Place v. Shepherd

• Decision Date: 17 August 1971
• Docket Number: No. 20622.,20622.
• Citation: 446 F.2d 1239
• Parties: Lucille C. PLACE, Plaintiff-Appellant, v. Mrs. Mary C. SHEPHERD et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

446 F.2d 1239 (1971)

Lucille C. PLACE, Plaintiff-Appellant, v.Mrs. Mary C. SHEPHERD et al., Defendants-Appellees.

No. 20622.

United States Court of Appeals, Sixth Circuit.

August 17, 1971.

C. M. Murphy, Memphis, Tenn., on brief for plaintiff-appellant.

Elmore Holmes, III, Memphis, Tenn., for Baptist Memorial Hospital, Inc.; Armstrong, Allen, Braden, Goodman, McBride & Prewitt, Memphis, Tenn., of counsel.

Armistead F. Clay, Memphis, Tenn., for Methodist Hospital, Inc.; Pittman, Clay, Morgan, Cole & Gilliland, Memphis, Tenn., of counsel.

Arthur J. Shea, Asst. City Atty., Memphis, Tenn., for Mrs. Mary G. Shepherd; James M. Manire, City Atty., on brief.

Margaret Wilkinson, Memphis, Tenn., for Tennessee Nurses Association, Inc.

Before BROOKS and KENT, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

O'SULLIVAN, Senior Circuit Judge.

Plaintiff appeals from dismissal by the United States District Court for the Western District of Tennessee, Western Division, of her complaint against the named defendants.The District Judge held that the complaint did not state any cause of action.The Civil Rights Statute, 42 U.S.C. § 1983and§ 1985(3) and the Sherman Anti-Trust Act, 15 U.S.C. §§ 1and2, and the Clayton Act,15 U.S.C. § 15, are the alleged bases for the claim of a cause or causes of action.28 U.S.C. §§ 1337and1343 are relied upon for Federal jurisdiction.

The case presents another variety of the ever-increasing attempts to get into Federal Court by labelling real or imagined wrongs as deprivations of Civil Rights guaranteed by the United States Constitution.

Plaintiff, Lucille C. Place, was graduated and licensed as a registered nurse in 1942.After working in such profession for less than two years, she left it for about twenty years.In 1963she reentered the profession as a nurse at Rosewood Convalescent Center, in Memphis, Tennessee.In 1964she left that employment and was accepted by the Nurses Registry, an agency of defendantTennessee Nurses Association.Thereafter she worked at the Baptist Memorial Hospital, the Methodist Hospital and the John Gaston Hospital, all located in Memphis, Tennessee.John Gaston Hospital is owned by the City of Memphis, but is not named as a defendant.From the complaint, it would appear that plaintiff was continuously dissatisfied with how the hospitals were run and with their treatment of her as a nurse employee.She avers that she took part in activities designed to improve the operation of the named hospitals.One paragraph of her complaint says:

"15.During the said period from May to November of 1964, in the Baptist Hospital, plaintiff noticed that many of the hospital patients were treated by unqualified people; the nurses seldom worked on the same floor twice, and thus never got to know their patients; the spirit to help the patient was almost entirely lacking; there was no leadership at all from the nurse hierarchy, of the hospital; some L.P.N.\'s could give medication, others could not, depending entirely upon the whim of the Office of Director of Nursing of Baptist Hospital; some private duty nurses, the ones really too old to do their jobs properly, were given assistance by floor nurses, while others were refused assistance even when the need was great; a general shortage of nurses was apparent; and no student nurses were ever seen on the floor.Therefore, plaintiff became very active in various nurses associations during off duty hours, and seriously set out to do her part to alleviate some of the aforementioned problems."

Plaintiff was probably unpopular with the members of her own profession and she charges in conclusional allegations that her right of free speech was impaired and that her opportunities for employment were reduced.Her changes in employment were the consequence of her voluntary resignations.

A first complaint had two counts.Count I contained eighteen paragraphs, paragraph three of which contained this accusation against the Methodist Hospital:

"Prior to November 1964, plaintiff had no problem with any of the defendants.

Beginning about November 1964 up until the end of February 1966, plaintiff worked for the defendant Methodist Hospital in Memphis as a registered nurse.During said period of time, plaintiff discovered that the nursing standards in the defendant Methodist Hospital had declined to such an extent that many patients were suffering thereby, all as a result of the unprofessional nursing practices of the nursing staff at said hospital.Thereupon, plaintiff did her best to communicate these nursing problems to the agents, servants and employees of the defendant hospital, but was harshly discouraged from doing so by the said Methodist Hospital.For such efforts, the defendant hospital began to treat plaintiff badly, abused and insulted her, until finally plaintiff was forced to resign.Furthermore, plaintiffunderstood that she was then and there `black balled,\' and that she could no longer get a job as a registered nurse, and all because she exercised her right to freely speak, as guaranteed by the Constitution of the United States."

The design of plaintiff's plan to present a cause of action was first to name as a defendantMary G. Shepherd, head nurse at the John Gaston Hospital which was owned and operated by the City of Memphis, Tennessee.She charged that whatever was done by defendant Shepherd was done as an agent and servant of the municipally owned hospital and was accordingly done under color of law — the law of Tennessee.She did not name the city-owned hospital, aware that it could not be sued as a "person" within the meaning of § 1983.She then charged that the Methodist Hospital, a corporation, the Baptist Memorial Hospital, a corporation, and the Tennessee Nurses Association, a corporation, all conspired with defendant Shepherd to inflict on plaintiff wrongs condemned by § 1985(3).No individuals acting on behalf of the named defendant corporations were identified.

After motions to dismiss plaintiff's complaint had been made and before a ruling thereon and with leave of court, plaintiff filed her amended complaint — the pleading now before us.It now contains 58 paragraphs in its Count I, and in Count II it avers that the acts set out in Count I made up an unlawful conspiracy "for the purpose of depriving plaintiff of her rights to free speech and to enjoy the privileges of practicing her chosen, and hard-earned profession."She asserts that Count II sets out "a common law cause of action against the defendants under the pendent jurisdiction theory."A count III was added wherein plaintiff charges that the actions and conspiratorial conduct of defendants were violations of the Sherman and Clayton Acts, 15 U.S.C. §§ 1and2, and15U.S.C. § 15.

As damages for the wrongs charged in Counts I and II, plaintiff asked for Three Million Dollars; also that damages awarded under Count III be trebled.

Motions to dismiss the amended complaint were made by all defendants and the District Judge granted them, setting out a Memorandum Decision and Order as follows:

"In the original complaint filed in this action, plaintiff seemed to make the claim that defendants singly and as members of a conspiracy had deprived her of her First Amendment right to freedom of speech.It further appeared that the freedom to which she made reference was the freedom to make suggestions and criticism to her superiors with respect to the operation of the hospitals in which she worked.She sued under 42 U.S.C. §§ 1983and1985(3).

"Defendants filed motions to dismiss, contending, inter alia, that plaintiff had no such freedom and that no `color\' of law had been alleged.We deferred ruling at argument and allowed plaintiff to amend.

"Plaintiff has since filed an amended complaint, in which she adds an anti-trust claim under the Sherman and Clayton Acts.

"It is the opinion of this Court that plaintiff still has not alleged the deprivation of a right guaranteed by the Federal Constitution or a Federal Statute and further she has not alleged that the acts done were done under `color\' of a law within the meaning of the civil rights statutes.

"It is further the opinion of the Court that plaintiff has not alleged a violation of the Sherman or Clayton Acts.

"It is therefore ORDERED that the motions to dismiss be granted and the action is dismissed."

We agree with the District Judge.We do so for these several reasons.First, the complaint is made up of conclusional allegations.Second, the complaint did not set out causes of action under 42 U.S.C. §§ 1983 or 1985(3).Third, the complaint does not charge violation of the Sherman or the Clayton Acts.

1.Conclusional allegations.

We need only partially review the melange of miscellaneous allegations of the complaint to illustrate their vague and conclusional character.The nature of the constitutional deprivations suffered by plaintiff is alleged to be:

"8.The defendants, acting for themselves or by and through their duly authorized agents, under color of law as aforesaid, at all times material to this complaint, conspired to and did deprive plaintiff of certain rights, privileges and immunities secured to her by the Constitution and laws of the United States, namely, her rights, privileges, and immunities relating to freedom of speech, freedom of association, deprivation of a right to work without due process of law, and equal protection under the law."

There follows what are alleged as the "overt acts" of discrimination and conspiracy:

"17.Between September 1964 through February 1966, plaintiff became an active leader in her profession, but confined activities to her off duty hours.The whole nursing problem was publicly declared by these defendants and others as being one of a shortage of nurses.Plaintiff believed these defendants to have been sincere, and worked very hard to solve this problem and alleviate the shortage of nurses.She found out very soon that the defendants...