528 F.2d 1181 (10th Cir. 1975), 75--1156, Penn v. San Juan Hospital, Inc.

Docket Nº:75--1156.
Citation:528 F.2d 1181
Party Name:Mabel PENN et al., Plaintiffs-Appellants, v. SAN JUAN HOSPITAL, INC., Defendant-Appellee.
Case Date:December 31, 1975
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1181

528 F.2d 1181 (10th Cir. 1975)

Mabel PENN et al., Plaintiffs-Appellants,

v.

SAN JUAN HOSPITAL, INC., Defendant-Appellee.

No. 75--1156.

United States Court of Appeals, Tenth Circuit

December 31, 1975

Argued Nov. 12, 1975.

Page 1182

Robert M. Strumor, Shiprock, N.M. (Jeanne F. Franklin, Arlene S. Strumor, Claudeen B. Arthur and Richard W. Hughes, Shiprock, N.M., and Marilyn G. Rose and Joseph Onek, Center for Law and Social Policy, Washington, D.C., of counsel, on the brief), for plaintiffs-appellants.

Richard L. Gerding, Tansey, Rosebrough, Roberts & Gerding, P.C., Farmington, N.M., for defendant-appellee.

Page 1183

Victor R. Ortega, U.S. Atty., J. Stanley Pottinger, Asst. Atty. Gen., and Brian K. Landsberg, Walter W. Barnett, and Jessica Dunsay Silver, Attys., Dept. of Justice, Washington, D.C., amicus curiae.

Before HOLLOWAY, McWILLIAMS and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The action which is before us was filed in the United States District Court for the District of New Mexico alleging violations by defendant-appellee, San Juan Hospital, of the Fifth and Fourteenth Amendments to the Constitution of the United States and violation of 42 U.S.C. Sec. 291 (the Hill-Burton Act), 42 U.S.C. Sections 1981, 1983, 1985, 2000d of the Civil Rights Act of 1964. Also, 26 U.S.C. Sec. 501(c)(3), Internal Revenue Code. In the amended complaint were allegations under Rule 23, Fed.R.Civ.Proc., seeking relief on behalf of 'all persons of Navajo Indian descent who live in or near the City of Farmington, New Mexico or frequent that city such as that might be expected to seek emergency care in San Juan Hospital.' In addition, the plaintiff Jones sought damages as administratrix of the estate of Mae Neal, but this claim has been severed from the present matter so that we are limited to review of denial of injunction and denial of class action relief.

A hearing held on November 4 and 15, 1974, dealt with whether a preliminary injunction should be granted and also considered whether the cause should proceed as a class action.

Notwithstanding that the hearing was so limited and that the court repeatedly called attention to the fact that only the preliminary injunction was before it and that the cause was to be tried on its merits later, it proceeded to deny not only the preliminary injunction and also the request that the matter proceed as a class action, but in addition in its findings of fact issued December 6, 1974 dismissed the action insofar as it sought permanent injunction, holding that this was without merit and had to be dismissed also.

The San Juan Hospital is located at Farmington, New Mexico. 1 It is a private hospital, but it came into existence pursuant to the Hill-Burton Act so that it thereby assumed whatever duties to the public which are provided in that statute.

The factual basis for the entire controversy is that certain persons of Navajo extraction were allegedly denied emergency medical care at San Juan Hospital solely on account of their being Indians; that they were told that they should go to the Public Health Service Hospital at Shiprock, New Mexico or were sent to the Shiprock Hospital from the San Juan emergency room without their having been examined or having been given adequate care. At least one death is said to have been caused by the treatment complained of and a number were turned away. The allegation is that all of these actions by hospital personnel were racially inspired and were discriminatory, and were thereby in violation of the Hill-Burton Act, of the Civil Rights Act as well as the State and Federal Constitutions.

It is alleged by plaintiff Jones on behalf of a sub-class of indigent Navajos that the hospital refused to give emergency treatment to indigent Navajo persons and that this violated a duty of the hospital arising under its tax exempt status conferred by the Internal Revenue Code.

At the two-day hearing which was preliminary in its nature, the court heard six witnesses for plaintiffs and received four additional affidavits which dealt with the size of the class and the incidents

Page 1184

of discrimination against Navajos. Following oral arguments the court in a ruling from the bench denied the preliminary injunction as well as the prayer for declaratory relief and permanent injunction.

Reversal is sought on the following grounds:

First, that the court abused its discretion in denying the plaintiffs' application for a preliminary injunction.

Second, the court erred in dismissing the plaintiffs' demand for a permanent injunction.

Third, the court erred in denying the application for a class action.

The findings of fact and conclusions of law which were submitted by defendant were adopted by the court. These findings stated that plaintiff had failed to prove that there existed a policy in the defendant hospital to refuse emergency room treatment for hospital admissions to persons of Indian descent, either Navajo Indians or medically indigent Navajo Indians. An additional finding pronounced that the issue presented and the evidence heard were the same as those which were to be considered by the court in connection with a permanent injunction; that this was true of the failure of the plaintiffs to prove that there existed a policy of conspiracy against plaintiffs, whereby temporary injunctive relief whereby temporary injunctive relief their not being entitled to permanent injunctive relief. Still a further finding was made that the plaintiffs were not representative of the class of persons asserted in the complaint nor typical of the class asserted to exist by plaintiffs. The court proceeded to deny the temporary injunction, to dismiss the cause of actions relating to permanent injunction and, further, it denied the request that the cause proceed as a class action.

The court did not refer to the specific evidence which it relied on in connection with its findings and conclusions.

The definitive issue considered was whether there existed a policy or practice at the times in question on the part of the hospital to exclude from emergency treatment Indians or Indians of Navajo origin, by systematically referring these prople to the Shiprock Public Health Service Hospital and by refusing to give them emergency treatment and emergency examination.

Plaintiff-appellants refer to the evidence that the Board of Directors of the hospital actually voted on January 21, 1974, that Navajo persons in non-life endangering conditions seeking emergency room treatment were not to be received but were to be sent to Shiprock Public Health Service Hospital, a distance of 30 miles away. The reason for this policy, according to the minutes, was that it would be cheaper for the hospital to bear the cost of transporting the patients rather than the cost of treating them. Appellants also point to the fact that the minutes of the meetings of the Board of Directors of the hospital disclosed a consistent policy of regarding the Indians as a separate problem to be treated differently from other ethnic groups.

Two physicians from the Shiprock Hospital testified as to some cases which were referred to Shiprock from the San Juan Hospital emergency room. These patients were not given any treatment, notwithstanding that they were emergency cases and at least two of them were testified to be life endangering cases. Also, affidavits were offered signed by physicians at the Public Health Service Hospital at Shiprock stating that patients had been referred who had been given some medical care by the San Juan Hospital, but the transfer had taken place before the condition of the patient or patients had stabilized. One such patient was described as having arrived at Shiprock in cardiac arrest with severe blood loss and without having had blood replaced. This patient died the same day. Three other patients had been sent the same night. One had been seen by the doctor at San Juan and two others had been seen only by the nurse who was on duty in the emergency room.

An affidavit by a Dr. Taylor at the Shiprock Hospital attested to the fact

Page 1185

that a number of patients who had been transferred had not received medical assessment and stabilizing care before the transfer. Other affidavits of patients described similar experiences, that is, refusal of treatment without calling on a doctor to examine them. Finally, they were given treatment after their private physician was called. The log of the Shiprock Public Health Service Hospital revealed that there had been approximately 107 transfers from the San Juan Hospital to Shiprock from July 14, 1974, to the date of the hearing, November 4.

There is one other piece of evidence which is worthy of mention. One witness testified that when he went to the emergency room with a sick child the nurse took the child's temperature, then told him to read a 3 $ 5 card stating that Indian patients are urged to go to Shiprock and told him that he had to go there. 2

I.

DID THE COURT ERR IN DENYING THE PRELIMINARY INJUNCTION?

The object of the preliminary injunction is to preserve the status quo pending the litigation of the merits. This is quite different from finally determining the cause itself. See Hamilton Watch Co. v. Benrus Watch Co.,206 F.2d 738, 742 (2d Cir. 1953); 11 Wright & Miller, Federal Practice and Procedure, Sec. 2947. The burden is, of course, on the movant to establish his right to such relief. He must do so by clear proof that he will probably prevail when the merits are tried, so to this extent there is a relation between temporary and permanent relief. Crowther v. Seaborg, 415 F.2d 437 (10th Cir. 1969); Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974);...

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248 practice notes
  • 151 F.R.D. 664 (D.Kan. 1993), 92-4297-SAC, Stambaugh v. Kansas Dept. of Corrections
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • October 8, 1993
    ...at 329. The requirement of typicality dovetails into an inquiry into the adequacy of representation. See Penn v. San Juan Hospital, Inc., 528 F.2d 1181, 1189 (10th Cir.1975). Typicality insures the class representative's claims resemble the class's claims to an extent that an adequate repre......
  • 164 F.R.D. 529 (D.Kan. 1995), 88-2202-EEO, Commander Properties Corp. v. Beech Aircraft Corp.
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • December 5, 1995
    ...The typicality requirement dovetails with the Rule 23(a)(4) adequacy of representation requirement. See Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1189 (10th Cir.1975). Atypical claims potentially create antagonistic interests, which will presumably affect Commander's ability to adequatel......
  • 167 F.Supp.2d 1216 (D.Colo. 2001), Civ. A. 01-B-349, Big O Tires, Inc. v. Bigfoot 4X4, Inc.
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Colorado
    • September 26, 2001
    ...v. Williams, 731 F.2d 676, 678 (10th Cir.1984). Thus, the right to relief must be clear and unequivocal. See Penn v. San Juan Hosp., 528 F.2d 1181, 1185 (10th Cir.1975). See generally 11 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2948m at 428-29 nn. 19-21 (1973 & 1991 S......
  • 185 F.R.D. 681 (S.D.Fla. 1998), 95-2738-CIV-KEHOE, Singer v. AT & T Corp.
    • United States
    • Federal Cases United States District Courts 11th Circuit Southern District of Florida
    • March 4, 1998
    ...distinctions between the claims of the named plaintiffs and those of other class members." Id.; Penn v. San Juan Hospital, Inc., 528 F.2d 1181, 1189 (10th Cir.1975). Thus, courts have found that a strong similarity of legal theories will satisfy the typicality requirement despite subst......
  • Free signup to view additional results
248 cases
  • 151 F.R.D. 664 (D.Kan. 1993), 92-4297-SAC, Stambaugh v. Kansas Dept. of Corrections
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • October 8, 1993
    ...at 329. The requirement of typicality dovetails into an inquiry into the adequacy of representation. See Penn v. San Juan Hospital, Inc., 528 F.2d 1181, 1189 (10th Cir.1975). Typicality insures the class representative's claims resemble the class's claims to an extent that an adequate repre......
  • 164 F.R.D. 529 (D.Kan. 1995), 88-2202-EEO, Commander Properties Corp. v. Beech Aircraft Corp.
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • December 5, 1995
    ...The typicality requirement dovetails with the Rule 23(a)(4) adequacy of representation requirement. See Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1189 (10th Cir.1975). Atypical claims potentially create antagonistic interests, which will presumably affect Commander's ability to adequatel......
  • 167 F.Supp.2d 1216 (D.Colo. 2001), Civ. A. 01-B-349, Big O Tires, Inc. v. Bigfoot 4X4, Inc.
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Colorado
    • September 26, 2001
    ...v. Williams, 731 F.2d 676, 678 (10th Cir.1984). Thus, the right to relief must be clear and unequivocal. See Penn v. San Juan Hosp., 528 F.2d 1181, 1185 (10th Cir.1975). See generally 11 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2948m at 428-29 nn. 19-21 (1973 & 1991 S......
  • 185 F.R.D. 681 (S.D.Fla. 1998), 95-2738-CIV-KEHOE, Singer v. AT & T Corp.
    • United States
    • Federal Cases United States District Courts 11th Circuit Southern District of Florida
    • March 4, 1998
    ...distinctions between the claims of the named plaintiffs and those of other class members." Id.; Penn v. San Juan Hospital, Inc., 528 F.2d 1181, 1189 (10th Cir.1975). Thus, courts have found that a strong similarity of legal theories will satisfy the typicality requirement despite subst......
  • Free signup to view additional results