(concurring in part, dissenting in part):
I concur in that portion of the majority opinion which overturns the District Court’s dismissal of two claims raised by the appellants, i. e., the claim based on 42 U.S.C. §§ 1981, 1982, and the claim alleging the intentional infliction of emotional distress. I also agree that, upon remand, the appellants should be allowed to amend their claim under 42 U.S.C. § 1983.
On the other hand, I would hold that the original complaint, without any further amendment, was sufficient to state a claim under 42 U.S.C. § 1983. As I read the majority opinion, my Brothers affirm the District Court’s dismissal of this claim upon the reasoning that an institution and its officers, paid by the state, were not, when they committed the illegal outrage in question, necessarily acting under the “color of state law” within the meaning of the statute. This, I submit, involves a process of logical surgery that is not even deft — the bisecting of the offending institution into two parts. The majority appears to reason that when the corporate appellee officially seized the Indian bodies under the authority conferred by the state, embalmed the remains, and furnished the facilities for autopsy, all in its official capacity as the agent of the state’s Coroner, it acted under the color of state law. But thereupon, say my Brothers, its official capacity terminated, and hence, when it declined the request of the bereaved survivors for funeral services and the purchase of caskets for their beloved, the corporate appellee had suddenly been transformed into a mere private person, insulated from liability under 42 U.S.C. § 1983. Thus, a humane and benevolent congressional act, designed to enable the Federal Courts to protect the victims of invidious discrimination perpetrated under the auspices of state law, is seriously diluted, if not thoroughly undercut.1
I have hitherto expressed my sense of deep personal resentment and shame over our Nation’s past mistreatment of our Indians, mistreatment and abuse constituting some of the blackest pages in all the catalogue of human history. See Agua Caliente Band of Mission Indians v. County of Riverside, 442 F.2d 1184 (9th Cir. 1971) (dissenting opinion), cert. denied, 405 U.S. 933, 92 S.Ct. 930, 30 L.Ed.2d 809 (1972).
According to the complaint, the appellees refused to conduct funeral services for the deceased Indians in its “Caucasian” mortuary solely and only because of the racial derivation of the deceased. If this is true, the appellees’ motive was evil beyond description, inspired by nothing more than their belief that their mortuary would in some way be contaminated if they performed funeral services for the lifeless bodies of three human beings, albeit of the Indian race. In my judgment, this deputy Coroner’s indefensible, abhorrent conduct not only subjects it to liability under § 1983, but also it constitutes a flagrant infringement of rights guaranteed by the Thirteenth Amendment, adopted, according to the Supreme Court, for the purpose of abolishing all “badges and incidents of slavery in the United States.” Civil Rights Cases, 109 U.S. 3, 20, 3 S.Ct. 18, 28, 27 L.Ed. 835 (1883). See also, Griffin v. *1118Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968).
Having generally, although inadequately, set forth my general mortification, I pass to a colder and more temperate analysis of the legal authorities, an analysis which, hopefully, will reinforce my instinctive conclusion that my Brothers have fallen into grievous error in their resolution of the one issue that so intensively provokes my concern and disagreement.
The “under color of law” element of section 1983 is regarded as the equivalent of the state action requirement of the Fourteenth Amendment. United States v. Price, 383 U.S. 787, 794-95 n.7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). The issue is simply whether the District Court erred in dismissing the complaint without leave to amend, upon the apparent rationale that the complaint’s third claim did not sufficiently allege that the appellees’ challenged action was taken under the color of state law. The somewhat complex nature of the state action concept and the widely disparate results in the cases that have dealt with this issue indicate that the determination as to the presence of state action must turn upon a careful and detailed inquiry into the unique factual circumstances of each case. “Only by shifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be accorded its true significance.” Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961).
My review of the specific facts and circumstances that the appellants have alleged has convinced me that, if the allegations are true, the activities of the appellees were not so purely private as to fall outside the state action concept of the Fourteenth Amendment. The appellants sought to show by the deposition of defendant Edward A. Eversole that there was significant state involvement by virtue of an oral agreement between the Mendocino County Coroner and the Eversole Mortuary for the provision of morgue facilities and related services. The majority reasons that a mortuary licensed by the state and subject to extensive governmental regulation,2 acting pursuant to a contract with the County Coroner in exchange for compensation, can remove the bodies of American Indians from the scene of a tragic accident to the mortuary, embalm them, allow a Coroner’s autopsy to take place on its premises, and then suddenly switch roles and refuse to provide further mortuary services on grounds evidencing blatant racial discrimination. If the allegations of the appellants’ complaint are true, it is clear that the bodies were taken to the mortuary without the consent of the Indians’ relatives, and that the appellants would never have been exposed to the appellees’ morally indefensible conduct for the fact that, pursuant to a contractual relationship with the state and at the direction of the County Coroner, the bodies of their relatives were legally required to be taken to the Eversole mortuary. On these facts, I cannot believe that the cases cited by the majority conclusively demonstrate that the State has not “significantly involved itself with invidious discriminations.” Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 1634, 18 L.Ed.2d 830 (1967).
The majority places primary reliance upon an asserted separation of services (i. e., that Eversole failed “to provide funeral services subsequent to the completion of morgue services.”). When faced with this type of “hybrid” fact pattern, our court has directed that the following test is to be applied: “ ‘When the violation is the joint product of the exercise of a State power and a non-State power then the test under the Fourteenth Amendment and § 1983 is whether the state or its officials played a “significant” role in the result.’ ” Green v. Dumke, 480 F.2d 624, 629 (9th *1119Cir. 1973), quoting Kletschka v. Driver, 411 F.2d 436, 449 (2d Cir. 1969). It should here be emphasized that, whenever racial discrimination is involved, the scope of state action has been accorded a somewhat broader range. A lesser showing is required in such cases to establish state action than in cases imposing a more rigorous standard for other claims. See Jackson v. Statler Foundation, 496 F.2d 623, 628-29 (2d Cir. 1974); Lefcourt v. Legal Aid Society, 445 F.2d 1150, 1155 n.6 (2d Cir. 1971). When the totality of the factors are viewed together, the appellees’ performing a governmental function at the direction of the County Coroner and taking action pursuant to a mutually beneficial contract with the state under an extensive system of state regulation, I cannot agree that the state or its officials did not “play a significant role in the result.”
The majority would distinguish Burton, supra, on grounds that the interdependence found in Burton was “more extensive.” I submit that the present controversy does involve an interdependent or symbiotic relationship between the state and a private entity just as extensive as in Burton. Under the agreement here, the mortuary conferred a direct benefit upon the County. In operation, as the County’s morgue, it performed a significant and necessary public function. In exchange, the morgue received direct compensation and an enormous stimulus to its private patronage. At the direction of the County, the body of every decedent within the County was taken to the Eversole mortuary. Because the Indian bodies here were not in a county-owned morgue, the bereaved appellants were led by the state directly to the source of the discrimination, for the mutual benefit of both the County and the appellees. These basic facts, without more, should establish that the state, in the words of our court, did “play a significant role in the result.” (Green, supra, at 629.)
The majority relies upon Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175-77, 92 S.Ct. 1965, 1973, 32 L.Ed.2d 627 (1971), wherein the Court held that the “pervasive” nature of regulation of private clubs by the State of Pennsylvania did not alone make the state “in any realistic sense a partner or even a joint venturer in the club’s enterprise.” But in the present case there is much, much more than mere state regulation, standing alone. Moose Lodge emphasized that Pennsylvania did not benefit from the lodge as Delaware had benefited from the restaurant in Burton, and that the lodge was a “private club,” whereas the Burton restaurant was open to all of the general public except black people. In our present case, unlike Moose Lodge, but like Burton, there was an interdependent relationship between the state and the private entity. The private entity was open to the public and indeed was, under the requirements of a contract, performing a public function. While Moose Lodge might control a case where the only nexus between state and private conduct is a scheme of state regulation, it is not dispositive where significant additional contacts are present. Similarly, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), may control when the only factors are heavy state regulation and a partial monopoly, but it is not conclusive when a symbiotic state-private relationship is also thoroughly demonstrated.
I would therefore reverse the dismissal of the “state action” claim and hold that the complaint, as originally presented, was sufficient on its face3 to state a claim under 42 U.S.C. § 1983.
. To me, it seems anomalous that while old Congressional legislation clearly discriminating against Indians remains extant (see, e. g., 18 U.S.C. § 1553, allowing the death penalty for an Indian who rapes a white woman, but only “imprisonment” for an Indian who commits rape upon a female Indian; cf. United States v. Cleveland, 503 F.2d 1067 (9th Cir. 1974)), an Act purporting to confer benefits upon victims of discrimination is here, as to Indians, subverted by the majority opinion.
. See Cal.Health & Safety Code §§ 7100, 7103, 7105, 7055, 7300, 7301-2, 7303, 7355 (West 1974); Cal.Business & Professions Code §§ 7606, 7615-17, 7622, 7625, 7641, 7718.5 (West 1974).
. The majority writes that it “can conceive of facts that would render the alleged discrimination of Eversole state action . My Brothers do not specify such facts as they conceive. I am sure, however, that none would dispute the proposition that state action would be established if it could be shown that the coroner was aware of any racial discrimination practiced by Eversole when the contract was entered into, or at any subsequent time prior to the incident involved in this action.