Perdomo v. Jackson Memorial Hosp.

• Decision Date: 27 December 1983
• Docket Number: No. 83-881,83-881
• Citation: Perdomo v. Jackson Memorial Hosp., 443 So.2d 298 (Fla. App. 1983)
• Parties: Bernardo Carlos PERDOMO, Appellant, v. JACKSON MEMORIAL HOSPITAL, Public Health Trust, etc., Jane Chatfield, Jay Weinstein, John Doe Insurance Company, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 298

443 So.2d 298

Bernardo Carlos PERDOMO, Appellant, v.JACKSON MEMORIAL HOSPITAL, Public Health Trust, etc., Jane Chatfield, Jay Weinstein, John Doe Insurance Company, etc., et al., Appellees.

No. 83-881.

District Court of Appeal of Florida Third District.

Dec. 27, 1983.

Kathleen Phillips, Coral Gables, and Joel V. Lumer, Miami, for appellant.

Robert A. Ginsburg, County Atty. and Teresa L. Mussetto, Asst. County Atty., for appellees.

Before SCHWARTZ, C.J., and BARKDULL and JORGENSON, JJ.

PER CURIAM.

The appellant appeals from a final order dismissing his third amended complaint with prejudice.The order reads in pertinent part as follows:

"The main thrust of the Third Amended Complaint is an attempt to state a cause of action for wrongful discharge under the Civil Rights Act of 1891.Throughout the complaint, Plaintiff alleges that his constitutional and civil rights have been denied.

However, nowhere does the plaintiff allege some racial, or otherwise class-based, invidiously discriminatory animus underlying defendants' complained-of actions.Accordingly, no Equal Protection cause of action has been stated.SeeGriffin v. Breckenridge, 403 U.S. 88[91 S.Ct. 1790, 29 L.Ed.2d 338](1971).Further, while Plaintiff indicates in Paragraph 37(c) that an administrative hearing was afforded him, he nowhere alleges that he was not given an opportunity to be heard, to present testimony and other evidence, or to cross-examine his employer's witnesses.In other words, no cause of action based on deprivation of property without due process has been stated.Where, as here, a remedy (the administrative hearing) has been provided to Public Health Trust employees who are dismissed, since Plaintiff has not alleged that the remedy provided him through that hearing is not sufficient to satisfy the requirements of due process, no cause of action is stated under 42 U.S.C. Section 1983.SeeParratt v. Taylor, 451 U.S. 527, 543-44[101 S.Ct. 1908, 1916-17, 68 L.Ed.2d 420](1981).

The assertion of wrongful discharge appears, under various theories (including defamation and fraud), in every count of the Third Amended Complaint.However, as Plaintiff has not alleged that he was discharged because of his membership in a protected class, or because he engaged in constitutionally-protected activity, or that the administrative hearing afforded him did not satisfy procedural due process requirements, a cause of action for wrongful discharge has nowhere been stated.

Turning to the remaining allegations of the complaint, Plaintiff asserts: (1) that co-worker Defendants, while acting within the scope of their employment at the hospital, defamed Plaintiff through the letter of dismissal placed in his personnel file, (2) that certain defendants acted as supervisors and directors at the hospital without proper licensure, (3) that defendants conspired to defame Plaintiff, and (4) that Plaintiff's wife has suffered a consequent loss of consortium.

Within the four corners of the complaint, Plaintiff's allegations fail to state a cause of action, or affirmatively defeat assertion of a claim against defendants, based upon defamation alone.^*SeePaul v. Davis, 424 U.S. 693[96 S.Ct. 1155, 47 L.Ed.2d 405](1976)(no cause of action under 42 U.S.C. Section 1983 for defamation alone);City of Miami v. Wardlow, 403 So.2d 414(Fla.1981)(public employee absolutely immune from suit for defamation based on actions within scope of duties);McCuller v. Jackson Memorial Hospital Public Health Trust, 418 So.2d 1155(Fla. 3d DCA1982)(same as Wardlow );Sanchez v. Mercy Hospital, 386 So.2d 42(Fla. 3d DCA1980);Frank v. Campbell Property Management, Inc., 351 So.2d 364(Fla. 4th DCA1977);Timmons v. Firestone, 283 So.2d 63(Fla. 4th DCA1973);Stern v. First National Bank of South Miami, 275 So.2d 58(Fla. 3d DCA1973)(under Fla.R.Civ.P. 1.110(d), affirmative defense may be raised on motion to dismiss where defense is apparent on face of complaint).Further, Florida's Clinical Laboratory Law, Chapter 483, Florida Statutes, does not appear to imply a private right of action such as Plaintiff here seeks to assert.SeeCort v. Ash, 422 U.S. 66[95 S.Ct. 2080, 45 L.Ed.2d 26](1975).

Since the counts regarding the goals of the "conspiracy"(defamation, wrongful discharge and improper licensure) fail, so too the conspiracy count fails.SeeLiappas v. Augoustis, 47 So.2d 582(Fla.1950).Further, Plaintiff has failed to allege a conspiracy in this case.SeeBuckner v. Lower Florida Keys Hospital District, 403 So.2d 1025, 1029(Fla. 3d DCA1981).

Lastly, Plaintiff properly alleges in Paragraph 59 that the alleged Consortium claim is derivative.Accordingly, it cannot stand alone.Further, loss of consortium is not...