Gilmore v. Washington County Memorial Hospital

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

MICHAEL GILMORE, M.D., )

)

Plaintiff, )

)

vs. ) Case No. 4:22 CV 1008 JMB

)

WASHINGTON COUNTY MEMORIAL )

HOSPITAL, MERCY HOSPITAL )

JEFFERSON, MICHELE MEYER, JENIFER )

FERGUSON, and ANNA MARLER, )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court Defendants Washington County Memorial Hospital,

Michele Meyer, Jenifer Ferguson, and Anna Marler’s Motion to Dismiss (Doc. 15). Plaintiff

Michael Gilmore, M.D. filed a response in opposition (Doc. 24) to which Defendants’1 replied

(Doc. 25). For the reasons set forth below, the Motion is GRANTED in part and TAKEN

UNDER ADVISEMENT in part.

Background

According to the Complaint (Doc. 1), Plaintiff Michael Gilmore, M.D., was employed

as the chief of medical staff at the Washington County Memorial Hospital (WCMH) during the

COVID-19 pandemic. He alleges that he began treating his patients infected with COVID-19

with the drug Bamlanivimab, which was not “specifically authorized for treating such patients”

by the Food and Drug Administration (Doc. 1, ¶ 8). He treated four such patients in November

1 Defendant Mercy Hospital Jefferson has not joined the motion.

2020, achieving some efficacious results in two patients, but no adverse effects. He attempted

to treat a fifth patient (“Patient 5”) with Bamlanivimab shortly after Thanksgiving that year.

He was not able to treat Patient 5 as he intended because WCMH administration

suspended the use of Bamlanivimab for COVID-19 infections a number of days prior (Doc. 1,

¶ 59). As such, WCMH’s Chief Nursing Officer (CNO), Jenifer Ferguson, reversed the

Bamlanivimab order and, along with Charge Nurse Anna Marler, “falsely communicated to the

patient and patient’s family that the Bamlanivimab treatment was dangerous and they falsely

indicated that Dr. Gilmore’s prescription violated FDA guidelines” (Doc. 1, ¶ 14).2 This action

was approved by WCMH’s Chief Executive Officer (CEO), Michele Meyer.3 In speaking to

Patient 5 and his family, Plaintiff alleges that Ferguson and Marler made defamatory statements

and interfered with the physician/patient relationship (Doc. 1, ¶¶ 74-75). Meyer and Ferguson

then contacted Defendant Rural Physicians Group – Pannu LLP (RPG), which employed

Plaintiff and contracted him out to the Hospital pursuant to a “Physician Employment

Agreement,” and demanded that they fire him for failing to comply with WCMH policy

regarding Bamlanivimab (Doc. 1, ¶ 17, 37-38). The WCMH and RPG then fired Plaintiff,

ostensibly for failing to comply with WCMH policy regarding personal protective equipment

(PPE) (Doc. 1, ¶ 22).

Based on the foregoing, Plaintiff states eight grounds for relief, the first five based on

42 U.S.C. § 1983. In Count I, he alleges a “Class of one” discrimination claim against all

Defendants; in Count II, he alleges a substantive due process claim as to the “right to medical

2 Plaintiff alleges that Jessica Stacey, WCMH’s Director of Quality and Risk Management, acted in concert with

Nurse Marler and CNO Ferguson to interfere with his treatment decisions as to Patient 5 (Doc. 1, ¶¶ 71-73). Stacey

has since been dismissed (Doc. 41) from this lawsuit upon Plaintiff’s request (Doc. 39).

3 Plaintiff alleges that Meyer is employed by Mercy Hospital Jefferson which has a “management agreement” with

WCMH (Doc. 1, p. 30).

privacy & exercise of independent medical judgment”; in Count III, he alleges another

substantive due process claim for “egregious government misconduct”; in Count IV, he alleges

retaliation for “expressive conduct”; and in Count V, he alleges a “stigma plus” defamation due

process claim. Each of these claims are alleged against each Defendant. As to his state law

claims, he alleges slander in Count VI and tortious interference with business expectancy in

Count VII against all Defendants, and breach of contract in Count VIII against WCMH only.

Prior to filing the Complaint in this case, Plaintiff filed a First Amended Petition (“State

Complaint”) in the Circuit Court of Washington County, Missouri, in which he made similar

factual allegations to the ones alleged in this case.4 In that State Complaint, Plaintiff alleges

that he was employed by WCMH in its clinic and later was employed by RPG as a hospitalist

(Doc. 13-2). He alleges that he attempted to treat Patient 5 with Bamlanivimab, that his

treatment decisions were overruled, and that he was terminated because of an alleged and false

assertion that he violated the PPE policy. He alleges claims of defamation (2 counts), tortious

interference with patient contract, tortious interference with RPG contract, and breach of

contract as to his employment contract with WCMH. Plaintiff voluntarily dismissed (without

prejudice) all of these claims except for breach of contract (Doc. 13-3). The breach of contract

claim in the State Complaint is nearly identical to the breach of contract claim made in Count

VIII in the complaint before this Court.

Standard

The purpose of a motion to dismiss for failure to state a claim is to test the legal

sufficiency of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6), “a

4 Defendants attached the state court pleading to their motion, of which the Court may take judicial notice. Stutzka

v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005).

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim for relief “must include sufficient

factual information to provide the ‘grounds’ on which the claim rests, and to raise a right to

relief above a speculative level.” Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th

Cir. 2008) (quoting Twombly, 550 U.S. at 555 & n.3). This obligation requires a plaintiff to

plead “more than labels and conclusions, and a formulaic recitation of the elements of a cause

of action will not do.” Twombly, 550 U.S. at 555.

On a motion to dismiss, the Court accepts as true all of the factual allegations contained

in the complaint, even if it appears that “actual proof of those facts is improbable,” and reviews

the complaint to determine whether its allegations show that the pleader is entitled to relief. Id.

at 555-56; Fed. R. Civ. P. Rule 8(a)(2). However, the principle that a court must accept as true

all of the allegations contained in a complaint does not apply to legal conclusions. Iqbal, 556

U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.”); Rossi v. Arch Insurance Company, 60 F.4th 1189,

1193 (8th Cir. 2023) (“We are not bound to accept as true a legal conclusion couched as a

factual allegation, and factual allegations must be enough to raise a right to relief above the

speculative level” (quotation marks and citation omitted)).

“If, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to

and not excluded by the court, the motion must be treated as one for summary judgment under

Rule 56.” Fed. R. Civ. P. 12(d). “Though ‘matters outside the pleadings’ may not be considered

in deciding a Rule 12 motion to dismiss, documents necessarily embraced by the complaint are

not matters outside the pleading.” Zean v. Fairview Health Servs., 858 F.3d 520, 526 (8th Cir.

2017) (citation omitted). Materials embraced by the complaint include “documents whose

contents are alleged in a complaint and whose authenticity no party questions, but which are

not physically attached to the pleadings.” Ashanti v. City of Golden Valley, 666 F.3d 1148,

1151 (8th Cir. 2012) (quotation omitted). Thus, “[i]n a case involving a contract, the court may

examine the contract documents in deciding a motion to dismiss.” Stahl v. U.S. Dep’t of Agric.,

327 F.3d 697, 700 (8th Cir. 2003). Stated more comprehensively, courts may consider “matters

incorporated by reference or integral to the claim, items subject to judicial notice, matters of

public record, orders, items appearing in the record of the case, and exhibits attached to the

complaint whose authenticity is unquestioned; without converting the motion into one for

summary judgment.” Zean, 858 F.3d at 526 (quoting Miller v. Redwood Toxicology Lab, Inc.,

688 F.3d 928, 931 & n.3 (8th Cir. 2012) (internal quotation and citation omitted)). The only

material outside of the pleadings considered by the Court are Plaintiff’s state court filings,

which are public records.

Discussion

I. Count I – Class of One Discrimination

In this claim, Plaintiff alleges that Defendants5 “intentionally and arbitrarily”

discriminated against him by “procuring the termination of his contract with RPG” for

violations of the PPE policy when other independent contractors also violated the policy, as did

his replacement, and were not terminated. Defendants argue that class of one discrimination

5 There does not appear to be any dispute, at this stage of the proceedings, that WCMH is a “person” that may be

subject to suit pursuant to 42 U.S.C. § 1983. See Beedle v. Wilson, 422 F.3d 1059, (finding that a “public trust

hospital” is a governmental entity for § 1983 purposes). As such, the Court has made no determination as to

whether WCMH or the individual Defendants are subject to liability under § 1983. See Johnson v. Outboard

Marine Corp., 172 F.3d 531, 536 (8th Cir. 1999) (outlining forms of § 1983 liability and stating that a complaint

must specify whether an individual is being sued in his official or individual capacity in such lawsuits).

claims are not possible in public employment contexts, citing Engquist v. Or. Dep’t. of Agric.,

553 U.S. 591 (2008).

A successful class of one claim alleges that a plaintiff “has been intentionally treated

differently from others similarly situated and that there is no rational basis for the difference in

treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 1074 (2000). In stating such a

claim, a plaintiff must provide “a specific and detailed account of the nature of the preferred

treatment of the favored class” and allege that the other similarly situated individuals are

“identical or directly comparable” to the plaintiff “in all material aspects.” Higgins Electric,

Inc. v. O’Fallon Fire Protection District, 813 F.3d 1124, 1129 (8th Cir. 2016) (quotation marks

and citations omitted). In Engquist, the plaintiff was employed by the Oregon Department of

Agriculture and alleged that her position was eliminated, not for the stated purpose of

reorganization, but for arbitrary and vindictive reasons. 553 U.S. at 595. The plaintiff argued

that the Equal Protection Clause protects public employees from irrational treatment regardless

of membership in a protected class, just as it protects individuals from irrational government

action in the regulatory context, as in Olech. Id. at 597. Thus, there must be some rational

basis, plaintiff argued, for public employment action. Id. The Supreme Court disagreed, stating

that “[w]e hold that such a ‘class-of-one’ theory of equal protection has no place in the public

employment context.” Id. at 594. In deciding, the Court drew a distinction between the

government acting as a regulator and as an employer, the later having “significantly greater

leeway in its dealings with citizen employees.” Id. at 599. And, the Court noted that “[a]s we

explained, absent the most unusual circumstances, a federal court is not the appropriate forum

in which to review the wisdom of a personnel decision taken by a public agency allegedly in

reaction to the employee’s behavior.” Id. at 600 (citation and quotation marks omitted).

Defendants argue that Count I is a public employment scenario governed by Engquist

and therefore barred. Plaintiff argues, however, that his claim is not barred because he is an

independent contractor and he is merely alleging that Defendants interfered with his

employment (or independent contractor contract) with RPG. The Court is not convinced.

Engquist explicitly excluded class-of-one claims from the “public employment context” based

on the concept that “there is a crucial difference, with respect to constitutional analysis, between

the government exercising the power to regulate or license, as lawmaker, and the government

acting as proprietor, to manage its internal operation.” Id. at 598 (citation, quotation marks,

and editing marks omitted). Plaintiff has pointed out no functional or substantial difference

between an employee and an independent contractor (who functions as an employee) that would

remove an independent contractor from the reasoning in Engquist. See, e.g., Board of County

Com’rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668, 674 (1996) (stating in a First

Amendment termination context that “[t]he similarities between government employees and

government contractors with respect to this issue are obvious”). Plaintiff has pointed out no

case authority, and the Court has found none, that suggests that he has a legally viable class-of-

one claim in light of the holding in Engquist. Indeed, “Engquist underscores the importance of

context in determining whether the alleged intentional disparate treatment is actionable or rather

a permissible exercise of discretion.” Mathers v. Wright, 636 F.3d 396, 400 (8th Cir. 2011). In

this case, both direct employment and employment of an independent contractor implicate the

same context. Accordingly, Plaintiff has failed to state a claim as to Count I.

II. Counts II and III – Substantive Due Process Regarding Exercise of Medical Judgment

and Egregious Government Misconduct

Plaintiff alleges that “the defendants’ conduct aforesaid constituted their deliberate,

concerted action to punish Dr. Gilmore for his exercise of his and his patients’ complementary

federal Due Process rights to privacy in medical decision making” (Doc. 1, ¶ 142). He further

alleges that Defendants’ conduct “was egregious and conscience-shocking in that it indicates

deception and dishonesty, unfair discrimination, ill will and malice, abuse of power, and

deliberate intent to punish and harm Dr. Gilmore in his professional and personal reputation

and in his livelihood” (Doc. 1, ¶ 146). Defendants argue that there is no case authority

supporting such causes of action.6

As a general principle, substantive due process concerns the justification for the

deprivation of a fundamental right, i.e., life, liberty, or property, by the government. From the

Complaint, the right Plaintiff is asserting is both his right to exercise medical judgment and his

patient’s right to medical privacy, perhaps relying on the concept that “[t]he protections of

substantive due process have for the most part been accorded to matters relating to marriage,

family, procreation, and the right to bodily integrity.” Albright v. Oliver, 510 U.S. 266, 272

(1994). To state a substantive due process claim, “a plaintiff must demonstrate that a

fundamental right was violated and that the official’s conduct shocks the conscience.” Mitchell

v. Dakota County Social Services, 959 F.3d 887, 898 (8th Cir. 2020). Whether conduct shocks

the conscience is a matter of law and “only includes the most severe violations of individual

rights that result from the brutal and inhumane abuse of official power.” Id. (quotation marks

and citation omitted); Slusarchuk v. Hoff, 346 F.3d 1178, 1182-1183 (8th Cir. 2003) (stating

that a “substantive due process plaintiff must demonstrate both that the official’s conduct was

6 Defendants first argue that Plaintiff’s claims are implausible and speculative because, in part, of a letter Plaintiff

received regarding his employment status. The Court has not considered this document because it is not part of

any pleading and interjects factual matter that is not appropriate at this stage of the proceedings.

conscience-shocking, and that the official violated one or more fundamental rights that are

deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered

liberty, such that neither liberty nor justice would exist if they were sacrificed”).

Relying on Roe v. Wade, 410 U.S. 113 (1973), Dobbs v. Jackson Women’s Health

Organization, __ U.S. __, 142 S.Ct. 2228 (2022), and a 1982 treatise, Plaintiff argues that a

physician’s right to exercise medical judgment is a fundamental right, implicated by the right

to privacy, and that Defendants’ interference in the same shocks the conscience. Plaintiff’s

reliance is misplaced. Dobbs explicitly indicates that the decision “concerns the constitutional

right to abortion and no other right” and overturned both Roe and Planned Parenthood of

Southeastern Pa. v. Casey, 505 U.S. 833 (1992). 142 S.Ct. at 2239. None of those cases

squarely address the right Plaintiff advocates in his Complaint. Defendants argue that no court

has recognized substantive due process rights in the context advocated by Plaintiff. The Court

agrees and finds, as a matter of law, that Plaintiff fails to state a claim.

Plaintiff essentially argues that Defendants interfered with his ability to treat a patient

in the manner he saw fit, that they in turn poisoned his patient’s mind against him, and that they

employed tactics to tarnish his professional reputation. Plaintiff has not alleged that a

fundamental right was infringed by Defendants’ actions; he has presented no case authority that

would support his cause of action; and the cases he cite do not apply to his claims. See Collins

v. City of Harker Heights, Tex., 503 U.S. 115, 125 (1992) (stating that “the Court has always

been reluctant to expand the concept of substantive due process because guideposts for

responsible decision-making in this unchartered area are scarce and open-ended”); See also In

re Robertson, 2022 WL 683404 (D.C. Cir. 2022) (finding that an attorney had no substantive

due process right in being a member of the bar or preventing an “unduly harsh disbarment”).

In addition, none of the conduct described by Plaintiff rises to the level of conscious-shocking.

See County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (stating that “conduct intended

to injure in some way unjustifiable by any government interest is the sort of official action most

likely to rise to the conscience-shocking level”). Instead, Plaintiff seeks to elevate what is

essentially an employment dispute to the constitutional level. Collins, 503 U.S. at 128. He

simply alleges that he engaged in a course of treatment that his superiors believed was

inappropriate and he was fired as a result. That is an employment dispute, not a constitutional

claim, and not a scenario that shocks the conscience. Accordingly, Plaintiff fails to state a claim

as to Counts II and III.

III. Count IV – Retaliation for Expressive Conduct

Plaintiff alleges that “he objected to various off-label treatment options being placed off

limits” in the treatment of COVID-19 and advocated more aggressive treatment to various

“Medical Staff of WCMH and its administration” (Doc. 1, ¶ 150). He claims that this

“expressive conduct,” which included prescribing Bamlanivimab, was “related to a matter of

public interest” (Doc. 1 ¶¶ 152 and 153). And, he further claims that Defendants’ interference

with his prescribed course of treatment and the subsequent termination of his employment was

in retaliation for his expressive conduct (Doc. 1, ¶ 155). Defendants argue that Plaintiff did not

engage in First Amendment conduct and that any action as a result could not have been in

retaliation.

“To establish a First Amendment retaliation claim, a plaintiff must show that (1) he

engaged in a protected activity, (2) the government official took adverse action against him that

would chill a person of ordinary firmness from continuing in the activity, and (3) the adverse

action was motivated at least in part by the exercise of the protected activity.” Rinne v. Camden

County, 65 F.4th 378, 381 (8th Cir. 2023) (quotation marks and citation omitted). Defendants’

arguments concern the first element, engagement in protected activity. They argue that any

activity Plaintiff engaged in was merely him doing his job. As set forth recently by the Eighth

Circuit, if Plaintiff was acting as a private citizen, and not a public employee, then “his speech

may be protected by the First Amendment.” Bresnahan v. City of St. Peters, 58 F.4th 381, 384

(8th Cir. 2023). If, however, “a public employee speaks on a matter of public concern pursuant

to his official duties, the speech is unprotected against employer retaliation.” Nagel v. City of

Jamestown, North Dakota, 952 F.3d 923, 929 (8th Cir. 2020) (quotation marks, emphasis, and

citation omitted). In this case, Plaintiff alleges that he spoke up about WCMH’s COVID-19

treatment protocols to other hospital staff (i.e. not with the public at large) and that he treated

patients with a disapproved drug during the regular course of his employment. To the extent

that these activities are speech, they were done in the regular course of his employment and

pursuant to his job duties; as such, they are not protected speech. Bresnahan, 58 F.4th at 384;

Mogard v. City of Milbank 932 F.3d 1184, 1189-1190 (8th Cir. 2019) (stating that speech may

be pursuant to job duties even if they are not a part of job duties); Groenewold v. Kelley, 888

F.3d 365, 371 (8th Cir. 2018) (“A public employee’s speech is pursuant to his employment

duties if it is part-and-parcel of the employee’s concerns about his ability to properly execute

his duties. The First Amendment does not protect a public employee’s speech if it owes its

existence to his professional responsibilities.” (quotation marks and citations omitted)).

Plaintiff nonetheless argues that his prescription of Bamlanivimab to his patients was

expressive conduct during the unique and tumultuous global pandemic. He cites to no case

authority to support this proposition, and the Court has found none. As Defendants point out,

“not all conduct is protected speech simply because the person engaging in it intends thereby

to express an idea.” Adam and Eve Jonesboro, LLC v. Perrin, 933 F.3d 951, 957 (8th Cir. 2019)

(quotation and editing marks and citation omitted). Plaintiff’s complaint fails to set forth any

allegation that he intended his prescription to be communicative, that it was reasonably

understood to be communicative, or indeed that the First Amendment applies. Id at 957. At

most, Plaintiff alleges that, during the course of his employment, he objected to treatment

policies, he unknowingly prescribed medication in violation of those policies, and he was fired

as a result. He fails to state a First Amendment retaliation claim.

VI. Count V – Stigma Plus Defamation

Plaintiff alleges that Marler’s communications with Patient 5 and his family, which were

made in collusion with Ferguson and Stacey and ratified by Meyer, were false, placed Patient

5 at risk of harm, and was intended to and did damage his personal and professional reputation

(Doc. 1 ¶¶ 161-164). Defendants argue that no false statement is alleged in the Complaint, that

his employment was not terminated, and that he consequently fails to state a claim. In response,

Plaintiff does not address Defendants arguments; rather, he seeks to amend his complaint to

“consider additional allegations with respect to defendants’ defamatory conduct in connection

with suborning the termination of Dr. Gilmore’s retention by RPG” (Doc. 24, p. 12).

In Paul v. Davis, 424 U.S. 693 (1976), the Supreme Court discussed state action that

could damage the reputation of an individual through defamatory statements. The Court held

that “defamatory publications, however seriously they may have harmed respondent’s

reputation, did not deprive him of any ‘liberty’ or ‘property’ interests protected by the Due

Process Clause” and that respondent therefore failed to state a claim. Id. 712. Accordingly,

“[a] government employee is entitled to procedural due process only when he has been deprived

of a constitutional protected property or liberty interest.” Winegar v. Des Moines Independent

Community School Dist., 20 F.3d 895, 899 (8th Cir. 1994). In order to demonstrate a protected

liberty interest, Plaintiff must “establish that a city official, in connection with discharging

[him], publicly made allegedly untrue charges against [him] that would stigmatize [him] so as

to seriously damage [his] standings and associations in [the] community, or foreclose [his]

freedom to take advantage of other employment opportunities.” Shands v. City of Kennett, 993

F.2d 1337, 1347 (8th Cir. 1993). Failure to allege each element results in dismissal for failure

to state a claim. Brown v. Simmons, 478 F.3d 922, 923-924 (8th Cir. 2007).

The Complaint alleges that Marler, as instructed by Ferguson, falsely told Patient 5 that

Bamlanivimab was prescribed in violation of FDA guidelines, that Plaintiff violated hospital

policy, that the drug was not safe, and that Plaintiff placed his health at risk (Doc. 1, ¶ 74).

However, there is no allegation that these statements were made in connection with discharging

Plaintiff, that it seriously damaged his reputation in the community, or that he was foreclosed

from taking advantage of other employment opportunities. Finally, there is no allegation that

he was denied appropriate process. Brown, 478 F.3d at 923 (“Defaming a governmental

employee’s reputation, good name, honor, or integrity in connection with terminating the

employee, without giving the employee a name-clearing hearing, is a deprivation of the

employee’s constitutionally protected liberty interest.”). As such, Plaintiff has failed to state a

stigma plus due process claim.

In his response, Plaintiff seeks leave to file an amended complaint to make additional

allegations that would support this claim. While leave to amend should be freely given, in this

case and based on the filings before the Court it would appear that an amendment would be

futile because Plaintiff has not identified what he might allege to support this claim. Instead,

the Complaint contains contrary allegations that any defamatory statements were not made in

connection with the termination of his employment and there is no suggestion that he was

prevented from seeking other employment as a result of the statements. It is within the district

court’s discretion to deny amendment if there is “undue delay, bad faith, or dilatory motive,

repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the

non-moving party, or futility of the amendment.” Reuter v. JAX Ltd., Inc., 711 F.3d 918, 922

(8th Cir. 2013) (quotation marks and citation omitted). In this matter, amendment would be

futile.

VII. Counts VI-VIII – State law claims of slander, tortious interference with a business

expectancy, and breach of contract.

Typically, a district court may decline to exercise supplemental jurisdiction over state

claims if “the district court has dismissed all claims over which it has original jurisdiction.” 28

U.S.C. § 1367(c)(3). The decision to exercise supplemental jurisdiction after claims over which

the Court has original jurisdiction have been dismissed is reviewed for an abuse of discretion.

Thompson v. Kanabec County, 958 F.3d 698, 708 (8th Cir. 2020). The Eighth Circuit has stated

that “[i]n the usual case in which all federal-law claims are eliminated before trial, the balance

of factors to be considered under the pendent jurisdiction doctrine—judicial economy,

convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the

remaining state-law claims.” Barstad v. Murray Cty., 420 F.3d 880, 888 (8th Cir. 2005)

(quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). Gregoire v. Class,

236 F.3d 413, 419-20 (8th Cir. 2000) (“When state and federal claims are joined and all federal

claims are dismissed on a motion for summary judgment, the state claims are ordinarily

dismissed without prejudice to avoid needless decisions of state law...as a matter of comity.”)

(quotation marks omitted).

In this case, however, Defendant Mercy Hospital Jefferson has not sought dismissal of

the federal claims against it. In his complaint, Plaintiff alleges that Mercy Hospital Jefferson

employs Meyer, that it maintains management contracts with WCMH, and that it is being “sued

directly in that its duly authorized agents, to whom Meyer reported, authorized, approved,

and/or ratified the Meyer’s wrongful acts herein alleged and/or otherwise did so under color of

state law” (Doc. 1, ¶ 30). Plaintiff make no specific allegations against Mercy Hospital

Jefferson and instead lumps it together under the umbrella of “all defendants” in making his

claims. Plaintiff appears to be asserting a respondeat superior claim against Mercy Hospital

Jefferson; however, an employer cannot be held liable under § 1983 merely because it employs

a tortfeasor. Monell v. Dep’t. of Soc. Serv. of City of New York, 436 U.S. 658, 691 (1978).

As such, and in light of the foregoing, the Court would find that Plaintiff has failed to state a

claim (as to the federal claims) against Mercy Hospital Jefferson. Accordingly, Plaintiff will

be ordered to show cause why Counts I-V should not be dismissed for failure to state a claim

as to Mercy Hospital Jefferson. Thereafter, the Court will consider whether to retain

supplemental jurisdiction over the state law claims.

Conclusion

For the foregoing reasons, Defendants Washington County Memorial Hospital, Michele

Meyer, Jenifer Ferguson, and Anna Marler’s Motion to Dismiss (Doc. 15) is GRANTED in

part and TAKEN UNDER ADVISEMENT in part.

IT IS HEREBY ORDERED:

1. The Motion to Dismiss is GRANTED as to Counts I-V (federal claims) against

Defendants Washington County Memorial Hospital, Michele Meyer, Jenifer Ferguson,

and Anna Marler. Those claims are DISMISSED with prejudice for failure to state a

claim.

2. The Motion to Dismiss is TAKEN UNDER ADVISEMENT as to Counts VI-VII (state

law claims) against Defendants Washington County Memorial Hospital, Michele

Meyer, Jenifer Ferguson, and Anna Marler.

3. Plaintiff is ORDERED to SHOW CAUSE, in writing and within fourteen (14) days of

the date of this Order, why Counts I-V against Defendant Mercy Hospital Jefferson

should not be dismissed for failure to state a claim. Defendant Mercy Hospital Jefferson

is granted leave to respond to Plaintiff’s filing within seven (7) days.

4. The Rule 16 Conference set for June 28, 2023 is hereby VACATED and will be reset,

if necessary, at a later date.

/s/ John M. Bodenhausen

JOHN M. BODENHAUSEN

UNITED STATES MAGISTRATE JUDGE

Dated this 22nd day of June, 2023