Curtis W. Caine, Jr., M.D. v. Hardy, M.D., Woodie L. Mason

905 F.2d 858

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 3, 1990
• Docket: 89-4470
• Status: Published

Opinions

JERRE S. WILLIAMS, Circuit Judge:

Curtis W. Caine, Jr., M.D. appeals a district court order dismissing his § 1983 lawsuit against a hospital and the individuals who participated in the termination of Caine’s hospital staff privileges. 715 F.Supp. 166.

I.

Because this appeal is from an order dismissing Caine’s lawsuit, the facts alleged in Caine’s lengthy complaint are taken as true. See, L & L Oil Co. v. Murphy Oil Corp., 674 F.2d 1113, 1115 (5th Cir.1982).

Caine is an anesthesiologist who in 1983 was granted staff privileges at Hinds General Hospital, a public hospital in Jackson, Mississippi. As he was required to do by hospital bylaws, Caine reapplied for staff privileges at two year intervals. Caine’s applications were reviewed, and each time his privileges were renewed.

Three other anesthesiologists practicing at Hinds General were engaged in a partnership. These partners were M.D. Hardy, M.D.; Hardy’s spouse Darilynn Wilson, M.D.; and Robert Strong, M.D. In 1987 and 1988, the members of this partnership sought an exclusive contract to perform anesthesia services at Hinds General. Caine and other independent anesthesiologists practicing at Hinds General objected to the proposed exclusive contract. It was not granted. Caine also ran against Hardy for the Chairmanship of the Hinds General Department of Anesthesiology. Hardy won the election by one vote.

Caine alleges that Hardy and his partners not long thereafter initiated an investigation into Caine’s practice at Hinds General that resulted in Caine’s staff privileges being suspended by the Executive Committee, then revoked by the Executive Committee, and finally formally terminated by the Hinds General Board of Trustees. Caine claims that he was denied procedural due process of law under the Fourteenth Amendment at each step.

II.

Caine sued the hospital and the individuals involved in the suspension process in federal district court. He alleged civil rights claims under 42 U.S.C. § 1983 and the Health Care Quality Improvement Act of 1986 (the HCQIA), 42 U.S.C. § 11101, et seq. Without filing an answer, appellees filed a motion to dismiss for failure to state a claim or for summary judgment. Caine filed a motion for leave to amend his complaint in order to assert free speech claims under the First Amendment to the United States Constitution. Caine's motion initially was granted by the district court. Later, however, the district court reversed its decision and refused to allow Caine to amend his complaint. The court then granted appellees' motion to dismiss.

The district court, relying on established § 1983 precedent, held that under the Pa'rratt/Hudson doctrine ¹ Caine could not state a § 1983 claim because the state provided him with an adequate postdeprivation remedy. Under the Parratt/Hudson doctrine, a state can not be held liable for a denial of predeprivation procedural due process at the hands of a state actor if the deprivation is random and not authorized by state poliéy and if the state provides a claimant with an adequate postdeprivation remedy. The court held that the Mississippi procedure provided Caine an avenue of appeal from the action of the hospital to the Mississippi Chancery Court. The court found this to be an adequate postdeprivation remedy.² Because Caine did not appeal to the Chancery Court, the district court held that he had not availed himself of available, adequate postdeprivation relief. He could not, therefore, state a § 1983 claim.

III.

We previously have weighed the competing interests of physicians and hospitals, and have concluded that hospitals need not provide doctors full procedural due process before initially suspending medical staff privileges if the suspension is imposed to protect the hospital's patients. See Darlak v. Bobear, 814 F.2d 1055, 1063 (5th Cir.1987). A fair reading of Caine's complaint, however, indicates that he claims that the initial suspension was motivated by appellees' personal vendetta against him and not by the hospital's interest in protecting patient safety. Because we must accept this allegation as true, we must conclude that Caine does not come within the Darlak rule, but instead was entitled to full procedural due process even in the decision to suspend. See Northeast Georgia Radiological Assoc. v. Tidwel, 670 F.2d 507, 511 (5th Cir.1982) ("medical staff privileges embody such a valuable property interest that notice and hearing should be held prior to its termination or withdrawal, absent some extraordinary situation where a valid government or medical interest is at stake."). But, regardless of whether Caine was entitled to full procedural due process at this initial stage, he certainly was entitled to full procedural due process after the suspension because the hospital could no longer have any pressing need to protect its patients from him.

Although a doctor is entitled to full procedural due process before his or her staff privileges are revoked, that entitlement has not in the past automatically established a § 1983 claim if privileges are suspended without procedural due process. Under the Parratt/Hudson doctrine, a state could not be held liable for a state employee's "random and unauthorized” failure to provide predeprivation procedural due process if the state provided an adequate postdeprivation remedy for persons who were deprived of their property without due process of law. See, Martin v. Dallas County, Texas, 822 F.2d 553, 555 (5th Cir.1987). This Court has applied the Parratt/Hudson doctrine even where the state employee depriving the § 1983 claimant of predepri-vation procedural due process was a high-ranking state employee who was charged with providing procedural due process for that claimant. See Holloway v. Walker, 790 F.2d 1170, 1173 (5th Cir.1986). Other Courts of Appeals have applied the Parratt/Hudson doctrine less broadly than we. See, e.g., Watts v. Burkhart, 854 F.2d 839 (6th Cir.1988).

But the controlling constitutional authority has changed. After the district court had dismissed Caine’s complaint, the Supreme Court decided Zinermon v. Burch, — U.S. -, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). The Court noted that it granted certiorari in Zinermon to resolve conflict among the Courts of Appeals over the scope of the Parratt/Hudson doctrine. Zinermon, 110 S.Ct. at 978. Zinermon controls appellant Caine’s case. Its holding requires reconsideration of this Court’s Parratt/Hudson jurisprudence.

Zinermon was a § 1983 suit brought by Darrell Burch, a man who had been detained in the Florida state mental hospital. Burch had been found wandering along a highway, hurt and disoriented. After he was diagnosed as a paranoid schizophrenic, state employees secured Burch’s signature on forms requesting voluntary admission to the hospital and authorizing treatment by the hospital staff. Burch was kept at the hospital for five months. Upon his release, Burch sued the hospital and its staff in federal court under § 1983. Burch claimed that he overtly was incompetent when he signed the admission and treatment authorization forms. He alleged that by inducing him to commit himself under the voluntary commitment procedure instead of initiating involuntary commitment proceedings, the hospital deprived him of his liberty without procedural due process.

The district court dismissed Burch’s claim, holding that under the Par-ratt/Hudson doctrine Burch could not establish a claim based upon the state’s failure to provide him with predeprivation procedural due process because Florida’s post-deprivation tort remedies were adequate. This holding was affirmed by a panel of the Eleventh Circuit. Burch v. Apalachee Community Mental Health Services, Inc., 804 F.2d 1549, 1551 (11th Cir.1986) vacated, 812 F.2d 1339 (1987). After en banc rehearing, however, the Eleventh Circuit reversed the district court’s dismissal and held that Burch’s § 1983 claim was not subject to the Parratt/Hudson doctrine. Burch v. Apalachee Community Mental Health Services, Inc., 840 F.2d 797, 803 (11th Cir.1988) (en banc).

The Supreme Court affirmed the en banc Eleventh Circuit decision. The Court found that Zinermon was not controlled by the Parratt/Hudson doctrine for three reasons. First, the deprivation of Burch’s liberty did not occur at an unpredictable, but rather at a predictable, time. It was clear that “[a]ny erroneous deprivation will occur, if at all, at a specific, predictable point in the admission process — when a patient is given admission forms to sign.” Zinermon, 110 S.Ct. at 989. Second, the Court found that it was not impossible for Florida to provide predeprivation due process in the mental health care voluntary admission procedure. Third, the Court held that the state employees’ conduct was not “unauthorized” as that term was used in Parratt and Hudson. The Court explained:

The State delegated to [the state employees] the power and authority to effect the very deprivation complained of here, Burch’s confinement in a mental hospital, and also delegated to them the concomitant duty to initiate the procedural safeguards set up by state law to guard against unlawful confinement. In Par-ratt and Hudson, the state employees had no similar broad authority to deprive prisoners of their personal property, and no similar duty to initiate (for persons unable to protect their own interests) the procedural safeguards required before deprivations occur. The deprivation here is “unauthorized” only in the sense that it was not an act sanctioned by state law, but, instead, was a “depriv[ation] of constitutional rights ... by an official’s abuse of his position.”

Zinermon, 110 S.Ct. at 990 (citation omitted). Because Burch’s claim was not controlled by the Parratt/Hudson doctrine, the Court held that Burch properly stated a § 1983 claim for the state’s failure to provide him predeprivation procedural due process.

The lesson of Zinermon is that the Parratt/Hudson doctrine is restricted to cases where it truly is impossible for the state to provide predeprivation procedural due process before a person unpredictably is deprived of his liberty or property through the unauthorized conduct of a state actor. In Zinermon, however, the deprivation was not unpredictable. It was not impossible, therefore, for the state to provide predeprivation procedural due process. Since the state actor who caused the deprivation was authorized to take the action that caused the deprivation, the Par-ratt/Hudson doctrine did not apply. It follows that when the Parratt/Hudson doctrine does not apply, a § 1983 plaintiff can state a claim for the state’s failure to provide predeprivation procedural due process. Our interpretation of Zinermon is supported by the Supreme Court’s treatment of two cases that reached the Court after Zinermon. In Fields v. Durham, 856 F.2d 655 (4th Cir.1988), a state college administrator was discharged under the state’s dismissal procedures, although the procedures provided to the administrator allegedly were faulty. The Fourth Circuit held that the Parratt/Hudson doctrine applied and that the administrator could not state a § 1983 claim for the state’s failure to provide him predeprivation procedural due process. The Supreme Court vacated the Fourth Circuit’s opinion and remanded the case to the Fourth Circuit “for further consideration in light of Zinermon_" Fields v. Durham, — U.S.-, 110 S.Ct. 1313, 108 L.Ed.2d 489 (1990).

The Supreme Court at the same time ordered the Seventh Circuit to reconsider a recent case involving facts significantly analogous to the facts alleged by Dr. Caine. Easter House v. Felder, — U.S. -, 110 S.Ct. 1314, 108 L.Ed.2d 490 (1990). The en banc Seventh Circuit had held that under the Parratt/Hudson doctrine an adoption agency could not state a § 1983 claim for the state’s failure to provide the agency with procedural due process before state employees, as part of an alleged conspiracy with a rival adoption agency, deprived Easter House of its state operating license. Easter House v. Felder, 879 F.2d 1458, 1460-61, 1474 (7th Cir.1989) (en banc). In both Fields and Easter House, the deprivations were predictable, the state could have provided predeprivation procedural due process, and the deprivations occurred at the hands of state actors who were authorized by the state to take the actions that caused the deprivations. Thus, under Zinermon, neither Fields nor Easter House should be controlled by the Parratt/Hudson doctrine.

We conclude that the present case is controlled by Zinermon and is not subject to the Parratt/Hudson doctrine. Caine could readily have been supplied with adequate procedures even before suspension since under the posture of the case the facts accepted as true show suspension without any threat to the safety of patients. But in any event, it is also clear that the state could have provided Caine with full procedural due process in the pretermination stage before his privileges finally were taken away from him. Further, it was obvious that the move towards suspension and then termination would inevitably result in proceedings directed at removal of staff privileges held before state actors. Thus, the deprivation of the present case was more predictable than were the deprivations in Fields and Easter House. Finally, the state actors’ actions in the present case were not unauthorized. Appellees were delegated the power by the state to deprive doctors such as Caine of the staff privileges. That the deprivation in Caine’s case may have resulted from “an official’s abuse of his position,” in the words of Zinermon, does not make appel-lees’ actions unauthorized.

We hold, therefore, that the Par-ratt/Hudson doctrine does not bar Caine’s § 1983 claim.

IV.

The district court also dismissed Caine’s claims under the HCQIA, holding that this Act “was not intended to ... provide a disciplined physician with a private cause of action.” Caine does not allege error in the district court’s ruling. This issue is not before us.

V.

Caine claims that the district court erred in refusing to allow him to amend his complaint to add a claim under the First Amendment to the United States Constitution. He argues that his privileges were revoked “in retaliation for ... [his] vocal opposition to the proposed exclusive anesthesia contract at Hinds General, the failure of Dr. Hardy to call regular Anesthesia Department meetings as required by Medical Staff Bylaws, and [his] opposition to Dr. Hardy in the election for Chairman of the Anesthesia Department.” The district court refused Caine’s proposed amendment after initially accepting it. The court held that the amendment failed to state a claim because Caine did not “establish that the speech involved was a matter of public concern.” Caine urges that his speech was a matter of public concern because it involved the operation of a public hospital.

Fed.R.Civ.P. 15(a) provides, in pertinent part, that “[a] party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served_” Appellees never filed a responsive pleading, but instead first filed their motion to dismiss for failure to state a claim or for summary judgment. These motions are not pleadings. Zaidi v. Ehrlich, 732 F.2d 1218, 1219-20 (5th Cir.1984). See also Fed.R.Civ.P. 7 and 3 J. Moore, Moore’s Federal Practice 15.07[2] (2d ed. 1989). Under the terms of F.R.Civ.P. 15(a), therefore, Caine should have been permitted “as a matter of course” to amend his complaint. See Zaidi, 732 F.2d at 1220. The district court erred in not allowing this amendment.

VI.

We reverse the district court’s dismissal of appellant Caine’s § 1983 claims and reverse the district court’s refusal to allow Caine to amend his complaint.

REVERSED AND REMANDED.

1 . The Parratt/Hudson doctrine takes its name from two &fpreme Court cases: Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (overruled in part, not relevant here, by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)) and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).

2 . Without deciding this issue, we note that we have considerable doubt that Mississippi's Chancery Court would provide an adequate postde-privation remedy. Caine would have had only thirty days to file hig anneal to the Chancery Court. Miss.Code Ann. § 73-25-27. Caine also would not have been entitled to a jury trial although there were critical fact issues. We have noted before that a district court's conclusion that this Chancery Court remedy was adequate "appears to be sound," Schuster v. Martin, 861 F.2d 1369, 1374 n. 11 (5th Cir.1988), but we have never so held. Nonetheless, because we decide the present case on other grounds, we need not resolve the possible conflict between the statement in Schuster and our view of the adequacy of Mississippi's Chancery Court remedy.