Carhart v. Smith

• Decision Date: 18 April 2001
• Docket Number: No. 4:01CV3007.,4:01CV3007.
• Citation: 178 F.Supp.2d 1068
• Parties: Leroy H. CARHART, M.D., Plaintiff, v. L. Dennis SMITH, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

178 F.Supp.2d 1068

Leroy H. CARHART, M.D., Plaintiff, v. L. Dennis SMITH, et al., Defendants.

No. 4:01CV3007.

United States District Court, D. Nebraska.

April 18, 2001.

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Alan G. Stoler, Jerry M. Hug, Alan G. Stoler, Omaha, NE, Simon Heller, Sherrie Russell-Brown, Maya Manian, New York City, for Plaintiff.

David R. Buntain, Andrew D. Strotman, Cline, Williams Law Firm, John C. Wiltse, Richard R. Wood, Lincoln, NE, for Defendants.

MEMORANDUM AND ORDER ON THE DEFENDANTS' MOTION TO DISMISS AND MOTION FOR A MORE DEFINITE STATEMENT

URBOM, District Judge.

This matter is before me on the defendants' Amended Motion to Dismiss and to Make More Definite and Certain, filing 39. I have considered the briefs submitted by the parties, and I find that the defendants' motion should be granted in part and denied in part as discussed below. The plaintiff shall have ten days to amend his complaint to address the deficiencies identified in this memorandum.

I. BACKGROUND

The plaintiff is a physician licensed to practice medicine in the State of Nebraska. (First Am. Compl. ¶ 3). On January 17, 2001, the plaintiff filed a complaint setting forth four claims for relief against the defendants. (Filing 1.) On March 5, 2001, the plaintiff filed his First Amended Complaint, adding a fifth claim for relief. (Filing 17.) The amended complaint alleges that the defendants denied the plaintiff's right to free speech in violation of 42 U.S.C. § 1983 (Count I), denied the plaintiff's and his patients' right to privacy in violation of 42 U.S.C. § 1983 (Count II), conspired to injure the plaintiff for his participation in a federal action in violation of 42 U.S.C. § 1985(2) (Count III), failed to prevent the conspiracy alleged in Count III in violation of 42 U.S.C. § 1986 (Count IV), and inflicted emotional and psychological harm upon the plaintiff (Count V). All of the claims for relief are grounded in the termination of the plaintiff from his volunteer faculty appointment at the University of Nebraska Medical Center (UNMC).

Also on March 5, 2001, the defendants filed a Motion to Dismiss and Make More Definite, filing 30. An Amended Motion to Dismiss and Make More Definite and Certain was filed by the defendants on March 16, 2001, to address the new claim for relief included in the plaintiff's First Amended Complaint. (Filing 39.) The plaintiff submitted a brief in opposition to the defendants' motion that was received by me on March 29, 2001.

Pursuant to FED. R. CIV. P. 12(b)(6), the defendants have moved to dismiss Counts II through V of the First Amended Complaint for failure to state a claim upon which relief can be granted. In the alternative, the defendant has moved for a more definite statement as to each of these claims for relief. FED. R. CIV. P. 12(e). The defendant has also moved for a more definite statement with respect to Count I.

II. STANDARD OF REVIEW

"[A] motion to dismiss a complaint should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986). See also Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). In resolving such motions, all well pleaded allegations in the complaint must be taken as true. Morton, 793 F.2d at 187. Furthermore, the complaint and all reasonable inferences arising therefrom must be construed in favor of the plaintiff. Id.

Rule 12(e) of the Federal Rules of Civil Procedure states in relevant part: "If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading." Motions for more definite statements are granted appropriately in only a limited number of situations, although "the judge may in his discretion ... require such detail as may be appropriate in the particular case, and may dismiss the complaint if his order is violated." Rutter v. Carroll's Foods of the Midwest, Inc., 50 F.Supp.2d 876, 887 (N.D.Iowa 1999) (quoting McHenry v. Renne, 84 F.3d 1172, 1179 (8th Cir. 1996)).

III. ANALYSIS

A. Count I

The defendants argue that the plaintiff's first claim for relief requires a more definite statement. The defects complained of by the defendant appear in ¶¶ 17 — 18 of the First Amended Complaint. Specifically, the defendants argue that additional details should be supplied regarding the constitutionally protected conduct that was allegedly the target of retaliation and the particular actions that the defendants allegedly performed to deprive the plaintiff of his First Amendment rights. In support of their argument, the defendants refer me to Kyle v. Morton High School, 144 F.3d 448, 454-57 (7th Cir.1998), wherein it was held that the plaintiff's complaint failed to give either the court or the opposing party fair notice of the speech that caused the alleged retaliation.

In response, the plaintiff refers me to ¶¶ 9 and 11 of the First Amended Complaint, wherein the plaintiff's participation in his lawsuit challenging the constitutionality of Nebraska's partial birth abortion statute is discussed, and ¶¶ 15 and 18 of the same document, wherein the defendant's decision to terminate the plaintiff is identified as the act complained of. While it is true that the First Amended Complaint does not openly and directly state that the constitutionally protected conduct relevant to Count I is the plaintiff's prior lawsuit, plain statements describing that prior lawsuit are included in the complaint. Therefore, it seems to me that the complaint is not so vague or ambiguous that the defendants could not reasonably be required to frame a responsive pleading. In Kyle, the plaintiff failed to identify the protected activity that triggered his termination even in general terms, and therefore this case is distinguishable. Kyle v. Morton High School, 144 F.3d at 457.

The defendants also argue that negligent acts cannot support a claim or relief under 42 U.S.C. § 1983, and therefore the portion of the allegation appearing in the First Amended Complaint at ¶ 17 referring to the defendants' negligent conduct must be stricken. S.S. v. McMullen, 225 F.3d 960, 964 (8th Cir.2000). Section 1983 "contains no state of mind requirement independent of that necessary to state a violation of the underlying constitutional right." Daniels v. Williams, 474 U.S. 327, 329-30, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Thus, I must look to see whether a violation of the First Amendment may be based upon a defendant's negligent conduct. S.S., which deals with a substantive due process claim, is not helpful on this point.

In Count I, the plaintiff complains that the defendants denied the plaintiff's right to free speech in violation of 42 U.S.C. § 1983 by terminating him in retaliation for his involvement in his lawsuit challenging the Nebraska partial birth abortion statute. Initially, I am not certain that it makes logical sense to argue that the defendants `negligently retaliated' against the plaintiff for his involvement in the suit. At any rate, to prevail on his claim the plaintiff must show that his speech was constitutionally protected and that it was a substantial or motivating factor in the defendants' decision to terminate his volunteer faculty appointment. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). If the plaintiff meets this burden, the defendants must then show by a preponderance of the evidence that the plaintiff would have been discharged even in the absence of the protected activity. Id. See also Hamer v. Brown, 831 F.2d 1398, 1401 (8th Cir.1987). It seems to me that this framework does not leave room for a negligence claim. I therefore agree with the defendants that to the extent the plaintiff's first cause of action is based on allegations of negligent conduct, it fails to state a claim upon which relief can be granted. However, I find that the plaintiff has otherwise properly set forth his first claim for relief, and that no more definite statement is required as to Count I.

B. Count II

The defendants first argue that the plaintiff's second claim for relief fails to state a claim upon which relief may be granted because there is no authority supporting the plaintiff's contention that he has a constitutional right to provide abortions. The plaintiff responds by referring me to two cases that discuss the physician's role in the abortion process. See City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 427, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) overruled by Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 882, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) and Colautti v. Franklin, 439 U.S 379, 387, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979).

"The Court ... has recognized, because abortion is a medical procedure, that the full vindication of the woman's fundamental right necessarily requires that her physician be given `the room he needs to make his best medical judgment.'" Akron, 462 U.S. at 427 (quoting Doe v. Bolton, 410 U.S. 179, 192, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973)). A physician's exercise of medical judgment includes implementing a woman's decision to have an abortion. Id. Thus, the physician has a central role in enabling a woman to vindicate her right to choose to undergo an abortion. Colautti, 439 U.S. at 387. In Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463, 471 (7th Cir.1998), the court noted that "[t]he constitutional right to an abortion carries with it the right to perform medical procedures that many people find distasteful or worse." In a case involving an equal protection challenge to a statute which prevented abortion providers from receiving state family-planning funds, the Eighth Circuit found that "[a]ny...