Lucero v. Operation Rescue of Birmingham

954 F.2d 624, 1992 WL 19204

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 5, 1992
• Docket: No. 91-7685
• Status: Published

Opinions

TJOFLAT, Chief Judge:

Plaintiffs appeal from an order¹ denying their application for preliminary injunction ² in the Northern District of Alabama. The complaint accompanying plaintiffs’ motion for a preliminary injunction alleges that defendants had conspired (1) to deny plaintiff Dr. Bruce Lucero’s “patients who are seeking abortions, family planning counselling, and gynecological services, the equal protection of the laws and the privileges and immunities guaranteed under the law,” and (2) “to deprive Dr. Lucero’s patients of their right to travel,” both in violation of 42 U.S.C. § 1985(3) (1988).³ The complaint further asserts that defendants were “motivated by an invidiously discriminatory animus directed at women who seek the services of Dr. Lucero, as a provider of abortions and related medical services.” The district court, upon an evi-dentiary hearing, concluded that it lacked subject matter jurisdiction and denied plaintiffs’ application. Although we find that the district court had jurisdiction to entertain the application, we affirm because plaintiffs have failed to satisfy the requirements for the issuance of a preliminary injunction.

I.

Plaintiff Dr. Lucero is a gynecologist in Birmingham, Alabama, who provides his patients with general gynecological services, including pregnancy and blood testing, prescriptions for birth control, family counseling, and abortions. Dr. Lucero sues on behalf of himself and of his patients. Purportedly, plaintiff Jane Doe represents one or more of Dr. Lucero’s patients.

Defendants Operation Rescue of Birmingham and Birmingham Rescue Mission are unincorporated associations affiliated with Operation Rescue, an unincorporated association whose members oppose abortion and its legalization. Defendants Randall Terry, Joseph Foreman, James Pinto, Leonard Gavin, William Stamp, Doug Scofield, and Scott Houser are alleged to have organized and coordinated, and defendants Operation Rescue of Birmingham, Birmingham Rescue Mission, and Michael Vice to have participated in, so-called “rescues.” According to the district court, “[a] rescue consists of a large number of people physically placing their bodies between the doors of facilities where abortions are performed and those seeking to gain entrance to the facility.” 772 F.Supp. at 1196. The facilities of plaintiff Dr. Lucero have been the object of at least five so-called rescues, including one on March 2, 1991. 772 F.Supp. at 1197. The district court found that “[a]s a result of rescues conducted at Birmingham area abortion facilities, patients and staff of various facilities have been denied entrance to the facility for substantial periods of time until the Birmingham police aid their entry.” 772 F.Supp. at 1196. More specifically, the district court found that the so-called rescue at plaintiff Dr. Lucero’s clinic on March 2

was significantly violent and resulted in some physical injuries of Clinic workers and police officers. The rescue traumatized and caused mental anguish to the Clinic’s patients and workers. The activities of the rescue protesters were violent and intentionally went beyond protected peaceful First Amendment activity.

772 F.Supp. at 1197-98 (footnote omitted).

After conducting an evidentiary hearing, the district court held that it lacked subject matter jurisdiction to entertain plaintiffs’ application for preliminary injunction under section 1985(3). Acknowledging that it would have jurisdiction to entertain a “properly stated claim under § 1985(3),” 772 F.Supp. at 1207 n. 43, the district court also concluded that, assuming jurisdiction, “all of the requirements for preliminary injunction relief have been satisfied.” 772 F.Supp. at 1199.

We disagree with the district court on both counts and hold, first, that the district court had jurisdiction to entertain plaintiffs’ application for preliminary injunction, and, second, that plaintiffs failed to state a claim under section 1985(3). We nevertheless affirm the district court’s denial of plaintiffs’ application for preliminary injunction because plaintiffs failed to carry the burden of persuasion on one of the requirements for the issuance of a preliminary injunction: substantial likelihood of success on the merits.

II.

A.

We review a district court’s denial of an application for preliminary injunction under an abuse of discretion standard. Tally-Ho, Inc. v. Coast Community College District, 889 F.2d 1018, 1022 (11th Cir.1990). We adopt the district court’s findings of fact unless clearly erroneous, but review jurisdictional questions de novo. See Mobil Oil Corp. v. City of Long Beach, 772 F.2d 534, 538 (9th Cir.1985); see also United States v. Alabama, 791 F.2d 1450 (11th Cir.1986), cert. denied sub nom. Board of Trustees of Alabama State University v. Alabama State Board of Education, 479 U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d 144 (1987).

The district court clearly had jurisdiction to entertain plaintiffs’ section 1985(3) claim. As the Supreme Court explained in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946),

where the complaint, as here, is so drawn as to seek recovery directly under the Constitution or laws of the United States, the federal court, but for two possible exceptions ... must entertain the suit.

... The ... exceptions are that a suit may sometimes be dismissed for want of jurisdiction where the alleged claim ... clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.

Id. at 681-83, 66 S.Ct. at 776.

The complaint in this case sought recovery under a law of the United States, 42 U.S.C. § 1985(3) (1988). The district court nowhere indicated that either exception applied in this case. As we find both exceptions inapplicable, we hold that the district court had jurisdiction over plaintiffs’ section 1985(3) claim.

B.

“To prevail on [their] motion for a preliminary injunction, [plaintiffs] ha[ve] the burden of proving: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury; (3) [their] own injury outweighs the injury to [defendants]; and (4) the injunction would not disserve the public interest.” Tally-Ho, 889 F.2d at 1022. Plaintiffs failed to establish a substantial likelihood of success on the merits because they did not state a claim under section 1985(3). In particular, plaintiffs failed to identify “some racial, or perhaps otherwise class-based, invidiously discriminatory animus” behind defendants’ actions, as required under Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971).

The elements of a cause of action under section 1985(3) are “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.” United Brotherhood of Carpenters & Joiners of America, Local 610 v. Scott, 463 U.S. 825, , 103 S.Ct. 3352, 3356, 77 L.Ed.2d 1049 (1983). More specifically, the second element requires a showing of “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Id. at 829, 103 S.Ct. at 3356 (quoting Griffin, 403 U.S. at 102, 91 S.Ct. at 1798).⁴

Plaintiffs alleged in their complaint that defendants’ actions were motivated by “an invidiously discriminatory animus directed at women who seek the services of Dr. Lucero, as a provider of abortions and related medical services.” In contrast, the district court found, as a matter of fact, that “[t]he animus is directed at the practice of abortion and the concept that its practice is legal.... The animus is against the principle that it is morally and legally right to abort a fetus.” 772 F.Supp. at 1205 n. 37. The court also found that defendants’ animus targeted neither “women as a group” nor “pregnant women,” id., but that “[t]he activity challenged ... is clearly directed at that class of women seeking to exercise their fundamental and constitutional right to obtain an abortion and those persons who would aid them in doing so.” Id. at 1196.

Although the court did not explicitly find that defendants did not display the animus specified in the complaint, its finding of an animus other than that alleged in the complaint implies the finding that plaintiffs failed to carry the burden of persuasion on the class issue. We adopt the district court’s findings of fact unless clearly erroneous. The record before us amply supports the district court’s determination that plaintiffs did not carry the burden of persuasion on this issue. Accordingly we see no reason to disturb the district court’s finding.⁵

The record simply does not warrant a finding that defendants’ animus singled out “women who seek the services of Dr. Luce-ro, as a provider of abortions and related medical services.” This case is closely analogous to a recent Fifth Circuit case, Mississippi Women’s Medical Clinic v. McMillan, 866 F.2d 788 (5th Cir.1989). In that case, Mississippi Women’s Medical Clinic (MWMC) sought a preliminary injunction pursuant to section 1985(3) prohibiting anti-abortion protesters from picketing its clinic. Id. at 790. Much like plaintiffs in this ease, MWMC defined the object of the defendants’ animus as “women of childbearing age who seek medical attention from the MWMC.” Id. at 794. Finding this class to be “so under-inclusive as to mischaracterize the dispute,” the Fifth Circuit pointed out that

the protestors do not target their pro-life advocacy at any particular group. The protestors (who are made up of both men and women) confront and try to persuade to their point of view all groups — men, women of all ages, doctors, nurses, staff, the female security guards, etc. ... [T]he animus of the protestors is to dissuade anyone who contributes to the incidence of abortions.

Id. at 794 (emphasis in original).

Much like the Fifth Circuit in MWMC, we find that the record in the present case does not support a finding that defendants’ actions were motivated by a gender-based animus. Instead, the record amply supports a finding that defendants’ actions were motivated by a disapproval of a certain activity, namely the abortion of a fetus, and therefore were designed to prevent individuals, women and men alike, from engaging in that activity. Nothing in the record suggests that defendants’ efforts to “depriv[e], directly or indirectly, a class of women who seek abortions of the constitutional right that they have to secure abortions,” 772 F.Supp. at 1198 (footnote omitted), sprang from an animus directed at women qua members of the female gender.

Even assuming arguendo that Congress intended section 1985(3) to cover activities motivated by a gender-based animus,⁶ the record in this case does not support a finding of this kind of animus. As the district court found, defendants’ animus targeted the “practice of abortion,” 772 F.Supp. at 1205 n. 37, and therefore motivated actions designed to prevent others from engaging in that practice. While the participation of women in the practice of abortion hardly is incidental, the record in this case supports the finding that defendants’ actions nevertheless were motivated by an animus not primarily directed at members of the female gender, but at a practice. On the record of this case, it further would not have been clearly erroneous to find that the make-up of, and particularly the participation of women in, the group of persons engaging in that practice did not arouse the animus motivating defendants to stage their so-called rescues.⁷

Seeing no reason to disturb the district court’s finding that plaintiffs failed to carry their burden of persuasion on an element of their section 1985(3) claim, we conclude that plaintiffs did not meet one of the requirements for the issuance of a preliminary injunction.

III.

For the reasons above stated, we AFFIRM the district court’s denial of plaintiffs’ application for preliminary injunction.

AFFIRMED.

1 . The findings of fact and conclusions of law underlying the district court’s order are published at 772 F.Supp. 1193 (N.D.Ala.1991).

2 . Although plaintiffs originally had filed a motion for a temporary restraining order, the district court's order and findings of fact and conclusions of law treat this motion as an application for preliminary injunction. 772 F.Supp. at 1194.

3 .The complaint also included claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., and the following Alabama state law claims: trespass, tortious interference with contractual and business relations, nuisance, false imprisonment, and invasion of privacy.

4 . We need not, and do not, decide whether plaintiffs have established any or all of the elements in a 1985(3) claim other than the second element.

5 . As we agree with the district court that plaintiffs did not meet their burden of persuasion on the class issue, we need not, and do not, address the question of whether plaintiffs would have stated a claim under section 1985(3) had they alleged the animus and class found by the district court.

6 . Our circuit has reserved judgment on this issue. See Faucher v. Rodziewicz, 891 F.2d 864, 871 n. 4 (11th Cir.1990). The circuits are split on this question, compare National Organization for Women v. Operation Rescue, 914 F.2d 582, 585 (4th Cir.1990) ("gender-based animus satisfies the 'purpose' element of § 1985(3)”), cert. granted sub nom. Bray v. Alexandria Women's Health Clinic, — U.S. —, 111 S.Ct. 1070, 112 L.Ed.2d 1176 (1991); New York State National Organization for Women v. Terry, 886 F.2d 1339, 1359 (2d Cir.1989) (a class of women protected by § 1985(3)) with Deubert v. Gulf Federal Savings Bank, 820 F.2d 754, 757 (5th Cir.1987) (§ 1985(3) only recognizes racial animus), and the Supreme Court has granted certiorari to consider it, Bray, - U.S. at -, 111 S.Ct. at 1070, 112 L.Ed.2d at 1176.

7 . This is not to say that the mere presence of men in a group removes that group from the protection of section 1985(3). As the Supreme Court has made clear in Scott, section 1985(3) was intended to protect a class of “Negroes and those who championed their cause." Id. 463 U.S. at 836, 103 S.Ct. at 3360. By analogy, and assuming arguendo that section 1985(3) reaches actions triggered by a gender-based animus, section 1985(3) would also protect a class of women and those who champion their cause. In this case, the class might fit under section 1985(3), if we assume that the doctors, nurses, etc. at Dr. Lucero’s clinic can be said to champion women’s cause. What is missing is any indication that the gender of the pregnant women represents the source of defendants’ animus.