Mizell v. North Broward Hospital District

• Citation: 427 F.2d 468
• Decision Date: 13 July 1970
• Docket Number: No. 27488.,27488.
• Parties: Von D. MIZELL, Plaintiff-Appellant, v. NORTH BROWARD HOSPITAL DISTRICT et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

427 F.2d 468 (1970)

Von D. MIZELL, Plaintiff-Appellant, v. NORTH BROWARD HOSPITAL DISTRICT et al., Defendants-Appellees.

No. 27488.

United States Court of Appeals, Fifth Circuit.

March 25, 1970.

Rehearing Denied July 13, 1970.

Frank D. Reeves, Washington, D. C., Jack P. LaMarr, Fort Lauderdale, Fla., John B. Orr, Jr., Pompano Beach, Fla., Robert Reinstein, Philadelphia, Pa., for plaintiff-appellant; Charles L. Fishman, Washington, D. C., on the brief.

Michael Davis, Fort Lauderdale, Fla., William Dunaj, Aubrey V. Kendall, Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, Fla., McCune, Hiaasen, Crum & Ferris, Fort Lauderdale, Fla., for defendants-appellees; Watson, Hubert & Davis, Fort Lauderdale, Fla., of counsel.

Before TUTTLE, COLEMAN and SIMPSON, Circuit Judges.

Rehearing En Banc Denied July 13, 1970.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC^*

TUTTLE, Circuit Judge:

It appears that, in our original opinion, we overlooked the principle of law, agreed upon by both parties, that "* * * as a matter of law, when an action is brought for both damages and equitable relief, the statute of limitations, and not laches, controls both the equitable and legal part." It is, therefore, necessary for us to modify our opinion respecting the matter of laches. We think it simpler to make the necessary correction by withdrawing our previous opinion and by substituting the following corrected opinion.

This is the second appearance of this case in this court. The action was instituted in the trial court by the filing on March 2, 1967 of a complaint by Dr. Von D. Mizell, seeking damages and injunctive relief allegedly caused by an invasion of the plaintiff's civil rights, in violation of Sections 1981, 1983 and 1985, of Title 42 of U.S.C.A., and alleging federal jurisdiction on the basis of Title 28, Section 1343, U.S.C.A.

On May 23, 1967, the defendants moved to dismiss the complaint for failure to state a claim upon which relief could be granted, and, after hearing, the court granted this motion and dismissed the complaint with prejudice. This order was reversed by this court, which thus held that a cause of action was alleged in the complaint. See Mizell v. North Broward Hospital District, et al., 5 Cir., 1968, 392 F.2d 580.

When the case was remanded to the trial court, further pleadings were filed by the defendants, including a plea of a bar by the statute of limitations, in light of the fact that the complaint alleged one continuing conspiracy and an overt act resulting in serious damage to the plaintiff when the defendant's Board, on July 19, 1961, suspended his surgical privileges in all hospitals operated and maintained by the defendant Hospital District, "subject to consideration of an application for reinstatement at any time one year subsequent to the effective date of the suspension;" and then alleged a further overt act on May 24, 1965, when the District Court of Appeals of Florida, Second District, affirmed the suspension, up to which time by virtue of a court order, plaintiff continued to exercise his surgical privileges; and then alleged a third overt act when, on February 17, 1967, the defendants entered an order denying plaintiff's application for reinstatement, which he had filed with the Board.

The trial court applied the state statute of limitations, which both parties concede to be the proper procedure where no statutory limit is fixed in the appropriate federal statute, and held that in a single conspiracy case the statute of limitations begins to run from the date of the first overt act causing injury to the plaintiff. Thereupon, the court dismissed the complaint by sustaining a motion for summary judgment.

The trial court, of course, never reached the basic contention of the plaintiff that the action of the Board was racially motivated, and this issue is not now before us. The trial court entered its order based upon the following stipulation as to the facts:

(a) The plaintiff is and at all times material herein was a Negro, a citizen of the United States, a resident of Broward County, Florida, and is licensed to practice medicine in the State of Florida.

(b) In 1951, pursuant to Chapter 27438, Laws of Florida 1951, the North Broward Hospital District was created as a special taxing district of the State of Florida.

(c) From 1951 until July 19, 1961 the appointment of plaintiff as an officer and member of the surgical staff at Provident Hospital was repeatedly and consistently approved by the defendant North Broward Hospital District.

(d) On September 10, 1961 a hearing was held by the defendant District\'s Board of Commissioners that resulted in the entry of an order by defendant\'s Board on September 20, 1961 approving the July 19, 1961 suspension of plaintiff\'s surgical privileges in all hospitals operated and maintained by defendant District, subject to consideration of an application for reinstatement at any time one year subsequent to the effective date of the suspension.

(e) The plaintiff challenged the validity of the suspension described in the preceding paragraph in the courts of the State of Florida, which litigation resulted ultimately in an affirmance of the suspension by the District Court of Appeal of Florida, Second District, on May 24, 1965. Notwithstanding the defendant Board\'s suspension order of September 20, 1961, plaintiff continued, except for two minor periods of time, to exercise his surgical privileges pursuant to court order.

(f) On or about April 14, 1966, Dr. Mizell made application to defendant North Broward Hospital District for reinstatement. In response thereto, defendant District furnished plaintiff with (a) a document entitled, "Recommendations from the Surgical Department for Reinstatement of Dr. Von D. Mizell," dated August 1, 1966, allegedly based upon a review by members of the Broward General Hospital Staff of the charts of 65 general surgical cases and 36 gynecological cases done by plaintiff at Broward General Hospital prior to the effective date of his suspension and recommending that plaintiff\'s application for reinstatement be denied, and (b) notice of a hearing upon said application.

(g) On January 18, 1967, a hearing was held by defendant District\'s Board of Commissioners to consider plaintiff\'s application for reinstatement of his surgical privileges in all hospitals operated by the District.

(h) On February 17, 1967, the Board of Commissioners entered an order denying plaintiff\'s application for reinstatement described in the preceding paragraph.

(i) On January 18, 1967 and February 17, 1967 the following persons were members of the Board of Commissioners of the defendant North Broward Hospital District: W. B. Leonard, Hamilton Forman, Chester J. Maxson, Louis W. King, F. K. Walker and Mrs. Lois Swartzbaugh.

The plaintiff's position with respect to the statute of limitations is twofold: (1) while conceding that the state statute is to be applied,¹ it is the contention of the appellant that since overt acts as a part of the conspiracy occurred within the period of limitations, the trial court erred in dismissing the complaint on the ground that the statutory period began to run on the date of the first overt act causing serious damage to the plaintiff. It is appellant's contention here that in effect the occurrence of any overt act alleged in the conspiracy charge that occurred within the statutory period would keep the statute open for an additional statutory period. Both parties rely on Crummer Co. v. DuPont, 5 Cir., 1955, 223 F.2d 238, as supporting their theories under this point of the argument. (2) Appellant takes the position that it is not necessary to point to the date of any particular overt act to determine the time the statute began to run, because he contends that his administrative efforts and his litigation in the state court, seeking relief from the allegedly illegal conduct of the Board in 1961, tolled the running of the statute until the final decision of the Florida courts in 1965. It is not disputed that the present suit was commenced within a period of three years following the termination of that litigation.

Before getting to the basis for the judgment of dismissal, it is necessary for us to consider several other rulings made by the trial court in view of the fact that it will be necessary for the case to be remanded for trial.

At the time of the hearing in the district court the law with respect to Section 1981 was, we think, to be determined by reference to the Supreme Court's decision in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189, which had been decided in June, 1968. The trial court here said:

"Turning first to section 1981, a cursory inspection reveals that this section is simply a broad pronouncement that all persons within the United States shall have the same right to full and equal benefit of all the laws and proceedings for the security of persons and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, and so forth.

"It is important here to note that a damage suit cannot be predicated upon section 1981 because it makes no provision for civil damages or any other form of civil relief."

Jones v. Mayer, of course, dealt with section 1982, which, so far as is here pertinent, is precisely like 1981 in that it makes no provision for "civil damages or any other form of civil relief." Section 1982 provides "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property." We can see no conceivable difference between the language of Section 1982 and Section 1981 that would justify our affirming the decision by the trial court here that "a damage suit cannot be predicated upon Section 1981." Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d...