624 F.2d 612 (5th Cir. 1980), 78-2869, Downing v. Williams

Docket Nº:78-2869.
Citation:624 F.2d 612
Party Name:Lloyd L. DOWNING, M. D., Plaintiff-Appellant, v. R. Allen WILLIAMS, Superintendent, et al., Defendants-Appellees.
Case Date:August 21, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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624 F.2d 612 (5th Cir. 1980)

Lloyd L. DOWNING, M. D., Plaintiff-Appellant,


R. Allen WILLIAMS, Superintendent, et al., Defendants-Appellees.

No. 78-2869.

United States Court of Appeals, Fifth Circuit

August 21, 1980

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John A. Buckley, Texarkana, Tex., for plaintiff-appellant.

Martha H. Allan, Lonny F. Zwiener, Asst. Attys. Gen., Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before TUTTLE, AINSWORTH and SAM D. JOHNSON, Circuit Judges.

TUTTLE, Circuit Judge:

This is an appeal by a plaintiff physician from a jury verdict for the defendants in a 42 U.S.C. § 1983 suit for damages and injunctive relief in which the physician alleged that his procedural due process and first amendment rights had been violated. We reverse the judgment.

Lloyd Downing was the only staff psychiatrist at the San Angelo Center, a Texas state mental health and mental retardation facility. It appears that over the years he worked there, he had doubts about the quality of care patients were receiving at the Center. He made complaints about the facility to the Justice Department, the state of Texas, and the American Psychiatric Association. On several occasions, he wrote comments critical of patient care on the patients' medical charts. Several times he was told to bring his criticisms to the administrator of the institution, rather than speaking to staff about these problems, or writing on medical records of patients.

On May 31, 1977, R. Allen Williams, superintendent of the facility met with Dr. Downing for about six hours to discuss his conduct and to deliver a letter to him. The letter advised Dr. Downing of the concerns of Dr. Williams concerning Dr. Downing's difficulties relating with staff resulting from the written comments in medical records which Dr. Williams felt were not appropriate to a patient's treatment. Dr. Downing was told that he must follow two directives in order to continue his employment at the Center. These directives were:

1. You will immediately cease editorializing through unusual and uncustomary statements in the clinical records of the clients of this facility.

2. I will insist that you follow administrative channels to state your personal concerns regarding staff and programs in lieu of editorializing in the clinical records.

On June 16, 1977, a patient at the San Angelo Center suffered cardiac arrest and had to wait approximately 45 minutes for an ambulance. Dr. Downing made the following entries on the patient's chart:

No suction

No resusc. equipment

No emergency ambulance available

Gross neglect

Would have to suction by mouth (emphasis in original.)

He also referred the incident to the acting superintendent and to a doctor on the Quality Review Committee.

Four days later, Dr. Williams met again with Dr. Downing and told him that the June 16 entries were in violation of the May 31 directives and gave him a letter telling him he was fired. The letter explained that his termination was due to "deliberate insubordination" which had destroyed his effectiveness to relate to other staff. See note 11, infra.

After the termination Dr. Downing asked for an administrative hearing. What he was offered was a hearing before the grievance committee under the Rules of the Commissioner of the Texas Department of Mental Health and Mental Retardation. He did not pursue the opportunity for such a hearing.

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In his complaint, Dr. Downing alleged that his procedural due process rights under the fourteenth amendment of the United States Constitution were violated because he was never properly confronted with the factual charges against him, offered an opportunity to be heard in his defense, or afforded other basic procedural rights. He also charged that the May 31 letter restricted his first amendment rights and that he was fired for exercising those rights. He sued the defendants in their individual and official capacities. 1 He sought an injunction requiring the defendants to reinstate him and barring them from firing him for the exercise of his first amendment rights and without providing him due process. He also requested damages for loss of earnings during the period he was fired.

At trial, on the basis of special verdicts the jury found that Dr. Downing was dismissed with good cause; 2 that he was provided with written notice of the reasons for his dismissal and an effective opportunity to respond to the charges before his superiors; 3 that he waived his rights to notice and a conference before his superiors; 4 that the grievance procedure did provide Dr. Downing with an effective opportunity to respond before an impartial decision maker 5 and that Downing waived that right also. 6 The jury was also provided with instructions as to how the court viewed the applicable law. 7 The trial judge

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concluded that there was sufficient evidence to support all of what he described as "the jury's findings of fact in this case." He therefore ruled that all the "prerequisites of Constitutional due process were afforded to the plaintiff" and that his rights of free speech were not violated. It is from that judgment that Dr. Downing appeals.

In this appeal, Dr. Downing raises the same two issues he raised at trial the procedural due process issue and the first amendment issue. The state argues here that a suit for damages against these defendants in their official capacity is a suit against the state of Texas and is barred by the eleventh amendment to the United States Constitution. We will examine each of these issues in turn.


Procedural Due Process Claims 8

As a preliminary matter, we note that we are not bound by the jury's findings that Dr. Downing was provided, prior to his dismissal, with adequate written notice and an opportunity to respond to his superiors, or its finding that he waived that right, if the jury finding was wrong as a matter of law. Likewise, we are not bound by the jury's determination that the grievance procedure provided for a hearing before an impartial decision maker, or that Dr. Downing waived this right. While a jury can certainly determine contested issues of fact, it cannot make determinations of law, such as whether Dr. Downing "waived" his rights, or was provided "adequate" notice. These determinations of how constitutional standards are to be applied to the case at hand can only be made by the judge since they are questions of law. Cf. Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935).

We are faced here with two procedural due process issues related to the termination of Dr. Downing's employment. First, we must examine whether such pre-termination procedures as are required were implemented in this case, and whether Dr. Downing waived those procedures. Second, we must examine the post-termination procedures provided to Dr. Downing and decide whether he waived his right to them also.

The procedural safeguards embodied in the fifth and fourteenth amendments "have their historical origins in the notion that conditions of personal freedom can be preserved only when there is some institutional check on arbitrary governmental action." Tribe, American Constitutional Law 501 (1978). These safeguards have been applied to give any individual "the right to be heard before being condemned to suffer grievous loss of any kind 9" as a result of governmental actions which affect the range of interests defined as "life," "liberty,"

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or "property" under the fifth and fourteenth amendments. 10

It is clear that the existence of a legitimate property or liberty interest is a prerequisite to the examination of any claimed threat of due process. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Thurston v. Dekle, 531 F.2d 1264, 1271 (5th Cir. 1976), vacated on other grounds 438 U.S. 701, 98 S.Ct. 3118, 57 L.Ed.2d 1144 (1978). In this case, Dr. Downing was a non-probationary governmental employee. Since he had an expectation of continued employment, it is undisputed by either side here that his employment, a property right, could not be taken away without compliance with the requirements of procedural due process. Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970).

Having determined that Dr. Downing had a cognizable procedural due process claim, we must examine what procedures had to be accorded to him before he could be terminated. In Thurston v. Dekle, 531 F.2d 1264 (5th Cir. 1976), this Court said that

(w)here a governmental employer chooses to postpone the opportunity of a nonprobationary employee to secure a full-evidentiary hearing until after dismissal, risk reducing procedures must be accorded. These must include, prior to termination, written notice of the reasons for termination and an effective opportunity to rebut these reasons. Effective rebuttal must give the employee the right to respond in writing to the charges made and to respond orally before the official charged with the responsibility of making the termination decision.

Id. at 1273 (footnotes omitted.) See also Glenn v. Newman, 614 F.2d 467 (5th Cir. 1980).

In this case, Dr. Downing was given a letter informing him of the reasons he was fired. 11 This letter was given to Dr. Downing

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at the end of a conference with Dr. Williams, at which Dr. Williams attempted to discuss the June 16 statements in the medical records with Dr. Downing and Dr. Downing refused to discuss them. Dr. Williams testified that before Dr. Downing came to the meeting, an agreement had been reached that if Dr...

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