Allen P. Schlein, M.D. v. The Milford Hosp., Inc., 561 F.2d 427 (2d Cir. 1977). · Go Syfert
Allen P. Schlein, M.D. v. The Milford Hosp., Inc., 561 F.2d 427 (2d Cir. 1977). Cases Citing This Book View Copy Cite
118 citation events (34 in the last 25 years) across 28 distinct courts.
Treatment trajectory · 1978 → 2026 · click a year to view as-of
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Cited for
At page 428 The mere fact that [the State] regulates the . . . private hospital does not per se make the acts of the hospital . . . the acts of the state.36 citing cases2 citing courts put it this way
  • DR. DOE, M.D. v. Hochul, No. 3:21-cv-01078 (N.D.N.Y. Feb. 14, 2022).
    (The mere fact that [the State] regulates the . . . private hospital does not per se make the acts of the hospital . . . the acts of the state.)
  • Jarvis, No. 5:25-cv-00645 (N.D.N.Y. Dec. 17, 2025).
    The Second Circuit has explained that in order for a Plaintiff to sufficiently plead state involvement for the purposes of Section 1983, that “the plaintiff must allege that the state was involved ‘with the activity that caused the injury’…
  • Smith v. New Neighborhoods, Inc., No. 3:24-cv-00327 (D. Conn. Sept. 10, 2025).
    Further, “[i]t is not enough . . . for a plaintiff to plead state involvement in ‘some activity of the institution alleged to have inflicted injury upon a plaintiff’; rather, the plaintiff must allege that the state was involved ‘with the…
  • Juares v. Odyssey House NYC Inc., No. 1:24-cv-06824 (S.D.N.Y. May 28, 2025).
    Home Living Program, Inc., 546 F.3d 255 , 257–58 (2d Cir. 2008) (quoting Schlein v. Milford Hospital, Inc., 561 F.2d 427, 428 (2d Cir. 1977) (internal quotation marks and citation omitted) (emphases added in Sybalski).
  • Rogers v. Blythedale Child.'s Hosp., No. 1:24-cv-01141 (S.D.N.Y. Apr. 15, 2024).
    The Second Circuit has explained that is not enough “for a plaintiff to plead state involvement in ‘some activity of the institution alleged to have inflicted injury upon a plaintiff’; rather, the plaintiff must allege that the state was i…
  • Levine v. Proj. Renewal, No. 1:24-cv-00616 (S.D.N.Y. Feb. 26, 2024).
    The Second Circuit has explained that is not enough “for a plaintiff to plead state involvement in ‘some activity of the institution alleged to have inflicted injury upon a plaintiff’; rather, the plaintiff must allege that the state was i…
  • Gong v. Sarnoff, No. 1:23-cv-00343 (S.D.N.Y. July 17, 2023).
    “It is not enough . . . for a plaintiff to plead state involvement in ‘some activity of the institution alleged to have inflicted injury upon a plaintiff’; rather, the plaintiff must allege that the state was involved ‘with the activity th…
  • Waterman v. Nolan, No. 1:23-cv-04903 (S.D.N.Y. June 22, 2023).
    (the fact that a private hospital was “state-licensed” and subject to state regulation did not “per se make the acts of the hospital . . . the acts of the state)
  • Burke v. Verizon Commc'ns, Inc., No. 1:18-cv-04496 (S.D.N.Y. Mar. 16, 2023).
    It “is not enough [] for a plaintiff to plead state involvement in ‘some activity of the institution alleged to have inflicted injury upon a plaintiff’; rather, the plaintiff must allege that the state was involved ‘with the activity that…
  • Kumpf v. New York State United Teachers, No. 1:22-cv-00402 (N.D.N.Y. Nov. 22, 2022). 2 cites
    However, “[i]t is not enough . . . for a plaintiff to plead state involvement in ‘some activity of the institution alleged to have inflicted injury upon a plaintiff’; rather, the plaintiff must allege that the state was involved ‘with the…
Show 26 more citing cases
  • Alicea v. Yang, No. 3:21-cv-01638 (D. Conn. July 7, 2022).
    Further, “[i]t is not enough . . . for a plaintiff to plead state involvement in ‘some activity of the institution alleged to have inflicted injury upon a plaintiff’; rather, the plaintiff must allege that the state was involved ‘with the…
  • Ctr. for Transitional Living L.L.C. v. Advanced Behavioral Health, Inc., No. 3:20-cv-01362 (D. Conn. Aug. 4, 2021).
    When bringing a § 1983 claim against a private entity, “[i]t is not enough . . . for a plaintiff to plead state involvement in ‘some activity of the institution alleged to have inflicted injury upon a plaintiff’; rather, the plaintiff must…
  • Anand v. Indep. Blue Cross, No. 2:20-cv-06246 (E.D. Pa. July 23, 2021).
    Home Living Program, Inc., 546 F.3d 255, 257-58 (2d Cir. 2008) (quoting Schlein v. Milford Hosp., Inc., 561 F.2d 427, 428 (2d Cir. 1977)).
  • Thompson v. CRF-Cluster Model Prog., LLC, No. 1:19-cv-01360 (S.D.N.Y. Aug. 14, 2020).
    “It is not enough, however, for a plaintiff to plead state involvement in ‘some activity of the institution alleged to have inflicted injury upon a plaintiff’; rather, the plaintiff must allege that the state was involved ‘with the activit…
  • Falzon v. Ford, No. 7:19-cv-06096 (S.D.N.Y. May 6, 2020).
    Home Living Program, Inc., 546 F.3d at 257–58 (quoting Schlein v. Milford Hosp., Inc., 561 F.2d 427, 428 (2d Cir. 1977)).
  • Lynch v. Southampton Animal Shelter Found. Inc., 971 F. Supp. 2d 340 (E.D.N.Y 2013).
    However, “[i]t is not enough [] for a plaintiff to plead state involvement in ‘some activity of the institution alleged to have inflicted injury upon a plaintiff; rather, the plaintiff must allege that the state was involved ‘with the acti…
  • Am. Atheists, Inc. v. Port Auth., 936 F. Supp. 2d 321 (S.D.N.Y. 2013).
    (holding there was no state action when a hospital, which was a non-profit corporation regulated by the state,' did not grant a physician staff privileges when the state had no regulations or control regarding such proce…)
  • DeMeo v. Tucker, 509 F. App'x 16 (2d Cir. 2013).
    Home Living Program, Inc., 546 F.3d 255, 257-58 (2d Cir.2008) (quoting Schlein v. Milford Hosp., Inc., 561 F.2d 427, 428 (2d Cir.1977)).
  • Sybalski v. Indep. Grp. Home Living Prog., Inc., 546 F.3d 255 (2d Cir. 2008).
    Schlein v. Milford Hospital, Inc., 561 F.2d 427, 428 (2d Cir.1977) (internal quotation marks and citation omitted) (emphases added); see also United States v. Int’l Bhd. of Teamsters, 941 F.2d 1292, 1296 (2d Cir.1991) (“The question is not…
  • Turturro v. Cont'l Airlines, 334 F. Supp. 2d 383 (S.D.N.Y. 2004).
    The Supreme Court has held that “the mere *396 fact that a business is subject to state regulation does not by itself convert its action into that of the State.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 , 95 S.Ct. 449, 453 , 4…
  • Bennett v. Connecticut Hospice, Inc., 741 A.2d 349 (Conn. App. Ct. 1999).
    See 42 U.S.C. § 1983 ; Leeds v. Meltz, 85 F.3d 51, 54 (2d Cir. 1996); Schlein v. Milford Hospital, Inc., 561 F.2d 427, 428 (2d Cir. 1977).
  • White v. Moses Taylor Hosp., 763 F. Supp. 776 (M.D. Penn. 1991).
    See, e.g., Loh-Seng Yo v. Cibola General Hosp., 706 F.2d 306, 308 (10th Cir.1983); Modaber v. Culpeper Memorial Hosp., Inc., 674 F.2d 1023 , 1026 (4th Cir.1982); Newsom v. Vanderbilt University, 653 F.2d 1100, 1115 (6th Cir.1981); Hodge v.…
  • Kaczanowski v. Med. Ctr. Hosp. of Vermont, 612 F. Supp. 688 (D. Vt. 1985).
    As we said in Powe v. Miles, 407 F.2d 73, 81 (2d Cir.1968), “the state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the injury.” Schle…
  • Beverley v. Douglas, 591 F. Supp. 1321 (S.D.N.Y. 1984).
    Schlein v. Milford Hosp., Inc., 561 F.2d 427, 428 (2d Cir.1977) (per curiam) (quoting Barrett v. United Hosp., 376 F.Supp. 791, 803 (S.D.N.Y.), aff'd mem., 506 F.2d 1395 (2d Cir.1974)). 38 .
  • Loh-Seng Yo, M.D. v. Cibola Gen. Hosp., 706 F.2d 306 (10th Cir. 1983).
    See, e.g., Modaber v. Culpeper Memorial Hospital, 674 F.2d 1023 , 1026 (4th Cir.1982); Newsom v. Vanderbilt University, 653 F.2d 1100, 1115 (6th Cir.1981); Hodge v. Paoli Memorial Hospital, 576 F.2d 563, 564 (3d Cir.1978); Schlein v. Milfo…
  • Weise v. Syracuse Univ., 553 F. Supp. 675 (N.D.N.Y. 1982). 2 cites
    Despite a tendency in the district courts to find a public function independently adequate, Ruffler v. Phelps Memorial Hospital, 453 F.Supp. 1062, 1070 (S.D.N.Y.1978); Schlein v. Milford Hospital, 423 F.Supp. 541, 542 (D.C.Conn.1976), the…
  • Yaretsky v. Blum, 629 F.2d 817 (2d Cir. 1980).
    The Supreme Court has not defined the limits of state action, but it has supplied the following, somewhat sibylline formula: “the existence of ‘state action’ depends on ‘whether there is a sufficiently close nexus between the State and cha…
  • Yaretsky v. Blum, 629 F.2d 817 (2d Cir. 1980).
    We agree because we think such transfers involve state action affecting constitutionally protected property and liberty interests. 9 The Supreme Court has not defined the limits of state action, but it has supplied the following, somewhat…
  • Jensen v. Farrell Lines, Inc., 625 F.2d 379 (2d Cir. 1980). 2 cites
    But cf. Graseck v. Mauceri, supra, 582 F.2d 203 , 209 n.22 (2d Cir. 1978), cert. denied, 439 U.S. 1129 , 99 S.Ct. 1048 , 59 L.Ed.2d 91 (1979) (uncertain whether Burton’s “symbiotic relationship” analysis survives Jackson’s nexus test); Sch…
  • Jensen v. Farrell Lines, Inc., 625 F.2d 379 (2d Cir. 1980). 2 cites
    But cf. Graseck v. Mauceri, supra, 582 F.2d 203 , 209 n.22 (2d Cir. 1978), cert. denied, 439 U.S. 1129 , 99 S.Ct. 1048 , 59 L.Ed.2d 91 (1979) (uncertain whether Burton 's "symbiotic relationship" analysis survives Jackson 's nexus test); S…
  • Graseck v. Mauceri, 582 F.2d 203 (2d Cir. 1978). 2 cites
    Since the judges in no sense actively participated in the decision-making process itself, it must be determined whether they encouraged or coerced the dismissal, see, e. g., Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 163 , 98 S.Ct. 1729…
  • Graseck v. Mauceri, 582 F.2d 203 (2d Cir. 1978). 2 cites
    Since the judges in no sense actively participated in the decision-making process itself, it must be determined whether they encouraged or coerced the dismissal, See, e. g., Flagg Brothers, Inc. v. Brooks, --- U.S. ----, ----, 98 S.Ct. 172…
  • Jones v. E. Maine Med. Ctr., 448 F. Supp. 1156 (D. Me. 1978).
    Schlein v. Milford Hospital, 561 F.2d 427, 428 (2d Cir. 1977); Briscoe v. Bock, 540 F.2d 392, 395-96 (8th Cir. 1976); Taylor v. St.
  • Patricia J. Chalfant v. The Wilmington Inst., a Corp. of the State of Delaware, Jack W. Bryant & Edward B. Dupont, 574 F.2d 739 (3d Cir. 1978). 4 cites
    My confusion in this respect stems from the fact that the majority opinion has not addressed this point directly nor has the majority even adverted to it despite its rather extensive analysis of Hollenbaugh 11 Accord, Schlein v. Milford Ho…
  • Smith v. Johnson, No. 5:24-cv-00368 (N.D.N.Y. June 14, 2024).
    See Schlein v. Milford Hospital, Inc., to protect the union's interests). 561 F.2d 427, 428-29 (mere fact that hospital was state- licensed, regulated by the state health department, tax exempt, The amended complaint alleges that plaintiff…
  • Purgess v. Sharrock, 806 F. Supp. 1102 (S.D.N.Y. 1992).
    See Schlein v. Milford Hospital, Inc., 561 F.2d 427, 428-29 (2d Cir.1977).
At page 429 activities of hospital are not functions traditionally associated with the sovereignty8 citing cases1 citing court put it this way
  • Rene v. Mustafa, No. 2:16-cv-04072 (E.D.N.Y Mar. 28, 2024).
    Moreover, “[t]he Second Circuit has recognized that private hospitals, though ‘clearly affected with a public interest, have not been traditionally associated with sovereignty, and have long been relegated to the private domain, rather tha…
  • Edwards v. Feldman, No. 7:17-cv-10116 (S.D.N.Y. Feb. 10, 2020).
    Jan. 8, 2018) (internal quotations omitted) (quoting Schlein v. Milford Hosp., Inc., 561 F.2d 427, 429 (2d Cir. 1977)).
  • Carmichael ex rel. Est. of Moore v. City of New York, 34 F. Supp. 3d 252 (E.D.N.Y 2014).
    Co., 316 F.3d 308, 314 (2d Cir.2003), and Schlein v. Milford Hosp., Inc., 561 F.2d 427, 429 (2d Cir.1977), are inapposite.
  • Lubin v. Crittenden Hosp. Ass'n, 713 F.2d 414 (8th Cir. 1983).
    Rendell-Baker v. Kohn, --- U.S. ----, 102 S.Ct. 2764, 2772 , 73 L.Ed.2d 418 (1982); Schlein v. Milford Hospital, Inc., 561 F.2d 427, 429 (2d Cir.1977).
  • Modaber v. Culpeper Mem'l Hosp., Inc., 674 F.2d 1023 (4th Cir. 1982).
    See Musso v. Suriano, 586 F.2d 59, 62-63 (7th Cir. 1978) cert. denied 440 U.S. 971 (1979); Hodge v. Paoli Memorial Hospital, 576 F.2d 563, 564 (3d Cir. 1978) (per curiam), Schlien v. Milford Hospital, Inc., 561 F.2d 427, 429 (2d Cir. 1977)…
  • Wagner v. Sheltz, 471 F. Supp. 903 (D. Conn. 1979).
    This Court concurs with those which have noted that the functions of both hospitals and nursing homes have not been “ ‘traditionally associated with sovereignty;’ ” they “have long been relegated to the private domain, rather than treated…
  • Gray v. Proj. More, Inc., 469 F. Supp. 621 (D. Conn. 1979). 2 cites
    (activities of hospital are not functions traditionally associated with the sovereignty)
  • Ruffler v. Phelps Mem'l Hosp., 453 F. Supp. 1062 (S.D.N.Y. 1978). 3 cites
    (accord)
At page 427 PER CURIAM: Dr. Allen P. Schlein brought this action in the District of Connecticut under 42 U.S.C. § 1983, claiming that defendant, The Milford Hospital,…2 citing casesopening of page *427 (no citing court says what it cites this page for)
  • Croy v. A.O. Fox Mem'l Hosp., 68 F. Supp. 2d 136 (N.D.N.Y. 1999).
    Schlein v. Milford Hosp., 561 F.2d at 427, 428 (2d Cir.1977) (internal quotations and citations omitted).
  • Holyoke v. S.S.I., No. 6:23-cv-01557 (N.D.N.Y. Feb. 20, 2024). 2 cites
    See Schlein v. Milford Hosp., Inc., 561 F.2d 427, 427 (2d Cir. 1977).
Other citing cases1 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Allen P. SCHLEIN, M.D., Plaintiff-Appellant,
v.
the MILFORD HOSPITAL, INC., Defendant-Appellee
1263, 1410, Dockets 77-7021 and 77-7051.
Court of Appeals for the Second Circuit.
Aug 25, 1977.
561 F.2d 427
1977 U.S. App. LEXIS 11817
William K. Bennett, Milford, Conn. (Bennett, Kapusta & Coughlin, John J. Coughlin, Milford, Conn., of counsel), for plaintiff-appellant., Stephen E. Ronai (Gitlitz, Ronai & Ber-chem, Marsha B. Moses, Milford, Conn., of counsel) and Wiggin & Dana, New Haven, Conn., Jeremy G. Zimmerman, New Haven, Conn., of counsel, for defendant-appellee.
Kaufman, Mansfield, Anderson.
Cited by 84 opinions  |  Published
PER CURIAM:

Dr. Allen P. Schlein brought this action in the District of Connecticut under 42 U.S.C. § 1983, claiming that defendant, The Milford Hospital, Inc., (“Hospital”), had rejected his application for staff privileges arbitrarily and capriciously, failing to provide him with procedural due process guaranteed by the Fourteenth Amendment. Judge Newman found sufficient state action to satisfy the jurisdictional requirements of § 1983, 383 F.Supp. 1263, but granted summary judgment in favor of the Hospital, holding that it had not acted arbitrarily but had provided Dr. Schlein with adequate procedural safeguards, 423 F.Supp. 541. We affirm the district court’s dismissal of the complaint, but on the ground that the court lacked jurisdiction over the subject matter for the reason that the Hospital’s denial of staff privileges did not amount to “state action” within the meaning of 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343.

Dr. Schlein is an orthopedic physician licensed to practice medicine by the State of Connecticut. He holds staff privileges at three Bridgeport hospitals and has offices in Bridgeport and Milford. On June 7, 1973, he applied for staff privileges at defendant Hospital. His application was considered by the Hospital’s Credentials and[*428] Executive Committees and by its full Medical Staff, and was denied on December 7, 1973. Ad Hoc and Appellate Review pursuant to the by-laws of the Hospital did not change the decision. Schlein commenced this action on July 5, 1974, seeking injunc-tive and monetary relief.

In support of his claim of federal jurisdiction under 28 U.S.C. § 1343, [1] which requires a finding of “state action,” plaintiff established that the Hospital is the only short-term state-licensed hospital in Milford, Connecticut, which is seven miles from Bridgeport and New Haven. It is a private, nonprofit corporation regulated by the State of Connecticut Department of Health. [2] It is managed by a Board of Directors of 23 private citizens, including the current May- or of Milford, is tax exempt under federal and local laws, and has been empowered by Connecticut to annex contiguous land for expansion. [3] It has received $646,000 in federal Hill-Burton [4] funds to finance new construction.

While these facts show some state involvement in the activities of the Hospital, the existence of “state action” depends on “whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974). As we said in Powe v. Miles, 407 F.2d 73, 81 (2d Cir. 1968), “the state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the injury.”

“The mere fact that [the State] regulates the facilities and standards of care of private hospitals does not per se make the acts of the hospital in discharging [here rejecting] physicians the acts of the state. ‘Such a blanket rule . . . would overlook the essential point — that . the state action, not the private action, must be the subject of the complaint.” Barrett v. United Hospital, 376 F.Supp. 791, 803 (S.D.N.Y.) aff’d mem., 506 F.2d 1395 (2d Cir. 1974), quoting Mulvihill v. Butterfield Memorial Hospital, 329 F.Supp. 1020 (S.D.N.Y.1971).

In Barrett, we affirmed the district court’s holding that a private New York hospital, regulated and granted by the State substantially the same rights and authority as the hospital in the present case, could not be sued under § 1983 when it refused to grant staff privileges to a state-licensed physician. In accord, Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir. 1973); Sla-vacoff v. Harrisburg Polyclinic Hospital, 375 F.Supp. 999 (M.D.Pa.1974). [5]

The principles approved by us in Barrett apply with equal force here. The State of Connecticut has not been shown to have played any part in the formulation or implementation of the procedures and standards utilized by the Medical Staff and Board of Directors of the Hospital in reaching their decision to reject Dr. Schlein’s application for staff privileges. Nor has[*429] the State played any role in the making of the decision itself. The by-laws of the Hospital provide that the Medical Staff will be appointed by the Board of Directors upon the recommendation of the existing Medical Staff, which is required to abide by the Hospital by-laws, rules, and regulations, modeled after those of the Joint Commission on Accreditation of Hospitals of the American Hospital Association.

Although the State licenses both private hospitals and physicians, it has not required all licensed hospitals to adopt any particular standards or procedures for the granting of staff privileges. Nor do state officials contribute material facts or information to the decisionmaking process or play any other role in the decision. In short, the State “has not put its own weight on the side of” the procedures or standards complained of by Dr. Schlein. Jackson, supra, 419 U.S. at 357, 95 S.Ct. at 456. We therefore conclude that there is no nexus between the particular activities challenged by the plaintiff and the State’s involvement with the Hospital.

Although the activities of the Hospital are clearly “affected with a public interest,” the functions performed by it have not been “traditionally associated with sovereignty,” Jackson, supra, 419 U.S. at 353, 95 5. Ct. 449, and have long been relegated to the private domain, rather than treated as “traditionally the exclusive prerogative of the State” Id. Thus, its activities are not “so clearly governmental in nature” as to amount to a “public function.” Barrett v. United Hospital, supra; Powe v. Mills, supra; Grafton v. Brooklyn Law School, 478 F.2d 1137 (2d Cir. 1974).

Even assuming, as the district court did, that the Hospital occupies a monopoly position in the Milford area (despite the existence of several hospitals seven miles away in Bridgeport and New Haven), such status is not determinative of state action. Jackson, supra, 419 U.S. at 351-2, 95 S.Ct. 449. Moreover, the impact of the local monopoly upon plaintiff’s ability to obtain services necessary to his medical practice is far less compelling than in Jackson and Taylor v. Consolidated Edison Co., 552 F.2d 39 (2d Cir. 1977), where necessary utility services could not be obtained elsewhere. Here it is clear that Dr. Schlein has staff privileges and office facilities in nearby Bridgeport. [6]

We are therefore unpersuaded that the actions of the Hospital should be considered those of the State of Connecticut for the purposes of the allegations in plaintiff’s complaint. Since we affirm the judgment of dismissal for lack of jurisdiction, we do not reach the merits of plaintiff’s claims.

1

. The “under color of state” law requirement of § 1343 has been treated as the equivalent of the state action requirement of the Fourteenth Amendment and § 1331. United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966); Adams v. So. Cal. First National Bank, 492 F.2d 324 (9th Cir. 1973).

2

. Conn.Gen.Stat.Ann. § 19-576 et seq. (West) (Supp.1977).

3

. Conn.Gen.Stat.Ann. § 19-73t (West) (Supp. 1977).

5

. We have recognized the applicability of a less strict state action standard where racial discrimination is alleged, Taylor v. Consolidated Edison, 552 F.2d 39, 42 (2d Cir. 1977); Jackson v. Statler Foundation, 496 F.2d 623 (2d Cir. 1974), on the rationale that “in the area of racial discrimination, State inaction or neutrality has often been found to constitute affirmative encouragement.” Lefcourt v. Legal Aid Society, 445 F.2d 1150, 1155 n.6 (2d Cir. 1971). This explains, at least in part, the opposite results reached by other circuits examining state action in the context of claims of racial discrimination brought against private hospitals, e. g., Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963); Sams v. Ohio Valley General Hospital, 413 F.2d 826 (4th Cir. 1969). The less strict analysis utilized in those cases is inapplicable here, where no claim of racial motivation is alleged.

6

. Judge Newman’s finding of state action was based on the conclusion that “by virtue of its state licensing [the Hospital] has been given the authority to determine important aspects of the scope of the license required of a physician.” We are unpersuaded that the limitation placed on Dr. Schlein by the Hospital is any different than that placed by the utilities on their customers in Taylor and Jackson, nor that the licensing of both parties by the state amounts to any more intensive regulation than in Jackson or Taylor. Indeed, the critical fact, implicitly recognized by the district court, is that the State’s licensing of each party without mandating acceptance by licensed hospitals of all licensed physicians indicates a clear intention by the State not to entangle itself in the traditionally private decision to grant or withhold staff privileges although the State’s regulatory power would arguably extend that far.