Lucero v. Trosch

• Citation: 121 F.3d 591
• Decision Date: 08 September 1997
• Docket Number: No. 95-6326,95-6326
• Parties: , 11 Fla. L. Weekly Fed. C 520 Bruce LUCERO, M.D., New Woman All Woman Health Care, Plaintiffs-Appellees-Cross-Appellants, v. David TROSCH, Father, Defendant, Minzor Chadwick, David Lackey, Kathleen McConnell, John Edwin Williams, Eleanor Stisher, Defendants-Appellants-Cross-Appellees, Chris Harding, Deputy United States Marshal, Movant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 591

121 F.3d 591

38 Fed.R.Serv.3d 820, 11 Fla. L. Weekly Fed. C 520

Bruce LUCERO, M.D., New Woman All Woman Health Care, Plaintiffs-Appellees-Cross-Appellants, v. David TROSCH, Father, Defendant,

Minzor Chadwick, David Lackey, Kathleen McConnell, John

Edwin Williams, Eleanor Stisher,

Defendants-Appellants-Cross-Appellees,

Chris Harding, Deputy United States Marshal, Movant.

No. 95-6326.

United States Court of Appeals, Eleventh Circuit.

Sept. 8, 1997.

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

Before ANDERSON and COX, Circuit Judges, and RONEY, Senior Circuit Judge.

ANDERSON, Circuit Judge:

This abortion protest case comes to us on an appeal of the district court's order granting, in part, plaintiffs' application for a preliminary injunction. Plaintiffs Dr. Bruce Lucero and New Woman All Women Health Care brought this action against several abortion protesters under the Freedom of Access to Clinic Entrances Act of 1994 ("FACE"), 18 U.S.C.A. § 248. Plaintiffs also raised supplemental state law claims under Alabama nuisance law. See Ala.Code § 6-5-120 et seq. The district court denied plaintiffs' application for a preliminary injunction on the FACE claim, but granted their application for a preliminary injunction on the nuisance claim. Both parties appealed. The following issues are raised on appeal: (1) whether the district court abused its discretion in failing to dismiss plaintiffs' state law nuisance claim after the court denied plaintiffs' application for a preliminary injunction on their federal FACE claim; (2) whether the district court abused its discretion in issuing the preliminary injunction on the basis of plaintiffs' Alabama nuisance claim; and (3) whether the preliminary injunction unconstitutionally infringes on the protesters' First Amendment rights. ¹ We affirm in part, vacate in part, and remand this case to the district court.

I. FACTS

Dr. Lucero is a doctor who performed various reproductive health services, including abortions, at the New Woman All Women Health Care clinic ("the Clinic") in Birmingham, Alabama. In his complaint, he alleged that defendants Minzor Chadwick, David Lackey, Kathleen McConnell, John Edwin Williamson, and Eleanor Stisher (collectively "defendants") exceeded the bounds of lawful protest in their opposition to abortion. ² Plaintiffs seek injunctive relief and monetary damages.

The conduct of defendants which gave rise to the preliminary injunction can be broken down into several functional categories. ³ First, defendants regularly protested outside the Clinic. They began their protests at the Clinic's previous location and continued when it moved to its present location. ⁴ Defendants generally positioned themselves in front of the Clinic and persistently voiced religious appeals to the Clinic's staff and patients. They often shouted in voices loud enough to be heard inside the Clinic. The district court found that defendants' shouting created unwarranted and disturbing noises during periods of surgery inside the Clinic.

Second, defendants delayed patients arriving in cars in defendants' attempts to foist literature on the patients. For example, the Third, the district court found that defendants had protested at Dr. Lucero's house. According to Dr. Lucero, these residential protests were quite loud and caused him to feel intimidated. Similarly, the district court found that defendants had, on occasion, followed Clinic staff members home and attempted to explain their religious objections to the Clinic's work. On at least one occasion, a defendant followed a Clinic staff member inside her apartment building to its security elevator.

district court found that defendant Chadwick would, on occasion, hold up his hand and signal for cars to stop. If the car's occupant objected, Chadwick would move out of the way, but only after he had caused a delay. The district court specifically found that much of this conduct was disturbing to the Clinic's staff and patients. Further, the court found that defendants' conduct, both with respect to patients arriving by foot and by car, left several patients in tears and delayed their entries into the Clinic.

Finally, the district court highlighted two incidents. First, it found that defendant Lackey told Mrs. Lucero, Dr. Lucero's wife: "Now that we know where you live, we will return." Lackey may have also suggested that Mrs. Lucero should feel scared because of his return, but the district court noted that it was unable to make a finding of fact as to such statement. Second, the district court stated: "The primary incident involving [defendant] Williamson is one related to blocking of Dr. Lucero as he attempted to leave the clinic. The court cannot determine the truth of this situation from the evidence." The district court found that this incident "caused a conflict and could have resulted in injury to one or more of the participants."

With respect to all of its factual determinations, the court found that defendants' conduct consistently and repeatedly inconvenienced patients and staff members and that defendants' conduct was harassing and materially annoying. The court found that defendants' conduct constituted a nuisance (District Court Opinion at 16). It could not find, however, that defendants had used force or threat of force. (Id. at 11-12). Although the court concluded that each defendant had slightly restricted the freedom of movement of Clinic patients and staff, it could not find that defendants had "physically obstructed" them. (Id. at 12).

After the two-day hearing, the district court issued a preliminary injunction as to the nuisance claim, stating that the court had considered the Supreme Court's guidance in Madsen v. Women's Health Center, Inc., 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). The preliminary injunction is reproduced in the appendix to this opinion. However, the district court denied plaintiffs' application for a preliminary injunction on the FACE claim on the ground that they failed to demonstrate a substantial likelihood of success on the merits. This appeal ensued.

After oral argument had been heard in this appeal, it came to this court's attention that Dr. Lucero had sold the Clinic and that he and his family are no longer living in Alabama. In light of these developments, this court sua sponte raised the issue of the possible mootness of the claim for injunctive relief and requested supplemental briefing from the parties. This supplemental briefing revealed considerable confusion on the issue of mootness, including confusion about what type of corporate entity New Woman All Women Health Care is and whether the entity is a party to this lawsuit. Because of this confusion, we ordered a limited remand to the district court for the purpose of conducting an inquiry into the possibility that the claim for injunctive relief is moot.

On remand, the district court conducted a hearing at which some critical facts were established; however, the district court did not resolve the mootness issues. ⁵ Instead, the district court made the following findings of fact. This lawsuit was initiated by Bruce Lucero, M.D., as an individual, and by "New Woman All Women Health Care." Bruce A. Lucero, M.D.P.C., Dr. Lucero's professional corporation, was doing business as New Woman All Women Health Care, but was not a party to this lawsuit. The business name The evidence presented to the district court revealed that the president and majority shareholder of All Women's, Inc. is Ms. Diane Derzis. Derzis testified at the hearing that All Women's, Inc. has continued to operate the Clinic under the name "New Woman All Women Health Care." She further testified that All Women's, Inc. bought all of the assets of the entity that Bruce A. Lucero, M.D.P.C., operated as New Woman All Women Health Care, including the business' name and goodwill. Derzis testified that the Clinic continues to provide abortion services at the same location and employs many of the same employees, although there are different doctors providing the abortion services. Derzis testified that the protections of the preliminary injunction issued by the district court were "central" to her decision that All Women's, Inc. should buy the entity operated as New Woman All Women Health Care. She explained in her testimony that she believed that New Woman All Women Health Care, as a legal entity, was a party to this lawsuit.

"New Woman All Women Health Care" is stated in the complaint as a party plaintiff to this action, but as a legal entity, it is not a party plaintiff. Dr. Lucero and his immediate family no longer reside in Alabama, nor do they own or operate the entity known as New Woman All Women Health Care. Bruce A. Lucero, M.D.P.C., sold all of the assets of the entity operated as New Woman All Women Health Care to All Women's, Inc., a corporation, on October 1, 1996, approximately six months after oral argument had been heard in this appeal.

II. DISCUSSION

A. Effect of Dr. Lucero's Sale of the Clinic

Because Dr. Lucero and his family no longer reside in Alabama and no longer own or operate the Clinic, any claims for injunctive relief are moot as to them. However, Dr. Lucero's claim for monetary damages is not moot. See Deakins v. Monaghan, 484 U.S. 193, 201-202, 108 S.Ct. 523, 529, 98 L.Ed.2d 529 (1988); University of Texas v. Camenisch, 451 U.S. 390, 397-398, 101 S.Ct. 1830, 1835, 68 L.Ed.2d 175 (1981); McKinnon v. Talladega County, 745 F.2d 1360, 1362 (11th Cir.1984); Forbes v. Arkansas Educ. Television Communication Network Found., 982 F.2d 289, 290 (8th Cir.1992).

Although there has been no formal joinder of All Women's, Inc. (the new owner of New Woman All Women Health Care) as a party plaintiff, the testimony of Ms. Diane Derzis before the district court makes it clear that she understood that All Women's, Inc. was buying the entire business operated as New Woman All Women Health...