416 F. Supp. 2d 1098 (D. Utah 2005)
no, by the bylaws there's no hearing process available for physicians that have temporary privileges. He was given no hearing basis except that, you know, he was not told any time in advance that this February 2nd hearing was going to be held to discuss his staff privileges.
(Tr. 11/14/02, at 20:25-21:8 (Ms. Rose).) Counsel referred to a February 2, 2000 SJHSD staff meeting at which it is alleged that Dr. MacArthur's December 1999 request for privileges was discussed, but no formal action was taken. Dr. MacArthur was not present for the February 2 meeting; he had accompanied his wife out of town for a medical procedure. (See Tr. 11/14/02, at 11:13-19 (Ms. Rose).) SJHSD's executive director, Cleal Bradford, also was not in attendance. Mr. Bradford's signature would have been required for any grant of provisional privileges or any further extension of Dr. MacArthur's "temporary" privileges beyond their February 2 expiration date. (See Tr. 11/14/02, at 16:1-21, 17:25-18:16 (Ms. Rose).)
According to the facts alleged by the plaintiffs, the SJHSD had neither granted nor denied Dr. MacArthur's request for full provisional privileges as of February 2, 2000, when his "temporary" privileges expired; the matter was tabled pending the receipt of further documentation. At that point, as counsel explained, Dr. MacArthur moved his practice to Ely, Nevada. (Tr. 11/14/02, at 18:17-19:6 (Ms. Rose).)
THE COURT: After his temporary hospital privileges expired what did he do in reference to having that issue be examined?
MS. ROSE: At that point he left.
THE COURT: He went to Ely?
MS. ROSE: Starting May 1st I believe.
(Id. at 25:22-26:2.) According to counsel, Dr. MacArthur chose to go to Ely, Nevada, because the situation in San Juan County "was so inhospitable." (Id. at 26:12-21 (Ms. Rose); see id. at 37:8-38:8 (Ms. Cox).) "The working conditions in the area were so hostile, not only to him but to his patients that he felt he had no alternative but to leave . . ." (Id. at 42:20-23 (Ms. Rose).)
Whether an environment is hospitable or hostile is a matter of perception, based upon an aggregation of circumstances and events. Taking plaintiffs' factual allegations as true, it appears that in providing medical care to his patients at SJHSD facilities, Dr. MacArthur experienced several unpleasant and frustrating instances involving a lack of sterile and functional medical instruments; conduct on the part of SJHSD nurses or staff that was disrespectful, ill-mannered, rude, and at times, unprofessional; and he became the subject of disparaging rumors circulated among the SJHSD support staff by a few antagonists, rumors that threatened to injure his personal reputation and his professional practice. All of these factors contributed to his perception that the SJHSD environment was inhospitable, and led ultimately to his decision in February of 2000 to forsake his request for privileges at SJHSD and move his practice to Nevada.
The essence of Fourteenth Amendment due process analysis is the implication of a liberty or property interest. See Board of Regents v. Roth, 408 U.S. 564, 571-72, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). "Under the Fourteenth Amendment, procedural due process requires notice and a predeprivation hearing before property interests are negatively affected by governmental actors." Marcus v. McCollum, 394 F.3d 813, 820 (10th Cir.2004). Health care professionals have been held to have a property interest in their professional licenses. See, e.g., Seay v. Campbell, 130 Fed.Appx. 268 (10th Cir.2005) ("property" interest in license to practice dentistry); Annotation, Rights as to notice and hearing in proceeding to revoke or suspend license to practice medicine, 10 A.L.R. 5th 1 (1993).
Some courts have expressed the view that "[h]ospital staff privileges are generally considered to be a property or liberty interest of the physician," at least where they have already been granted by a government-sponsored facility. Beyer v. Lakeview Community Hospital, 187 F.3d 634 (Table), 1999 WL 552606, *3 (6th Cir. 1999) (citing Foster v. Mobile County Hosp. Bd., 398 F.2d 227, 229 (5th Cir. 1968)). A limitation, revocation or termination of existing hospital staff privileges would thus have due process implications.
At least two circuits have held that "[s]eeking staff privileges, which entitle a physician to admit patients to a particular hospital, has been held to be a protected liberty interest. . . ." Silverstein v. Gwinnett Hosp. Authority, 861 F.2d 1560, 1566 (11th Cir.1988) (citations omitted). See Burkette v. Lutheran General Hospital, 595 F.2d 255, 255-256 (5th Cir.1979) ("We have held that a physician in private practice denied staff privileges in a hospital that is subject to the fourteenth amendment possesses a protectible `liberty' interest that can ground a complaint on such a denial. Shaw v. Hospital Authority, 507 F.2d 625 (5th Cir.1975).").
To pursue a due process claim in the courts based upon a denial of hospital staff privileges, however, those privileges must in fact be denied before the claim may be pursued in the courts. See Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center, 93 Cal.App.4th 607, 113 Cal.Rptr.2d 309 (2001) (physician challenging hospital's denial or withdrawal of staff privileges must pursue the internal remedies afforded by that hospital to a final decision on the merits before resorting to the courts for relief); Eufemio v. Kodiak Island Hosp., 837 P.2d 95 (Alaska 1992) (exhaustion of administrative remedies required); Eidelson v. Archer, 645 P.2d 171 (Alaska 1982). The reported cases involving due process claims and hospital staff privileges arise from the actual denial, restriction, non-renewal or revocation of staff privileges. See generally Annotation, Exclusion of or discrimination against, physician or surgeon by hospital 28 A.L.R. 5th 107, 1995 WL 900213 (1995 & Supp.2004), and cases cited therein.
In this instance, the SJHSD had neither granted nor denied Dr. MacArthur's request for full one-year provisional privileges at the time that he decided to move his practice to Nevada in February or March of 2000. For his part, Dr. MacArthur did not press the issue after his "temporary" privileges expired by their own terms on February 2, 2000—temporary privileges that in fact had afforded Dr. MacArthur the use of the SJHSD hospital and Blanding birthing center to treat his patients and deliver babies during most of the time that his request for full provisional privileges was pending. Close examination of plaintiffs' allegations turns up no instance in which Dr. MacArthur was denied access to SJHSD facilities to provide care to a patient during the time that his request for full privileges was pending and his temporary privileges—twice extended—remained in effect.
Taking Dr. MacArthur's factual allegations as true, the court concludes that Dr. MacArthur had not in fact been denied access to SJHSD facilities by any final action or determination by the SJHSD before Dr. MacArthur deliberately chose to forsake his request for full one-year SJHSD provisional staff privileges in favor of pursuing his medical practice elsewhere. Dr. MacArthur's election to move his practice out of state waived his request for staff privileges at SJHSD facilities, and mooted any § 1983 claim based upon a denial of such privileges on due process grounds. His claim of denial or exclusion never became ripe for judicial review prior to February 2, 2000, the point at which Dr. MacArthur effectively abandoned his request for SJHSD privileges. See, e.g., Unity Ventures v. Lake County, 841 F.2d 770, 775-776 (7th Cir.1988) (absent final governmental action denying intended use of property, § 1983 due process challenge to local land use regulation was not ripe for judicial review); Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center, 93 Cal.App.4th 607, 113 Cal. Rptr.2d 309 (2001).
His § 1983 claim cannot raise a triable issue, and must therefore be dismissed as against all of the defendants. Fed. R.Civ.P. 16(c)(1).
From the colloquy at the Final Pretrial Conference, it became ever more apparent that even though plaintiffs MacArthur and Lyman have pleaded many parallel allegations concerning the question of staff privileges, their positions differ in fundamental ways. For one thing, Dr. MacArthur as a licensed physician was free to compete for patient business with other licensed physicians; Ms. Lyman, as a licensed Physician's Assistant, is required by Utah law to work under the direct supervision of a physician. Under Utah law, the scope of practice for a Physician Assistant is defined in pertinent part as follows:
58-70a-501. Scope of practice.
(1) A physician assistant may provide any medical services that are not specifically prohibited under this chapter or rules adopted under this chapter, and that are:
(a) within the physician assistant's skills and scope of competence;
(b) within the usual scope of practice of the physician assistant's supervising physician; and
(c) provided under the supervision of a supervising physician and in accordance with a delegation of services agreement.
Utah Code Ann. § 58-70a-501 (2002) (emphasis added).
State Administrative Rule R156-70a, the Physician Assistant Practice Act Rules, provides:
R156-70a-501. Working Relationship and Delegation of Duties.
In accordance with Section 58-70a-501, the working relationship and delegation of duties between the supervising physician and the physician assistant are specified as follows:
(1) The supervising physician shall provide supervision to the physician assistant to adequately serve the health care needs of the practice population and ensure that the patient's health, safety and welfare will not be adversely compromised. The degree of on-site supervision shall be outlined in the Delegation of Services Agreement maintained at the site of practice. Physician assistants may authenticate with their signature any form that may be authenticated by a physician's signature.
(2) There shall be a method of immediate consultation by electronic means whenever the physician assistant is not under the direct supervision of the supervising physician.
(3) The supervising physician shall review and co-sign sufficient numbers of patient charts and medical records to ensure that the patient's health, safety, and welfare will not be adversely compromised. The Delegation of Services Agreement, maintained at the site of practice, shall outline specific parameters for review that are appropriate for the working relationship.
(4) A supervising physician shall not supervise more than two full time equivalent (FTE) physician assistants without the prior approval of the division and the board, and if patient health, safety, and welfare will not be adversely compromised.
Utah Admin. Code § R156-70a-501 (2004).
While it is true that under these provisions, a Physician Assistant may provide "any medical services" not specifically prohibited that are within the range of her skills and scope of competence and the skills and scope of practice of her supervising physician, she cannot lawfully exercise the identical degree of independent professional judgment and discretion that a physician could exercise, and logically she could not be entitled as a matter of constitutional right to exercise practice privileges at hospitals, clinics and similar facilities identical to those that physicians may enjoy. (Cf. Tr. 11/15/02, at 34:21-39:5 (Ms. Rose).)
Limiting a Physician Assistant's practice privileges to take into account the statutory and regulatory requirement of direct supervision and review by a physician cannot operate to deprive the Physician Assistant of "liberty" or "property" otherwise guaranteed by the Fourteenth Amendment. Nor is it arbitrary or unreasonable for a health care facility to require that Physician Assistants exercise staff privileges under the supervision of a physician who currently has staff privileges at the same facility.
The restrictions on plaintiff Lyman's practice privileges at SJHSD facilities described in the Proposed Amended Complaint and at pretrial, fall short of a constitutional deprivation, and thus cannot serve as the factual footing for Ms. Lyman's § 1983 claim against any of the individual defendants, including the SJHSD Board and San Juan County Commissioners. (See Tr. 11/15/02, at 26:14-32:17,34:20-44:7 (Ms. Rose).) Or, looking at it another way, plaintiffs' allegations, taken as true, fail to establish a violation of a clearly established constitutional right to unrestricted practice privileges as a statelicensed Physician Assistant at publicly sponsored medical facilities, and as a result, plaintiff's § 1983 claim against the individual defendants is barred by the doctrine of qualified immunity. Plaintiff Lyman likewise fails to allege an arguable claim of constitutional deprivation resulting from a "policy" or "custom" of the SJHSD or San Juan County, and cannot hold either entity liable under § 1983.
Plaintiffs plead a "Lack of Notice and Due Process," (Proposed Amended Complaint at 46-52 ¶¶ 129-167; see Proposed Pretrial Order at 1226-28 ¶¶ 161-199 (same)), but relatively few of the factual allegations pleaded under that heading pertain to Ms. Lyman, and they address the alleged alteration of dates on her CPR certification cards—cards curiously discovered to be "missing" from her SJHSD file at the time that she requested staff privileges to practice under Dr. MacArthur's supervision in December, 1999. (See id. at 46-48 ¶¶ 129-140, 142-146.) Other than alleging that "[t]he Medical staff and Cleal Bradford and Laurie Shafer discussed Mrs. Lyman's CPR card problems of wrong dates without Mrs. Lyman being present," (id. at 46-47 ¶ 133), and "[t]he medical staff and Cleal Bradford and Laurie Shafer unanimously decided to publish the altered cards to the American Heart Association by vote of the medical staff, who was considering privileges for Mrs. Lyman, without Mrs. Lyman being present," (id. at 48 ¶ 142), Ms. Lyman does not plead specific facts showing a denial of fair notice and an opportunity to be heard on the CPR card issue. (Cf. Proposed Pretrial Order at 1241-42 ¶ 255 ("she was not notified immediately that her cards were in some way in error").) In fact, she alleges that the CPR card problem was brought to her attention, that she furnished accurate CPR certification information to the SJHSD, but that her SJHSD privileges ultimately were not renewed. She did not pursue the request any further. (See Tr. 11/15/02, at 52:3-53:17 (Ms. Rose).)
While the specific instances of interference with her exercise of her SJHSD privileges may raise contract-based claims under Utah law, see infra, Ms. Lyman has not alleged specific facts showing a denial of procedural due process guaranteed by the Fourteenth Amendment.
Ms. Lyman complains that Dr. Redd, the "Chief of Medical Staff has a long standing animus toward women," that during the time she was employed by Dr. Redd in his private practice from June 1996 until October 1998, she observed Dr. Redd being angry and verbally abusive in dealing with his female employees, e.g., referring to Ms. Lyman as an "idiot" and another employee as an "incompetent bitch," and that
- Mrs. Lyman observed that each nurse, in order to avoid Dr. Redd's tirades would turn on each other or disassociate with the person who Dr. Redd targeted that day.
- Thus, an atmosphere of distrust and hostility permeated the office creating a hostile work and patient environment.
(Proposed Amended Complaint at 60-61 ¶¶ 143, 149-150.)
Generally, to plead a viable "hostile environment" claim, a plaintiff must show "that under the totality of the circumstances (1) the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and (2) the harassment was racial or stemmed from racial animus," or other forbidden class-based discriminatory animus, such as gender. Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir.1994) (citation omitted). In a case involving discrimination on account of race, "[a] plaintiff cannot meet this burden by demonstrating 'a few isolated incidents of racial enmity' or 'sporadic racial slurs,' or the like." Id. (quoting Hicks v. Gates Rubber Co., 833 F.2d 1406, 1412-13 (10th Cir.1987)). Instead, "'there must be a steady barrage of opprobrious racial comments.'" Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir.2005). Where the enmity is based upon gender, a plaintiff must likewise allege a "steady barrage" or "steady stream" of misogynistic abuse in order to sustain a "hostile environment" claim. See, e.g., Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1539 (10th Cir.1995) ("It is beyond dispute that evidence that a woman was subjected to a steady stream of vulgar and offensive epithets because of her gender would be sufficient to establish a claim under Title VII"); Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1000-1001 (10th Cir.1996) ("Over the course of her employment, plaintiff was called a whore,' floor whore,' curb whore,' curb side cunt,' and bitch,' on a consistent basis. These sexual epithets have been identified as intensely degrading' to women." (internal quotation & citation omitted)).
"Hostile work environment harassment occurs when unwelcome sexual conduct 'unreasonably interfer[es] with an individual's work performance or creat[es] an intimidating, hostile, or offensive working environment.'" Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (quoting 29 C.F.R. § 1604.11(a)(3)). According to the court of appeals,
Meritor states that "[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment.'" Id. at 67, 106 S.Ct. at 2405 (citation omitted). The mere utterance of a statement which "'engenders offensive feelings in an employee' would not affect the conditions of employment to [a] sufficiently significant degree to violate Title VII." Id. (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972)).
Smith v. Northwest Financial Acceptance, Inc., 129 F.3d 1408, 1412 (10th Cir.1997). In the context of a hostile environment claim, courts must "filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal quotation marks and citation omitted).
Plaintiff Lyman did not plead and does not assert a "hostile environment" claim under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e-1 et seq.
The court of appeals has held that, apart from Title VII, gender discrimination and sexual harassment can result in a violation of the Fourteenth Amendment right to equal protection of the law that is actionable under § 1983. However, a plaintiff must allege "the state action necessary to support a § 1983 claim; and each individual defendant must act under color of state law; a 'state actor' must serve as the plaintiff's 'supervisor or in some other way exercise state authority over her.'" Noland v. McAdoo, 39 F.3d 269, 271 (10th Cir.1994); see also David v. City & County of Denver, 101 F.3d 1344, 1354 (10th Cir. 1996) (public co-employees may act under color of law if they exercise de facto authority over victim), cert. denied, 522 U.S. 858, 118 S.Ct. 157, 139 L.Ed.2d 102 (1997).
Here, the "state action" requirement proves somewhat problematic. During the time Ms. Lyman worked for Dr. Redd, Dr. Redd was engaged in private medical practice, and was not a SJHSD employee. His conduct in that context would lack the requisite "state action" needed to sustain a § 1983 claim. The plaintiffs' factual allegations suggest that Dr. Redd was speaking to Ms. Lyman and his other employees as a private employer, and not in any official capacity. Though Dr. Redd became employed by the SJHSD in March of 1999 and would likely be held to be a "state actor" as to his conduct as SJHSD medical director or "Chief of Medical Staff, the plaintiffs' pleadings speak of the "atmosphere of distrust and hostility" that "permeated" Dr. Redd's office in Blanding at the time Ms. Lyman worked there. (Proposed Amended Complaint at 61 ¶ 150.)
Further, as noted above, the defendants contend that because "the alleged acts and/or omissions by County commissioners, officials or employees or Health District trustees, employees or staff members, about which plaintiffs complain, were carried out within the scope of and pursuant to their official duties as trustees, employees or staff members of the Health District, plaintiffs' claims are barred by the doctrine of qualified immunity," (Proposed Pretrial Order at 1215 ¶ xxxvi), at least to the extent those claims are asserted pursuant to 42 U.S.C. § 1983. Concerning individual defendants who have raised a claim of qualified immunity,
The threshold inquiry is whether the alleged facts (or, on summary judgment, the evidenced facts) taken in the light most favorable to the plaintiff show a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id.
Simkins v. Bruce, 406 F.3d 1239, 1241 (10th Cir.2005).
From the foregoing summary, it readily becomes apparent that the plaintiffs' allegations as of the eve of pretrial, taken as true and in the light most favorable to the plaintiffs, failed on their face to show a constitutional violation by the individual defendants. "[A] defamatory statement published by state officials is not for that reason alone a Fourteenth Amendment violation," 1 Nahmod, supra, § 3:40, at 3-117 (citing Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (176)), and the making of derogatory remarks, the infliction of verbal abuse, the honking of car horns and other potentially tortious conduct does not automatically implicate the Due Process Clause simply because the actor is employed by a local health services district or is a member of its medical staff. Nor does interference with, or even the breach of a district contract with a health services provider, caused by a district official or staff acting under his direction, necessarily result in a constitutional deprivation of "liberty" or "property" that is actionable under § 1983. Absent a constitutional deprivation, qualified immunity entitles the individual defendants to a dismissal of plaintiff Lyman's § 1983 claims.
The facts underlying the claim of plaintiff Helen Valdez have already been summarized herein. (See supra at 1118-19, 1126-27.) Her potential civil claim under EMTALA being time-barred, at least absent leave to amend, the only claim that remained pending for consideration at the time of pretrial was her § 1983 claim of purposeful national origin, gender and age discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.
In order to state a viable equal protection claim under § 1983, "a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir.2001) (citations omitted); see also Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). To support her § 1983 claim, then, Ms. Valdez must come forward with facts indicating a discriminatory intent on the part of the defendants. See Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 583 n. 16, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984) (§§ 1981 & 1983); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (equal protection). She must also allege facts showing that a defendant "engaged in specific conduct that denied her equal protection of the laws." Williams v. Bramer, 180 F.3d 699, 701 (5th Cir.1999).
Ms. Valdez is a white female over the age of 60, married to a Mexican-American husband. (Proposed Pretrial Order at 1244 ¶¶ 14-15.) Counsel asserts that on April 14, 1999, she was "turned away" from the San Juan Hospital emergency room because of her age, her gender, her association with her Mexican-American husband and sister-in-law, and with her then-primary care physician, Dr. Penn, who was identified as being Jewish. (See Tr. 11/15/02, at 59:1-15 (Ms. Rose); Memorandum of Points and Authorities Supporting Plaintiff Valdez's Motion for the Court to Reconsider its Motion to Dismiss Plaintiff's Valdez' Discrimination Claims and Plaintiffs' Cross-Motion for Summary Judgment, filed October 26, 2004 (dkt. no. 665), at 6-20.) Counsel relies upon a "disparate treatment analysis," citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), based upon allegations that Ms. Valdez "was turned away, when accompanied by her Mexican-American appearing sister-in-law, by nurse Laurie Wallace," while at the same time, "[t]he white young male with no insurance in the ER waiting area was seen by Dr. Penn almost immediately after Mrs. Valdez left." (Proposed Amended Complaint at 86 ¶ 232-233; see Proposed Pretrial Order at 1221 ¶ 66 ("Mrs. Valdez' neighbor who was a white young male and had not insurance was seen immediately.").)
Counsel's proffered inference of discriminatory treatment and discriminatory purpose from the fact that another patient waiting in the emergency room was examined by a physician and Ms. Valdez was not collides with a key fact: Ms. Valdez was not refused screening, examination, or treatment; nor was she instructed or ordered by any emergency room personnel to leave the facility. (See supra at 1118-19.) At pretrial, counsel argued that Ms. Valdez "was told to go"—an assertion belied by the plaintiffs' own pleadings and Ms. Valdez' own deposition testimony. (Tr. 11/15/02, at 60:7 (Ms. Rose).) Ms. Valdez explained that she decided to leave the emergency room and return home after her sister-in-law told her that she had overheard a nurse, Lori Wallace, tell the emergency room clerk who had assisted Ms. Valdez in filling out her patient admittance form to tell Ms. Valdez to go to her physician's clinic. (See supra at 1118 & nn. 18-19; Tr. 11/15/02, at 57:1-4 (Ms. Rose) ("Laurie [sic] Wallace had told the receptionist, tell them to go to the clinic, it's open, something to that effect. The exact words were tell them to go to the clinic.").) Shortly before that, however, Ms. Valdez had observed Lori Wallace tell the same clerk that "she could set both her patients up in the emergency room for the physician," apparently referring to Ms. Valdez and Michael Bailey, the other individual then waiting in the emergency room. (Id.)
Yet Ms. Valdez did not speak directly to either the nurse or the clerk about her symptoms or ask whether or when she would be seen by a doctor at the emergency room. She left the facility, apparently assuming that she would not be examined. She explained her reticence in her deposition:
A Well, living in San Juan County for many years and living in a Mexican-American community, you kind of learn to keep your place. You don't just voluntarily speak out. You just kind of wait until spoken to.
Q How does that apply to being a woman in San Juan County?
A I believe probably about the same.
(Deposition of Helen Valdez, dated December 6, 2001, at 52:17-24.)
In this instance, she did not wait to be spoken to; assuming that she would not be examined at the emergency room, Ms. Valdez simply left. Taking the plaintiff's factual averments as true—in particular, the portions of the deposition testimony of Ms. Valdez and Ms. Gonzales submitted to the court by plaintiffs' counsel—it cannot fairly be said that Ms. Valdez was "turned away" from examination and treatment at the San Juan Hospital emergency room on April 14, 1999. No one on the SJHSD staff told Ms. Valdez that she would not be examined by a physician if she remained there, and both Ms. Valdez and Ms. Gonzales acknowledged that no one on the SJHSD staff expressly instructed Ms. Valdez to leave.
Before Lori Wallace may be held liable under § 1983 for a constitutional deprivation purposefully inflicted upon Ms. Valdez, there needs to be at least one sworn averment of specific facts in the record showing that Ms. Wallace acted that "with an intent or purpose to discriminate against the plaintiff" based upon the plaintiff's membership in a protected class (or at least her identification with a protected class), and that Ms. Wallace "engaged in specific conduct that denied her equal protection of the laws." None was cited or proffered at pretrial, and none was submitted in connection with either the Proposed Amended Complaint or the Proposed Pretrial Order.
At the conclusion of the pretrial colloquy concerning Ms. Valdez' claim, this court concluded:
Looking at the statutes referred to and particularly the suggestion that implicit[ly] the complaint ought to conform with what is said to be the evidence, namely that she went to an emergency room and wasn't treated, I think under the factual scenario presented that it is insufficient to justify referring the matter to a fact-finder and under the circumstances that cause of action as alleged and as proffered should also be dismissed and I will so order.
(Tr. 11/15/02, at 117:10-18 (the Court).)
"The pretrial conference is never to be used as a substitute for trial . . . Nevertheless, just as the Court may render judgment on immaterial issues for which there is no dispute of material fact, 'judgment may be ordered . . . if there is no triable issue left at the end of the discussion.'" Pifcho v. Brewer, 77 F.R.D. 356, 357 (M.D.Pa.1977) (quoting 6 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1525 (1971).)
Section 4 of the Clayton Act, 15 U.S.C.A. § 15 (1997), cited by the Part I Plaintiffs, provides in part that "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor" in an appropriate federal district court "and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee," expressly providing injured parties with a private civil treble damages remedy for violations of the federal antitrust laws. As a remedial provision, § 4 itself does not proscribe any specific anti-competitive conduct. Conduct "forbidden in the antitrust laws" is defined elsewhere, as in the first two sections of the Sherman Anti-Trust Act. Section 1 of the Sherman Act, 15 U.S.C.A. § 1 (1997), states in part:
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. . . .
Section 2 of the Sherman Act, 15 U.S.C.A. § 2 (1997), states in part:
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony,. . . .
Section 4 of the Clayton Act "requires a plaintiff to show actual injury," Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 111, 107 S.Ct. 484, 93 L.Ed.2d 427 (1986), and "the plaintiff must still allege an injury of the type the antitrust laws were designed to prevent." Id. (footnote omitted). Indeed, "[s]tanding and antitrust injury are essential elements in a private antitrust damages action brought under section 4 of the Clayton Act." Reazin v. Blue Cross and Blue Shield of Kansas, 899 F.2d 951, 960 (10th Cir.1990) (citing Cargill, 479 U.S. at 110, 107 S.Ct. 484; Associated Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983)). According to the court of appeals, the following factors are "to be considered in determining antitrust standing:"
the causal connection between the antitrust violations and plaintiff's injury; the defendant's intent; the nature of the plaintiff's injury; the directness or indirectness of the connection between the plaintiff's injury and the allegedly unlawful market restraint; the speculativeness of the plaintiff's damages; and the "risk of duplicative recoveries . . . or the danger of complex apportionment of damages." Associated Gen. Contractors, 459 U.S. at 544, 103 S.Ct. at 912.
Id. at 962 n. 15.
The "nature of the plaintiff's injury factor" is "designed to implement the requirement that only antitrust injuries are redressable under section 4." Id. (emphasis in original). "Antitrust injury" is demonstrated "'by a causal relationship between the harm and the challenged aspect of the alleged violation' of the federal antitrust laws." Id. at 961 (quoting Alberta Gas Chems., Ltd. v. E.I. Du Pont De Nemours & Co., 826 F.2d 1235, 1240 (3d Cir.1987), cert. denied, 486 U.S. 1059, 108 S.Ct. 2830, 100 L.Ed.2d 930 (1988)).
An antitrust violation may be expected to cause ripples of harm to flow through the Nation's economy; but "despite the broad wording of § 4 there is a point beyond which the wrongdoer should not be held liable." . . . It is reasonable to assume that Congress did not intend to allow every person tangentially affected by an antitrust violation to maintain an action to recover threefold damages for the injury to his business or property.
Blue Shield of Virginia v. McCready, 457 U.S. 465, 476-477, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982) (citation omitted). In evaluating a private plaintiffs standing under § 4, "we look (1) to the physical and economic nexus between the alleged violation and the harm to the plaintiff," and "(2), more particularly, to the relationship of the injury alleged with those forms of injury about which Congress was likely to have been concerned in making defendant's conduct unlawful and in providing a private remedy under § 4." Id. at 478, 102 S.Ct. 2540. The "injury suffered by the plaintiff must be of the type the antitrust laws were intended to forestall." Id. at 484 n. 21, 486, 102 S.Ct. 2540; see Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977) (an antitrust injury is an "injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful").
Thus, to "prevail, a private plaintiff must establish both (1) that it has standing and (2) the defendant has violated the antitrust laws. . . . [T]he antitrust injury element of standing demands that the plaintiffs alleged injury result from the threat to competition that underlies the alleged violation." 2 Phillip E. Areeda, Herbert Hovencamp & Roger D. Blair, Antitrust Law ¶ 335, at 297 (2d ed.2000) (footnote omitted). "Once it appears, whether early or late in the litigation, that either requirement [of standing or antitrust violation] is lacking, the suit must be dismissed." Id.
At the time of the Pretrial Conference, the Part I Plaintiffs asserted that the "District employees as a pattern sought to restrain competition[;] there was inadequate impartiality in `peer review' or in issuing privileges since the people issuing the privileges are usually in economic competition with those they are giving privileges." (Proposed Pretrial Order at 1217-18.) The Proposed Amended Complaint alleged that "District employee doctors and Dr. Jones who was contracted with the District constituted about 80% or greater of the competing doctors in the area," (Proposed Amended Complaint at 30 ¶ 26), and that "[a]t all times, Dr. MacArthur and Michele Lyman were subject to District policies regarding their privileges as written and accepted by medical providers and physicians who economically competed with them." (Id. at 30 ¶ 27.)
In this case, then, the alleged "conduct forbidden by the antitrust laws" arises in the context of the grant, limitation, or denial of medical practice privileges at a hospital, clinic or birthing center. (See generally id. at 26-34 ¶ 1-49 ("Specific Statements of Facts—Anti-Trust Claims"); id. at 34-58 § 50-168 ("Facts for 42 USC 1983, and antitrust and RICO claims"); id. at 58-86 §§ 125-230 (same).)
Plaintiffs assert that the geographic market in which plaintiffs and the "District" health care services providers compete is San Juan County, Utah, with a "rural" or "frontier" population of over 13,000 people; the boundaries of the SJHSD are co-extensive with those of the county. (Id. at 29-30 ¶¶ 19-25.) Within that geography, plaintiffs assert that the SJHSD is the sole provider of hospital and birthing center services to that population:
San Juan Hospital and Blanding Birthing Center are the only facilities in San Juan County for births and are operated solely by San Juan Health Services District.
Nearly all emergency ambulance deliveries are made to San Juan Hospital.
The next nearest hospital facility to San Juan Hospital in Monticello, Utah is about 65 miles away in either a north (Moab) or east (Cortez, Co.) direction, and about 85 miles from Blanding. Shiprock hospital is between 65 to 85 miles from southern areas of San Juan County in Shiprock, New Mexico.
San Juan Hospital is the sole provider for those persons with insurance but without transportation to go outside the county or with physical conditions requiring ambulance transportation.
Any physician delivering babies in San Juan County would need to use the closest San Juan District facilities for patients in active labor.
(Id. at 32-33 ¶¶ 37-41.) Further, according to plaintiffs, "With the exceptions of Dr. Jones and a Monument Valley clinic doctor, all other physicians and P.A.'s within San Juan District are employees of San Juan District," and none of these providers specialized in obstetrics and gynecology during the period that Dr. MacArthur—an obstetrician/gynecologist—sought staff privileges at SJHSD facilities. (Id. at 33 ¶¶ 43, 44.) The Part I Plaintiffs assert that "Dr. MacArthur's practice was in direct competition with District and District associated General Pract[it]ioners who delivered babies," and received additional compensation for doing so. (Id. at 34 ¶ 48; see id. at 33 ¶¶ 45-47.) According to these plaintiffs, the grant or denial of privileges to Dr. MacArthur and Ms. Lyman was driven by considerations of competitive economics rather than professional practice concerns:Without Dr. MacArthur and Michele Lyman to treated obstetric patients, the patients if they wished a local delivery when they went into labor, had to go to a doctor not specialized in the area of obstetrics.
- In making the determination of granting privileges, the medical staff and CEOs would analyze the effect of the independent practices of Dr. MacArthur and Michele Lyman upon their income outside any formal `peer review' context and in regards to them obtaining privileges.
(Id. at 33-34 ¶¶ 45, 49.)
The Proposed Amended Complaint speaks of the "anti-competitive effect" of limiting the privileges of Dr. MacArthur and Ms. Lyman:
- Dr. MacArthur's limited temporary privileges preventing him from fully using the District facilities provided his patients with limited options in where they could receive their care, and prevented some from becoming his patient.
- The likely and logical per se effect of not granting District privileges to Michele Lyman and Dr. MacArthur is that patients would not be able to choose Michele Lyman or Dr. MacArthur as providers if they wished to receive to receive their care at the hospital.
(Proposed Amended Complaint at 33 ¶ 42, 40-41 ¶ 98.)
The restriction or denial of hospital staff privileges as a result of peer review procedures may indeed raise antitrust concerns:
Peer review of physicians holding or applying for hospital or medical staff privileges has given rise to numerous antitrust claims. The courts have recognized that peer review has the potential to be procompetitive by ensuring that only competent, professional, and otherwise qualified practitioners are permitted to practice at health care institutions. On the other hand, staff privilege decisions can raise a risk of anti-competitive abuse insofar as they are typically made upon the recommendations of members of the medical staff who may be direct or indirect competitors of the physician under review. The courts have recognized that a denial or termination of staff privileges arguably can insulate the other medical staff members from competition by the physician under review.
2 American Bar Association Section of Antitrust Law, Antitrust Law Developments (Fifth) 1326-1327 (5th ed.2002) (footnote omitted).
However, civil liability under the federal antitrust laws for "anticompetitive" conduct is not without limit.
At the outset of the Final Pretrial Conference, the defendants moved to dismiss the Part I Plaintiffs' antitrust claims on the grounds that (1) the claims are barred by the "state action" doctrine announced in Parker v. Brown, 317 U.S. 341, 351-353, 63 S.Ct. 307, 87 L.Ed. 315 (1943); (2) the claims are barred by the Local Government Antitrust Act of 1984, Pub.L. No. 98-544, 98 Stat. 2750, codified at 15 U.S.C. §§ 34-36 (2000); (3) the plaintiffs have failed to identify a specific antitrust law violation or plead the essential elements of such a violation; and (4) the plaintiffs have failed to plead an effect on interstate commerce. (Memorandum in Support of Defendants' Motion to Dismiss Plaintiffs' Antitrust Claims, filed November 14, 2002 (dkt. no. 455), at 3-8.)
The Local Government Antitrust Act provides that "[n]o damages, interest on damages, costs, or attorney's fees may be recovered under section 4, 4A, or 4C of the Clayton Act (15 U.S.C. §§ 15, 15a, or 15c) from any local government, or official or employee thereof acting in an official capacity," 15 U.S.C. § 35(a), or "based on any official action directed by a local government, or official or employee thereof acting in an official capacity." 15 U.S.C. § 36(a). Federal courts are thus precluded "from awarding monetary relief on antitrust claims brought against local government entities." Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472, (10th Cir.1990).
All that the Defendants need show in order to assert a valid claim of immunity from antitrust liability is that they acted in an official capacity or were directed by government officials or employees who were themselves acting in their official capacities. As previously discussed, these standards do not include a consideration of the defendant's intentions. The court considers only the objective questions: (i) whether, in light of the authority invested in a local government, its officials or employees, the actions complained of were lawful and taken within the scope of their authority, . . . or (ii) whether, if the defendant is not a local government official or employee, the actions were directed by a local government or one of its officials or employees acting within the scope of his authority.
Sandcrest, supra, at 1148 (citations omitted).
Cohn v. Wilkes General Hosp., 767 F.Supp. 111, 113 (W.D.N.C.1991) (quoting Sandcrest Outpatient Services, P.A. v. Cumberland County Hospital, 853 F.2d 1139, 1148 (4th Cir.1988)), affirmed, 953 F.2d 154 (4th Cir.1991), cert. denied, 505 U.S. 1230, 112 S.Ct. 3057, 120 L.Ed.2d 922 (1992). In Cohn, the court held that the statute applied to bar a chiropractor's antitrust claim against a municipal hospital, its board of trustees and medical staff arising from the hospital's denial of his request for hospital staff privileges for allegedly anticompetitive reasons.
Applying the Local Government Antitrust Act in the context of this action, it appears to bar the damages claims of plaintiffs MacArthur and Lyman as against the SJHSD, San Juan County, the defendant members of the SJHSD Board, SJHSD's administrators and medical staff, and subordinate employees. Both plaintiffs allege that the members of the SJHSD medical staff—Drs. Redd, Jones and Nelson—acted upon plaintiffs' requests for full staff privileges for anticompetitive purposes, viz., to limit competition by Dr. MacArthur and Ms. Lyman with the SJHSD medical staff for patients in the San Juan County area, and that other defendants at least acquiesced in their doing so, in their capacity as SJHSD Board members, administrators or County Commissioners. (See Proposed Amended Complaint at 26-34 ¶¶ 1-49 ("Specific Statements of Facts—Anti-Trust Claims"); id. at 34-58 ¶§ 50-168 ("Facts for 42 USC 1983, and antitrust and RICO claims"); id. at 58-86 ¶¶ 125-230 (same).)
By the time of pretrial, Dr. MacArthur's federal antitrust claim against the defendants sought only an award of treble damages under § 4 of the Clayton Act, 15 U.S.C. § 15. Applying the Local Government Antitrust Act to that claim leaves no viable federal antitrust claim remaining.
Apart from this statutory preclusion, Dr. MacArthur's federal antitrust claim fails on its own facts.
Plaintiffs insist that a denial of the full provisional SJHSD staff privileges requested by Dr. MacArthur in December of 1999 would be anti-competitive in both purpose and effect. Whatever force that argument may have, the fact remains uncontroverted that the SJHSD did not deny privileges to Dr. MacArthur before he elected to move his practice out of state. The SJHSD, under the authorizing signatures of Mr. Bradford and Dr. Redd, granted Dr. MacArthur "temporary" staff privileges two weeks after he made his request for full one-year provisional privileges, and extended those privileges twice through February 2, 2000. During that interim period, Dr. MacArthur exercised his temporary privileges in providing care for his patients, and he does not allege specific facts showing that he was unable to provide care for any particular patient because of any limitation of those privileges by number or duration.
Even taking as true Dr. MacArthur's allegation that his request for full privileges was placed in the hands of other SJHSD staff physicians with whom he was competing for patients—competitors who would put their own economic interests first in making such a determination—he has failed to allege any actionable "antitrust injury" to his practice during the brief period of time in which he was exploring the San Juan County market for obstetrics and gynecological care. As explained above, § 4 of the Clayton Act "requires a plaintiff to show actual injury," Cargill, Inc., 479 U.S. at 111, 107 S.Ct. 484, and "the plaintiff must still allege an injury of the type the antitrust laws were designed to prevent." Id. (footnote omitted).
Moreover, because there no final determination by the SJHSD to deny Dr. MacArthur the privileges he sought, his federal antitrust claim, like his § 1983 claim, was not ripe at the time he elected to move his practice out of the area, and, thereafter was rendered moot by his absence from the San Juan County health care services market after March of 2000. See Unity Ventures v. Lake County, 841 F.2d at 776-777 (absent final governmental action denying intended use of property, federal antitrust claim based on local land use regulation was not ripe).
Consequently, Dr. MacArthur's federal antitrust law claims must be dismissed as against all defendants. Fed.R.Civ.P. 16(c)(1).
As explained above, the effect of the Local Government Antitrust Act, 15 U.S.C. § 35(a), is to bar plaintiff Lyman's federal antitrust claim for treble damages against the defendants, limiting that claim to a request for declaratory and injunctive relief.
As explained above, to prevail on a private civil claim under § 4 of the Clayton Act, 15 U.S.C. § 15, "a private plaintiff must establish both (1) that it has standing and (2) the defendant has violated the antitrust laws. . . ." 2 Phillip E. Areeda, Herbert Hovencamp & Roger D. Blair, Antitrust Law ¶ 335, at 297. "Once it appears, whether early or late in the litigation, that either requirement [of standing or antitrust violation] is lacking, the suit must be dismissed." Id. Likewise, § 16 of the Clayton Act permits injunctive relief "against threatened loss or damage by a violation of the antitrust laws." 15 U.S.C. § 26 (emphasis added).
Plaintiff Lyman claims that one or more of the defendants have violated the antitrust laws, but does not allege the specific nature of that violation. (See Proposed Amended Complaint at 26-34 ¶¶ 1-49; id. at 34-58 ¶¶ 50-168; id. at 58-86 ¶¶ 125-230.) Gleaning the elements of a particular antitrust law violation from the dense thicket of the plaintiffs' pleadings, original or amended, proves a daunting and largely fruitless task.
Taking action that is intended to disadvantage a competitor, or that has that effect, intended or not, by itself does not violate the antitrust laws. Yet plaintiff Lyman has alleged little more than that one or more SJHSD medical staff defendants—Drs. Redd, Jones and Nelson—took their own economic interests into consideration when addressing matters involving the plaintiff's practice privileges at SJHSD facilities in 1999, or that the effect of one or another limitation upon Ms. Lyman's privileges as a Physician Assistant operated to limit her ability to compete directly with physicians in the market for medical care in the San Juan County area.
Moreover, according to Ms. Lyman's counsel, Ms. Lyman did not have SJHSD privileges after December 22, 1999, the date her existing privileges expired, her request for renewal of her privileges in December 1999 ultimately was denied, and she made no further application for SJHSD privileges after that date:
THE COURT: Did she subsequently apply again for privileges at the hospital?
MS. ROSE: No, sir.
THE COURT: The district, she never applied again?
MS. ROSE: No, Sir.
(Tr. 11/15/02, at 53:13-17.) Thus, there exists no currently existing controversy between Ms. Lyman and the defendants concerning her entitlement to exercise of staff privileges at SJHSD facilities or the potential for denial of those privileges in violation of the federal antitrust laws. In this context, any claim for declaratory relief under 28 U.S.C. §§ 2201-2202 has "become moot because a declaratory judgment would no longer have any effect on defendants' behavior. See Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1256-57 (10th Cir.2004) (holding that an action for declaratory relief was moot when the requested declaration involved past conduct not likely to recur)." GF Gaming Corp. v. City of Black Hawk, Colo., 405 F.3d 876, 883 (10th Cir.2005); see Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir.1994) ("[W]hat makes a declaratory judgment action 'a proper judicial resolution of a 'case or controversy' rather than an advisory opinion is the settling of some dispute which affects the behavior of the defendant toward the plaintiff.'") (quoting Hewitt v. Helms, 482 U.S. 755, 761, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987)).
Similar mootness problems afflict Ms. Lyman's request for injunctive relief. See, e.g., Facio v. Jones, 929 F.2d 541, 544 (10th Cir.1991) ("plaintiff cannot maintain a declaratory or injunctive action unless he or she can demonstrate a good chance of being likewise injured in the future"); Moreover, if, as the Proposed Amended Complaint indicates, Ms. Lyman seeks injunctive relief "to protect patients of Mrs. Lyman and her supervising physician, and give Mrs. Lyman's patients uniform and considerate care with District staff sensitive to the unique needs of the patient," and allowing Ms. Lyman "to minimally go into any facility to at least speak and associate with her patient, regardless of whether she has privileges at the District," (Proposed Amended Complaint at 93), that relief would not be granted as "against threatened loss or damage by a violation of the antitrust laws" as provided by § 16 of the Clayton Act, 15 U.S.C. § 26. Nor would "ordering file [SJHSD] governance board to make physicians and chiefs of staff accountable for patient complaints and treat all medical providers and physician's equally and uniformly," (Proposed Amended Complaint at 94), be tailored to redress a specific antitrust violation.
As framed in plaintiffs' pleadings, Ms. Lyman's claim under the federal antitrust laws did not assert an arguable legal theory at the time of pretrial.
The Part I Plaintiffs point to several provisions of the Utah Constitution as a footing for their allegations of "due process violations" or "violation of Mrs. Valdez' Utah Constitutional rights" by the defendants, (Proposed Amended Complaint at 11 ¶ (3), 14 ¶ (23));
Article I, Section 1. [Inherent and inalienable rights.]
All men have the inherent and inalienable right to enjoy and defend their lives and liberties; to acquire, possess and protect property; to worship according to the dictates of their consciences; to assemble peaceably, protest against wrongs, and petition for redress of grievances; to communicate freely their thoughts and opinions, being responsible for the abuse of that right.
Article I, Section 7. [Due process of law.]
No person shall be deprived of life, liberty or property, without due process of law.
Article I, Section 25. [Rights retained by people.]
This enumeration of rights shall not be construed to impair or deny others retained by the people.
Article I, Section 26. [Provisions mandatory and prohibitory.]
The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.
Article I, Section 27. [Fundamental rights.]
Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.
Utah Const., art. I, §§ 1, 7, 25-27. The Utah Constitution's Due Process Clause, Article I, § 7, provides a footing for a direct private right of action seeking a remedy for an alleged deprivation of life, liberty or property, but only in "appropriate"—that is, extraordinary—circumstances:
- To ensure that damage actions are permitted only "under appropriate circumstances," we therefore hold that a plaintiff must establish the following three elements before he or she may proceed with a private suit for damages.
- First, a plaintiff must establish that he or she suffered a "flagrant" violation of his or her constitutional rights. See Dick Fischer Dev. v. Department of Admin., 838 P.2d 263, 268 (Alaska 1992); see also Bott, 922 P.2d at 734-35, 739-40 (describing the level of defendants' culpability necessary to create damages liability). In essence, this means that a defendant must have violated "clearly established" constitutional rights "of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). To be considered clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (citations omitted). The requirement that the unconstitutional conduct be "flagrant" ensures that a government employee is allowed the ordinary "human frailties of forgetfulness, distractibility, or misjudgment without rendering [him or her]self liable for a constitutional violation." Bott, 922 P.2d at 739-40.
- Second, a plaintiff must establish that existing remedies do not redress his or her injuries. See Schweiker v. Chilicky, 487 U.S. 412, 425, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) (refusing to create a damages remedy for an alleged due process violation where Congress had provided meaningful safeguards or remedies); Bush v. Lucas, 462 U.S. 367, 378, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (same with respect to alleged First Amendment violation); Dick Fischer Dev., 838 P.2d at 268; Bonner v. City of Santa Ana, 45 Cal.App.4th 1465, 53 Cal.Rptr.2d 671, 673, 676-78 (1996) (refusing to create damages remedy for alleged due process violation where alternative common law tort cause of action existed); Restatement (Second) of Torts § 874A cmt. h, at 309 (suggesting courts should consider the adequacy of existing remedies when deciding whether to provide a tort remedy). This second requirement is meant to ensure that courts use their common law remedial power cautiously and in favor of existing remedies. See Lynch v. Jacobsen, 55 Utah 129, 138-39, 184 P. 929, 933 (1919). We urge caution in light of the myriad policy considerations involved in a decision to award damages against a governmental agency and/or its employees for a constitutional violation. Moreover, we urge deference to existing remedies out of respect for separation of powers' principles. In general, the legislative branch has the authority, and in many cases is better suited, to establish appropriate remedies for individual injuries. By requiring courts to defer to relevant legislative determinations of appropriate remedies, we respect the legislature's important role in our constitutional system of government.
- Third, a plaintiff must establish that equitable relief, such as an injunction, was and is wholly inadequate to protect the plaintiff's rights or redress his or her injuries. See, e.g., Bott, 922 P.2d at 739 (stating that "if prisoners' rights under article I, section 9 are violated, injunctive relief may not be adequate to remedy prisoners' injuries"); see also, e.g., Davis v. Passman, 442 U.S. 228, 245, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (stating that damages are an appropriate remedy where plaintiff was unconstitutionally terminated from her job on a congressional staff because, in part, "equitable relief in the form of reinstatement would be unavailing" in light of the fact that her former employer was no longer a congressman); cf. Rockhouse Mountain Property Owners Ass'n, Inc. v. Town of Conway, 127 N.H. 593, 503 A.2d 1385, 1388 (1986) (stating that damages are an inappropriate remedy for a constitutional violation where the alleged injury "can be undone" by the judiciary). This final requirement is meant to take advantage of the meaningful role equitable relief can play in redressing constitutional injuries, while not implicating so many of the difficult policy considerations raised by a decision to award damages.
Spackman ex rel. Spackman v. Board of Educ. of Box Elder County School Dist., 2000 UT 87, ¶¶ 22-25, 16 P.3d 533, 538-539 (footnotes omitted).
The Part I Plaintiffs have not even attempted to plead these three essential elements of a direct civil action under the Utah Constitution in either the Proposed Amended Complaint and the Proposed Pretrial Order. They did not raise them as issues at the Final Pretrial Conference. Nor have they addressed them in the legal memoranda submitted either prior to the Final Pretrial Conference, or since. "Failure of counsel to identify an issue for the court can result in waiver: 'If counsel fail to identify an issue for the court, the right to have the issue tried is waived.' Fed.R.Civ.P. 16 advisory committee's note." Smith v. Gulf Oil Co., 995 F.2d 638, 644 (6th Cir.1993).
Besides failing to address the essential elements of a direct civil action under the Utah Constitution, the Part I Plaintiffs have not identified the specific constitutional right(s) that come within the scope of Article I, §§ 1, 25, 26, and 27, that purportedly have been violated by the conduct of one or more of the defendants.
To date, the reported case law construing the Article I, § 25 "retained rights" provision has involved parental rights issues. See, e.g., In re J.P., 648 P.2d 1364 (Utah 1982); In re K.B.E., 740 P.2d 292 (Utah Ct.App.1987); T.R.F. v. Felan, 760 P.2d 906 (Utah Ct.App.1988); P.O. v. S.G., 927 P.2d 202 (Utah Ct.App.1996); J.R. v. State of Utah, 261 F.Supp.2d 1268 (D.Utah 2002). Article I, §§ 26 and 27 appear to be declaratory of general constitutional principles rather than an enumeration of individual constitutional rights as such. See Ritchie v. Richards, 14 Utah 345, 361-363, 47 P. 670 (1896) (Bartch & Miner, JJ.) (constitutional provisions prescribing formalities to be observed in the enactment of laws are mandatory and binding on the legislature); see generally Comment, Fundamental Principles, Individual Rights, and Free Government: Do Utahns Remember How to Be Free?, 1996 Utah L.Rev. 661 ("exploring the meaning of [art. I] Section 27 of the Utah Constitution").
Having considered the pleadings, proffers, arguments and memoranda submitted by counsel, the court cannot "identify the litigable issues" that plaintiffs believed would arise under these provisions. See Fed.R.Civ.P. 16(c)(1); see also Fed. R.Civ.P. 8(a)(2); Fed.R.Civ.P. 11(b); Chavez v. New Mexico, 397 F.3d 826, 839 (10th Cir.2005) ("the Court refuses to go on a fishing expedition in search of legal analysis and facts to support these claims'").
The Utah Unfair Practices Act, Utah Code Ann. §§ 13-5-1 through 13-5-18 (2001), disallows the use of a list of specific unfair trade practices by persons "engaged in commerce," including anticompetitive price discrimination, advertising or sale of goods at a price less than cost, and advertising goods, wares, or merchandise that the advertiser is not prepared to supply. These forbidden practices involve trade in "goods," "merchandise," "articles," "products" and "commodities," and services or facilities furnished in connection with such trade, as well as the services of someone "who performs work upon, renovates, alters or improves any personal property belonging to another person, except necessary repairs due to damage in transit. . . ." Utah Code Ann. § 13-5-12(2) (2001). As the Utah Supreme Court explains, "The immediate stimuli for the enactment of such acts were in part the rapid rise of chain stores, and in part the general sharpening of competitive practices under pressure of the depression." Burt v. Woolsulate, Inc., 106 Utah 156, 160, 146 P.2d 203 (1944).
One of the practices aimed at by these [Unfair Practices Acts] statutes is that, common in chain stores, of selling at lower prices in one locality than in another and making up losses incurred by profits in other stores. Even more important in the application of anti-discrimination statutes today is the prevention of discrimination sales by manufacturers to customers with unusually strong bargaining power who can force large price concessions. . . .
On the whole the anti-discrimination provisions of the Unfair Practices Acts seem best fitted to reach manufacturers and producers who, in the past have placed certain retail buyers in preferred competitive positions by giving them special rebates or other price favors. . . .
Id. (quoting Comment, Prohibiting Price Discrimination and Sales Below Cost: The State Unfair Practices Acts, 32 Ill. L.Rev. 816 (1938)); see also 54A Am. Jur.2d Monopolies, etc. §§ 1077-1106 (1997); Annot., Validity, construction and application of state statutory provision prohibiting sales of commodities below cost-modern cases, 41 A.L.R.4th 612, 1985 WL 287621 (1985).
Plaintiffs allege "interference with the patients' and [plaintiffs MacArthur and Lyman]'s ability to freely contract for services with the District, with each other, with patients as guaranteed by the . . . Utah [U]nfair Practices Act," among other laws, (Proposed Pretrial Order at 1212 ¶ (8)), and the "violation of the Utah Unfair Practices Act," (id. at 1212 ¶ (15); Proposed Amended Complaint at 12 ¶ 14), but nowhere in their pleadings do they detail the nature of that alleged violation. Instead, plaintiffs appear to cite the Act for its general policy statement "fostering economic competition," and as a footing for an award of treble damages. (Proposed Amended Complaint at 26 ¶ 2; id. at 97 (Prayer for Relief) ("Mrs. Lyman is praying for damages in excess of Six (6) Million Dollars, some of which is treble damages, due to unfair practices. . . . ").)
The Utah Unfair Practices Act does provide for an award of treble damages in favor of a private plaintiff who has been injured by "any act in violation of this chapter" and has sustained actual damages, but such acts would be those expressly defined by the Act as "a violation of this act" or as "unlawful." Neither the Act's general purpose "to safeguard the public against the creation or perpetuation of monopolies and to foster and encourage competition" nor the "liberal construction" of its terms can extend civil liability—or the Act's criminal sanctions—beyond the "unfair and discriminatory practices" expressly "prohibit[ed]" by the Act itself. Utah Code Ann. § 13-5-17 (2001).
Where, as here, the plaintiffs fail to plead or otherwise identify acts by one or more defendants that violate the Utah Unfair Practices Act's specific provisions, neither the conclusory allegation of a violation nor the generalized assertion of interference with freedom of contract can sustain their treble damages claims under that Act.
Utah Code Ann. § 13-7-3 (2001) reads:
13-7-3. Equal right in business establishments, places of public accommodation, and enterprises regulated by the state.
All persons within the jurisdiction of this state are free and equal and are entitled to full and equal accommodations, advantages, facilities, privileges, goods and services in all business establishments and in all places of public accommodation, and by all enterprises regulated by the state of every kind whatsoever, without discrimination on the basis of race, color, sex, religion, ancestry or national origin. Nothing in this act shall be construed to deny any person the right to regulate the operation of a business establishment or place of public accommodation or an enterprise regulated by the state in a manner which applies uniformly to all persons without regard to race, color, sex, religion, ancestry, or national origin; or to deny any religious organization the right to regulate the operation and procedures of its establishments.
This explicit guarantee of equal treatment reflects Utah's public policy "to assure all citizens full and equal availability of all goods services and facilities offered by" business establishments, places of public accommodation and state-regulated enterprises "without discrimination because of race, color, sex, religion, ancestry, or national origin," and the State's recognition since 1965 that "the practice of discrimination on the basis of race, color, sex, religion, ancestry, or national origin . . . endangers the health, safety, and general welfare of this state and its inhabitants." Utah Code Ann. § 13-7-1 (2001). Section 13-7-4(3) provides that "[a]ny person who is denied the rights provided for in Section 13-7-3 shall have a civil action for damages and any other remedy available in law or equity against any person who denies him the rights provided for in Section 13-7-3 or who aids, incites or conspires to bring about such denial."
Plaintiffs' pleading alleges the "violation of Mrs. Valdez' state right to receive services equally with all other patients as found in Utah Code Ann. 13-7-2," (Proposed Amended Complaint at 13 ¶ (21)), but she does not allege specific facts showing discrimination against her on the basis of her race, color, sex, religion, ancestry or national origin, or plead specific facts from which such discrimination may reasonably be inferred. Nor does she allege specific facts showing that she was denied "full and equal accommodations, advantages, facilities, privileges, goods and services" in a "place[] of public accommodation," as guaranteed by the Utah statute.
The tort of "interference with contract" addresses "conduct which 'intentionally and improperly interferes with the performance of a contract . . . between another and a third person by inducing or otherwise causing the third person not to perform the contract.' Restatement (Second) of Torts § 766 (1979). See also Bunnell v. Bills, 13 Utah 2d 83, 90, 368 P.2d 597, 602 (1962); W. Prosser, Handbook of the Law of Torts § 129 at 929-30 (4th ed.1971); Annot., Liability for procuring breach of contract, 26 A.L.R.2d 1227, 1952 WL 7867 (1952)." Leigh Furniture and Carpet Co. v. Isom, 657 P.2d 293 (Utah 1982).
"The tort of intentional interference with prospective economic relations reaches beyond protection of an interest in an existing contract and protects a party's interest in prospective relationships of economic advantage not yet reduced to a formal contract (and perhaps not expected to be)." Leigh, 657 P.2d at 302 (citing Buckaloo v. Johnson, 14 Cal.3d 815, 537 P.2d 865, 868-69, 122 Cal.Rptr. 745, 748-49 (1975); Restatement (Second) of Torts § 766B comment c; Prosser, supra, at § 130). In the Leigh case, the Utah Supreme Court recognized "a common-law cause of action for intentional interference with prospective economic relations," and adopted the Oregon definition of this tort. Id. at 304 (citing Straube v. Larson, 287 Or. 357, 361, 600 P.2d 371, 374 (1979); Top Service Body Shop, Inc. v. Allstate Insurance Co., 283 Or. 201, 205, 209, 582 P.2d 1365, 1368, 1371 (1978)). "Under this definition, in order to recover damages, the plaintiff must prove (1) that the defendant intentionally interfered with the plaintiff's existing or potential economic relations, (2) for an improper purpose or by improper means, (3) causing injury to the plaintiff." Id.
The "economic relations" protected by this theory are diverse. "Driving away an individual's existing or potential customers is the archetypical injury this cause of action was devised to remedy. E.g., Guillory v. Godfrey, 134 Cal.App.2d 628, 286 P.2d 474 (1955); Tuttle v. Buck, 107 Minn. 145, 119 N.W. 946 (1909); W. Prosser, Handbook of the Law of Torts § 130 (4th ed.1971); Restatement (Second) of Torts § 766B(a)," Leigh, 657 P.2d at 306, but protection extends to "any prospective contractual relations . . . if the potential contract would be of pecuniary value to the plaintiff" (excluding contracts to marry), as well as "a continuing business or other customary relationship not amounting to a formal contract." Restatement (Second) of Torts § 766B comment c (1979).
The question of interference for an "improper purpose" or by an "improper means" requires the weighing of several relevant factors:
In determining whether an actor's conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors:
(a) the nature of the actor's conduct,
(b) the actor's motive,
(c) the interests of the other with which the actor's conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor's conduct to the interference and
(g) the relations between the parties.
Restatement (Second) of Torts § 767(a)-(g) (1979). As the Leigh court observed:In the rough and tumble of the marketplace, competitors inevitably damage one another in the struggle for personal advantage. The law offers no remedy for those damages—even if intentional—because they are an inevitable byproduct of competition. Problems inherent in proving motivation or purpose make it prudent for commercial conduct to be regulated for the most part by the improper means alternative, which typically requires only a showing of particular conduct.
The alternative of improper purpose will be satisfied where it can be shown that the actor's predominant purpose was to injure the plaintiff. . . .
657 P.2d at 307 (footnote & citations omitted). As the Restatement explains, a competitor's interference with a prospective contractual relation is not improper if, among other things, "his purpose is at least in part to advance his interest in competing with the other." Restatement (Second) of Torts § 768(d) (1979).g. The actor's purpose. The rule stated in this Section developed to advance the actor's competitive interest and the supposed social benefits arising from it. If his conduct is directed, at least in part, to that end, the fact that he is also motivated by other impulses, as, for example, hatred or a desire for revenge is not alone sufficient to make his interference improper. But if his conduct is directed solely to the satisfaction of his spite or ill will and not at all to the advancement of his competitive interests over the person harmed, his interference is held to be improper.
Id. § 768 comment g.
The factual allegations underpinning Dr. MacArthur's and Ms. Lyman's interference claims were considered in some detail at the Final Pretrial Conference.
"At its core, an action for defamation is intended to protect an individual's interest in maintaining a good reputation." West v. Thomson Newspapers, 872 P.2d 999, 1008 (Utah 1994); see Seegmiller v. KSL, Inc., 626 P.2d 968, 973 (Utah 1981) (recognizing that "the integrity of an individual's reputation is essential to his standing in society, in his vocation, and even in his family").
In order to state a claim for defamation under Utah law, a plaintiff must show "that defendants published the statements concerning him [either in print or by spoken words], that the statements were false, defamatory, and not subject to any privilege, that the statements were published with the requisite degree of fault, and that their publication resulted in damage." West, 872 P.2d at 1007-08 (footnotes omitted).
Wayment v. Clear Channel Broadcasting, Inc., 2005 UT 25, ¶ 18 n. 2, 116 P.3d 271, 278 n. 2; see DeBry v. Godbe, 1999 UT 111, ¶ 8, 992 P.2d 979, 982; Cox v. Hatch, 761 P.2d 556, 561 (Utah 1988); Seegmiller v. KSL, Inc., 626 P.2d 968, 974, 976 (Utah 1981); Berry v. Moench, 8 Utah 2d 191, 331 P.2d 814, 818-19, 820-21 (1958); Utah Code Ann. § 45-2-2 (1998); Tracy H. Fowler, Note, Modernizing Defamation Law in Utah, 1980 Utah L.Rev. 535; see also Restatement (Second) of Torts § 558 (1972). Under Utah law, "a statement is defamatory if it impeaches an individual's honesty, integrity, virtue, or reputation and thereby exposes the individual to public hatred, contempt, or ridicule." West, 872 P.2d at 1008 (citing Cox, 761 P.2d at 561 (citing Utah Code Ann. § 45-2-2(1))). "A court simply cannot determine whether a statement is capable of sustaining a defamatory meaning by viewing individual words in isolation; rather, it must carefully examine the context in which the statement was made, giving the words their most common and accepted meaning." Id. at 1009 (citations omitted).
As detailed most recently in the Wayment opinion, the question of "requisite degree of fault" that must be shown largely turns upon whether the plaintiff is in some sense a "public figure." 2005 UT 25, ¶¶ 17-36, 116 P.3d 271, 279-84. If a plaintiff is a non-"public" private individual, "the necessary degree of fault which must be shown in a defamation action . . . is negligence." Seegmiller, 626 P.2d at 973; accord, In re I.M.L. v. State of Utah, 2002 UT 110, § 25, 61 P.3d 1038, 1045 ("in a civil action for libel 'actual malice' is required if the statement concerns a public official, whereas only negligence is required if the statement concerns a private citizen"); see 50 Am.Jur.2d Libel and Slander § 21 (1995).
Plaintiffs have not cited and this court has not found Supreme Court or Tenth Circuit case authority recognizing "a U.S. Constitutional right to reputation as guaranteed by the Ninth Amendment," (Proposed Amended Complaint at 12 ¶ (6)), at least as a theory of legal liability for injury to reputation independent of state defamation law.
Given that "[i]t cannot be presumed that any clause in the constitution is intended to be without effect," Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174, 2 L.Ed. 60 (1803), the Ninth Amendment must be afforded a stature greater than that of a mere "inkblot," and recent scholarship argues various approaches to its interpretation. At a minimum, the Ninth Amendment serves as a "constitutional 'saving clause'" avoiding an overly narrow construction of the Bill of Rights. While it may or may not "constitute[] an independent source of rights protected from infringement by either the States or the Federal Government," the Ninth Amendment "shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive." Griswold v. Connecticut, 381 U.S. 479, 492, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring).
[T]he Fifth and Fourteenth Amendments protect certain fundamental personal liberties from abridgment by the Federal Government or the States. . . . The Ninth Amendment simply shows the intent of the Constitution's authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments.
Id. (citations omitted).
Plaintiffs' counsel also refers to "(d) illegal destruction or tampering with confidential documents in a federally contracted facility;" and "(e) intimidation of witnesses for monetary gain," (Proposed Pretrial Order at 1212 ¶ (5)), but these are not found among the offenses enumerated in the statute's definition of "racketeering activity" and thus cannot serve as RICO predicate acts. 18 U.S.C. § 1961(1) ("racketeering activity" defined).
whore,' floor whore,' curb whore,' curb side cunt,' and bitch,' on a consistent basis. These sexual epithets have been identified as intensely degrading' to women." (internal quotation & citation omitted)).potential' witnesses. *United States v. Hernandez*, 730 F.2d 895, 898 (2d Cir.1984) ([section] 1512 explicitly covers "potential" witnesses')"); United States v. Maggitt, 784 F.2d 590, 593 (5th Cir.1986) ("18 U.S.C. § 1512 punishes only those threats made with the intent to cause the witness to withhold future testimony").