United States Court of Appeals,

Fifth Circuit.

No. 91-3865.

Margaret A. WHEAT, et al., Plaintiffs-Appellants,

v.

Joseph L. MASS, M.D., et al., Defendants-Appellees.

July 6, 1993.

Appeals from the United States District Court for the Middle District of Louisiana.

Before SMITH, DUHÉ, and WIENER, Circuit Judges.

DUHÉ, Circuit Judge.

BACKGROUND

In November 1989, Margaret Gordon underwent tests by Dr. Joseph Mass at Our Lady of

the Lake Regional Medical Center (OLOL) after she complained to him of abdominal pain. After the

tests revealed severe liver disfunction, Mrs. Gordon was admitted to OLOL and was treated there

by Drs. Joseph Mass, John Hoppe, and William Anderson. Mrs. Gordon's condition deteriorated, and

she was transferred to Ochsner Hospital (Ochsner) in New Orleans to undergo evaluation by Dr. Luis

Balart for a possible liver transplant.

At Ochsner, Mrs. Gordon's condition stabilized temporarily until December 10, when Ochsner

physicians determined that she needed a liver transplant. Because Mrs. Gordon's medical insurance

did not cover transplants, her family was contacted by Ochsner's social worker on December 11 and

informed that a $175,000 down payment must b e raised for the transplant. At the social worker's

suggestion, Mrs. Gordon's family contacted the Louisiana state government for assistance and was

subsequently inf

o rmed o n December 13 that funding for the transplant may be available from the

state. Mrs. Gordon was immediat ely placed on the national transplant waiting list, but before an

organ match was made, she passed away at 10:00 p.m. that nig h t. In December 1990, Appellants

sued Drs. Mass, Hoppe, OLOL, Ochsner, and Drs. Balart and Head, alleging that they discriminated

against Mrs. Gordon on the basis of age, sex, and poverty while providing her medical services, in1 The United Network for Organ Sharing has an exclusive contract with the Department of

Health and Human Services to serve as the national organ procurement and transplant network

under the National Organ Transplant Act of 1984, 42 U.S.C. § 273. violation of the Civil Rights Act, T it le VII, the U.S. Constitution, and the Louisiana Constitution.

The district court dismissed the complaint, upon Appellees' motions, for failure to state a claim. The

court also denied Appellants' motion to amend the petition. Appellants appeal both the dismissal and

the district court's refusal to allow an amendment to the complaint.

DISCUSSION

I. Dismissal of Complaint.

A. Standard of Review

.

Dismissal cannot be upheld unl ess it appears beyond doubt that Appellants would not be

entitled to recover under any set of facts that could be proved in support of their claims. C onley v.

Gibson

, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); W orsham v. City of

Pasadena, 881 F.2d 1336, 1339 (5th Cir.1989).

B. Alleged causes of action.

Appellants' 42 U.S.C. § 1983 claim states that "Ochsner and its doctors, as well as proposed

defendant state officials," are stat e act o rs who violated Mrs. Gordon's civil rights under the equal

protecti on clause of the Fourteent h Amendment . Ochsner is not a state actor, and cannot be

co nsidered as such solely because it receives medicare and medicaid funds and is subject to state

regulation. Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344, 1349 (5th Cir.1985). Because

no state action was involved, this claim was properly dismissed.

Appellants next argue that Ochsner violated Mrs. Gordon's equal protecti on rights under the

F ifth Amendment by discriminating against her on the basis of sex. A Fifth Amendment claim is

cognizable only against a federal government act o r, and Appellants argue that Ochsner is such an

actor by virtue of its membership in th e United Network for Organ Sharing (UNOS). 1 Ochsner's

receipt of federal funds by virtue of its participation in UNOS does not make Ochsner a federal actor.

See Wahba v. New York University, 492 F.2d 96, 102 (2d Cir.1974) cert. denied, 419 U.S. 874, 95

S.Ct. 135, 42 L.Ed.2d 113 (1974) (private university's administration of public health service grantspursuant to statute does not m ake the university a federal actor); G reenya v. George Washington

University, 512 F.2d 556, 559-60, (D.C.Cir.1975) cert. denied, 423 U.S. 995, 96 S.Ct. 422, 46

L.Ed.2d 369 (1975) (university's receipt of federal funding and exem ption from taxati on does not

make university a government actor for purposes of a Fifth Amendment claim); Fidelity Financial

Corp. v. Federal Home Loan Bank of San Francis co, 792 F.2d 1432, 1435 (9th Cir.1986) c ert.

d enied, 479 U.S. 1064, 107 S.Ct. 949, 93 L.Ed.2d 998 (1987), (extensive and detailed regula tion

does not render business a government actor). Furthermore, Appellants have failed to allege any facts

demonstrating that Mrs. Gordon was discriminated against on the basis of her sex. This claim was

properly dismissed.

Third, Appellants argue that "Louisiana finances liver transplants with Medicaid funds on an

arbitrary and political rather than reasonable and equitable basis" in violation of 42 U.S.C. § 1396b(i),

which provides that states must distribute organ transplant funds equally to similarly situated

individuals. This claim only applies to Ochsner, because Ochsner is the only Appellee that performs

liver transplants or is involved in Louisiana's funding of transplants. We held in S tewart v. Bernstein,

769 F.2d 1088, 1092- 94 (5th Cir.1985), that the Medicaid Act does not furnish substantive rights

enforceable in civil suits between private parties. The court's power to enforce this statute is limited

to adjudication of whether a state properly administers federal medicaid funds, and therefore thi s

claim against Ochsner was properly dismissed.

Fourth, Appellants argue that a cause of action exists under the Age Discrimination Act, 42

U.S.C. § 6101, which prohibits discrimination on the basis of age in federally assisted programs.

Appellants argue that the organ transplant p ro gram is a federally assisted program because it is

heavily subsidized and funded with federal Medicare and Medicaid funds. Again, this claim can only

be asserted against Ochsner as Ochsner is the only Appellee involved in organ transplants. This Court

has not considered whether a private cause of action exists under the Age Discrimination Act, nor

has the Court considered whether such an action may be brought by a Plaint iff's survivors; we need

not address these issues now. Appellants have made no showing whatsoever that Ochsner

discriminated against Mrs. Gordon on the basis of her age, and for that reason the claim was properlydismissed.

Appellants next argue that Ochsner violated Title IX of the Education Amendment of 1972,

20 U.S.C. § 1681 which prohibits sexual discrimination in education programs receivi ng federal

funding. Appellants argue that Ochsner is within the purview of Title IX because it has educational

pr o grams and receives federal funds through medicare and medicaid. Appellants then state that

Ochsner discriminated against Mrs. Gordon on the basis of sex in violation of Title IX. This claim

was properly dismissed because Appellants have made no showing that Mrs. Gordon's gender was

a factor in her not receiving a liver transplant, or in any other decision involving her medical care.

Finally, Appellants argue that they are entitled to show that UNOS and its members such as

Ochsne r maint ain a monopoly on organ transplants and create market harm by restricting the

availabilit y of such services and charging prohibitively high prices in violation of the Sherman

Anti-Trust Act, 15 U.S.C. §§ 1, 2. Appellants have failed to state a claim under § 1 of the Sherman

Act because they have failed to allege any effect on interstate commerce, and have failed t o sho w

Ochsner's requisite market power or intent to monopolize the market. Appellants have also failed to

state a claim under § 2 of the Sherman Act because they have not shown an agreement between two

or more economic entities, a specific intent to monopolize, or any overt act i n furtherance of the

conspiracy. These claims are frivolous, and were properly dismissed.

II. Denial of motion to amend the complaint.

We review the district court's refusal to allow Appellants to amend their complaint for abuse

of discretion. A vatar Exploration, Inc. v. Chevron U.S.A., Inc., 933 F.2d 314, 320 (5th Cir.1991).

The district court refused to allow Appellants to amend thei r complaint because the proposed

amendments sought to include numerous defendants under various theories, but failed to indicate any

factual basis in support of the claim. Having reviewed Appellants proposed amended complaint, we

find that the district court did not abuse its discretion.

Having concluded that Appellants' brief asserts meritless claims completely unsupported by

allegations of fact, we turn to Fed.R.App.P. 38, which states "[i]f a court of appeals shall determine

that an appeal is frivolous, it may award just damages and single or double costs to the appel l ee."An appeal is frivolous when the advanced claim is unreasonable, or when it involves legal points that

are not arguable on their merits. S turgeon v. Airborne Freight Corp., 778 F.2d 1154, 1161 (5th

Cir.1985); S telly v. Commissioner, 761 F.2d 1113, 1116 (5th Cir.1985). Thi s matter is a pri m

e

exampl e

. Numerous defendants have been put to considerable needless expense by this lawsuit.

Since the district court has referred the matter of sanc t io ns to a magistrate judge, we decline to

exercise our Rule 38 sanction authority.

CONCLUSION

For the foregoing reasons, the district court's dismissal of Appellants' complaint and refusal

to allow an amendment are AFFIRMED.