41 F.3d 584 (10th Cir. 1994), 92-5105, Ramirez v. Oklahoma Dept. of Mental Health

Docket Nº:92-5105.
Citation:41 F.3d 584
Party Name:Dr. Rodrigo RAMIREZ and Barbara Snow, Plaintiffs-Appellants, v. OKLAHOMA DEPARTMENT OF MENTAL HEALTH, Daniel Clute, Gerald D. Goodner, Woodrow Pendergrass, Nancey Prigmore, and Bob LeFlore, Defendants-Appellees.
Case Date:November 28, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 584

41 F.3d 584 (10th Cir. 1994)

Dr. Rodrigo RAMIREZ and Barbara Snow, Plaintiffs-Appellants,

v.

OKLAHOMA DEPARTMENT OF MENTAL HEALTH, Daniel Clute, Gerald

D. Goodner, Woodrow Pendergrass, Nancey Prigmore,

and Bob LeFlore, Defendants-Appellees.

No. 92-5105.

United States Court of Appeals, Tenth Circuit

November 28, 1994

Page 585

[Copyrighted Material Omitted]

Page 586

Gary L. Richardson, Gregory G. Meier, and Dana C. Bowen of Richardson, Meier & Stoops, Tulsa, OK, for plaintiffs-appellants.

David W. Lee, Oklahoma City, OK, for defendants-appellees.

Before BALDOCK, HOLLOWAY, and BRORBY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiffs/appellants Dr. Rodrigo Ramirez (Ramirez) and Barbara Snow (Snow) appeal the district court's dismissal pursuant to Fed.R.Civ.P. 12(b)(6) of their complaint brought pursuant to 42 U.S.C. Secs. 1983, 1985 and 1988, and Oklahoma common law. Their suit complained of disciplinary actions taken against them as employees of the Oklahoma Department of Mental Health (DMH) who worked at the Eastern State Hospital (ESH). The district judge held all of plaintiffs' federal claims barred by absolute and/or qualified immunity, or Eleventh Amendment immunity. He therefore held that there is no supplemental jurisdiction under 28 U.S.C. Sec. 1367 for plaintiffs' state common law claim. We affirm in part, reverse in part, and remand.

I

We have stated clearly the guiding principles that apply for our decisional process:

"The sufficiency of a complaint is a question of law which we review de novo." Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). A court may dismiss a complaint for failure to state a claim only if it concludes that "the plaintiff can prove no set of facts in support of his claim to entitle him to relief." Id. Furthermore, for purposes of making the foregoing determination, a court must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff. Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir.1988).

Williams v. Meese, 926 F.2d 994, 997 (10th Cir.1991). Moreover, granting such a motion to dismiss is "a harsh remedy which must be

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cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Morgan, 792 F.2d at 978. In accordance with these principles, we must accept at this stage the following facts which the complaint avers:

Plaintiffs Dr. Ramirez, a licensed psychiatrist, and Ms. Snow, a registered nurse, were employed at the ESH of the Oklahoma DMH in March 1991. They were members of a treatment team at ESH, along with a registered psychologist, Peggy Rhinehart, and Lucille Barrett, a licensed social worker. Dr. Ramirez was the treatment team coordinator.

On March 11, 1991, Dr. Ramirez and Ms. Snow and the other team members were on duty at the hospital. An upset mental patient came to the team and complained that a mental health aide, defendant Clute, had handled her roughly and had grabbed her tightly by the upper arm, digging his fingernails into her flesh, causing contusions and scratches. App. A at 4. Dr. Ramirez examined the patient and noted the contusions and abrasions on her arm. Id. It was known to Dr. Ramirez and Ms. Snow and others that Clute was HIV positive and that the mental patient was thus at risk of infection from Clute with the communicable and fatal disease, through the HIV virus, known as Acquired Immune Deficiency Syndrome, AIDS. Id. The treatment team discussed the implications of the incident and their legal and ethical responsibilities to the mental patient. The team collectively concluded that a report in the form of a patient grievance should be made to their superiors in the DMH. The team, including Dr. Ramirez and Ms. Snow, prepared and filed a grievance on behalf of the mental patient. Id. at 4-5.

On April 26, 1991, Dr. Ramirez and Ms. Snow, together with team members Rhinehart and Barrett, received notices of proposed adverse personnel actions against them (five-day suspensions without pay) for: (1) failure to obey DMH policies respecting discriminatory actions against AIDS-infected individuals; and (2) misconduct because the team used the wrong form in reporting the alleged abuse of the patient. Thereafter Ms. Snow received a five-day suspension, notwithstanding her administrative grievances and appeals, and was transferred to a lesser position in the hospital, thereby depriving her of her seniority and ability to gain promotion. Id. at 5.

During the administrative procedure, defendant Prigmore, counsel for the hospital, informed the hearing officer, defendant LeFlore, that no threat of suit was made against the DMH or the hospital arising out of Dr. Ramirez and Ms. Snow's actions when in fact an agreement had been reached between Clute and Prigmore that Dr. Ramirez, Ms. Snow and team members Rhinehart and Barrett would be disciplined in exchange for Clute's forebearance of suit against the DMH and the hospital. Id. at 5-16.

Thereafter Dr. Ramirez, who as a "classified" employee was without benefit of administrative remedies by statute, was terminated ostensibly for the quality of his performance. But he was actually terminated for his involvement in the reporting of Clute's alleged abuse of the mental patient. Id. at 6, p 17.

Plaintiffs brought suit in August 1991 against DMH, Clute, Gerald Goodner (the acting superintendent at ESH), Woodrow Pendergrass and Nancey Prigmore (legal counsel for DMH), and Bob LeFlore (a director of DMH). The complaint alleged that DMH, acting under color of law and through its custom, practice, policy and decision, wrongfully terminated Dr. Ramirez's employment and adversely acted against Ms. Snow's employment. Defendant's substantial motivating factor in its decision to act against the plaintiffs allegedly was to retaliate against them for having exercised their legal right, obligation and protected free speech associated therewith, to report an incident involving the abuse and possibly lethal infection of a mental patient by a co-employee. Id. at 6, p 18.

It was averred further that defendants Clute, Prigmore, Goodner, LeFlore, Pendergrass and others unknown, conspired to violate the plaintiffs' right to free speech under color of law. It was the unlawful object of the conspiracy to retaliate against the plaintiffs by causing DMH to discharge Dr. Ramirez and discipline Ms. Snow for reporting the incident involving the abuse and possible

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lethal infection of a mental patient by a co-employee. Id. at 6-7, p 19. The complaint charges that "Defendants Clute, Prigmore, Goodner, LeFlore, and Pendergrass, and others presently unknown, did sponsor and promote the spurious personnel actions against the Plaintiffs, under color of law, and did, through misrepresentation of facts, cause the Defendant DMH to discharge Ramirez and discipline Snow." Id. at 7, p 20.

Both plaintiffs pray for damages, including punitive damages, costs, attorney's fees and interest. Dr. Ramirez also requests reinstatement, or in lieu thereof, front pay. Ms. Snow requests reinstatement to her former position. Id. at pp 23 and 24, and conclusion of the complaint.

In October 1991 defendants jointly moved to dismiss the complaint under Fed.R.Civ.P. 12(b) for failure to state a claim for relief and because the action is barred by the Eleventh Amendment. App. B. In their brief in support of their motion to dismiss, defendants argued that (1) defendants Clute, Goodner, Pendergrass, Prigmore and LeFlore are entitled to qualified immunity because the complaint fails to allege facts supporting its conclusory allegations; (2) defendants Goodner, Pendergrass, Prigmore and LeFlore are also entitled to absolute immunity as administrative attorneys or hearing officers; (3) DMH, as a state agency, is entitled to Eleventh Amendment immunity; and (4) the state law claims should be dismissed because plaintiffs failed to allege compliance with the notice requirement of the Oklahoma Governmental Torts Claims Act, and because pendent jurisdiction should not be exercised since the federal claims should be dismissed. Brief in Support of Defendants' Motion to Dismiss Plaintiffs' Complaint at 2-13, Appellants' Brief in Chief, App. C.

The district court granted defendants' motion to dismiss. The judge's order held that the plaintiffs' complaint made only insufficient conclusory allegations of violations of their First Amendment rights; thus the motion to dismiss on the ground of qualified immunity was granted. App. H at 4-5. He also ruled that defendants Goodner, Pendergrass, Prigmore and LeFlore were entitled to absolute immunity since their actions were taken while conducting administrative and judicial functions. The judge held further that the DMH should be dismissed as a state agency entitled to Eleventh Amendment immunity. Lastly, he held that because defendants are immune from suit under federal law, there was no supplemental jurisdiction for the state law claim. The complaint was dismissed and no leave to amend was granted. 1

II

A

Eleventh Amendment Immunity

It is well-established that absent an unmistakable waiver by the state of its Eleventh Amendment immunity, or an unmistakable abrogation of such immunity by Congress, the amendment provides absolute immunity from suit in federal courts for states and their agencies. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241, 243, 105 S.Ct. 3142, 3146, 87 L.Ed.2d 171 (1985); Florida Dept. of Health and Rehabilitative Services v. Florida Nursing Home Ass'n, 450 U.S. 147, 150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981) (per curiam). Eleventh Amendment immunity applies "whether the relief sought is legal...

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