Jackson v. Conway, 79-1779

• Decision Date: 08 May 1980
• Docket Number: No. 79-1779,79-1779
• Citation: 620 F.2d 680
• Parties: Earl JACKSON et al., Appellants, v. James F. CONWAY et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 680

620 F.2d 680

Earl JACKSON et al., Appellants, v. James F. CONWAY et al., Appellees.

No. 79-1779.

United States Court of Appeals Eighth Circuit.

Submitted March 14, 1980.

Decided May 8, 1980.

William P. Russell, St. Louis, Mo., for appellants; Joseph S. McDuffie, St. Louis, Mo., on brief.

James J. Wilson, Asst. City Counselor, and Anne Travis Shapleigh, Asst. U. S. Atty., St. Louis, Mo., for appellees; Robert D. Kingsland, U. S. Atty., St. Louis, Mo., on brief.

Jack L. Koehr, City Counselor, and Thomas J. Ray, Asst. City Counselor, St. Louis, Mo., on brief, for appellees, Conway, et al.

Peter H. Ruger, Gen. Counsel, Washington University, St. Louis, Mo., on brief, for appellee, Washington University.

David R. Spitznagel, Gen. Counsel, Clayton, Mo., on brief, for appellee, Institute of Medical Ed. and Research.

Before BRIGHT, ROSS and ARNOLD, Circuit Judges.

PER CURIAM.

This class action was initiated on August 8, 1979, by several black, and older persons, living on the north side of the city of St. Louis, and others, for declaratory and injunctive relief against the Mayor, the Commissioner of Health, and other officers of the city of St. Louis; the Secretary of Health, Education and Welfare (HEW); St. Louis and Washington Universities, and other defendants. The purpose of the suit was to enjoin the closing of Homer G. Phillips Hospital (Phillips) in a predominantly black section of St. Louis, and to prevent the moving of equipment from that facility to the other city hospital in South St. Louis. Plaintiffs also asked that the court ¹ enjoin the Secretary of HEW from granting additional federal financial assistance to the hospitals of the city of St. Louis because of the alleged racial discrimination resulting from the closing of Phillips and for other related relief.

On August 17, 1979, an amended complaint was filed, including a request for a preliminary injunction. ² Hearings were held August 27 to 30, 1979, and on September 5, 1979, the district court denied the motion for preliminary injunction against all defendants and stayed further proceedings pending the administrative determination of the merits of plaintiffs' complaint by HEW. Plaintiffs then brought this appeal. We affirm the judgment of the trial court in large measure upon portions of the factual determinations and legal reasoning of the trial court as hereinafter set forth.

Although the district judge expressed some reservations as to whether plaintiffs had standing to maintain their claims, he determined that "given the nature of the right asserted and the necessity of proceeding on the merits to determine the nature and extent of the injury alleged, plaintiffs have alleged sufficient injury to satisfy the concept of standing."

As to the interim relief requested against HEW, the trial court noted that an investigation was pending and urged the Secretary to proceed with all deliberate speed in checking the allegations in accordance with applicable regulations. Under these circumstances, the trial court was clearly correct in denying any injunctive relief against the Secretary. We assume the investigation is proceeding without undue delay and that the findings of HEW will be available to the trial court in making its final determination on the merits of the case.

As to the request for temporary relief against the city defendants, the trial court noted that emergency services were still available at Phillips; that the consolidation of the two hospitals, including the transfer of patients, was substantially completed at the time of the hearing, and that no request had been made earlier for a temporary restraining order. The district judge went on to hold that the plaintiffs had not made a showing of probable success on the merits or irreparable injury and denied the motion for what he referred to as a "mandatory injunction" reasoning that if the relief requested was granted, it would involve restaffing, equipping and reopening Phillips.

In determining that plaintiffs have not thus far made a clear showing of probable success on the merits, the trial judge made the following findings:

At most plaintiffs have shown that the distance or proximity of obtaining acute in-patient and weekend emergency room services and certain out-patient services has been increased for a substantial but uncertain percentage of northside St. Louis area residents.

The court further found that:

In the opinion of this Court there is no evidence that any plaintiff has suffered such an impediment through the proximity of acute in-patient health care, weekend emergency room services, and certain out-patient care at consolidated City Hospital No. 1, that it was in effect a denial of such care. With respect to the above question, the Court accepts the plaintiffs' testimony that certain isolated incidents occurred during the turbulent consolidation period which delayed needed treatment. * * * Furthermore, this Court finds no reason to believe such incidents will occur in the future considering the attendant circumstances. Plaintiffs have not shown nor alleged that they have been refused or denied treatment at City Hospital No. 1. The testimony regarding available transportation is disputed. The lineal distance from Phillips to City Hospital No. 1 is just over three and one-quarter (31/4) miles. Phillips is in a rather inaccessible location, however, with respect to traffic flow. City furnished ambulances can make the trip in approximately nine (9) minutes given good driving conditions. Many plaintiffs rely on public transportation for access to the hospitals,...