Daly v. Sprague
| Decision Date | 14 May 1982 |
| Docket Number | No. 81-1237,81-1237 |
| Citation | 675 F.2d 716 |
| Parties | 3 Ed. Law Rep. 845 David D. DALY, M.D., Ph.D., Plaintiff-Appellant, v. Charles C. SPRAGUE, M.D., et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Winikates & Curtis, Charles J. Winikates, Dallas, Tex., for plaintiff-appellant.
Laura S. Martin, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Texas.
Before THORNBERRY, REAVLEY and RANDALL, Circuit Judges.
Plaintiff, David Daly, M.D., appeals from summary judgment granted in favor of Charles C. Sprague, M.D., Frederick Bonte, M.D., Roger N. Rosenberg, M.D., the Board of Regents of the University of Texas and Regents Howard Richards, Dan Williams, Jon Newton, James Powell, Thomas Law, Walter Sterling, Jess Hay, Jane Blumberg and Sterling Fly (collectively the "Defendants"). Daly had brought suit pursuant to 42 U.S.C. §§ 1983, 1985 and 1986 alleging that removal of his clinical privileges as a faculty member of Southwestern Medical School violated his first amendment rights to freedom of speech and association and his fourteenth amendment rights to procedural due process and equal protection under the law. Jurisdiction was predicated on 28 U.S.C. §§ 1331 and 1343. The district court entered summary judgment for the Defendants, finding that Daly had failed to state any claim upon which relief could be granted. We hold that the granting of summary judgment as to Daly's claim of infringement of his first amendment rights was improper because the district court wholly failed to consider this claim. As a matter of law we remand the case for consideration of this issue.
David Daly was at the time of the incident giving rise to this action a tenured professor in the Department of Neurology (the "Department"), at the Southwestern School of Medicine (the "Medical School"), a component of the University of Texas Health Sciences Center (the "Center"), which is a branch of the University of Texas System. His duties included giving lectures to medical students, interns, and residents at the Medical School and consulting with and treating neurological patients at the Center.
Defendant Roger M. Rosenberg, Chairman of the Department, was Daly's immediate supervisor at the Medical School. Defendant Charles C. Sprague was President of the Medical School; defendant Frederick J. Bonte was Dean of the Medical School original defendant Michael Blaw was Vice-Chairman of the Department. 1
In June, 1979 Daly's wife became ill. On June 18, 1979, Daly informed Sprague of his wife's illness and the need for Daly to care for her. On June 22 he informed Sprague's secretary that it was necessary that he absent himself from his hospital duties to be with his wife who was to be hospitalized in another city.
During that same period of time Bonte attempted to schedule a meeting with Daly to discuss his duties as a faculty member. Daly, because of his wife's illness, cancelled several appointments. Daly and Bonte finally met on June 29. Bonte informed Daly that Daly's clinical privileges as a faculty member had been removed by Rosenberg on June 26, 1979, a decision in which Sprague and Bonte concurred. Bonte informed Daly that this decision had been communicated to Daly in a June 26 letter 2 from Rosenberg (which Daly had not yet received). Bonte and Daly did not discuss the exact implications of the removal of the clinical privileges; 3 Bonte referred Daly to Rosenberg. Daly then immediately went to Rosenberg, requested and received a leave of absence (from June 29, 1979 to July 10, 1979). Daly, however, failed to discuss reasons for removal of his clinical privileges with Rosenberg.
Daly returned from leave on July 10. On that date and again on July 16, he wrote Rosenberg concerning the removal of his clinical privileges, stating in the July 10th letter:
Your letter of 26 June causes me great anguish. Removal of clinical privileges without specific charges, investigation and hearing has impugned my good name and may seriously impair my ability to care for my patients. Please provide me with copies of the University of Texas regulations relating to clinical privileges, removal, etc. I believe I have been deprived of due process.
and in the July 16th letter:
At no time recently have you discussed with me or expressed any concern to me about my professional activities. Your only written communication to me has been your letter dated June 26, removing my clinical privileges; that instrument contained neither explanation nor justification for that extreme act. In the meeting of June 29, Dean Bonte indicated that he was aware of the contents of your letter but declined to discuss them and indicated that he saw no reason for future meetings between him and me. When I returned from leave on July 10 and read your letter, your unavailability left no recourse but to meet with President Sprague for interpretation of this action. President Sprague indicated that I was a University employee and thus prohibited from communicating with any patients.
At some time after July 10th, Daly spoke to Sprague concerning the loss of privileges and, according to Daly, Sprague told him not to communicate with any of his patients. Daly has alleged that during the week of July 11-17, 1979, as a result of Sprague's ultimatum, he was forced to cancel a consultation with an out-of-town physician concerning a seriously ill patient in Dallas and that he could not communicate with at least two other patients.
On July 17, 1979, Rosenberg replied to Daly's letters:
I returned yesterday from a week-long trip out of town and read for the first time your letters dated July 10 and July 16, 1979. I can appreciate your concern in having your clinical privileges as a faculty member in this department being removed. This was a proper step which had to be taken by Dr. Bonte and myself because of your unavailability and inability to function for an uncertain period. You indicate in your two letters that you are now prepared to return to full-time clinical and academic activities and therefore with the concurrence of President Sprague, I return to you your full clinical and professional privileges as a faculty member in this medical school.
Daly's clinical privileges were restored on July 17, 1979.
On August 31, 1979, Daly filed suit in the District Court for the Northern District of Texas alleging that the Defendants had, in the removal of his clinical privileges, deprived him of liberty and property without due process in violation of the fourteenth amendment and had, through Sprague's order forbidding communication with patients, violated Daly's first amendment rights to freedom of speech and association.
Daly's inclusion in his suit of the members of the University of Texas Board of Regents (the "Regents") was based on the allegation that they failed to "direct govern and operate the University of Texas Health Science Center at Dallas in a manner conforming to law...."
The suit languished for nearly a year. Efforts at settlement failed. On August 27, 1980, the Defendants filed a Motion To Dismiss Or For Summary Judgment (hereinafter "Motion for Summary Judgment"). Daly's counsel then withdrew; and Daly hired new counsel who requested additional time for discovery. The motion for additional time was granted. Daly on December 5, 1980, requested discovery relating to events occurring after the suit was filed. That motion was denied by a magistrate on December 8, 1980, and affirmed by the district court on January 5, 1981. Discovery was once again extended and finally completed on January 20, 1981. Trial was set for February 9, 1981. On January 20, 1981, Daly attempted to amend his complaint; the motion to amend was denied. 4 Defendants then amended and reurged their Motion for Summary Judgment, claiming that Daly had failed to allege facts sufficient to show a cause of action; they specifically asserted that Daly alleged no property interest of which he had been deprived, that he had not shown deprivation of a liberty interest, that there had been no damage to reputation, that he had failed to demonstrate that he had been forced to abandon any patients, that the University of Texas Board of Regents collectively and individually were not liable in this § 1983 action and that any complaint for damages was barred as to the Defendants by the eleventh amendment because Texas, rather than the individual defendants, was the real party in interest.
The district court, after a hearing on February 9, 1981, granted the Motion For Summary Judgment 5 finding that
The undisputed facts show ... on June 26, 1979, (Daly) was informed by letter that his clinical privileges had been suspended. 6 On July 17, 1979, his clinical privileges were fully restored at his request. It also is undisputed that plaintiff did not suffer any loss of income or status as a result of his suspension, nor were his teaching privileges or his research privileges effected. Further, it is without dispute that (Daly) left town on June 22, 1979, and on June 29, 1979, while out of town and prior to receiving the letter suspending his privileges, he sought a leave of absence until July 11, 1979. Additionally, defendants did not communicate the suspension of plaintiff's clinical privileges to anyone but plaintiff, although plaintiff did tell other people of his suspension.
From this factual basis the district court concluded that "(n)one of the allegations of plaintiff's complaints are factually supported so as to state a claim for relief under §§ 1983, 1985 or 1986 and, thus are not able to survive the defendant's motion." 7
The district court amplified its conclusion by reciting several of Daly's allegations and then ruling on each. According to the court, one loss alleged by Daly, the loss of his right and ability to treat patients, did...
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