Nyberg v. City of Virginia

• Decision Date: 10 August 1973
• Docket Number: No. 5-73 Civ. 72.,5-73 Civ. 72.
• Citation: 361 F. Supp. 932
• Parties: George W. NYBERG et al., Plaintiffs, v. The CITY OF VIRGINIA, MINNESOTA, et al., Defendants.
• Court: U.S. District Court — District of Minnesota

361 F. Supp. 932

George W. NYBERG et al., Plaintiffs, v. The CITY OF VIRGINIA, MINNESOTA, et al., Defendants.

No. 5-73 Civ. 72.

United States District Court, D. Minnesota, Fifth Division.

August 10, 1973.

COPYRIGHT MATERIAL OMITTED

Friedman & Friedman by Newton S. Friedman, Duluth, Minn., appeared for plaintiffs.

O'Leary, Trenti, Berger & Carey, Virginia, Minn., by Thomas H. Carey, appeared for defendants.

NEVILLE, District Judge.

Presented here for decision is the question whether a hospital owned and operated by the municipality of Virginia, Minnesota, can constitutionally prohibit licensed physicians on its staff from using the hospital facilities for the performance of abortions.

The facts are substantially without dispute. Plaintiffs allege and defendants do not deny that plaintiffs George W. and Nancy R. Nyberg are husband and wife as are William A. and Fern Arpi; that both couples have children; that plaintiff Rachel Arpi is the nineteen year old Arpi daughter; that plaintiff Nancy R. Nyberg has been advised by medical authority to avoid bearing more children and to desist from the use of contraceptive pills because of her emotional and physical condition; that plaintiffs James E. Williams and Melodie J. Wilson are single persons; that Dr. Charles J. Mock and Dr. Charles A. Tietz are physicians and staff members of the Virginia Municipal Hospital. All plaintiffs are residents and taxpayers of the city of Virginia, Minnesota. There is no allegation that any plaintiff is pregnant.

Plaintiffs assert that by the adoption of Resolution No. 2606 on February 5, 1973 and its reaffirmation on February 19, 1973 after hearing protests, the Virginia Hospital Commission proscribed the performance of abortions at the Virginia Municipal Hospital except when necessary to save the life of the mother. There is no contention that the Hospital Commission acted outside the scope of its authority. Plaintiffs further contend that defendants' actions result in infringement of their Constitutional rights guaranteed by the First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Federal Constitution and constitute interference with the doctor-patient relationship in restraint of the "free practice" of medicine. Redress is requested from the court under 28 U.S.C. §§ 1331, 1343 and the Civil Rights Acts 42 U.S.C. §§ 1981, 1983, 1985. Plaintiffs demand an injunction directing that defendants provide facilities necessary for the performance of abortions and allow physicians to perform such at their discretion; that Resolution No. 2606 be declared null and void and in violation of law; that defendant Kaye as administrator of the Virginia Municipal Hospital be required to establish procedures within 30 days to initiate and implement the court's directives; and that the plaintiffs be awarded costs and attorneys' fees. At a pre-trial conference and in his brief plaintiffs' attorney withdrew the portion of the complaint requesting compensatory damages of $25,000 and thus no damages are or will be sought in this claimed class action in which plaintiffs purport to represent all others similarly situated.

Defendants have interposed an answer containing a general denial and specific challenges to plaintiffs' class action and to their standing to sue. They deny the existence of a basis for injunctive relief and also request dismissal and recovery of costs and disbursements. Defendants have lodged a statement of their view of the facts with the court which admits: that the Virginia Hospital Commission exists under authority of the Charter of the City of Virginia; that the City of Virginia owns the Virginia Municipal Hospital which was constructed with public funds and the land upon which it sits; that the Virginia Municipal Hospital has received and continues to receive public funding from both state and federal sources; that the Hospital Commission is vested with general powers and duties including supervision and control of management policies; that the Commission members are the defendants named in the complaint; that Norman Kaye is the hospital administrator hired by the Commission; and that in accord with previous regulations and by Resolution No. 2606 (adopted 2/5/73 and reaffirmed 2/19/73) abortions "will only be permitted when required to save the life of the mother."

JURISDICTION

The court need not decide whether it should assume jurisdiction over this case on the basis of 28 U.S.C. § 1331, particularly since the request for compensatory damages is stricken from the complaint. Jurisdiction does exist under 28 U.S.C. § 1343 and 42 U.S.C. § 1983.¹ Though plaintiffs so assert, 42 U.S.C. § 1981 does not apply inasmuch as plaintiffs have alleged no discrimination of any sort as between different persons or classes. Neither does 42 U.S.C. § 1985 have any bearing on this case. There is no allegation of conspiracy, entry onto property or travel in disguise upon the highway. Section 1983, however, gives this court jurisdiction if plaintiffs have been deprived of their constitutional rights as a result of the administration of the Virginia Municipal Hospital by the Hospital Commission and defendant Kaye and if such action can be said to have been done under color of state law. Since there is no minimum amount in controversy required to prosecute a claim under 28 U. S.C. § 1343, it is clear that the amount involved is not a basis for objection to jurisdiction thereunder. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); Brown v. Donielson, 334 F.Supp. 294 (D.Iowa 1971). Likewise it is clear that jurisdiction exists under 42 U.S.C. § 1983. Hathaway v. Worcester City Hospital, 475 F.2d 701 (1st Cir. 1973); McCabe v. Nassau County Medical Center, 453 F.2d 698 (2d Cir. 1971); Powe v. Miles, 407 F.2d 73 (2d Cir. 1968). See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L. Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). See also Klein v. Nassau County Medical Center, 347 F.Supp. 496 (E. D.N.Y.1972), app. pending, 410 U.S. 922, 93 S.Ct. 1361, 35 L.Ed.2d 584 (1973); Y.W.C.A. v. Kugler, 342 F. Supp. 1048 (D.N.J.1972); McGarvey v. Magee-Women's Hospital, 340 F.Supp. 751 (W.D.Penn.1972); Steinberg v. Brown, 321 F.Supp. 741 (N.D.Ohio 1970); Doe v. Randall, 314 F.Supp. 32 (D.Minn.1970), aff'd sub nom, Hodgson v. Randall, 402 U.S. 967, 91 S.Ct. 1656, 29 L.Ed.2d 132 (1971); Babbitz v. McCann, 310 F.Supp. 293 (E.D.Wis. 1970).

STANDING

Though defendants allege in their answer that none of the plaintiffs have standing to bring this suit, their counsel in his brief states he takes no serious issue with plaintiffs' standing. Nonetheless it is this court's view that parties may not by stipulation confer standing to be in this court. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), requires "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." To quote from Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968), "There must be a logical nexus between the status asserted and the claim sought to be adjudicated." The rule exists because "the fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated." Id. at 99, 88 S.Ct. at 1952.

The rights to be protected in cases of this sort are in part those which inure to pregnant women; it is clear that they would have standing. E.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L. Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Klein v. Nassau County Medical Center, 347 F.Supp. 496 (E.D.N.Y. 1972), app. pending, 410 U.S. 922, 93 S. Ct. 1361, 35 L.Ed.2d 584 (1973). The difficulty in this case, of course, is that there is no evidence that any of the female plaintiffs are in fact pregnant. Non-pregnant women present another standing issue entirely.

"Although some of them may in the future become pregnant and may in such event desire an abortion . . . it is also possible that they will not become pregnant or that if they do they will, upon further reflection, decide for other reasons against an abortion. We need not explore the many other conditions that might preclude their gaining any stake or interest, such as change of domicile to another state, infertility, or the like. It is clear that any threat of harm to them is remote and hypothetical. Accordingly we hold that non-pregnant female plaintiffs in this category do not show a sufficient nexus or present a sufficiently concrete issue in an adversary setting to give them standing, and we affirm the district court's dismissal of the complaint as to plaintiffs claiming standing solely on the basis of their child-bearing age."

Abele v. Markle, 452 F.2d 1121, 1124 (2d Cir. 1971), stay granted, 409 U.S. 908, 93 S.Ct. 212, 34 L.Ed.2d 169 (1972).

See also Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Y.W.C.A. v. Kugler, 342 F. Supp. 1048 (D.N.J.1972); Steinberg v. Brown, 321 F.Supp. 741 (N.D.Ohio 1970); Doe v. Randall, 314 F.Supp. 32 (D.Minn.1970), aff'd sub nom., Hodgson v. Randall, 402 U.S. 967, 91 S.Ct. 1656, 29 L.Ed.2d 132 (1971). This court follows the reasoning of the Abele decision and refuses to allow standing solely on the basis of a woman's childbearing age.

Practitioners of the medical profession also have constitutional interests in matters of this type. Their concerns are most trenchantly presented when they are confronted with criminal sanctions. See e.g., Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Abele v. Markle, 452 F.2d 1121 (2d Cir. 1971) stay granted, 409 U.S. 908, 93 S.Ct. 212, 34 L.Ed.2d...