Schiavo ex rel Schindler v. Schiavo

• Decision Date: 25 March 2005
• Docket Number: No. 8:05-CV-530-T-27TBM.,8:05-CV-530-T-27TBM.
• Citation: 358 F.Supp.2d 1161
• Parties: Theresa Marie Schindler SCHIAVO, Incapacitated ex rel., Robert SCHINDLER and Mary Schindler, her Parents and Next Friends, Plaintiffs, v. Michael SCHIAVO, as Guardian of the Person of Theresa Marie Schindler Schiavo, Incapacitated, Judge George W. Greer and The Hospice of the Florida Suncoast, Inc. Defendants.
• Court: U.S. District Court — Middle District of Florida

358 F.Supp.2d 1161

Theresa Marie Schindler SCHIAVO, Incapacitated ex rel., Robert SCHINDLER and Mary Schindler, her Parents and Next Friends, Plaintiffs, v. Michael SCHIAVO, as Guardian of the Person of Theresa Marie Schindler Schiavo, Incapacitated, Judge George W. Greer and The Hospice of the Florida Suncoast, Inc. Defendants.

No. 8:05-CV-530-T-27TBM.

United States District Court, M.D. Florida, Tampa Division.

March 25, 2005.

COPYRIGHT MATERIAL OMITTED

David C. Gibbs, Gibbs Law Firm, Seminole, FL, George E. Tragos, Law Office of George E. Tragos, Clearwater, FL, Robert A. Destro, Columbus School of Law, Washington, DC, for Plaintiffs.

George J. Felos, Felos & Felos, P.A., Dunedin, FL, Iris Bennett, Robert M. Portman, Jenner & Block LLC, Thomas J. Perrelli, Jenner & Block, Washington, DC, Randall C. Marshall, American Civil Liberties Union Foundation of Florida, Inc., Miami, FL, Rebecca H. Steele, ACLU Foundation of Florida, Inc. West Central Florida Office, Gail Golman Holtzman, John W. Campbell, Constangy, Brooks & Smith, LLC, Robin G. Midulla, Robin Greiwe Midulla, P.A., Tampa, FL, for Defendants.

ORDER

WHITTEMORE, District Judge.

BEFORE THE COURT is Plaintiffs' (First Amended) Motion for Temporary Restraining Order (Dkt. 34)¹ and Memorandum in Support (Dkt. 39).² After notice to the parties, the Court conducted a hearing on March 24, 2005. Upon careful consideration, Plaintiffs' motion (Dkt.34) is DENIED.

Applicable Standards

A temporary restraining order protects against irreparable harm and preserves the status quo until a meaningful decision on the merits can be made. Canal Auth. of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.1974). This Court has previously determined and reaffirms that Plaintiffs have established that an irreparable harm will be suffered unless the injunction issues, the threatened injury outweighs any damage the proposed injunction could cause the opposing party and that an injunction would not be adverse to the interests of the public.

Once again the critical issue is whether Plaintiffs have established a substantial likelihood of success on the merits on any one of Counts Six through Ten.³ A substantial likelihood of success on the merits requires a showing of only likely or probable, rather than certain success. Home Oil Company, Inc. v. Sam's East, Inc., 199 F.Supp.2d 1236, 1249 (M.D.Ala.2002)(emphasis in original). Where, as here, the "balance of the equities weighs heavily in favor of granting the [injunction]" the Plaintiffs need only show a "substantial case on the merits." Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.1986). On careful consideration of each count, the Court concludes that Plaintiffs have not shown a substantial case on the merits.

Discussion

Pursuant to Pub.L. No. 109-3 this court has jurisdiction "to hear, determine and render judgment" on the claims brought by Plaintiffs on behalf of Theresa Schiavo "for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States related to the withholding or withdrawal of food, fluids or medical treatment necessary to sustain her life." This Court is to determine de novo Plaintiffs' asserted claims as set forth in Counts Six through Ten.

The court must determine whether Plaintiffs have shown a substantial case on the merits of any claim for purposes of temporary injunctive relief. Absent a showing of a deprivation of a constitutional right or violation of a federal law, the sine qua non of this Court's jurisdiction under Pub.L. No. 109-3, Plaintiffs cannot establish a substantial likelihood of success on the merits or even a substantial case on the merits.

-Count Six-

The Americans with Disabilities Act

In Count Six, Plaintiffs allege that the failure and refusal of Defendant Michael Schiavo to furnish Theresa Schiavo with necessary and appropriate therapy, rehabilitation services and essential medical services and his demand that she be deprived of food and water violate her rights under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et. seq. (Dkt. 36, ¶ 83).

In pertinent part, the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by any such entity." 42 U.S.C. § 12132. To state a claim under Title II of the ADA, a plaintiff must allege: (1) that she is a "qualified individual with a disability;" (2) that she was "excluded from participation in or ... denied the benefits of the services, programs, or activities of a public entity" or otherwise "discriminated [against] by such entity;" (3) "by reason of such disability." Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir.2001). Assuming arguendo that Theresa Schiavo is a "qualified individual with a disability," Plaintiffs must show that Defendants Michael Schiavo and Hospice are "public entities" that discriminated against her "by reason of" her disability.

Contrary to Plaintiffs' argument, Michael Schiavo, as court appointed guardian for Theresa Schiavo, was not acting under color of state law. See Harvey v. Harvey, 949 F.2d 1127, 1132-33 (11th Cir.1992); Kirtley v. Rainey, 326 F.3d 1088, 1092-96 (9th Cir.2003). Moreover, Michael Schiavo cannot be a "public entity" under the ADA by virtue of the plain language of the statutory definition, which defines "public entity" as "any State or local government" or "any department, agency, special purpose district, or other instrumentality of a State or States or local government." 42 U.S.C. § 12131. Accordingly, Plaintiffs cannot show a substantial likelihood of success on the merits against Michael Schiavo under the ADA.

As to Defendant Hospice, Plaintiffs contend that it is a "public entity" under the ADA because it accepts federal funding. Plaintiffs offer no authority, however, for their contention. Again, the term "public entity" means "... any state or local government." Simply put, Plaintiffs have not shown that the Hospice is a "public entity" under the ADA, an essential element of a Title II claim.

Plaintiffs contend in the alternative that Hospice is a "public accommodation" under the ADA. However, the definition "public accommodation" in the statute, 42 U.S.C. § 12181(7), does not include a facility such as Hospice. Moreover, even if it is assumed arguendo that Hospice falls within the definition of "public accommodation," Plaintiffs cannot show a substantial case on the merits against Hospice under the ADA because they have not shown that any alleged discrimination against Theresa Schiavo was by reason of a disability. In order to prevail under Title III of the ADA, a plaintiff generally has the burden of proving: (1) that she is an individual with a disability; (2) that defendant is a place of public accommodation; and (3) that defendant denied her full and equal enjoyment of the goods, services, facilities or privileges offered by defendant (4) on the basis of her disability. Larsen v. Carnival Corp., Inc., 242 F.Supp.2d 1333, 1342 (S.D.Fla.2003).

Plaintiffs have not shown that Hospice's compliance with the state judge's order to withhold nutrition and hydration constituted discrimination "on the basis of a disability." For example, it is undisputed that Hospice, when directed by the state court, cooperated in not only the removal of Theresa Schiavo's feeding tube but also its reinsertion.⁴ Hospice's conduct therefore, must necessarily have been motivated by the Court's order, not any discriminatory animus toward Theresa Schiavo. For all of these reasons, Plaintiffs cannot establish a substantial likelihood of success on the merits or even a substantial case on the merits.

-Count Seven-

The Rehabilitation Act of 1973

In Count Seven, Plaintiffs allege that Hospice of Florida Sun Coast, Inc. violated Theresa Schiavo's right to rehabilitation under the Rehabilitation Act of 1973, § 504, as amended, 29 U.S.C. § 794. (Dkt. 36, ¶¶ 85-87).

The Rehabilitation Act of 1973 provides that "no otherwise qualified individual with a disability ... shall, solely by reason of his or her disability ... be subjected to discrimination under any program or activity receiving Federal financial assistance...." 29 U.S.C. § 794(a) (emphasis added). The elements of a claim under the Rehabilitation Act are "(1) that [she] is a `handicapped individual' under the Act, (2) that [she] is `otherwise qualified' for the [benefit] sought, (3) that [she] was [discriminated against] solely by reason of [her] handicap, and (4) that the program or activity in question receives federal financial assistance." Grzan v. Charter Hosp. of Northwest Indiana, 104 F.3d 116, 119 (7th Cir.1997). The first and fourth elements are met as Theresa Schiavo is a handicapped individual and Hospice receives federal funds.

The second element requires that Theresa Schiavo be "otherwise qualified," which means that absent her disability, she would qualify for the treatment she is being denied. Id. at 120. The Rehabilitation Act is intended to ensure that handicapped individuals are not denied access to programs provided to non-handicapped persons. Id. at 121. Because of this intended statutory purpose, courts hold that" `the otherwise qualified criteria ... cannot be meaningfully applied to a medical treatment decision.'" Id. (quoting United States v. Univ. Hosp. of State Univ. of New York at Stony Brook, 729 F.2d 144, 156 (2d Cir.1984)). Theresa Schiavo is not "otherwise qualified" because she would not have any need for a feeding tube to deliver nutrition and hydration but for her medical condition.

Plaintiffs also cannot establish the third element. Hospice is not withholding nutrition and hydration "solely by reason of" Theresa Schiavo's medical condition, but rather because it is complying with a court order and the instructions of her guardian.

Finally, Plaintiff...