Lucero v. Operation Rescue of Birmingham

• Decision Date: 05 February 1992
• Docket Number: No. 91-7685,91-7685
• Citation: 954 F.2d 624
• Parties: Bruce LUCERO, M.D., and Jane Doe(s), being fictitious names, real names of said plaintiffs being withheld to protect their privacy, said fictitious names being intended to designate present and prospective patients and staff members of Dr. Lucero, Plaintiffs-Appellants, v. OPERATION RESCUE OF BIRMINGHAM, Birmingham Rescue Mission, Randall Terry, Joseph Foreman, James Pinto, Leonard Gavin, John Michael Vice, Bill Stamp, Doug Scofield, Scott Houser, and all other individuals, associations and organizations whose names or legal identities are otherwise unknown to plaintiffs at this time, with whom they have conspired and acted in concert to deprive plaintiffs of their rights, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 624

954 F.2d 624

Bruce LUCERO, M.D., and Jane Doe(s), being fictitious names real names of said plaintiffs being withheld to protect their privacy, said fictitious names being intended to designate present and prospective patients and staff members of Dr. Lucero, Plaintiffs-Appellants, v. OPERATION RESCUE OF BIRMINGHAM, Birmingham Rescue Mission Randall Terry, Joseph Foreman, James Pinto, Leonard Gavin John Michael Vice, Bill Stamp, Doug Scofield, Scott Houser and all other individuals, associations and organizations whose names or legal identities are otherwise unknown to plaintiffs at this time, with whom they have conspired and acted in concert to deprive plaintiffs of their rights, Defendants-Appellees.

No. 91-7685.

United States Court of Appeals, Eleventh Circuit.

Feb. 5, 1992.

Rehearing and Rehearing En Banc

Denied April 16, 1992.

Alan Pollack, Pollack & Green, New York City and David Elliott Hodges, Fligel & Hodges, Birmingham, Ala., for plaintiffs-appellants.

Albert Jordan, Wallace, Brooke & Byers, Birmingham, Ala., for Scott Houser.

Michael J. Evans, Longshore, Evans & Longshore and Kimberly R. West, Scofield, West & French, Birmingham, Ala., for Rev. James Pinto.

Donald LeMar Collins, Birmingham, Ala., for Bill Stamp.

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

Before TJOFLAT, Chief Judge, KRAVITCH and EDMONDSON, Circuit Judges.

TJOFLAT, Chief Judge:

Plaintiffs appeal from an order ¹ denying their application for preliminary injunction ² in the Northern District of Alabama. The complaint accompanying plaintiffs' motion for a preliminary injunction alleges that defendants had conspired (1) to deny plaintiff Dr. Bruce Lucero's "patients who are seeking abortions, family planning counselling, and gynecological services, the equal protection of the laws and the privileges and immunities guaranteed under the law," and (2) "to deprive Dr. Lucero's patients of their right to travel," both in violation of 42 U.S.C. § 1985(3) (1988). ³ The complaint further asserts that defendants were "motivated by an invidiously discriminatory animus directed at women who seek the services of Dr. Lucero, as a provider of abortions and related medical services." The district court, upon an evidentiary hearing, concluded that it lacked subject matter jurisdiction and denied plaintiffs' application. Although we find that the district court had jurisdiction to entertain the application, we affirm because plaintiffs have failed to satisfy the requirements for the issuance of a preliminary injunction.

I.

Plaintiff Dr. Lucero is a gynecologist in Birmingham, Alabama, who provides his patients with general gynecological services, including pregnancy and blood testing, prescriptions for birth control, family counseling, and abortions. Dr. Lucero sues on behalf of himself and of his patients. Purportedly, plaintiff Jane Doe represents one or more of Dr. Lucero's patients.

Defendants Operation Rescue of Birmingham and Birmingham Rescue Mission are unincorporated associations affiliated with Operation Rescue, an unincorporated association whose members oppose abortion and its legalization. Defendants Randall Terry, Joseph Foreman, James Pinto, Leonard Gavin, William Stamp, Doug Scofield, and Scott Houser are alleged to have organized and coordinated, and defendants Operation Rescue of Birmingham, Birmingham Rescue Mission, and Michael Vice to have participated in, so-called "rescues." According to the district court, "[a] rescue consists of a large number of people physically placing their bodies between the doors of facilities where abortions are performed and those seeking to gain entrance to the facility." 772 F.Supp. at 1196. The facilities of plaintiff Dr. Lucero have been the object of at least five so-called rescues, including one on March 2, 1991. 772 F.Supp. at 1197. The district court found that "[a]s a result of rescues conducted at Birmingham area abortion facilities, patients and staff of various facilities have been denied entrance to the facility for substantial periods of time until the Birmingham police aid their entry." 772 F.Supp. at 1196. More specifically, the district court found that the so-called rescue at plaintiff Dr. Lucero's clinic on March 2

was significantly violent and resulted in some physical injuries of Clinic workers and police officers. The rescue traumatized and caused mental anguish to the Clinic's patients and workers. The activities of the rescue protesters were violent and intentionally went beyond protected peaceful First Amendment activity.

772 F.Supp. at 1197-98 (footnote omitted).

After conducting an evidentiary hearing, the district court held that it lacked subject matter jurisdiction to entertain plaintiffs' application for preliminary injunction under section 1985(3). Acknowledging that it would have jurisdiction to entertain a "properly stated claim under § 1985(3)," 772 F.Supp. at 1207 n. 43, the district court also concluded that, assuming jurisdiction, "all of the requirements for preliminary injunction relief have been satisfied." 772 F.Supp. at 1199.

We disagree with the district court on both counts and hold, first, that the district court had jurisdiction to entertain plaintiffs' application for preliminary injunction, and, second, that plaintiffs failed to state a claim under section 1985(3). We nevertheless affirm the district court's denial of plaintiffs' application for preliminary injunction because plaintiffs failed to carry the burden of persuasion on one of the requirements for the issuance of a preliminary injunction: substantial likelihood of success on the merits.

II.

A.

We review a district court's denial of an application for preliminary injunction under an abuse of discretion standard. Tally-Ho, Inc. v. Coast Community College District, 889 F.2d 1018, 1022 (11th Cir.1990). We adopt the district court's findings of fact unless clearly erroneous, but review jurisdictional questions de novo. See Mobil Oil Corp. v. City of Long Beach, 772 F.2d 534, 538 (9th Cir.1985); see also United States v. Alabama, 791 F.2d 1450 (11th Cir.1986), cert. denied sub nom. Board of Trustees of Alabama State University v. Alabama State Board of Education, 479 U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d 144 (1987).

The district court clearly had jurisdiction to entertain plaintiffs' section 1985(3) claim. As the Supreme Court explained in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946),

where the complaint, as here, is so drawn as to seek recovery directly under the Constitution or laws of the United States, the federal court, but for two possible exceptions ... must entertain the suit.

... The ... exceptions are that a suit may sometimes be dismissed for want of jurisdiction where the alleged claim ... clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.

Id. at 681-83, 66 S.Ct. at 776.

The complaint in this case sought recovery under a law of the United States, 42 U.S.C. § 1985(3) (1988). The district court nowhere indicated that either exception applied in this case. As we find both exceptions inapplicable, we hold that the district court had jurisdiction over plaintiffs' section 1985(3) claim.

B.

"To prevail on [their] motion for a preliminary injunction, [plaintiffs] ha[ve] the burden of proving: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury; (3) [their] own injury outweighs the injury to [defendants]; and (4) the injunction would not disserve the public interest." Tally-Ho, 889 F.2d at 1022. Plaintiffs failed to establish a substantial likelihood of success on the merits because they did not state a claim under section 1985(3). In particular, plaintiffs failed to identify "some racial, or perhaps otherwise class-based, invidiously discriminatory animus" behind defendants' actions, as required under Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971).

The elements of a cause of action under section 1985(3) are "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States." United Brotherhood of Carpenters & Joiners of America, Local 610 v. Scott, 463 U.S. 825, 828-29, 103 S.Ct. 3352, 3356, 77 L.Ed.2d 1049 (1983). More specifically, the second element requires a showing of "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Id. at 829, 103 S.Ct. at 3356 (quoting Griffin, 403 U.S. at 102, 91 S.Ct. at 1798). ⁴

Plaintiffs alleged in their complaint that defendants' actions were motivated by "an invidiously discriminatory animus directed at women who seek the services of Dr. Lucero, as a provider of abortions and related medical services." In contrast, the district court found, as a matter of fact, that "[t]he animus is directed at the practice of abortion and the concept that its practice is legal.... The animus is against the principle that it is morally and legally right to abort a fetus." 772 F.Supp. at 1205 n. 37. The court also found that defendants' animus targeted neither "women as a group" nor "pregnant women," id., but that "[t]he activity challenged ... is clearly directed at that class of women seeking to exercise their fundamental and constitutional right to obtain an abortion and those persons who would aid them in doing so." Id. at 1196.

Although the court did not explicitly find that defendants did not display the animus specified in the complaint, its finding of an animus other than that alleged in the complaint...