort law claim. Accordingly, plaintiff’s fourth amendment claim under § 1983 is not legally cognizable and the court will grant defendants’ motion for summary judgment on said claim. 2. Right to Counsel Plaintiff’s claim that he had a right to counsel, while recognizing said right is not absolute, is based on the allegation that the treatment that Dr. Stehlik was subject to was “indistinguishable in fact from formal punishment.” Plaintiff’s Vol. II, at 72. Plaintiff relies on Ney v. California, 439 F.2d 1285 (9th Cir.1971) in support of this claim. In Ney, the United States Court of Appeals for the Ninth Circuit reversed in part the district court and held that a state prisoner had properly alleged an infringement of the constitutional right to counsel under 42 U.S.C. § 1983 based on the Supreme Court decision of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Ney, 439 F.2d at 1287-88. Factually, plaintiff maintains he was denied the constitutional right to counsel at the May 24 and June 14 and 15, 1982 staff meetings. The Bylaws provide: The hearings provided for in these Bylaws are for the purpose of intraprofessional resolution of matters bearing on conduct or professional competency. Accordingly, neither the Practitioner, the Hearing Committee, nor the Governing Body shall be represented in any phase of the hearing or appeals procedure by an attorney at law. Bylaws, X, 2(b). Here, Dr. Stehlik was neither a criminal defendant nor subjected to criminal-like proceedings. Rather, this court views the Bylaw prohibition of counsel representation to be rationally based on the hospital’s need to gather facts, to regulate a highly interdependent staff, and to expedite discretionary matters. See, e.g., Goss v. Lopez, 419 U.S. 565, 583, 95 S.Ct. 729, 740, 42 L.Ed.2d 725 (1975) (high school students suspended from school up to 10 days for misconduct afforded only notice and hearing, and not the opportunity to secure the representation of counsel); Downing v. LeBritton, 550 F.2d 689, 692 (1st Cir.1977) (mentally retarded discharged university employee not entitled to retain legal counsel for termination proceedings because university had broad discretion to administer its internal affairs, it would stimulate lawyer representation of the University and others, it would formalize the hearings and force them into an adversary mold, it would case a litigation chill on decisions to terminate, and increase the likelihood that many otherwise ordinary personnel actions would become “causes celebres.”) Accordingly, this court will grant defendants’ motion for summary judgment on plaintiff’s claim under § 1983 of the denial of the right to counsel. 3. Right to Travel Plaintiff’s claim to a “right to freedom from invasion of privileges and immunities” is, in summary, an allegation that Mammoth Hospital imposed a residency requirement on its doctors such that the constitutional right to travel was infringed. In this regard, the Bylaws state: The Active Medical Staff shall consist of physicians practicing full time within the community who regularly admit to/or consult patients in the Hospital, who are located close enough to the Hospital to provide continuous care to their patients Bylaws, IV, 2. In McCarthy v. Philadelphia Civil Services Commission, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Supreme Court held that a Philadelphia ordinance which required employees of the city to be residents of the city during the time that they were employed did not violate the constitutionally protected right of interstate travel. Similarly, this court finds the Mammoth Hospital’s requirement that its staff be “located close enough to the Hospital to provide continuous care to their patients” is a valid, appropriately defined, and uniformly applied bona fide residence requirement. Memorial Hospital v. Maricopa County, 415 U.S. 250, 255, 94 S.Ct. 1076, 1081, 39 L.Ed.2d 306 (1974). Therefore, defendants’ motion for summary judgment on plaintiff’s claim of infringement on the constitutional right to interstate travel under § 1983 is herein GRANTED. 4. Deprivation of Life Plaintiff next claims that Dr. Stehlik’s suicide was “caused” by defendants’ acts and hence is a constitutional tort compensable under § 1983. In Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), the Supreme Court addressed a similar challenge. In Martinez, a lawsuit was brought under 42 U.S.C. § 1983 for the murder of a 15-year old girl by a parolee who had been released from custody five months before the killing. Plaintiffs claimed that the state officials by the action of releasing the parolee, subjected the decedent to a deprivation of life without due process of law. The Supreme Court affirmed the ruling of the lower courts in finding that the plaintiffs had not alleged a claim for relief under federal law. The Court emphasized that the fourteenth amendment protected the girl “only from deprivation by the ‘State ... of life ... without due process of law.’ ” Id. at 284, 100 S.Ct. at 559. Although the decision to release Thomas from prison was action by the State, the action of Thomas five months later cannot be fairly characterized as state action____ But we do hold that at least under the particular circumstances of this parole decision, appellants’ decedent’s death is too remote a consequence of the parole officers’ action to hold them responsible under the federal civil rights law. Although a § 1983 claim has been described as a “species of tort liability,” Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128, it is perfectly clear that not every injury in which a state official has played some part is actionable under the statute. Id. at 284-85, 100 S.Ct. at 559. In opposition to defendants’ motion for summary judgment, plaintiff submits the Declaration of Walter Bromberg, M.D. Said declaration states that “all suicides have multiple causations” and that Dr. Stehlik’s suicide was caused by (1) the harassment, malicious treatment, loss of practice, embarrassing physical assault upon him, loss of self-esteem, plus (2) his physical injury which involved a concussion of the brain, plus (3) his marked depression over several years and his inability to maintain his self esteem. Another cause could also be his feeling of helplessness in terms of the loss of esteem with the dependence he perceived to be necessary from his father and mother; finally a moderate degree of marital disharmony not uncommon among young physicians and professionais in their early periods of training, Plaintiffs Vol. IV A. Reviewing the evidence in a light most favorable to the plaintiff, the court is nonetheless persuaded that the evidence is insufficient to raise a genuine issue of material fact on plaintiffs claim of deprivation of life without due process of law. The fact that Dr. Stehlik used a gun to take his own life at the home of his parents on July 9, 1983 (approximately 14 months post the Matthews-Stehlik altercation) is too remote an incident to be linked with defendants’ alleged actions. While arguably a contributing factor in the mind of Dr. Stehlik, plaintiff has simply offered too little evidence to outline a systematic effort by defendants to proximately cause Dr. Stehlik’s death. Contra Hirst v. Gertzen, 676 F.2d 1252 (9th Cir.1982) (civil rights plaintiffs’ offer of proof, which outlined systematic failure on part of relevant county officials to exercise even minimal care in hiring and supervision of alleged violent deputy in charge of prisoners at county jail, sufficiently alleged triable issue that defendants’ conduct in hiring and supervising their deputies was negligent and created foreseeable risk that violation of prisoner’s civil rights would occur and in fact proximately cause his death). Based on the foregoing, the court will grant defendants’ motion for summary judgment on plaintiff’s claim of deprivation of life without due process of law. 5. Cruel and Unusual Punishment Plaintiff’s claim that Dr. Stehlik suffered “cruel and unusual punishment” on account of defendants’ actions is without merit. In Ingraham v. Wright, 430 U.S. 651, 664, 97 S.Ct. 1401, 1409, 51 L.Ed.2d 711 (1977), the Supreme Court reaffirmed the principle that the proscription against the eighth amendment’s cruel and unusual punishment was designed to protect those convicted of crimes. Here, the eighth amendment does not apply to Dr. Stehlik, as he was not convicted of a crime. Accordingly, the court grants defendants’ motion for summary judgment on plañítiffs civil rights claim under the eighth amendment. 6. Equal Protection Plaintiff’s § 1983 cause of action under the fourteenth amendment’s equal protection clause is that defendants invidiously discriminated against Dr. Stehlik and unlawfully denied him staff privileges at Mammoth Hospital. More specifically, the plaintiff argues there was a discriminatory treatment applied to the “Alpine Group” to which Stehlik belonged, as compared to the “Mammoth Group,” to which the defendants principally belonged. The proper standard for review of an equal protection claim is the rational basis test. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976). Strict scrutiny is the proper test of a legislative classification only when the classification impermissibly interfers with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. Id. Brandwein v. California Bd. of Osteopathic Examiners, 708 F.2d 1466, 1470 (9th Cir.1983). In the present case, plaintiff’s claim does not involve either of the latter circumstances. In general, courts have been especially deferential to legislative classifications in cases of challenges to the state regulation of licensed professions. See, e.g., Ohralik v. State Bar Ass’n, 436 U.S. 447, 98 S.Ct. 1912, 1920-21, 56 L.Ed.2d 444 (1978) (“the state bears a special responsibility for maintaining standards among members of the licensed professions.”); Brandwein, 708 F.2d at 1470. In applying the rational relations test, the Court has also stressed the heavy procedural burden placed upon the plaintiff in proving his case. The plaintiff in a challenge to a legislative classification, reviewed under this standard, must prove that the facts on which the legislature may have relied in shaping the classification “could not reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley, 440 U.S. [93] at 111, 99 S.Ct. [939] at 949 [59 L.Ed.2d 171]. “The admission that facts are arguable” is enough to justify the legislative judgment. Id. at 112, 99 S.Ct. at 950. And in reviewing the rationality of the classification, a court may hypothesize legislative purposes: “where there are plausible reasons for Congress’ action, our inquiry is at an end. It is, of course, ‘constitutionally irrelevant whether this reasoning in fact underlay the legislative decision,’ Flemming v. Nestor, 363 U.S. [603], at 612, [80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435], because the Court has never insisted that a legislative body articulate its reasons for enacting a statute.” United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980). Id. at 1470-71. Defendants herein submit that the imposition of probation as well as the awarding of exclusive contracts “could conceivably be said to further the state’s interest in improving the quality of health care rendered to its citizens.” Defendants’ Points and Authorities, at 49. In this court’s view, the different treatment of the “Alpine Group” as opposed to that of the “Mammoth Group” is rationally based and serves a conceivable, legitimate governmental purpose, i.e., the regulation of a county hospital. The decision to place the decedent on probation is well within the powers of the hospital to promote staff harmony. Similarly, the exclusive contracts signed by defendants are rationally related to their power to provide services to and for the hospital. Hence, this court finds these asserted legitimate government purposes sufficient to justify the distinctions made by the defendants. Accordingly, defendants’ motion for summary judgment on plaintiff’s claim of equal protection under § 1983 is GRANTED. 7. Right to Privacy The last of plaintiff's claims is the claim to a right of privacy or as defendants classify it, Dr. Stehlik’s “right to be left alone.” Plaintiff’s Vol. II, at 78. While there is no “right to privacy” specific guarantee in the Constitution,' the Supreme Court has recognized that “zones of privacy” may be created by more specific constitutional guarantees which thereby impose limits upon government power. Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). In Roe, the Court held that the personal rights found in this guarantee must be limited to those which are “fundamental” or “implicit in the concert of ordered liberty” as described in Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937). The activities detailed as being within this definition are very different and distinct from that for which plaintiff claims constitutional protection, i.e., matters relating to marriage, procreation, contraception, family relationships, child rearing, and education. Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405 (1976). For the foregoing reasons and because this court views plaintiff’s final claim under § 1983 to be without foundation, the court will grant defendants’ motion for summary judgment on plaintiff’s right to privacy cause of action. 2. Antitrust Claims Plaintiff’s antitrust claim is that defendants “monopolize^] trade and commerce by boycott and exclusion of competitors.” According to plaintiff, this conspiracy is a per se violation of the Sherman Act, 15 U.S.C. § 1. Plaintiff’s Vol. II, p. 108. Plaintiff relies principally on the doctrine of “conscious parallelism” to establish the conspiratorial claims. Defendants’ motion for summary judgment on plaintiff’s second cause of action is premised on the belief that plaintiff has failed to establish both the jurisdictional basis for, and the substantive elements of, a claim under the federal antitrust laws. Defendants vigorously disagree that their acts amount to a per se violation of the anti-trust laws, rather contending they must be evaluated under the “rule of reason.” As in all cases, this court will first consider the jurisdictional challenge. a. Jurisdiction In McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980), the Supreme Court while recognizing the breadth of the Sherman Act found jurisdiction may