Madry v. Sorel
Decision Date | 22 April 1971 |
Docket Number | No. 30217.,30217. |
Citation | 440 F.2d 1329 |
Parties | Dr. John G. MADRY, Jr., Plaintiff-Appellant, v. Dr. Otto G. SOREL et al., Defendants-Appellees. |
Court | U.S. Court of Appeals — Fifth Circuit |
Gleason, Walker, Pearson & Ferrell, Melbourne, Fla., Carl W. Pearson, Titusville, Fla., J. Compton French, Landis, Graham, French, Husfeld, Sherman & Ford, Daytona Beach, Fla., for plaintiff-appellant.
Ralph Geilich, Elting L. Storms, G. W. Hedman, Storms, Pappas & Krasny, Melbourne, Fla., Marks, Gray, Yates, Conroy & Gibbs, Jacksonville, Fla., Leon H. Handley, Jeff B. Clark, Orlando, Fla., for defendants-appellees.
Before JOHN R. BROWN, Chief Judge, and PHILLIPS* and INGRAHAM, Circuit Judges.
Doctor Madry attacked his 1966 suspension from the Brevard Hospital on the grounds that (i) as a Hill-Burton financed project the conduct of the Board of Governors was invested with requisite state action,1 42 U.S.C.A. § 1983, and (ii) that the suspension was constitutionally invalid for want of adequate, timely notice of the charges, accompanied by an opportunity for a fair hearing in which witnesses could be confronted and cross-examined. On the basis of pretrial depositions and affidavits, which were opposed in part by counter affidavits from the hospital board, Dr. Madry moved for summary judgment including a mandatory injunction for reinstatement.2 The Trial Court denied3 the motion and Dr. Madry appeals. We dismiss the appeal for want of jurisdiction, there being no appealable order.
Under no conceivable construction was the Court's order a final judgment, 28 U.S.C.A. § 1291, since it expressly contemplated further action on the merits.4 The only possible way to sustain jurisdiction is to treat the order as the equivalent of a denial of a preliminary injunction which is appealable, 28 U.S.C.A. § 1292(a) (1).5
But this will not do. First, as a denial of summary judgment the order is interlocutory and unappealable. United States v. Florian, 1941, 312 U.S. 656, 61 S.Ct. 713, 85 L.Ed. 1105, reh. denied, 312 U.S. 715, 61 S.Ct. 738, 85 L.Ed. 1145; Waller v. Professional Ins. Corp., 5 Cir., 1963, 316 F.2d 729. Second, and more vital, where refusal to grant a preliminary injunction is cast in the form of a denial of a summary judgment it is not appealable. Switzerland Cheese Assoc. v. Horne's Market, 1966, 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23; Chappell & Co. v. Frankel, 2 Cir., 1966, 367 F.2d 197. The wisdom of the rule is borne out by this record which shows substantial conflict on at least one critical issue. This is of great importance in constitutional cases in which the issues should be solidly based, since Courts Pred v. Board of Public Instruction of Dade County, Florida, 5 Cir., 1969, 415 F.2d 851, 852.
Thus the case — a year later and with no advancement in learning or determining the state of the law or its most recent mutations,6 Mike Hooks, Inc. v. Pena, 5 Cir., 1963, 313 F.2d 696, 1963 A. M.C. 355 — goes back for the hearing on the merits which the District Court recognized would some day be required. See Wooten v. Ohler, 5 Cir., 1962, 303 F.2d 759.
Appeal dismissed.
* Of the Tenth Circuit sitting by designation.
1 The Doctor stresses Simkins v. The Moses H. Cone Memorial Hospital, 4 Cir., 1963, 323 F.2d 959, cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659; Sams v. Ohio Valley General Hospital Association, 4 Cir., 1969, 413 F.2d 826; Cypress v. Newport News General & Non Sectarian Hospital Association, 4 Cir., 1966, 375 F.2d 648; and our decision in Foster v. Mobile County Hospital Board, 5 Cir., 1968, 398 F.2d 227.
2 The brief motion concluded:
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