Petition for Writ of Certiorari — Victor Bernard Williams, Petitioner v. Baptist Health, dba Baptist Health Medical Center, et al.

Supreme Court briefOct 15, 2019

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United States Court of Appeals

For the Eighth Circuit

__________________________

No. 18-2423

__________________________

Victor Bernard Williams, M.D.

Plaintiff - Appellant

Baptist Health, doing business as Baptist Health Medical

Center; Douglas Weeks, Individually and in his Official

Capacity as Sr. Vice-President and Administrator;

Everett Tucker, M.D., Individually and in his Official

Capacity as a Member of the Credentials Committee;

Tim Burson, M.D., Individually, and in his Official

Capacity as Chief of Surgery and Chairperson of the

Surgery Control Committee; Scott Marotti, M.D.,

Individually, and in his Official Capacity as a Member of

the Surgery Control Committee; Susan Keathley, M.D.,

Individually, and as Chairperson of the Credentials

Committee; Chris Cate, M.D., Individually, and as

Chairman of the Executive Committee and Chief of

Staff; Surgical Clinic of Central Arkansas; John E.

Hearnsberger, II, M.D., Individually; Joseph M. Beck,

M.D., Individually; Charles Mabry, M.D., Individually;

James Counce, M.D., Individually

Defendants - Appellees

_________________

Appeal from United States District Court

for the Eastern District of Arkansas - Little Rock

_________________

Submitted: May 23, 2019

Filed: May 29, 2019

[Unpublished]

_________________

Before BENTON, STRAS, and KOBES, Circuit Judges.

_________________

PER CURIAM.

Victor Williams, M.D., filed this action against

a medical center, six of its employees, a surgical clinic,

two members of the Arkansas State Medical Board, and

two of the Medical Board’s consulting physicians alleging

a conspiracy to revoke his medical license in violation of

state law and 42 U.S.C. §§ 1981, 1982, and 1983.

Willams appeals the district court’s1 dismissal of his

claims against numerous defendants, and grant of

summary judgment against the remaining defendants.

After careful de novo review, see Marsh v. Phelps Cty.,

902 F.3d 745, 751 (8th Cir. 2018) (de novo review of grant

of summary judgment); Smith v. Johnson, 779 F.3d 867,

870 (8th Cir. 2015) (de novo review of dismissal based on

res judicata), we affirm.

We agree with the district court that Williams’s

claims against several defendants were barred by res

judicata. See Finstand v. Beresford Bancorporation,

Inc., 831 F.3d 1009, 1014 (8th Cir. 2016) (federal suit was

barred because, under state law, prior judgment

The Honorable James M. Moody, Jr., United States District

Judge for the Eastern District of Arkansas.

precluded claims that could have been raised in prior

actions); Baptist Health v. Murphy, 373 S.W.3d 269, 278

(Ark. 2010) (when case is based on same events as first

lawsuit, res judicata applies even if second lawsuit raises

new legal issues and seeks additional remedies). We

conclude that the district court properly granted

summary judgment for the remaining defendants, as

those claims were barred by absolute quasi-judicial or

statutory immunity. See Ark. Code Ann. § 17-80103(West 2018) (amended 2019) (no individual acting on

behalf of medical board shall be liable for action taken or

recommendation made within scope of board’s functions);

Briscoe v. LaHue, 460 U.S. 325, 345 (1983) (extending

absolute judicial immunity to witnesses); Buser v.

Raymond, 476 F.3d 565, 570-71 (8th Cir. 2007) (state

medical board member had absolute quasi-judicial

immunity for performing judicial functions). We find no

error in the district court’s summary denial of Williams’s

Federal Rule of Civil Procedure 59(e) and 60(b) motion.

See Auto Servs. Co., Inc. v. KPMG, LLP, 537 F.3d 853,

857 (8th Cir. 2008) (abuse of discretion review).

Accordingly, we affirm the judgment of the

district court. See 8th Cir. R. 47B.

_________________________

UNITED

TE D S TA TES COURT OF A PPEA

PEA LS

FOR THE E IGHTH CIR CUIT

________________

No: 18-2423

________________

Victor Bernard Williams, M.D.

Plaintiff – Appellant

Baptist Health, doing business as Baptist Health

Medical Center; Douglas Weeks, Individually and in his

Official Capacity as Sr. Vice-President and

Administrator; Everett Tucker, M.D., Individually and

in his Official Capacity as a Member of the Credentials

Committee; Tim Burson, M.D., Individually, and in his

Official Capacity as Chief of Surgery and Chairperson

of the Surgery Control Committee; Scott Marotti, M.D.,

Individually, and in his Official Capacity as a Member of

the Surgery Control Committee; Susan Keathley, M.D.,

Individually, and as Chairperson of the Credentials

Committee; Chris Cate, M.D., Individually, and as

Chairman of the Executive Committee and Chief of

Staff; Surgical Clinic of Central Arkansas; John E.

Hearnsberger, II, M.D., Individually; Joseph M. Beck,

M.D., Individually; Charles Mabry, M.D., Individually;

James Counce, M.D., Individually

Defendants - Appellees

Appeal from U.S. District Court for the Eastern

District of Arkansas - Little Rock (4:17-cv-00205-JM)

J UDG

UD GM E NT

Before BENTON, STRAS, and KOBES, Circuit

Judges.

This appeal from the United States District

Court was submitted on the record of the district court

and briefs of the parties.

After consideration, it is hereby ordered and

adjudged that the judgment of the district court in this

cause is affirmed in accordance with the opinion of this

Court.

May 29, 2019

Order Entered in Accordance with Opinion:

Clerk, U.S. Court of Appeals, Eighth Circuit.

___________________________________

/s/ Michael E. Gans

IN THE UNITED STATES DISTRICT COURT

EAST

EAS TERN

ER N DISTRI

DISTR ICT OF ARKANSAS

WESTER

WESTER N DIVISION

VICTOR

BERNARD

ERNAR D

WILLIAM

M.D.

WILLIA MS ,

M.D.

PLAINTIF

PLAINTIFF

4:17CV00205

4:17CV0020 5 JM

BAPTIST

d/b/

b/a

BAPTIST HEALTH

HEALTH d/

b/a BAPTI

BAPTIS T HEALTH

MEDICAL

DEFE

MEDICA L CENTER,

CENTER , e t al

DEFE NDANTS

JUDGMENT

Pursuant to the Orders of the Court granting

summary judgment, judgment is hereby entered in

favor of the Defendants and against the Plaintiff.

IT IS SO ORDERED this 31st day of May, 2018.

_________________________

James M. Moody Jr.

United

States

District

IN THE

ATES

THE UNITED

UNITE D STATE

S DIS

DIS TRICT

TRICT COURT

EAST

EAS TERN

ER N DISTRI

DISTR ICT OF ARKANSAS

WESTER

WESTER N DIVISION

VICTOR

BERNARD

ERNAR D

WILLIAM

M.D.

WILLIA MS ,

M.D.

PLAINTIF

LAINTIFF

4:17CV00205

4:17CV0020 5 JM

BAPTIST

d/b/

b/a

BAPTIST HEALTH

HEALTH d/

b/a BAPTI

BAPTIS T HEALTH

MEDICAL

DEFE

MEDICA L CENTER,

CENTER , e t al

DEFE NDANTS

ORDER

Pending is the Motion for Summary Judgment

filed by Joseph M. Beck, M.D. and John E.

Hearnsberger, M.D. Plaintiff alleges that Dr. Beck and

Dr. Hearnsberger (the “Doctors”) discriminated against

him based upon his race and retaliated against him for

filing suit against them and complaining about racial

discrimination. Plaintiff claims that the Doctors

conspired to violate Plaintiff’s procedural and

substantive due process rights, and his right to equal

protection of the laws. Specifically, Plaintiff alleges that

the Doctors caused him damage because of the

revocation of his medical license by the Arkansas State

Medical Board (“ASMB” or the “Board”), as well as the

Board’s failure to accurately report to the National

Practitioner Data Bank (“NPDB”) the voiding of the

revocation of Plaintiff’s medical license subsequent to

June 4, 2015. Further, Plaintiff’s cause of action against

the Doctors also relates to the “Arkansas State Medical

Board’s failure to afford Plaintiff the opportunity to

prosecute his civil action against the Baptist defendants

consistent with the Board’s normal policies and process

enjoyed by other physicians.” (Pl.’s Response to Mot.

For Summ. Judg., ECF No. 133 at p. 6-7). Plaintiff’s

complaint also includes state law claims of abuse of

process, tortious interference with contracts and

defamation.

Dr. Hearnsberger was appointed to the ASMB in

2009 and served on the Board until June 2015. Dr.

Hearnsberger participated in Board discussions and the

investigation into Plaintiff’s medical practice between

2010 and 2015. Plaintiff claims that Dr. Hearnsberger

conducted an unauthorized investigation of Plaintiff’s

medical practice and provided false information to the

Board. Dr. Hearnsberger was a named defendant in

Williams I (Pulaski County Circuit Court, Civil Action

No. 60CV-14-808). On December 8, 2014, the Pulaski

County Circuit Court entered an order granting Dr.

Hearnsberger’s Motion for Summary Judgment in his

individual capacity. On November 5, 2015, by

agreement between the Plaintiff, the Arkansas State

Medical Board and Dr. Hearnsberger in his official

capacity, the Pulaski County Circuit Court

conditionally dismissed with prejudice Plaintiff’s claims

against the Board and Dr. Hearnsberger Williams I.

Dr. Joseph Beck was appointed to the Board in

2003 and served on the Board until December 2016. Dr.

Beck was the Chairman of the Board during the time

that the Board was investigating Plaintiff’s medical

practice and voted to revoke Plaintiff’s medical license.

As Chairman, Dr. Beck was not a voting member

except in case of a tie. Dr. Beck did not participate in

any vote regarding Plaintiff. Dr. Beck was not named

individually in Williams I. However, he was a member

of the ASMB, which was a named defendant.

The Arkansas State Medical Board is a state

entity. Drs. Hearnsberger and Beck were acting in their

capacity as members of the Board when they

participated in the Board’s investigation and the

discussions of Plaintiff’s case. Arkansas Code Section

17-80-103 provides:

No member of a board, or any individual acting

on behalf of the board of any profession or

occupation classified under the laws of the State

of Arkansas as a profession of the healing arts

shall be liable in damages to any person for

slander, libel, defamation of character, breach of

any privileged communication, or otherwise for

any action taken or recommendation made

within the scope of the functions of the board if

the board member or the individual acting on

behalf of the board acts without malice and in the

reasonable

belief

that

the

action

recommendation is warranted by the facts

known to him or her after a reasonable effort is

made to obtain the facts on which the action is

taken or the recommendation is made. Ark. Code

Ann. § 17-80-103.

After reviewing the record, including all

deposition testimony and transcripts from Board

meetings, there is no evidence that Drs. Hearnsberger

or Beck acted outside the scope of the functions of the

ASMB. Plaintiff has provided no evidence that the

Doctors acted with malice toward the Plaintiff or that

they acted with illegal or improper motives when

participating in the proceedings regarding the Plaintiff.

There is no evidence that the Doctors communicated

with the National Practitioner Data Bank or directed

that anyone give false information to the NPDB

regarding the Plaintiff. For these reasons, the Court

finds that Defendants Hearnsberger and Beck are

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immune from suit for all federal and state law damage

claims pursuant to Ark. Code Ann. § 17-80-103.1

Even if the Doctors were not immune to

Plaintiff’s claims, Plaintiff has failed to present any

evidence that the actions taken by Doctors

Hearnsberger or Beck regarding Plaintiff’s licensure

were based on racial animus or in retaliation. There is

no evidence that Plaintiff’s race was a consideration by

Doctors Hearnsberger or Beck or that the Doctors

were involved in reporting to the NPDB. Mere

speculation by the Plaintiff that the Defendants’

actions, or inaction, were racially motivated is

insufficient to defeat a motion for summary judgment.

See Williams v. Mannis, 889 F.3d 926 (8th Cir. 2018)

(quoting Barber v. C1 Truck Driver Training, LLC, 656

F.3d 782, 801 (8th Cir. 2011) (“To survive a motion for

summary judgment, the nonmoving party must

substantiate his allegations with sufficient probative

evidence [that] would permit a finding in [his] favor

based on more than mere speculation, conjecture, or

fantasy.”).

As stated in the Court’s previous orders, claims

arising from the facts included in Williams I are barred

by res judicata. Plaintiff’s claims regarding the

information sent to the NPDB by ASMB was

considered in Williams I when Plaintiff filed his motion

to enforce settlement on August 19, 2015. (Exh. 35 to

Pl’s Resp. to Mot. For Summ. J.). The court ruled that

the Board’s version of the Consent Order properly

memorialized the settlement agreement between the

The Court declines to analyze Plaintiff’s claims for injunctive

relief because the Doctors are no longer members of ASMB and

have no authority to correct reports sent to the NPDB or keep

accurate minutes of ASMB investigations.

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parties. The Board’s version of the Consent Order,

which was filed in the case on November 5, 2015, did not

include the Plaintiff’s proposed language regarding

reports made to the NPDB by the ASMB. Dr.

Hearnsberger, in his official capacity, and the AMSB, of

which Dr. Beck was the chairman, were named

defendants in Williams I and were dismissed with

prejudice on November 5, 2015.

The Motion for Summary Judgment filed by

Defendants Hearnsberger and Beck (ECF No. 107) is

GRANTED. The Clerk is directed to close the case. The

trial scheduled for June 18, 2018 is cancelled.

IT IS SO ORDERED this 31st day of May, 2018.

_________________________

James M. Moody Jr.

United States District Judge

12a

IN THE

ATES

THE UNITED

UNITE D STATE

S DIS

DIS TRICT

TRICT COURT

EAST

EAS TERN

ER N DISTRI

DISTR ICT OF ARKANSAS

WESTER

WESTER N DIVISION

VICTOR

BERNARD

ERNAR D

WILLIAM

M.D.

WILLIA MS ,

M.D.

PLAINTIF

PLAINTIFF

4:17CV00205

4:17CV0020 5 JM

BAPTIST

d/b/

b/a

BAPTIST HEALTH

HEALTH d/

b/a BAPTI

BAPTIS T HEALTH

MEDICAL

DEFE

MEDICA L CENTER,

CENTER , e t al

DEFE NDANTS

ORDER

Pending are the Motions for Summary Judgment

filed by James Counce and Charles Mabry. Plaintiff

alleges that Dr. Counce and Dr. Mabry conducted a

peer review of the records of three of Plaintiff’s

patients at the request of the Arkansas State Medical

Board in 2010. The Arkansas State Medical Board is a

state entity. Drs. Counce and Mabry were acting on

behalf of the Arkansas State Medical Board when they

provided their review and reports.

Arkansas Code Section 17-80-103 provides that

no member of a board, or any individual acting on behalf

of the board of any profession or occupation classified

under the laws of the State of Arkansas as a profession

of the healing arts shall be liable in damages to any

person for slander, libel, defamation of character,

breach of any privileged communication, or otherwise

for any action taken or recommendation made within

the scope of the functions of the board if the board

member or the individual acting on behalf of the board

acts without malice and in the reasonable belief that the

action or recommendation is warranted by the facts

known to him or her after a reasonable effort is made to

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obtain the facts on which the action is taken or the

recommendation is made. Ark. Code Ann. § 17-80-103.

There is no evidence in the record that the

doctors acted with malice or that they acted with illegal

or improper motives. The Court finds that Defendants

Counce and Mabry are immune from suit. See Buser v.

Raymond, 476 F.3d 565, 569 (8th Cir. 2007) (“Even

where an official is not a Board member, and thus he is

one step removed from the ‘judicial’ function of the

Board, he nevertheless may be entitled to absolute

quasi-judicial immunity if he is engaged in a protected [

] function.”) (internal quotation omitted).

Further, the Court has previously found that the

claims made in Plaintiff’s Complaint are barred by res

judicata. As stated in the previous Order, Plaintiff

cannot claim that the revocation of his license in April

2014 created a “new” claim that has not been litigated.

The specific issue was before the court in Williams I.

Plaintiff’s claim against Drs. Counce and Mabry are

based upon the same facts. Plaintiff did not include

Counce and Mabry as defendants but he was well aware

of their reports during the time Williams I was

pending. Res judicata bars Plaintiff’s claims against

Drs. Counce and Mabry because they could have been

litigated in Williams I.

The Motions for Summary Judgment filed by

Defendants’ Counce and Mabry (ECF Nos. 55, 58, 83

and 86) are GRANTED. The Clerk is directed to

dismiss Plaintiff’s Complaint against Defendants James

Counce and Charles Mabry.

IT IS SO ORDERED this 8th day of March,

2018.

_________________________

James M. Moody Jr.

United States District Judge

14a

IN THE

ATES

THE UNITED

UNITE D STATE

S DIS

DIS TRICT

TRICT COURT

EAST

EAS TERN

ER N DISTRI

DISTR ICT OF ARKANSAS

WESTER

WESTER N DIVISION

VICTOR

VICTOR BERNARD

ERNAR D WILLIAM

WILLIA MS , M.D.

M.D .

PLAINTIF

PLAINTIFF

4:17CV00205

4:17CV0020 5 JM

BAPTIST

d/b/

b/a

BAPTIST HEALTH

HEALTH d/

b/a BAPTI

BAPTIS T HEALTH

MEDICAL

CENTER,

MEDICA L

CENTER ,

DEFE

DEFE NDAN

ORDER

Plaintiff Victor Bernard Williams, M.D. filed suit

in this Court on March 31, 2017 against Baptist Health

d/b/a Baptist Health Medical Center (“Baptist”), the

Surgical Clinic of Central Arkansas (the “Clinic”) and

several doctors in their individual and/or official

capacities for violation of 42 U.S.C. §§ 1981, 1982, 1983,

1985, 1988, the Fourteenth Amendment to the United

States Constitution, the tort of abuse of process,

tortious interference with contracts and defamation.

Defendants Baptist, Doug Weeks, Everett Tucker,

M.D., Tim Burson, M.D., Scott Marotti, M.D., Susan

Keathley, M.D., Christy Cate, M.D., and the Clinic

(collectively the “Baptist Defendants) filed a motion to

dismiss Plaintiff’s Complaint based upon 1) res judicata,

2) statute of limitations, 3) Baptist Defendants are not

state actors, and 4) failure to plead conspiracy claims

with factual specificity.

Plaintiff is a surgeon specializing in

cardiothoracic, vascular and general surgery. Plaintiff

alleges that the Defendants conspired to have his

surgical staff privileges revoked at Baptist in 2010, to

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have the Arkansas Medical Board (the “Board”) place

restrictions on his ability to practice medicine from 2010

through 2013, and to have the Board revoke his medical

license on the basis of his race. Plaintiff alleges that the

Defendants retaliated against him for filing a state

court action against them and for seeking assistance

from the Board to investigate his claim of

discrimination.

On February 25, 2014, Plaintiff filed suit against

Baptist Health, Doug Weeks, Everett Tucker, M.D.,

Tim Burson, M.D., Scott Marotti, M.D., Susan Keathley,

M.D., and Christy Cate, M.D. in Pulaski County Circuit

Court, 60CV-14-808 (“Williams I”). The only Baptist

Defendant not included in the Williams I suit was the

Surgical Clinic of Arkansas. In Williams I, Plaintiff’s

claims were based upon the termination of his medical

staff privileges by the Williams I Defendants.

Specifically, Plaintiff asserted the following causes of

actions: violation of Article 2, §§ 2, 3, 8, 13, and 21 of the

Arkansas Constitution, retaliation and conspiracy to

violate the Arkansas Civil Rights Act, tortious

interference with contracts, defamation, violation of his

civil right to engage in the practice of medicine, and

violation of Baptist Health’s By-Laws and Professional

Staff Rules. The circuit court dismissed all of Plaintiff’s

claims except for the violation of Baptist’s By-Laws and

Professional Staff Rules claim. At a bench trial in 2017,

the circuit court found in favor of the Defendants on

this claim as well. Plaintiff has filed a Notice of Appeal

as to all of these claims.

The Baptist Defendants argue in the Motion to

Dismiss that the instant case is barred by res judicata

because Plaintiff brought essentially the same case in

Williams I. The claim- preclusion aspect of res judicata

bars relitigation of a suit when “(1) the first suit

16a

resulted in a final judgment on the merits; (2) the first

suit was based on proper jurisdiction; (3) the first suit

was fully contested in good faith; (4) both suits involve

the same claim or cause of action; and (5) both suits

involve the same parties or their privies.” Baptist

Health v. Murphy, 373 S.W.3d 269, 278 (Ark. 2010)

(citing Beebe v, Fountain Lake School Dist., 231 S.W.3d

828, 635 (Ark. 2006)). “Res judicata bars not only the

relitigation of claims that were actually litigated in the

first suit, but also those that could have been litigated.”

Id. “Where a case is based on the same events as the

subject matter of a previous lawsuit, res judicata will

apply even if the subsequent lawsuit raises new legal

issues and seeks additional remedies.” Daily v.

Langham, 522 S.W.3d 177, 181 (Ark. App. 2017).

Plaintiff does not dispute that Williams I

resulted in a final judgment on the merits, that the

circuit court had jurisdiction over the case, and that

both the instant case and Williams I involved the same

parties or their privies. See Crockett & Brown, P.A. v.

Wilson, 864 S.W.2d 244, 246 (Ark. 1993) (“A judgment

may be final for purposes of res judicata even if an

appeal is taken.); Winrock Grass Farm, 373 S.W.3d 907

(Ark. App. 2010) (Privity of parties within the meaning

of res judicata means a person so identified in interest

with another that he represents the same legal right.);

Crockett v. C.A.G. Invs., Inc., 381 S.W.3d 793, 799 (Ark.

2011) (The Arkansas Supreme Court has “never

required strict privity in the application of res

judicata....”). Plaintiff argues that Williams I was not

fully contested and that both suits do not involve the

same claims or causes of action.

Plaintiff claims that Williams I was not fully

contested in good faith because he was not allowed to

obtain information related to similarly situated

17a

physicians. Pursuant to Arkansas law, the Williams I

court denied Plaintiff’s motions to compel the

defendants to produce information regarding physicians

who had lost their hospital privileges. Plaintiff argues

he could not fully litigate his claims without this

information and therefore the claims should not be

barred by res judicata. In support of this argument,

Plaintiff cites a district court case from the Eastern

District of New York, Johnson v. County of Nassau,

480 F. Supp. 2d 581 (E.D.N.Y. 2007). In Johnson, the

plaintiff had filed a previous complaint with the New

York State Division of Human Resources (“NYSDHR”)

alleging race discrimination and unlawful retaliation

against him by the Nassau University Medical Center

where he was employed. NYSDHR reviewed the

evidence and “issued a Determination and Order After

Investigation dismissing the Complaint, finding ‘no

probably cause.’” Id. at 592. The Johnson court found

that Johnson was not barred by res judicata from

bringing the lawsuit because he had not been afforded a

hearing at the NYSDR and he was not able to engage

in discovery.

Even if Johnson were binding on the Court,

which it is not, the facts are not analogous to the instant

case. The NYSDHR is not a court of law. Johnson was

not allowed to do discovery because he did not bring a

lawsuit in a court of law. There is no indication that he

was allowed to file pleadings in response to motions, or

to present evidence to a judge. In the instant case,

Plaintiff filed a lawsuit in the Pulaski County Circuit

Court. He engaged in discovery, made and responded to

motions, and had a bench trial before a judge. Johnson

is not analogous to the instant case. Plaintiff had an

opportunity to litigate Williams I in good faith. A

judge’s determination that certain information could

18a

not be obtained by Plaintiff due to Arkansas law does

not result in a failure to fully contest the case in good

faith.

Plaintiff also claims that there is no identity of

claims between the instant case and Williams I because

(1) there were no federal causes of action presented in

Williams I, and (2) the federal claims arose after he

filed his state court complaint. The claims brought in

this action and the claims made in Williams I are based

upon the same set of facts. Plaintiff was not limited to

filing state court claims in state court. He could have

filed all of his claims, whether arising under state or

federal law, in Williams I. “It is well established that

claim-splitting is discouraged. All claims must be

brought together, and cannot be parsed out to be heard

by different courts.” Sparkman Learning Ctr. v.

Arkansas Dep’t of Human Servs., 775 F.3d 993, 1000

(8th Cir. 2014) (citing Elgin v. Dep’t of Treasury, 567

U.S. 1, 132 S.Ct. 2126, 2147, 183 L.Ed.2d 1 (2012)

(“Plaintiffs generally must bring all claims arising out of

a common set of facts in a single lawsuit, and federal

district courts have discretion to enforce that

requirement as necessary to avoid duplicative

litigation.” (quotations and citations omitted)).

Plaintiff’s argument that certain claims arose as

a result of filing Williams I, or at the time of his

medical license revocation in April 2014, is also flawed.

In the Williams I Complaint, Plaintiff states:

Plaintiff seeks to have the court enjoin the

hearing scheduled to be held in April 2014, as

well as injunctive and/or declaratory relief

declaring that the Board may not place any

further restrictions on Plaintiff’s ability to

practice medicine, to the extent that such

19a

restrictions purportedly relate to the issues

being raised in this case.

(Williams I Complaint, ECF No. 30-1 at p. 1314).

***

That the Plaintiff have permanent

injunctive relief against the Arkansas State

Medical Board preventing and precluding the

continuation of any conduct or actions taken by

the Board in furtherance of the conspiracy being

practiced against Plaintiff;

That the Plaintiff have a temporary

injunction against the Arkansas State Medical

Board requiring the Board to stay its

disciplinary proceedings (hearing scheduled for

April, 2014) related to the four cases reported by

the hospital defendant pending the resolution of

this case by this Court.

(Williams I Complaint, ECF No. 30-1 at p. 75).

Plaintiff sought to have the April 2014 hearing

regarding the revocation of his medical license enjoined.

The state court denied Plaintiff’s relief. Plaintiff cannot

claim that the revocation of his license on April 2014

created a “new” claim that has not been litigated. The

specific issue was before the court in Williams I. “The

doctrine of res judicata would become meaningless if a

party could relitigate the same issue ... by merely

positing a few additional facts that occurred after the

initial suit.” Misischia v. St. John’s Mercy Health Sys.,

457 F.3d 800, 805 (8th Cir. 2006) (quoting Dubuc v.

Green Oak Township, 312 F.3d 736, 751 (6th Cir. 2002)).

In conclusion, the Court finds that the claims

made in Plaintiff’s Complaint are barred by res

20a

judicata. The Motion to Dismiss filed by Defendants

Baptist, Doug Weeks, Everett Tucker, M.D., Tim

Burson, M.D., Scott Marotti, M.D., Susan Keathley,

M.D., Christy Cate, M.D., and the Surgical Clinic of

Central Arkansas (ECF No. 30) is GRANTED.

IT IS SO ORDERED this 19th day of

September, 2017.

_________________________

James M. Moody Jr.

United States District Judge

21a

Case No. 18-2423

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

VICTOR B. WILLIAMS, M.D.,

Appellant,

vs.

BAPTIST HEALTH MEDICAL CENTER, et al.,

Appellees.

Appeal from the U.S. District Court

for the Eastern District of Arkansas

Honorable James Moody, District Judge

Case No. 4:17-CV-205-JM

REPLY BRIEF OF APPELLANT

Andre K. Valley

Law Office of Andre

K. Valley, P.A.

423 Rightor, Suite # 2

Helena-West Helena,

AR 72342

Telephone: 870-338-6487

Eric E. Wyatt

George W. McGriff

George W. McGriff &

Associates

600 Colonial Park Drive

Roswell, Georgia 30075-3746

Telephone: 770-649-7160

Ext. 2

Facsimile: 870-338-8030

Andrekvalley@gmail.com

22a

dcgwm@mindspring.com

COUNSEL FOR APPELLANT

23a

TABLE OF CONTENTS

Page

Table of Authorities.................................................-iiI.

There Are Genuine Issues of Material Fact

as to Whether the Defendants Knew That

the Allegations Against Plaintiff Did Not

Constitute “Unprofessional Conduct” as

Defined by A.C.A. § 17-95-409(a)(2)(G)...............-1-

II.

The April, 2014 Revocation of Plaintiff’s

Arkansas Medical License Gave Rise to a

Separate, Independent Federal Cause of

Action.........................................................................-3-

III. The Defendants Are Liable for Plaintiff’s

State Law Claims Arising from the 2014

License Revocation ...............................................-16Conclusion ...............................................................-19Certificate of Compliance .....................................-21Certificate of Service.............................................-22-

24a

TABLE OF AUTHORITIES

FEDERAL CASES

Barzilay v. Barzilay, 600 F.3d 912, 920 (8th Cir.

2010) .........................................................................-19Beavers v. Arkansas State Board of Dental

Examiners, 151 F.3d 838, 840 (8th Cir. 1998) -22-, -23Bibbs v. Jim Lynch Cadillac, Inc., 653 F.2d 316,

318 (8th Cir. 1981) ..................................................-17Burns v. Reed, 500 U.S. 478, 492 (1991).........................-8Greenwood v. Ross, 778 F.2d 448, 456 (8th Cir.

1985) .........................................................................-16Harrison v. Springdale Water & Sewer Com., 780

F.2d 1422, 1425-1426 (8th Cir. 1985) .......... -18-, -24Imbler v. Pachtman, 424 U.S. at 430 ..............................-8Legnani v. Alitalia Linee Aeree Italiane, S.P.A.,

400 F.3d 139, 142 (2nd Cir. 2005) ............................-5Miller v. Huron Reg’l Med. Ctr., Inc., 145 F. Supp.

3d 873, 886 (D.S.D. 2015) .........................................-1Osuagwu v. Gila Reg’l Med. Ctr., 850 F. Supp. 2d

1216, 1235 (D.N.M. 2012) ............................. -14-, -15Sparkman Learning Ctr. v. Ark. Dep’t of Human

Servs., 775 F.3d 993, 1000 (8th Cir. 2014) ...........-17Varner v. Peterson Farms, 371 F. 3d 1011, 1019

25a

(8th Cir. 2004) .........................................................-15Walker v. Mem’l Health Sys., 231 F. Supp. 3d 210

(E.D. Texas 2017) ......................................... -20-, -21Wallace v. Kato, 549 U.S. 384, 387 (2007) ....................-18White v. Frank, 855 F.2d 956, 961 (2nd Cir. 1988) .......-8White v. McKinley, 519 F.3d 806, 814 (8th Cir.

2008) ................................................................ -15-, -16Winegar v. Des Moines Indep. Community Sch.

Dist., 20 F.3d 895, 899 (8th Cir. 1994)..................-22ARKANSAS CASES

Arkansas State Bd. of Nursing v. Long, 651

S.W.2d 109, 113, 8 Ark. App. 288, 296 (Ark.

App. 1983)................................................................-25Arkansas State Medical Board v. Cryer, 521

S.W.3d 459, 463 (Ark. 2017) .................................-18Baber v. Ark.State Med. Bd., 2010 Ark. 243, 368

S.W.3D 897, 901 ......................................................-18Dodd v. Sparks Regional Medical Center, 204

S.W.3d 579, 583 (Ark. App. 2005)...........................-2Ethridge v. State, 654 S.W.2d 595, 9 Ark. App.

111, 117-118 (Ark. App. 1983).................................-9Fegans v. Norris, 351 Ark. 200, 89 S.W.3d 919,

924-925 (Ark. 2002) ..................................................-9-

26a

Gramling v. Jennings, 274 Ark. 346, 625 S.W.2d

463 (1981) ...................................................................-9Harmon v. Carco Carriage Corp., 320 Ark. 322,

327 (Ark. 1995)........................................................-26Hill v. Wilson, 224 S.W.2d 797, 800 (Ark. 1949) ............-3Hollabaugh v. Arkansas State Medical Board, 43

Ark. App. 83, 88 (Ark. App. 1993 ...........................-4Lewis v. Burdine, 240 Ark. 821, 824 (Ark. 1966) ........-30Mason v. Funderburk, 446 S.W.2d 543, 548, 247

Ark. 521, 529 (Ark. 1969) ............................ -27-, -28Neal v. Sparks Reg’l Med. Ctr., 422 S.W.3d 1116,

120-121 ......................................................................-3Newton v. Etoch, 332 Ark. 325, 334 (1998)............ -4-, -8Toan v. Falbo, 268 Ark. 337, 595 S.W.2d 936, 937

(Ark. 1980 ................................................................-22UNITED STATES CODES

42 U.S.C. § 1981 ..............................................................-1742 U.S.C. § 1983 ............................................. -4-, -16-, -1742 U.S.C.A. § 11133(a)(1) ..............................................-16ARKANSAS CODE ANNOTATED

A.C.A. § 17-95-409(a)(2)(G) ............................. i, -1--3-, -6-

27a

A.C.A. § 17-95-410(c)(2).................................................-15Ark. Code Ann. § 25-15-207.”) .......................................-23A.C.A. § 25-15-209(a) ........................................................-9OTHER AUTHORITIES

45 C.F.R. § 60.11(b).........................................................-16Article 5, section 20 of the Arkansas Constitution ...-18First Amendment ..........................................................-24-

28a

I. THERE ARE GENUINE ISSUES OF MATERIAL

FACT AS TO WHETHER THE DEFENDANTS

KNEW THAT THE ALLEGATIONS AGAINST

PLAINTIFF

DID

NOT

CONSTITUTE

“UNPROFESSIONAL CONDUCT” AS DEFINED

BY A.C.A. § 17-95-409(a)(2)(G)

Essentially arguing that they are entitled to

judgment because Plaintiff failed to prove that he was

not “grossly negligent” and/or that he did not commit

“ignorant malpractice,” in his Complaint, and/or when

responding to the defendants’ motion to dismiss and

motions for summary judgment, the defendants failed

to meet their burden of proof as movants because they

failed to point to competent, admissible evidence which

would provide a factual basis to support their

contention that Plaintiff engaged in unprofessional

conduct as defined by A.C.A. § 17-95-409(a)(2)(G). As

such, they failed to establish that there is, was, and/or

has ever been a factual basis for the revocation of

Plaintiff’s Arkansas medical license in April 2014.

Further, and more importantly, there exists a genuine

issue of material fact as to whether there is, was, and/or

has ever been a factual basis for the continuous

defamatory1 statements related thereto that have been

continuously reported subsequent to the April 2014

Arkansas medical license revocation causing ongoing

injury to Plaintiff, notwithstanding the reinstatement

of Plaintiff’s medical license in December 2015.

See Miller v. Huron Reg’l Med. Ctr., Inc., 145 F. Supp. 3d 873, 886

(D.S.D. 2015), (“a reasonable jury could conclude that the Adverse

Action Report contained false information and that [defendant],

acting on behalf of [hospital], was aware of the false information.

As such, immunity does not apply here.”)

29a

In addition to the absence of a “complaint”2 by

one of the patients who allegedly received the

purported negligent medical treatment, the narrative

reports of Counce and Mabry fail to meet the

evidentiary requirements that would be necessary in

order to establish that Plaintiff committed medical

negligence generally.3 Further, and more importantly,

they clearly failed to demonstrate that Plaintiff was

“grossly negligent” or that he committed “ignorant

malpractice” in violation of the Medical Practices Act,

A.C.A. § 17-95-409(a)(2)(G).

With respect to allegations of “negligence”4 in

the medical malpractice context, see Neal v. Sparks

Reg’l Med. Ctr., 422 S.W.3d 1116, 120-121 (“To establish

a prima facie case of negligence, the plaintiff must

demonstrate that the defendant breached a standard of

care, that damages were sustained, and that the

defendant's actions were a proximate cause of those

damages. Proximate causation is an essential element

for a cause of action in negligence. “Proximate cause” is

See Complaint, ¶45. App. 33.

See Dodd v. Sparks Regional Medical Center, 204 S.W.3d 579, 583

(Ark. App. 2005), (“‘medical injury’ or ‘injury’ means any adverse

consequences arising out of or sustained in the course of the

professional services being rendered by a medical care provider,

whether resulting from negligence, error, or omission in the

performance of services...”)

“There is no such thing as ‘negligence in the air.’ Conduct without

relation to others cannot be negligent; it becomes negligent only as

it gives rise to an appreciable risk of injury to others. ... In other

words, a negligent act is one from which an ordinary prudent

person in the actor’s position–in the same or similar circumstances

– would foresee such an appreciable risk of harm to others as to

cause him not to do the act, or to do it in a more careful manner.”

Hill v. Wilson, 224 S.W.2d 797, 800 (Ark. 1949). (Footnote

Omitted.)

30a

defined, for negligence purposes, as that which in a

natural and continuous sequence, unbroken by any

efficient intervening cause, produces the injury, and

without which the result would not have occurred.”)

(Citations Omitted.) (Emphasis Added.)

While the defendants may argue that it is

unnecessary for the Plaintiff’s medical treatment to

result in “injury” to a patient before the ASMB can

take disciplinary action pursuant to A.C.A. § 17-95409(a)(2)(G), the Arkansas Legislature defined

“unprofessional conduct” as being more than mere

negligence, but rather, “grossly negligent or ignorant

malpractice,” before the Board would be authorized to

take any disciplinary action, including, but not limited

to, revoking a physician’s license to practice medicine in

Arkansas. See Hollabaugh v. Arkansas State Medical

Board, 43 Ark. App. 83, 88 (Ark. App. 1993), (“until

there was competent evidence to support [a finding of

gross negligence or ignorant malpractice] the board

was not authorized to form such an opinion...”)

II. THE APRIL, 2014 REVOCATION OF

PLAINTIFF’S ARKANSAS MEDICAL LICENSE

GAVE RISE TO A SEPARATE, INDEPENDENT

FEDERAL CAUSE OF ACTION

The April 2014-revocation of Plaintiff’s Arkansas

medical license was the overt act that gave rise to a

distinct federal cause of action that can not immunized

by state law. See Newton v. Etoch, 332 Ark. 325, 334

(1998), (“A § 1983 suit is one brought pursuant to an act

of Congress for a deprivation of civil rights against

persons operating under color of state law. It

establishes a federal cause of action to be enforced in

either federal or state courts. As such, it is the supreme

31a

law of the land, and any state claim of immunity must

yield to it.”) (Citations Omitted.) (Emphasis Added.)

The fact that some of the defendants’ acts,

omissions, and/or conduct may have predated April

2014, does absolve them from liability for the April

2014-revocation of Plaintiff’s Arkansas medical license

under federal or state law if it can be established that

the revocation of was an overt act in furtherance of the

ongoing conspiracy to deprive Plaintiff of federal

Constitutional due process5 and/or the conspiracy to

retaliate against Plaintiff for claims of racial

discrimination against the Baptist defendants that were

raised by Plaintiff: (1) during the disciplinary

proceedings at Baptist in 2010; (2) in Plaintiff’s

Complaint filed with ASMB in 2010: and/or (3) in

Plaintiff’s Complaint filed in Williams 1 in February

2014.

Obviously Plaintiff’s federal cause of action for

retaliation for re-filing Williams 1 in February 2014,

necessarily arose subsequent to the filing of the

Williams 1 Complaint filed in February 2014. See

Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 400

F.3d 139, 142 (2nd Cir. 2005), (“if, after a first suit is

underway, a defendant engages in actionable conduct, a

plaintiff may – but is not required to – file a

supplemental pleading setting forth defendant’s

subsequent conduct. A plaintiff’s failure to supplement

the pleadings of his already commenced lawsuit will not

result in a res judicata bar when he alleges defendant’s

It is undisputed that at the time that Baptist forwarded the

medical records to the ASMB in November, 2010 that were

purportedly “peer reviewed” by Counce and Mabry, Plaintiff had

not yet exhausted his appeals at Baptist, and therefore had not yet

received all of the process that was due to be afforded to him under

the Baptist Health medical staff bylaws.

32a

later conduct as a cause of action in a second suit.”

(Citations Omitted.)

Given that ASMB purportedly possessed Counce

and Mabry’s narrative reports since the 2010, did not

disclose those reports to Plaintiff until June, 2011 after

they were disclosed to Baptist during the litigation of

Williams 1, but did not revoke Plaintiff’s Arkansas

medical license until after conducting the hearing held

in Plaintiff’s absence in April 2014, a genuine issue of

material fact exists as to whether there was a

conspiracy, or “meeting of the minds” between the

named defendants that ASMB would help Baptist

defend against Plaintiff’s racial discrimination claims, to

include revoking Plaintiff’s Arkansas medical license, if

necessary even though the defendants all knew that the

medical treatment at issue did not constitute “gross

negligence” or “ignorant malpractice,” as referenced in

A.C.A. § 17-95-409(a)(2)(G).

In their brief, Counce and Mabry argue that,

“Dr. Williams appeared before the Board in December

2010, at which time proctoring of his colon surgery

cases was required by the Board on the basis of the

reports of Dr. Counce and Dr. Mabry.” Counce and

Mabry Appellees’ Brief, p.27. When Plaintiff alleged

that ASMB required him to obtain a proctor, App. 37 ¶

53, he did not also allege that the reports of Counce and

Mabry were the “bases” for ASMB’s requirement. In

fact, the record here does not disclose that Plaintiff had

obtained Counce and Mabry’s reports before the

hospital requested the reviews during the Williams 1

litigation in June, 2011. App. 295.6

App. 295, Footnote 21 states that the reviews were sought by

Plaintiff’s counsel on June 15, 2010, instead of June 15, 2011, but

this is obviously a scrivener’s error as ASMB had not began its

33a

Counce and Mabry’s argument that their reports

were used “as a basis” to “require” Plaintiff to obtain a

proctor explains why pursuant to the alleged

conspiracy, it was necessary for ASMB to depart from

its normal7 policies and procedures, and obtain the

reports prior to Plaintiff’s first appearance before

ASMB in December, 2010. See Cryer Depo., App. 39973998, where she testified about sending Plaintiff’s

patient medical records to Counce in November 2010,

before Plaintiff’s first appearance before the Board, and

while Plaintiff’s was still pursuing the Appellate

process at Baptist. In her letter to Counce, Cryer

stated, “[y]our review should be sent to us overnight

delivery if possible,” and that, “[w]e very much

appreciate your willingness to work with us to settle

this case promptly.” Id., at App. 3997. To the extent

that the reports were created with the intent to be used

by ASMB to “require” Plaintiff to do anything, Counce

and Mabry’s role may be characterized as “complaining

witnesses,” as referenced in White v. Frank, 855 F.2d

956, 961 (2nd Cir. 1988), entitling them to only qualified

immunity, at best.

In addition, there is a genuine issue of material

fact as to whether ASMB’s conduct in sending the legal

memo to Counce and Mabry along with the medical

inquiry in June, 2010 and it is undisputed that the medical records

were not sent to Counce and Mabry for review until November

2010, at the earliest. App. 36,¶ 52.

Cryer testified that, “our normal process is to give the expert – a

expert reviewer, any expert reviewer, plenty of time to do it, to do

whatever it is. My only assumption, and this is only an assumption,

is that this was on the 12th and we’re saying hurry and get them

reviewed for whatever reason and have them back here within

seven days. That is not normal.” App. 3997.

34a

records advising them of ASMB counsel’s legal

definition of “gross negligence” and “ignorant

malpractice” violated A.C.A. § 25-15- 209(a), which

requires that, “[u]nless required for the disposition of

ex parte matters authorized by law, members or

employees of an agency assigned to render a decision or

to make final or proposed findings of fact or conclusions

of law in any case of adjudication shall not

communicate, directly or indirectly, in connection with

any issue of fact with any person or party nor, in

connection with any issue of law, with any party or his

representative, except upon notice and opportunity for

all parties to participate.”9 See also Ethridge v. State,

654 S.W.2d 595, 9 Ark. App. 111, 117-118 (Ark. App.

1983), citing Gramling v. Jennings, 274 Ark. 346, 625

S.W.2d 463 (1981), (“the court reversed because a

doctor was allowed to say that, in his opinion, another

doctor was not negligent when he severed the plaintiff’s

ureter... [and that,] in this case it is a bald statement of

an opinion as to the ultimate issue.’”)

A reasonable fact finder could conclude that

ASMB knew that Counce and Mabry’s narrative

reports were false because on June 16, 2011, ASMB

wrote Plaintiff, and requested that he return for an

update in one year, implicitly acknowledging that a

revocation of Plaintiff’s Arkansas medical license was

See Newton v. Etoch, 332 Ark. 325, 337 (Ark. 1998), citing Burns

v. Reed, 500 U.S. 478, 492 (1991) and Imbler v. Pachtman, 424 U.S.

at 430, (“prosecutor only had qualified immunity pertaining to the

legal advice he gave to police officers . . . because giving advice to

investigative officers was not intimately connected with the

judicial phase of the criminal process.”)

By definition, “malice” is “[a] conscious violation of the law which

operates to the prejudice of another person.” Fegans v. Norris, 351

Ark. 200, 89 S.W.3d 919, 924-925 (Ark. 2002).

35a

not warranted at that time. App. 38, ¶ 56. In fact, the

next day, June 17, 2011, even though they were never

ultimately offered into evidence, a representative of the

ASMB sent Counce and Mabry’s narrative reports to

Baptist to be used in Williams 1. App. 38-39, ¶57. There

is no evidence in the record which establish that

Plaintiff obtained Counce and Mabry’s reports before

Baptist did in June 2011, despite Counce and Mabry’s

unsupported argument in their brief to the contrary.

Furthermore, in his June 17, 2011-transmittal letter to

Baptist (Harold Simpson), ASMB’s representative

stated that, “Dr. [Counce] and Mabry do not have to

testify or follow-up for further testimony or work

concerning these reviews unless they desire to do so.”

App. 2468.

Other evidence indicating that the defendants

had a “meeting of the minds” that Counce and Mabry’s

reports would be used by Baptist during the Williams 1

litigation, but would not ever be subject to cross

examination is the fact that Plaintiff’s properly noticed

hearing that was scheduled to be held in June 2012, was

postponed after Plaintiff and his witnesses appeared

because Counce purportedly was unable to appear to

testify. App. 40-41, ¶ 63. Even though the Board knew

or should have known that Counce would not attend the

hearing on the scheduled date in June 2012, they failed

to notify Plaintiff prior to his arrival that the hearing

would not go forward due to Counce’s absence.

There is a genuine issue of material fact as to

whether ASMB failed to go forward with the hearing

after seeing the witnesses who appeared along with

Plaintiff because they knew that they would not be able

to establish that Plaintiff committed “gross negligence”

or “ignorant malpractice,” either with or without

testimony from Counce and Mabry.

36a

In addition, on June 8, 2012, even though ASMB

failed to go forward with the properly noticed hearing

after Plaintiff appeared along with his witnesses,

Hearnsberger publicly humiliated and intimidated

Plaintiff in front of all persons in attendance,10 to

include Plaintiff’s witnesses and the other ASMB

members. See also, App. 207-208, ¶141 of the Complaint

filed in Williams I, which provides in relevant part that

during the June 8, 2012, publicly held Board meeting

regarding independent peer written material offered by

Plaintiff that supported Plaintiff’s treatment of one of

the patients at issue, Hearnsberger “stated in a most

vocal and argumentative manner that he ‘did not

believe the peer written material nor Dr. Williams

either.” As a general surgeon member of ASMB, this

statement, along with Hearnsberger’s deposition

testimony that he did not review the medical records on

the four cases,11 supports Plaintiff’s allegations that

Hearnsberger intentionally tried to persuade the

ASMB members who were not surgeons that Plaintiff

was an incompetent physician.

See also, App. 5327, Hearnsberger’s June 9,

2012-email to Peggy Cryer directing her to, “Please

See also Hearnsberger Depo., App. 3539, wherein he admitted

that Simpson, who he had known for a long time, had been in

attendance as a representative of Baptist, and “just wanted to hear

the discussion.” See also App. 42, ¶ 66. On June 18, 2012, “a

representative of the Baptist Health Defendants attempted to

coerce Plaintiff into voluntarily dismissing his cause of action, and

stated to counsel for Plaintiff, (in the presence of Plaintiff) that if

he didn’t dismiss his lawsuit, Plaintiff would have to either ‘admit

that he had done something wrong to the Arkansas State Medical

Board, or lose his medical license.’”

Hearnsberger also conceded during his deposition taken in the

federal action that the four cases were complicated surgical cases.

App. 3544, Depo., pg. 58.

37a

pass this on to the other board and to Bill [Trice],”

stating that one of Plaintiff’s professors had described

him as “‘hard headed’ and a ‘poor resident.’” This

statement is/was false, as Plaintiff’s student file at the

University of Arkansas contains a favorable written

evaluation from Dr. Eidt covering the entire time

period that Plaintiff was a resident under Eidt at the

University of Arkansas. App. 42, FN15.

Therefore, there is a genuine issue of material

fact as to whether Hearnsberger’s conduct in this

regard was done with the specific intent to convince the

other ASMB members who were not surgeons to vote

to require Plaintiff to attend a physician assessment

program before Plaintiff could have his medical license

renewed because he knew that Plaintiff would likely

prevail at a hearing with the expert witnesses who

appeared along with him to testify on his behalf.

Additional facts further supporting this

argument are as follows: (1) ASMB rejected Plaintiff’s

successful completion of the KSTAR physician

assessment program; (2) after Plaintiff successfully

completed the KSTAR physician assessment program,

ASMB attempted to have KSTAR reconsider its

assessment; and (3) ASMB sent a copy of Plaintiff’s

state court civil rights complaint to KSTAR instead of

the medical records related to the four patients whose

medical treatment was purportedly at issue.

There is a genuine issue of material fact as to

whether ASMB also intentionally deprived Plaintiff of

the ability to cross-examine Counce and Mabry by

holding the hearing in April 2014, when the ASMB

knew beforehand that Plaintiff would not attend

because he had no knowledge that the hearing would be

taking place at that date and time. If done intentionally,

this was another conscious violation of Plaintiff’s

38a

Arkansas statutory right to notice and opportunity to

be heard before the revocation of his medical license

giving rise to the federal constitutional claims raised in

Plaintiff’s federal action.

See Osuagwu v. Gila Reg’l Med. Ctr., 850 F.

Supp. 2d 1216, 1235 (D.N.M. 2012), (“[b]y failing to

bring to Plaintiff’s disciplinary hearing the PRC

physician-reviewers who expressed their opinions that

Plaintiff’s performance fell below the standard of care,

and by failing to bring in the other physicians who

allegedly informed the MEC and PRC members that

Plaintiff had committed errors failing to consult, Gila

Regional and its MEC deprived Plaintiff of an

opportunity to cross-examine the witnesses against

him. As a matter of law, this failure violated Plaintiff’s

rights12 of cross-examination under both the Bylaws

and the minimum standards of constitutional due

process.”)

Therefore, the April 2014-hearing that was

intentionally held in Plaintiff’s absence13 and the

revocation of Plaintiff’s Arkansas medical license is the

overt14 act in furtherance of the conspiracy to cause

injury to Plaintiff which gave rise to Plaintiff’s federal

The plaintiff is “required to prove a deprivation of a

constitutional right or privilege in order to prevail on a § 1983 civil

conspiracy claim.” White v. McKinley, 519 F.3d 806, 814 (8th Cir.

2008).

A.C.A. § 17-95-410(c)(2), requires that the Board send “by

registered mail to the person’s last known address of record a copy

of the order and notice of hearing along with a written notice of the

time and place of the hearing.” App. 47, ¶ 82, FN18.

An overt act has two elements: (1) it must be a new and

independent act that is not merely a reaffirmation of a previous

act, and (2) it must inflict new and accumulating injury on the

plaintiff.” Varner v. Peterson Farms, 371 F. 3d 1011, 1019 (8th Cir.

2004).

39a

cause of action that was filed in district court on March

31, 2017.

Moreover, to the extent that a genuine issue of

material fact exists as to whether the Baptist

defendants intentionally and prematurely15 invoked the

aid of ASMB, (to include Counce and Mabry) in the first

instance, in order to defend against Plaintiff’s racial

discrimination claims in Williams 1, and/or to otherwise

cause injury to Plaintiff in retaliation for filing

Williams 1, they too may be subject to liability under §

1983 for damages arising from the improper revocation

of Plaintiff’s Arkansas medical license.

“Although § 1983 can only be used to remedy a

deprivation of rights done under the color of law, a

private actor can be liable ‘under § 1983 for conspiring

with state officials to violate a private citizen’s rights.

The key inquiry is whether the private party was a

willful participant in the corrupt conspiracy.” White v.

McKinley, 519 F.3d at 815-816. See also Greenwood v.

Ross, 778 F.2d 448, 456 (8th Cir. 1985), (“Claims of

retaliatory discharge based on the first amendment are

commonly asserted in § 1983 actions.”)

Similarly, Plaintiff’s retaliation claim is also

viable under § 1981 and “[a]n individual who establishes

a cause of action under § 1981 is entitled to both

See Osuagwu v. Gila Reg’l Med. Ctr., 850 F. Supp. 2d 1216, 1220

(D. N. M. 2012), (“Under HCQIA, any health-care entity that takes

final peerpeer-review action that adversely affects a physician’s

hospital privileges for a period longer than thirty days must report

that final action to the state board of medical examiners. See 42

U.S.C.A. § 11133(a)(1). The board of medical examiners must then

report this information to the National Practitioner Data Bank. See

45 C.F.R. § 60.11(b).”) Here, in addition to eliciting the aid of

ASMB prior to Plaintiff’s exhaustion of the appeals authorized by

the Baptist medical staff bylaws, Baptist submitted a NPDB

report in June, 2010 before making a final decision in April 2011.

40a

equitable and legal relief, including compensatory and,

under certain circumstances, punitive damages,”

entitling both parties to “the right to a jury trial on the

legal claims.” Bibbs v. Jim Lynch Cadillac, Inc., 653

F.2d 316, 318 (8th Cir. 1981).

The damages sought by Plaintiff in his federal

cause of action are not barred by the doctrine of res

judicata because they did not arise until after he filed

his Complaint in Williams 1. Indeed, by intentionally

going forward with the hearing in Plaintiff’s absence, a

genuine issue of material facts exists as to whether

they did so with the intent to preclude Plaintiff from

being able to raise his federal constitutional claims in

his state court case (Williams 1). See Sparkman

Learning Ctr. v. Ark. Dep’t of Human Servs., 775 F.3d

993, 1000 (8th Cir. 2014), (“Based on the Hamilton rule,

constitutional claims must be raised at the

administrative level to preserve such claims for appeal

before the state courts.”) To the extent ASMB

intentionally held the hearing in Plaintiff’s absence for

this reason as well, it deprived Plaintiff of his

fundamental right to access of the courts, which further

supports Plaintiff’s retaliation cause of action filed in

federal court. See Harrison v. Springdale Water &

Sewer Com., 780 F.2d 1422, 1427- 1428 (8th Cir. 1986),

(“An individual’s constitutional right of access to the

courts cannot be impaired, either directly or

indirectly...”)

Plaintiff did not seek compensatory damages16

from ASMB in Williams 1. At the time that Plaintiff

See also Arkansas State Medical Board v. Cryer, 521 S.W.3d 459,

463 (Ark. 2017), (“[b]ecause a judgment for Byers would operate to

control the action of the State or subject it to liability, here ACRA

claims against the Board and against Cryer in her official capacity

are barred by article 5, section 20 of the Arkansas Constitution.”)

41a

filed the Williams 1 complaint in state court on

February 25, 2014, the claims alleged in Plaintiff’s

federal cause of action had not yet accrued17 because:

ASMB had entered no orders18 against him; ASMB had

not reported any adverse actions against Plaintiff to the

National Practitioner Data Bank (“NPDB”); and ASMB

had not otherwise taken any adverse actions against

Plaintiff that would have required and/or allowed

Plaintiff to seek further injunctive relief and/or

compensatory damages.

Further, the Consent Order entered into by

Plaintiff and ASMB in 2015, failed to expressly resolve

any of the issues involved in this federal action and

therefore has no preclusive effect on the federal claims

raised herein.

See Barzilay v. Barzilay, 600 F.3d

912, 920 (8th Cir. 2010), (“Because it did not actually

determine the relevant issues, the consent judgment

would have no preclusive effect in these proceedings.”)

Indeed, regarding the only issues that may be

relevant in this case, it is undisputed that, “[t]he parties

have all agreed that the four (4) cases that were

“[T]he accrual date of a § 1983 cause of action is a question of

federal law that is not resolved by reference to state law.” Wallace

v. Kato, 549 U.S. 384, 387 (2007).

See Baber v. Ark. State Med. Bd., 2010 Ark. 243, 368 S.W.3D

897, 901, (“‘Adjudication’ is defined as an ‘agency process for the

formulation of an order.’ ... ‘Order

Order is defined as the ‘final

disposition of any agency in any matter other than rule making,

including licensing [], in which the agency is required by law to

make its determination after notice and hearing.”) App. 5528, June

20, 2012-email from Juli Carlson to Kate Seippel, of USCD PACE

Program, (“I just spoke with a staff member at your facility who

advised me to email you to let you know we have a licensee, Victor

Williams, that the Board has ordered to undergo an assessment

at your facility prior to being allowed to continue performing

surgical procedures in Arkansas.”) (Emphasis Added.)

42a

reviewed by the Board and subject to the April 3, 2014hearing, will be remanded to the Board for possible

disciplinary action in the future,” and ASMB “agrees to

not proceed on those cases with any disciplinary action

regarding those cases until Dr. Williams’ case against

the remaining defendants in [ ] Pulaski County Circuit

Court Case No. 60CV-14-808, is concluded.” App. 3450,

¶ 3. It is also undisputed that on June 4, 2015, the

“Board further agreed to rescind and void the 2014

revocation of Dr. Williams’ Arkansas medical license

and return his licensure status to that prior to the

hearing due to a lack of notice.” App. 5353.

The Consent Order’s requirement that ASMB

not proceed with any disciplinary action regarding the

four (4) cases at issue until Plaintiff’s state court case is

concluded is consistent with the injunctive relief sought

by Plaintiff when adding ASMB as a defendant when he

re-filed the Williams 1 Complaint in February 2014.

This relief is also consistent with the district

court’s holding in Walker v. Mem’l Health Sys., 231 F.

Supp. 3d 210 (E.D. Texas 2017).19 In Walker, the district

court found that, “[a]n adverse report on the NPDB

that deems a surgeon to have ‘substandard or

inadequate skill’ is intrinsically harmful to that

surgeon’s practice, professional reputation, and

livelihood,” and that, “[a]n erroneously filed report

In Walker, the district court ordered the hospital, “and anyone

acting on its behalf to immediately submit to the National

Practitioners Data Bank a Void Report regarding Dr. Walker, and

all such entities and persons shall refrain from filing any other

statements or reports with the National Practitioners Data Bank

relating to the actions the Hospital has taken against Dr. Walker in

connection with the peer review process that is the subject of this

lawsuit, including the imposition of a proctoring requirement,

during the pendency of this suit.” Walker, supra, at 217.

43a

announcing to all interested parties that a physician has

been sanctioned, suspended, or lacks the adequate skill

to practice medicine carries with it the potential to

immediately and irrevocably harm that physician and

his practice. This stigma and reputational harm poses a

substantial threat to [the physician’s] ability to gain or

maintain employment to support his practice.” Id., at

216.

The state court’s failure to address NPDB

reports and/or to otherwise order that such reports be

voided, does not preclude this court from exercising

jurisdiction over Plaintiff’s federal cause of action

seeking damages arising from ASMB’s improper

revocation of Plaintiff’s Arkansas medical license, to

include the false NPDB reports related thereto,

particularly since the Consent Order provided that

Plaintiff would be placed in the position he was “as if

the hearing didn’t happen,”20 and no such negative

reports had been submitted to NPDB, or otherwise

publicly reported by ASMB prior to the April, 2014hearing. App. 4214. See also, App. 5353.

Under Arkansas law, Plaintiff had a right to seek

Plaintiff’s federal cause of action (Equal Protection) against the

defendants also relate to the Arkansas State Medical Board’s

failure to afford Plaintiff the opportunity to prosecute his civil

action against the Baptist defendants consistent with the Board’s

customary, normal policies and procedures that are enjoyed by

other physicians. See also Winegar v. Des Moines Indep.

Community Sch. Dist., 20 F.3d 895, 899 (8th Cir. 1994), (“A

property interest in employment can also be created by implied

contract, arising out of customs, practices, and de facto policies.

When such a property interest exists, the employee is entitled to a

hearing or some related form of due process before being deprived

of the interest.”) (Citations Omitted.)

44a

injunctive and/or declaratory relief in Williams 1 prior

to a hearing due to ASMB’s rejection of his successful

completion of the KSTAR physician assessment

program and ASMB’s threat to still go forward with a

hearing unless Plaintiff agreed to attend another

physician assessment program. See Beavers v.

Arkansas State Board of Dental Exam’rs, 151 F.3d 838,

840 (8th Cir. 1998) (“The AAPA permits persons who

allege injury or threat of injury to their person,

business, or property, by any rule or its threatened

application, to seek declaratory judgment of the

validity or applicability of that rule in the circuit courts

of Arkansas. Ark. Code Ann. § 25-15-207.”)

Plaintiff’s federal cause of action against the

named defendants in their individual capacities is

premised upon their individual conduct, acts, and/or

omissions as they relate to the damages suffered by

Plaintiff as a result of the revocation of his Arkansas

medical license, as well ASMB’s subsequent failure to

accurately report the voiding of the revocation of his

medical license from the time that it was entered in

2015 to the present, as there are genuine issues of

material fact as to whether the license revocation

occurred not in furtherance of quality healthcare but in

retaliation for the filing of Williams 1.

“The United States Supreme Court has stated

that ‘the right of access to the courts is indeed but one

aspect of the right of petition.’ The Court has noted that

the right to petition is ‘among the most precious of the

The injunctive relief sought by Plaintiff in Williams 1, became

moot when the parties entered into the Consent Order. See Toan

v. Falbo, 268 Ark. 337, 595 S.W.2d 936, 937 (Ark. 1980), (“We have

recognized that equity has jurisdiction to enjoin or restrain officers

of state agencies from acts which are ultra vires or beyond the

scope of their authority.”)

45a

liberties safeguarded by the Bill of Rights, and that it

has ‘a sanctity and a sanction not permitting dubious

intrusions.’ As an aspect of the First Amendment right

to petition, the right of access to the courts shares this

‘preferred place’ in our hierarchy of constitutional

freedoms and values. ... The cases from this Circuit, as

well as from others, make it clear that state officials

may not take retaliatory action against an individual

designed either to punish him for having exercised his

constitutional right to seek judicial relief or to

intimidate or chill his exercise of that right in the

future.” Harrison v. Springdale Water & Sewer Com.,

780 F.2d 1422, 1425-1426 (8th Cir. 1985). (Citations

Omitted.)

ASMB also intentionally failed to consider and/or

to present during the April 3, 2014-hearing, exculpatory

evidence that had been previously provided to the

Board prior to Plaintiff’s June 2012, appearance before

the Board, when he appeared as scheduled, along with

the witnesses who were prepared to give sworn

testimony in support of their expert reports. See App.

40-41, ¶s 63 & 64. Contrary to the reports of Counce

and Mabry, Professor Rhonda Tillman, M.D., had

prepared written experts opinions wherein she opined

that the medical treatment provided by Plaintiff met

the applicable standard of care. App. 888-894. In

addition to Dr. Tillman’s reports, Plaintiff had also

submitted the reports of Hamid Mumtaz, M.D., another

physician on the medical staff at Baptist, who also

opined that the medical treatment rendered by Plaintiff

had met the applicable standard of care. App. 895-896.

These reports had been read by defendants Beck and

Hearnsberger before Plaintiff’s Arkansas medical

license was revoked, but were never considered by the

other Arkansas State Medical Board members because

46a

they were not placed into evidence during the hearing

held in April, 2014. App. 3826-3827; App. 3635, 3679,

3684-3689; and App. 4857-4859.

“Where reliance is placed by an administrative

agency upon testimony of certain witnesses in making a

critical factual determination, it will be an abuse of

discretion to fail to hear material evidence which might

impeach, not only the testimony, but the findings made

by the agency as well.” Arkansas State Bd. of Nursing

v. Long, 651 S.W.2d 109, 113, 8 Ark. App. 288, 296 (Ark.

App. 1983).

III. THE DEFENDANTS ARE LIABLE FOR

PLAINTIFF’S STATE LAW CLAIMS ARISING

FROM THE 2014 LICENSE REVOCATION

Because they are related to, elements of, and/or

inextricably intertwined with Plaintiff’s federal claims

alleged in the Complaint filed in federal court,

Plaintiff’s state law claims for abuse of process and

tortious interference also accrued in April 2014, with

the “overt act” of the revocation of Plaintiff’s Arkansas

medical license.

In their brief, the Baptist defendants argue that,

“Dr. Williams argues that an abuse of process and a

tortious interference occurred when his medical license

was revoked in April 2014. He theorizes that his

medical license was revoked in order to coerce22 him to

“Abuse of process is somewhat in the nature of extortion or

coercion.” Harmon v. Carco Carriage Corp., 320 Ark. 322, 327

(Ark. 1995). “The key to this tort is the improper use of process

after issuance to accomplish an ulterior purpose for which the

process was not designed. It is the purpose for which the process is

used, once issued, that is of importance.” Id., at 327. (Citations

Omitted.)

47a

drop his civil lawsuit against the ASMB23 and the

Baptist Health Appellees that was pending at that

time.” Baptist Appellees’ Brief, pp. 35-36. (Footnotes

Added.)

Under Arkansas law, “[a] conspiracy may be

shown by direct evidence of an actual agreement or

understanding between conspirators, but it may also be

shown by circumstantial evidence. It may also be

inferred from actions of alleged conspirators, if it be

shown that they pursued the same unlawful object,

each doing a part, so that their acts, although

apparently independent, are in fact connected and

cooperative, indicating a closeness of personal

association and a concurrence of sentiment. Any act

done or declaration made by one of the conspirators in

furtherance, aid or perpetration of the alleged

conspiracy may be shown as evidence against his fellow

conspirators.” Mason v. Funderburk, 446 S.W.2d 543,

548, 247 Ark. 521, 529 (Ark. 1969). (Citations Omitted.)

In Mason, the Arkansas Supreme Court held that,

“[e]ven though one may not be liable as a direct actor in

interfering with existing contracts of employment, he

may incur liability as a participant in a conspiracy

which results in one or more overt acts by others

constituting actionable interference.” Id., at 529.

The April 2014-revocation of Plaintiff’s Arkansas

medical license is the over act which caused the

Compare Counce and Mabry’s brief where they argue that, “Dr.

Williams has included Dr. Counce and Dr. Mabry in his alleged

state court claims, although there are no allegations in Dr.

Williams’ Complaint as to the nature of any state claim against

either or facts which would support such allegations.” Appellees

Counce and Mabry’s Br., p. 25. Obviously, Plaintiff’s medical

license could not have been revoked without Counce and Mabry’s

participation in the hearing held in Plaintiff’s absence.

48a

damages that are being sought in Plaintiff’s federal

cause of action. Specifically, the continuous NPDB

reports, which state that Plaintiff committed, “gross

negligence,” or “ignorant malpractice” are defamatory

and continue to be reported despite the state court’s

order directing the parties to: (1) void and rescind the

order revoking Plaintiff’s Arkansas license; (2) to

reinstate Plaintiff’s Arkansas medical license; (3)

remand the four cases to ASMB for possible

disciplinary action in the future after Plaintiff’s state

law claims are disposed of; and (4) to treat the April

2014-hearing as if it did not happen.

Obviously, since there had been no such negative

reports issued before the April 2014-hearing, ASMB is

not treating Plaintiff as if the hearing did not happen.

In addition, while all of the defendants argue that they

are not responsible for the NPDB reports, they

participated in the underlying conduct that led to the

false information contained in the reports that have

been filed and/or that continue to be filed.

In Mason v. Funderburk, the Arkansas Supreme

Court held that, “[d]efamatory statements and false

statements have been recognized as improper actions

giving rise to a cause of action for interference with

contractual relations. We have held that words, written

and published, prejudicing one in his employment, are

actionable. The fact that the language alleged to have

induced a discharge of an employee might be set forth

in the complaint in such a manner as to form the basis of

an action for libel or slander does not prevent the

employee from maintaining an action for wrongful

See Mason, supra, at 529, (“Such a conspiracy is not actionable in

and of itself, but recovery may be had for damages caused by acts

committed pursuant to the conspiracy.”) (Emphasis Added.)

49a

interference with his contract of employment.” Id., at

530. (Citations Omitted.)

In addition to going forward with the hearing so

that Plaintiff could not cross examine Counce and

Mabry, there also is a genuine issue of material fact as

to whether the defendants knew that Plaintiff would

prevail at a hearing, but went forward with the April

hearing in Plaintiff’s absence so that they could

continuously submit false reports about Plaintiff’s

competence to the NPDB in order to cause Plaintiff to

suffer “the harshest penalty possible,” (i.e., to

continuously tortiously interfere with Plaintiff’s

existing and potential contractual and business

relationships with his patients, insurers, and other

hospitals).

“Abuse of process differs from malicious

prosecution in that the gist of the tort is not

commencing an action or causing process to issue

without justification, but missing or misapplying

process justified in itself for an end other than that

which it was designed to accomplish. Consequently in

an action for abuse of process it is unnecessary for the

plaintiff to prove that the proceeding has terminated in

his favor.” Lewis v. Burdine, 240 Ark. 821, 824 (Ark.

1966).

Conclusion

In light of the forgoing, the district court’s

orders granting the defendants’ motions to dismiss and

motions for summary judgment should be reversed.

Respectfully submitted, this 13th day of

December, 2018.

By: s/s Eric E. Wyatt, Esq.

50a

Eric E. Wyatt

Georgia Bar No. 778955

George W. McGriff_

Georgia Bar No.: 493225

GEORGE W. MCGRIFF &

ASSOCIATES

600 Colonial Park Drive

Roswell, Georgia 30075-3746

(770) 649-7160

Email: ericewyatt@icloud.com

Andre K. Valley

423 Rightor, Suite #2

Helena-West Helena, AR

72342 870-338-6487 Ext.2

Telephone

870-338-8030 Facsimile

Andrekvalley@gmail.com

Attorneys for Plaintiff

51a

Case No. 18-2423

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

VICTOR B. WILLIAMS, M.D.,

Appellant,

vs.

BAPTIST HEALTH MEDICAL CENTER, et al.,

Appellees.

Appeal from the U.S. District Court

for the Eastern District of Arkansas

Honorable James Moody, District Judge

Case No. 4:17-CV-205-JM

BRIEF OF APPELLANT

Andre K. Valley

Eric E. Wyatt

Law Office of Andre

George W. McGriff

K. Valley, P.A.

George W. McGriff &

423 Rightor, Suite # 2

Associates

Helena-West Helena,

600 Colonial Park Drive

AR 72342

Roswell, Georgia 30075-3746

Telephone: 870-338-6487 Telephone: 770-649-7160

Ext. 2

Facsimile: 770Facsimile: 870-338-8030

dcgwm@mindspring.com

Andrekvalley@gmail.com

COUNSEL FOR APPELLANT

ORAL ARGUMENT NOT REQUESTED

52a

Summary of the Case and Waiver of Oral Argument

Victor B. Williams, M.D.’s unrestricted surgical

medical staff privileges at Baptist Health Medical

Center (hereinafter, “Baptist”) were terminated in

April 2011. Williams filed suit against Baptist in April,

2011, in Pulaski Circuit Court, relying upon the

Arkansas Civil Rights Act and Arkansas state law.

When he refiled his lawsuit in February, 2014 after

having obtained a nonsuit in March, 2013, Williams also

sought injunctive relief against the Arkansas State

Medical Board (hereinafter, “Medical Board”), and one

of its members who had previously served as a member

of the surgical control committee at Baptist, and who

became a member of the Medical Board in June 2009.

After being served with the re-filed Complaint in

March 2014, but before filing its Answer, the Medical

Board held a hearing in April 2014, and revoked

Williams’s Arkansas medical license in his absence.

Williams filed suit in federal court on March 31, 2017

seeking damages related to the revocation of his

Arkansas medical license.

Appellant does not request oral argument, but

will attend if the Court finds that oral argument would

be helpful and/or necessary for the Court to adequately

decide the issues raised on appeal.

Corporate Disclosure Statement

Appellant, Victor Williams, M.D., brought this action as

an individual.

53a

Table of Contents

Summary of the Case and Waiver of Oral Argument .... i

Corporate Disclosure Statement ....................................... i

Table of Authorities........................................................... iv

Jurisdictional Statement.....................................................1

Statement of the Issues ......................................................2

Statement of the Case .........................................................3

Summary of the Argument...............................................12

Argument and Citations of Authorities..........................13

I. The District Court Erred in Granting the

Baptist Defendants’ Motion to Dismiss. .............13

A. Res Judicata Does not Apply to a

Different Cause of Action Arising After

the First Lawsuit Was Filed..........................14

B. The State Court’s Limitations on

Discovery Thwarted Plaintiff’s Ability

to Litigate His Discrimination Claims in

State Court........................................................20

C. The Trial Court Erred in Holding that

the Baptist Defendants Were in Privity

with Defendant Surgical Clinic of

Central Arkansas .............................................21

II. The District Court Erred in Granting

Counce and Mabry’s Motions for Summary

Judgment.................................................................22

III. The District Court Erred in Granting

Beck and Hearnsberger’s Motion for Summary

Judgment.................................................................23

IV.The District Court Erred in Denying

Plaintiff’s Motion to Amend the September

19, 2017 Order Granting the Baptist

Defendants’ Motion to Dismiss. ...........................33

Conclusion. ..........................................................................40

Certificate of Compliance. ................................................41

54a

Certificate of Service........................................................ 42

Addendum ..............................................................................

Doc. 47:

Order Granting Defendants’ Motion

to Dismiss (September 19, 2017)APP. 1053

Doc. 52: Order Denying Plaintiff’s Motion to

Alter Judgment and Denying

Plaintiff’s Motion to Stay (November

1, 2017) ......................................... APP. 1471

Doc. 82: Order Denying Plaintiff’s Motion to

Defer Ruling (January 9, 2018) APP. 2972

Doc. 146: Order

Granting

Defendants

Hearnsberger And Beck’s Motion for

Summary

Judgment;

Directing

Clerk to close case and cancelling

The Trial scheduled for 06/18/2018

(May 31, 2018) ............................. APP. 5305

Doc. 147: Judgment (May 31, 2018) .......... APP. 5309

55a

Table of Authorities

FEDERAL CASES

Arnold v. Wood, 238 F.3d 992, 998 (8th Cir. 2001) .....-50Baker v. John Morrell & Co., 266 F.Supp.2d 909,

920 (N.D. Iowa 2003)................................. .-51-, -54Beavers v. Arkansas State Board of Dental

Examiners, 151 F.3d 838, 840 (8th Cir. 1988)-51-, -58Bob’s Home Service, Inc. v. Warren County, 755

F.2d 625, 628 (8th Cir. 1984) ..............................-59Braswell v. Haywood Regional Med. Ctr., 352

F.Supp. 2d 639, 650 (W.D. N.C. 2005) ..............-34Burns v. Reed, 500 U.S. 478 (1991).................................-2CBOCS West, Inc. v. Humphries, 553 U.S. 442,

457 (2008)..............................................................-44Conner v. Reinhard, 847 F.2d 384, 395 (7th Cir.

1988) ......................................................................-48Crawford v. Paris, 897 F. Supp. 928, 931 (D. Md.

1995) ......................................................................-48Curtis v. Citibank, N.A., 226 F.3d 133, 139 (2nd

Cir. 2000) ..............................................................-25Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993) .....................................................-34Doe v. McCulloch, 835 F. 3d 785, 788

(8th Cir. 2016) ............................................. -53-, -59England v. Louisiana State Board of Medical

Examiners, 375 U.S. 411, 421 (1964)......... -28-,-29Ennix v. Stanten, 556 F. Supp. 2d 1073, 1086 (N.D.

Cal. 2008) .......................................................-41-, 42First American Bank & Trust Co. v. Ellwein, 520

F.2d 1309, 1311 (8th Cir. 1975)............................-28Germain Real Estate Co. v. HCH Toyota, LLC,

778 F.3d 692, 695 (8th Cir. 2015) .............. -22-, -23Greenwood v. Ross, 778 F.2d 448 (8th Cir. 1985) .........-2Gwartz v. Jefferson Memorial Hosp. Ass’n, 223

F.3d 1426, 1428 (8th Cir. 1994) ..........................-19-

56a

Hafer v. Melo, 502 U.S. 21, 31 (1991)............................-35Harrison v. Springdale Water & Sewer

Commission, 780 F.2d 1422, 1425-1426 (8th

Cir. 1985)...............................................................-45Headley v. Bacon, 828 F.2d 1272, 1275 (8th Cir.

1987) ......................................................................-31Howlett v. Rose, 496 U.S. 356, 376 (1990) ...................-35Innovative Home Health Care v. P.T.-O.T. Assoc.,

141 F.3d 1284, 1286 (8th Cir. 1998) ...................-50Legnani v. Alitalia Linee Aeree Italiane, S.P.A.,

400 F.3d 139, 141 (2nd Cir. 2005).......................-26Lundquist v. Rice Memorial Hospital, 238 F.3d

975, 977 (8th Cir. 2001) .......................................-25Matzker v. Herr, 748 F.2d 1142, 1150-1151 (7th

Cir. 1984)...............................................................-45McCullough v. Univ. of Ark. for Med. Sciences, 559

F. 3d 855, 864 (8th Cir. 2009) .............................-44MIF Realty L.P. v. Rochester Assoc., 92 F.3d 752,

755-756 (8th Cir. 1996) ........................................-51Mills v. Des Arc Convalescent Home, 872 F.2d 823,

827 (8th Cir. 1989) ..............................................-31Neal v. Sparks Regional Med. Ctr., 422 S.W.3d 116 ..-34Norwood v. Dickey, 409 F.3d 901, 903

(8th Cir. 2005) ............................................. -52-, -53Pleming v. Universal-Rundle Corp., 142 F.3d 1354,

1357 (11th Cir. 1998) .......................... -26-,-27-, -29R. v. Adams, 649 F.2d 625, 628 FN6 (8th Cir. 1981) ..-53Riehm v. Engelking, 538 F.3d 952, 962-963 (8th

Cir. 2008)...............................................................-49Ripplin Shoals Land Co., LLC v. United States

Corps of Engineers, 440 F.3d 1038, 1042

(8th Cir. 2006) ......................................................-26Robinson v. Omaha, 866 F.2d 1042, 1043 (8th Cir.

1989) ......................................................................-51-

57a

Smith v. Johnson, 779 F.3d 867, 870, 871

(8th Cir. 2015) ....................................-19-, -32-, -47Stoner v. Ark. Dep’t of Corr., 983 F. Supp. 2d

1074, 1103 (E.D. Ark. 2013)................................-38The Baker Group, L.L.C. v. Burlington Northern

and Santa Fe Railway Co., 228 F.3d 883,

886 (8th Cir. 2000) ...............................................-25Varner v. Peterson Farms, 371 F. 3d 1011, 1019

(8th Cir. 2004) ......................................................-24Wade v. Haynes, 663 F.2d 778, 786 (8th Cir. 1981) ....-45Walker v. Mem’l Health Sys., 231 F. Supp. 3d 210,

217 (E.D. Texas 2017) .........................................-23Wallace v. Sparks Health Sys., 415 F.3d 853, 858

(8th Cir. 2005) ......................................................-44Wealot v. Brooks, 865 F.3d 1119, 1124 (8th Cir.

2017) ......................................................................-32White v. Frank, 855 F.2d 956, (2nd Cir. 1988) ..............-2Winegar v. Des Moines Indep. Community Sch.

Dist., 20 F.3d 895, 899-900 (8th Cir. 1994)-19-, -58Winthrow v. Larkin, 421 U.S. 35, 58 (1975).................-40Younger v. Harris, 401 U.S. 37 (1971)..........................-52ARKANSAS CASES

Alexander v. E. Tank Services, Inc., 2016 Ark.

App.

185,

486

S.W.3d

813,

816

(Ark. App. 2016) ......................................... -54-, -58Ark. Ins. Dep’t v. Henley, 481 S.W.3d 467, 468

(Ark. App. 2016) ..................................................-46Ark. State Med. Bd. v. Byers, 521 S.W.3d 459, 465

(2017).....................................................................-35Arkansas Dept. Of Parks & Tourism v. Jeske, 229

S.W.3d 23, 27, 365 Ark. 279, ___ (Ark. 2006) ...-56Arkansas State Medical Bd. v. Grimmett, 463

S.W.2d 662, 665 (Ark. 1974) ...............................-37Baber v. Ark. State Med. Bd., 2010 Ark. 243, 248,

368 S.W.3d 897, 901 (Ark. 2010) ........................-47-

58a

Brodie v. City of Jonesboro, 2012 Ark. 5 (Ark.

2012) ......................................................................-58Davis v. Schimmel, 253 Ark. 1201, 482 S.W.2d 785,

792 (Ark. 1972).....................................................-25Dodd v. Sparks Regional Medical Center, 204

S.W.3d 579 (2005). ...............................................-34Dodson v. Allstate Insurance Co., 47 S.W.3d 866

(Ark. 2001)............................................................-57Ewing v. Cargill, Inc., 919 S.W.2d 507, 508 (Ark.,

1996) ......................................................................-59First National Bank v. Newport Hospital and

Clinic, Inc., 663 S.W.2d 742, 744, 281 Ark.

332, 335-336 (1984)...............................................-57Ford v. St. Paul & Fire & Marine Ins. Co., 5

S.W.3d 460, 339 Ark. 434 (Ark. 1999) .... . -18-, -34Fryar v. Touchstone Physical Therapy, Inc., 229

S.W.3d 13 (Ark. 2006). ........................................-34Hollabaugh v. Arkansas State Medical Bd., 861

S.W.2d 317, 320, 43 Ark. App. 83, 86 (Ark.

App. 1993).............................................................-37Island v. Buena Vista Resort, 103 S.W.3d 671, 675

(Ark. 2003)............................................................-55Lindsey v. Green, 2010 Ark. 118, 369 S.W.3d 1, 7

(Ark. 2010)............................................................-48Turner v. Northwest Ark. Neurosurgery, 133

S.W.3d 417, 423-425 (Ark. App. 2003) ..............-57Winkler v. Bethell, 210 S.W.3d 117, 121 (Ark.

2005) ......................................................................-31UNITED STATES CODE

28 U.S.C. § 1291 .................................................................-128 U.S.C. § 1331 .................................................................-128 U.S.C. § 1367 .................................................................-128 U.S.C. §1343 ..................................................................-142 U.S.C. § 1981 .............................. -1-, -34-, -42-, -44-, -45-

59a

42 U.S.C. § 1983............. -1-, -35-, -36-, -45-, -48-, -49-, -5528 U.S.C. § 1985(3) ..........................................................-3528 U.S.C. § 2000e.............................................................-34ARKANSAS CODE ANNOTATED

A.C.A. § 16-114-206(a) ...................................................-34A.C.A. § 16-123-105©............................................. -55-, -56A.C.A. § 16-46-105(b)(2).................................................-56A.C.A. § 17-95-301(h)(2) ....................................... -36-, -38A.C.A. § 17-95-410(c)(2)........................................ -14-, -25A.C.A. § 17-95-410(e)(1)...................................................-8A.C.A. § 16-46-105...........................................................-59Arkansas Civil Rights Act-1-, -8-, -21-, -52-, -54-,-55-, -59Federal Rules of Civil Procedure

Rule 12(b)(6)....................................................................-49Rule 59(e) .........................................................................-50Rule 60(b)................................................................ -50-, -51Other Authorities

Civil Rights Act of 1964 .................................................. -34

Federal Rule of Evidence 702 ........................................ -33

60a

Jurisdictional Statement

Statement

This is an appeal from a final order and judgment

of the U.S. District Court for the Eastern District of

Arkansas in an action brought pursuant to 42 U.S.C. §§

1981 and 1983. The district court had original

jurisdiction over the federal claims under 28 U.S.C. §§

1331 and 1343. The district court had supplemental

jurisdiction over the state law claims raised in the

Complaint pursuant to 28 U.S.C. § 1367.

The district court entered its final order and

judgment on May 31, 2018. (APP. 5305, 5309).

(Appellant’s Appendix (“APP.”)). On June 29, 2018,

Appellant timely filed his Notice of Appeal. (APP. 5310)

Therefore, this Court has appellate jurisdiction over

this appeal under 28 U.S.C. § 1291.

Statement of the Issues

Whether the district court erred in granting the

Baptist Defendants’ motion to dismiss in its

September 19, 2017 Order. (APP. 1053)

Whether the district court erred in granting the

motions for summary judgment filed by

defendants Counce and Mabry in its March 8,

2018 Order. (APP. 3394)

White v. Frank, 855 F.2d 956, (2nd Cir. 1988)

Burns v. Reed, 500 U.S. 478 (1991)

Whether the district court erred in granting the

motions for summary judgment filed by

defendants Beck and Hearnsberger in its May

31, 2018 Order. (APP. 5305)

Greenwood v. Ross, 778 F.2d 448 (8th Cir. 1985)

61a

Whether the District Court Erred in Denying

Plaintiff’s Motion to Amend the September 19,

2017 Order Granting the Baptist Defendants’

Motion to Dismiss in its November 1, 2017

Order. (APP. 1471)

Statement of the Case

Case

On November 25, 2003, Plaintiff was first

granted medical staff privileges at Baptist Health

Medical Center, Little Rock, for a two-year time period.

Complaint ¶20, (APP. 21). At this time, Plaintiff was

the only African-American surgeon in Little Rock,

Arkansas area who provided both the range and the

type of surgeries to patients in the areas of general,

cardiac, thoracic and vascular surgery. Id.

On September 26, 2005, Plaintiff submitted his

first application for reappointment of his medical staff

privileges at Baptist, and on February 27, 2006, his

application for reappointment was granted for another

two-year period. Complaint ¶21 (APP. 21-22). On March

20, 2008, Plaintiff’s second application was granted for

an additional two years. Id., at 22.

In November 2008, Plaintiff purchased a parcel

of real property located at 9712 W. Markham St., Little

Rock Arkansas for the purpose of constructing a

medical office to provide medical treatment for his

surgical patients. Id. In June 2009, defendant

Hearnsberger was appointed to become a member of

the Arkansas State Medical Board. Hearnsberger

Depo. (APP. 3531). In the fall of 2009, Plaintiff

completed the build out process for his new medical

office, and began advertising the same to inform

patients, both current and potential, that he would

62a

begin servicing and treating patients there. Complaint

¶25. (APP. 22).

On November 3, 2009, Plaintiff submitted his

third application for reappointment of his medical staff

privileges at Baptist. Id. At the time that he submitted

his third application for reappointment, Plaintiff had

never had any adverse actions taken against him

regarding any medical treatment that he had provided.

Complaint ¶28. (APP. 22-23). According to reports

generated during Plaintiff’s 2009 credentialing reapplication process, it was documented that during the

one year “look back” period September 1, 2008, through

August 31, 2009, Plaintiff had performed more than 550

surgical procedures at Baptist. Complaint ¶29. (APP.

24). As Chief of the Department of Surgery, Defendant

Burson became aware of the number of surgical

procedures that had been performed by Plaintiff when

Burson approved1 Plaintiff’s recredentialing application

packet in January 2010. Complaint ¶29. (APP. 24).*

On February 5, 2010, defendants Weeks and

Burson met with Plaintiff and attempted to coerce

Plaintiff into voluntarily resigning his medical staff

privileges because they knew that there was no

sufficient basis to deny his pending application for recredentialing for another two years. Complaint ¶30.

On January 18, 2010, Burson executed a document approving

Plaintiff’s re-credentialing application and attested that, “I have

reviewed this Application for Reappointment and supporting

documentation. I have knowledge of this applicant’s clinical

judgment and technical skills, and I believe this applicant is

currently competent to perform the clinical privileges requested,

including clinical privileges for performing high-risk conditions.

This applicant has adhered to the requirements of the Professional

Staff Bylaws and rules of the hospital.”

See Keathley Depo., (APP. 5066); Complaint ¶ 33 (APP. 27)

63a

(APP. 24). Plaintiff refused to voluntarily resign his

medical staff privileges. Complaint ¶31, (APP. 25).

On April 1, 2010, Plaintiff was informed him that

his reappointment application to the Baptist Health

Professional Staff had been approved for an additional

(fourth) two year period effective March 2010 through

March 2012. Complaint ¶39. (APP. 30). A few days

later, on April 21, 2010, Plaintiff’s medical staff

privileges at Baptist were terminated rendering him

unable to continue to provide medical services at

Baptist from that date forward. Complaint ¶42. (APP.

31). Plaintiff immediately pursued the appeal process

authorized by the Baptist medical staff bylaws, as

Plaintiff, through counsel, filed a notice of appeal of the

decision to terminate his medical staff privileges on

May 25, 2010, and also included in the notice Plaintiff’s

belief that “the actions taken against him were ‘racially

biased and discriminatory.” Complaint ¶s44, 46. (APP.

32-33).

At the time that Plaintiff’s medical staff

privileges were terminated in April 2010, there had not

been a complaint filed with the Arkansas State Medical

Board against Plaintiff by any patient and/or person

related to the four medical cases at issue. Complaint

¶45 (APP. 33). The customary practice at the Arkansas

State Medical Board is to promptly give the physician

notice and the opportunity to respond to any complaints

immediately after they are received. See Cryer Depo.

(APP 3916-3917, 3940, 3947, 4014).

At some time on or before October 19, 2010,

employees, agents and/or representatives of the

Arkansas State Medical Board had obtained copies of

the medical records of the four patients at issue during

the appellate process at Baptist Hospital related to the

termination and/or revocation of Plaintiffs medical staff

64a

privileges. Complaint ¶46. (APP. 447). When the

Medical Board first obtained the medical records of the

patients that were used by Baptist hospital to

terminate Plaintiffs medical staff privileges, Plaintiff

had not yet exhausted the appeal rights that he had

available at Baptist Hospital pursuant to the medical

staff bylaws. Id.

The Medical Board’s policy and customary

practice had always been to await the outcome of any

appeals and/or litigation related to medical treatment

provided by a physician prior to any formal action being

taken by the Board. See Hearnsberger 2014 Depo.

(APP. 3714-3716); Beck 2014 Depo. (APP 4808),

(“whenever there is an issue with a physician before the

Board and there’s ongoing litigation, in an attempt to

be as fair as possible we like that litigation to be

completed or brought to a close before the Board takes

any kind of action.”)

In the transmittal letter sent to one of the

medical record reviewers (Counce) on November 12,

2010, before Plaintiff’s first appearance before the

Board, Peggy Cryer, the Board’s Executive Secretary,

requested that the reviews be provided to the Board

before November 19, 2010, in time for the December

Board meeting, and that, “we very much appreciate

your willingness to work with us to settle this case

promptly.” Cryer Depo. (APP. 3997-3998). Cryer did

not have any authority with respect to physician

disciplinary matters, absent specific directions from the

Board. Cryer Depo. (APP. 3972-3974, 3993-3995); Beck

Depo. (APP. 4786-4789; 4803-4804).

As a result of Plaintiff’s first appearance before

the Medical Board in December 2010 he agreed to get a

proctor for all colon surgery cases that he would

perform in the future even though there had never

65a

been a hearing noticed against him or any findings2

made that he had violated the Arkansas Medical

Practices Act. Complaint ¶53. (APP. 37).

Immediately after he exhausted the appellate

process at Baptist, on April, 12, 2011, Plaintiff filed

Civil Action No. 60CV-11-l 990 in Pulaski County

Circuit Court against Baptist, and others alleging,

among other things, that he had been discriminated

against because of his race, Black, in violation of the

Arkansas Civil Rights Act of 1993. Complaint ¶54.

(APP. 37).

On October 3, 2011, Dr. Gilbert3 submitted a

report to the Medical Board which stated in relevant

part as follows:

I have served as a proctor for Dr. Victor

Williams since December 2010. I have

proctored him during performance of

abdominal colon operations as well as

other surgical pro

procedures

cedures at his request.

I have discussed the cases with him prior

to surgical interventions and in the

postoperative periods. His knowledge

base is proficient in the areas of general

surgery, and I have found his technical

abilities to be proficient as wel

well.

l. I have

no concerns regarding his judgment or

surgical technique. He has handled

See the Medical Practices Act, A.C.A. § 17-95-410(e)(1), “At the

conclusion of the hearing, the board shall first decide whether the

accused is guilty of the charges against him or her and then decide

on appropriate disciplinary action.”

Dr. Carl Gilbert is a Black (African American) board certified

general surgeon that who had served as Plaintiff’s proctor for colon

cases based on his agreement with the Medical Board. Beck 2014

Depo., (APP. 4882-4883, 4892-4893, 4921-4922).

66a

patients with multiple complex medical

issues well.

In summary, his preoperative and

postoperative judgment is appropriate

and his technical skills are proficient and

within the standard of care. For any

questions please do not hesitate to

contact me.

Complaint ¶59. (APP. 39-40).

On December 1, 2011, the Arkansas State

Medical Board voted to Notice Plaintiff for a

disciplinary hearing, even though they had told him

previously on June 16, 2011 to “Return in one (1) year

for an update (June 2012),” and even though there were

no other acts and/or omissions committed by Plaintiff

subsequent to June 2011 that would constitute an

alleged violation of the Arkansas Medical Practices Act,

i.e., “gross negligence or ignorant malpractice.”

Complaint ¶62. (APP. 40)

On June 8, 2012, Plaintiff appeared at the

Arkansas State Medical Board for a scheduled hearing,

along with counsel, and several witnesses who were

going to testify on his behalf but the Board voted to

postpone the hearing purportedly because Counce

could not attend. Complaint ¶63. (APP. 40).

Hearnsberger 2014 Depo. (APP. 3728)

One of the witnesses who appeared with Plaintiff

was Dr. Rhonda Tillman, who was a professor of

surgery at the University of Arkansas. Tillman had

already given written expert opinions4 wherein she

In addition to acknowledging that she is a professor at the

University of Arkansas Medical School, the defendants who knew

Dr. Tillman all testified that she has a reputation as a competent

67a

opined that Plaintiff had not deviated from the

applicable standard of care during the disciplinary

proceedings held against him at Baptist Health.

Complaint, ¶64. (APP. 41).

In addition to postponing the scheduled hearing

after Plaintiff had arrived with witnesses prepared to

testify on his behalf, on June 8, 2012, the Board

requested that Plaintiff cease to perform any surgical

procedures at all until he completed a physician

assessment program and submit the results to the

Board. Complaint, ¶63. (APP. 40-41).

In December 2012 Plaintiff was recertified by

the Board of Surgery with his recertification set to

expire in July 2023. Complaint, ¶70., (APP. 43). In

February 2013, Plaintiff notified the Arkansas State

Medical Board about his recertification and requested

that the same be considered in lieu of him having to

complete a physician assessment program in order to

renew his medical license. Complaint, ¶71. (APP. 43).

On August 1, 2013, the Arkansas State Medical Board

voted to proceed with a disciplinary hearing against

Plaintiff in October 2013 unless Plaintiff successfully

completed a physician assessment program. Complaint,

¶74. (APP. 44).

On August 2, 2013, Plaintiff applied to attend the

KSTAR Physician Assessment Program at Texas A&M

general surgeon. Hearnsberger 2014 Depo., (APP. 3635). Beck

2014 Depo., (APP. 4924). Yet, Beck and Hearnsberger determined

that Tilman’s reviews carried less weight than Counce and

Mabry’s. Hearnsberger 2014 Depo., (APP. 3635, 3679, 3684-3689).

Beck 2014 Depo., (APP. 4857-4858, 4922-4924). Further, Board

member Betton, who testified that Tillman has a “very good

reputation,” stated that he never saw her reviews and that they

were not admitted during the April, 2014 hearing. Betton Depo.,

(APP. 3827, 3877-3878).

68a

University Health Science Center. Complaint, ¶ 75.

(APP. 44). He paid a total amount of $13,000.00 in costs

and fees for the assessment. Id. He successfully

completed the testing dates on September 5-6, 2013,

and the KSTAR Meeting and Determinations on

September 30, 2013. Id. The Final Report was prepared

on October 9, 2013, and the surgeon who interviewed

Plaintiff during his assessment indicated that he would

not place any restrictions on Plaintiffs ability to

continue surgical practice. Id.

On December 23, 2013, the Board, through

counsel, wrote the Medical Director of the KSTAR

program and provided certain information for his

consideration, to include, “a copy of a lawsuit that was

filed involving Baptist Medical Center, Little Rock, and

Dr. Williams.”5 Complaint, ¶ 77. (APP. 45) Notably

absent from the materials submitted by the Board to

KSTAR was any information related to the surgical

cases at issue. Id. According to the correspondence

from the Board, it was furnishing the supplemental

information to KSTAR “in the hopes that it would give,

... a more complete picture of what has happened with

Dr. Williams.” Id.

On February 25, 2014, Plaintiff re-filed his action

against Baptist Health Medical Center in Pulaski

County Circuit Court, Civil Action No. 60CV-14-808,

and added the Arkansas State Medical Board as a

When Plaintiff attended the KSTAR program and when the

Board sent a copy of his Civil Rights Complaint to KSTAR

officials, his lawsuit was no longer pending. On March 5, 2013, upon

consideration of Plaintiff’s Motion to Voluntary Non-Suit his

cause of action as a matter of right, the trial court in Civil Action

No. 60CV-11-1990 entered an Order of Voluntary Dismissal, and

dismissed Plaintiffs cause of action without prejudice to re-file, in

accordance with Ark. R. Civ. P. 41. Complaint, ¶72. (APP. 44).

69a

named defendant because the Board failed to accept his

successful completion of the KST AR program, and in

light of the other facts and circumstances surrounding

the way he had been treated by the Arkansas Medical

Board since October 2010,6 even though there had been

no hearing held and no finding made by the Board that

Plaintiff had violated the Arkansas Medical Practices

Act. Complaint, ¶78. (APP. 45).

The Arkansas State Medical Board was served

with the timely re-filed lawsuit (Civil Action No. 60CV14- 808) that was filed by Plaintiff on February 25, 2014,

by personal service on Beck, Chairman of the Arkansas

State Medical Board on March 7, 2014. Complaint, ¶80.

(APP. 46). Civil Action No. 60CV-14- 808 sought to

have the trial court enjoin any further proceedings

against Plaintiff by the Board until the final disposition

of his claims against Baptist in accordance with the

Board’s customary policies and procedures. Complaint,

¶s 48, 80. (APP. 34-35, 46-47).

Notwithstanding

Plaintiff’s

request

for

injunctive relief in Civil Action No. 60CV-14-808, and

without providing Plaintiff with prior notice as required

by A.C.A. § 17-95-410(c)(2), the Board went forward

with a hearing in Plaintiffs absence and revoked his

medical license in April 2014. Complaint, ¶s 81-83.

(APP. 47-48).

Based upon agreements entered into by the parties and/or

“orders entered by the Board” during his appearances before the

Board, he only performed certain surgical procedures with a

proctor from December 2010 through December 2011 and he

ceased to perform any surgical procedures after his June 8, 2012,

appearance before the Board. Complaint, ¶79. (APP. 46). Beck

2014 Depo., (APP. 4879-4880, 4918-4920). Hearnsberger 2014

Depo., (APP. 3664, 3666, 3724, 3738-3739)

70a

After revoking Plaintiff’s Arkansas medical

license, on April 30, 2014, the Board submitted a report

to the National Practitioner Data Bank stating that the

Board had revoked Plaintiffs medical license because

Plaintiff had “violated the Medical Practices Act, in that

he exhibited gross negligence and ignorant malpractice

in the manner in which he performed diagnostic workup

and surgical procedures.” Complaint, ¶ 84. (APP. 48).

Plaintiff filed an appeal and a Petition for

Judicial Review of the Board’s Order revoking his

medical license in Pulaski Circuit Court on May 2, 2014,

Civil Action No. 60CV-l 4-l 739. On that same date,

Plaintiff filed a Motion to Stay Order Revoking Medical

License, and attached thereto an Affidavit of Gene

McKissic, which clearly evidenced that Plaintiff had not

been notified of the date and time for the hearing that

had been held in his absence. Complaint, ¶85. (APP.

48).

On April 15, 2015, just two days prior to a

scheduled hearing on Plaintiff’s Motion for Declaratory

Judgment, that had been filed in both actions that were

pending in state court, the trial court in entered an

Order for the parties to engage in a settlement

conference to address the issues raised in both cases.

Complaint, ¶86. (APP. 48-49). The parties held

settlement conferences on May 12, 2015, and on June 4,

2015, and a tentative agreement was reached with

proposed consent orders to be drafted and entered in

both Civil Action No. 60CV-14-808, and Civil Action

No. 60CV-14-1739.

On October 5, 2015, the trial court entered an

order directing the parties to execute the proposed

order prepared by the Board, Pursuant to the consent

order, Williams dismissed the Petition for Judicial

Review of the Order revoking his Arkansas medical

71a

license (Civil Action No. 60CV-14-1739) with prejudice,

and dismissed the Board defendants (Arkansas State

Medical Board and Hearnsberger in his official

capacity) from Civil Action No. 60CV-14-808 with

prejudice. (APP. 653).

During the settlement discussions, defendants

Beck and Hearnsberger both insisted that the actions

against the Board and Hearnsberger in his official

capacity be dismissed “with prejudice.” (APP. 43374342). The Board reinstated Plaintiffs medical license

and agreed to postpone disposition and/or disciplinary

action to be taken on the four surgical cases at issue

until the final disposition of Civil Action No. 60CV-14808. The consent order was executed as ordered and

filed on November 3, 2015. Complaint, ¶88. (APP. 49).

Plaintiff filed this action on March 31, 2017

seeking damages arising from the termination of his

Arkansas medical license in April, 2014. On July 26,

2017, before filing an Answer to the Complaint, the

Baptist Defendants (Baptist Health, Tim Burson, Chris

Cate, Susan Keathley, Scott Marotti, Everett Tucker,

Douglas Weeks and Surgical Clinic of Central

Arkansas) filed a motion to dismiss (APP. 143). The

trial court entered an Order granting the Baptist

Defendants’ motion to dismiss on September 19, 2017

holding that, “the claims made in Plaintiff’s Complaint

are barred by res judicata.” (APP. 1053)

On October 16, Plaintiff filed a Motion to Alter or

Amend the September 19, 2017 Order Granting the

Baptist Defendants’ Motion to Dismiss and Motion to

Stay Further Proceedings Pending the Final

Disposition of the Ongoing Parallel Arkansas State

Court Proceedings (APP. 1062), which was denied on

November 1, 2017. (APP. 1471)

72a

On March 8, 2018, the district court entered an

Order (APP. 3394) granting Counce and Mabry’s

motion for summary judgment. On May 31, 2018, the

district court entered an Order (APP. 5305) granting

Beck and Hearnsberger’s motion for summary

judgment and a separate final judgment (APP. 5309)

against Plaintiff. On June 29, 2018, Plaintiff filed his

Notice of Appeal (APP. 5310).

Summary of the Argument

Plaintiff brings this appeal from the district

court’s orders granting the Baptist defendants’ motion

to dismiss and the other defendants’ motions for

summary judgment. Like the state court action that is

currently pending before the Arkansas appellate

court(s), Plaintiff’s claims here were disposed of

without even a cursory evaluation by the court7 of the

underlying accusations of medical negligence against

Plaintiff.

In the absence of controlling case law providing

otherwise, unlike a medical provider defending against

a claim of medical negligence in a malpractice case, who

is entitled to summary judgment if a claim is filed

against him without supporting expert opinion

evidence,8 a medical provider like Plaintiff, who is

When moving for summary judgment and/or in filing their

motions to dismiss, in both the federal and state court actions, the

defendants failed to support their accusations of medical

negligence with probative medical expert testimony.

See Ford v. St. Paul & Fire & Marine Ins. Co., 5 S.W.3d 460, 339

Ark. 434 (Ark. 1999), (“We have held that the proof required to

survive a motion for summary judgment in a medical malpractice

case must be in the form of expert testimony. It is simply not

enough for an expert to opine that there was negligence which was

73a

discriminated against in disciplinary proceedings in the

state of Arkansas, would be unfairly subject to the

whim of any “expert,” who for any number of reasons,

(economic competitor, racial / sexual / religious bias,

etc.) may be willing to give an unsubstantiated, false,

defamatory, conclusory opinion accusing a fellow

physicians of negligence when he/she expects to be

insulated by statutory immunity.

“The fundamental requirement of due process is

the opportunity to be heard at a meaningful time and in

a meaningful manner. ... Due process is a flexible

concept that varies with the particular situation.”

Winegar v. Des Moines Indep. Community Sch. Dist.,

20 F.3d 895, 899-900 (8th Cir. 1994).

The evidence of record creates a genuine issue of

material fact as to whether each named defendant

agreed to participate in a process whereby Plaintiff

would be falsely reported to be an incompetent surgeon

for the longest possible period of time without being

afforded any meaningful opportunity to cross examine

the source of the reports under oath. As such, they

acted with malice and with the intent to injure, and

they should be subject to liability for all of the claims

raised in the Complaint.

Argument and Citations of Authorities

I. The District Court Erred in Granting the

Baptist Defendants’ Motion to Dismiss

the proximate cause of the alleged damages. The opinion must be

stated within a reasonable degree of medical certainty or

probability.”)

74a

This Court reviews the district court’s findings

construing the complaint de novo, Gwartz v. Jefferson

Memorial Hosp. Ass’n, 223 F.3d 1426, 1428 (8th Cir.

1994), and reviews de novo the district court’s dismissal

of a claim based on res judicata, accepting the plaintiff’s

factual allegations as true. Smith v. Johnson, 779 F.3d

867, 870 (8th Cir. 2015).

In granting the Baptist defendants’ motion to

dismiss, the district noted that the claim-preclusion

aspect of res judicata bars relitigation of a suit when (1)

the first suit resulted in a final judgment on the merits;

(2) the first suit was based on proper jurisdiction; (3)

the first suit was fully contested in good faith; (4) both

suits involve the same claim or cause of action; and (5)

both suits involve the same parties or their privies.

(APP. 1054) As shown below, the district court erred in

rejecting Plaintiff’s opposition to the Baptist

Defendants’ motion to dismiss on grounds 3, 4, & 5.

A. Res Judicata Does not Apply to a Different Cause

of Action Arising After the First Lawsuit was Filed

When responding to the Baptist Defendants’

motion to dismiss, Plaintiff argued that the state court

case is a different cause of action, and therefore distinct

from the federal case here in that the state court case

was brought for damages flowing from the termination

of Plaintiff’s medical staff privileges at Baptist in April,

2011,9 and the federal case is for damages flowing from

the revocation of Plaintiff’s Arkansas medical license in

Even though Plaintiff’s medical staff privileges were terminated

effective April, 2010, that decision did not become final until April,

2011, after Plaintiff had fully exhausted the appellate process

provided for in the Baptist medical staff bylaws. Complaint, ¶s 4454. (APP. 32-37).

75a

April, 2014. (APP. 434-435). Indeed, Plaintiff alleged

that the revocation of his Arkansas medical license

occurred because of his lawsuit alleging racial

discrimination pursuant to the Arkansas Civil Rights

Act. See also Complaint, ¶ 94, (APP. 51).

In granting the Baptist Defendants’ motion to

dismiss, the district court held that, “the instant case is

barred by res judicata because Plaintiff brought

essentially the same case in Williams I.” (APP. 1054).

In another part of its Order dismissing the Baptist

defendants, the district court held that, “[t]he claims

brought in this action and the claims made in Williams

I are based upon the same set of facts. Plaintiff was not

limited to filing state court claims in state court. He

could have filed all of his claims, whether arising under

state or federal law, in Williams I.” (APP. 1056).

The district court further held that, “Plaintiff’s

argument that certain claims arose as a result of filing

Williams I, or at the time of his medical license

revocation in April 2014, is also flawed. ... Plaintiff

sought to have the April 2014 hearing regarding the

revocation of his medical license enjoined. The state

court denied Plaintiff’s relief.10 Plaintiff cannot claim

that the revocation of his license on April 2014 created

a ‘new’ claim that has not yet been litigated. The

specific issue was before the court in Williams I.”

(APP. 1057). (Footnote Added.) (Emphasis Added.)

This holding is erroneous as the Order which dismissed two of

the Baptist defendants with prejudice, and which also directed that

Plaintiff’s Arkansas medical license be reinstated further provided

that, “[t]he Board shall not proceed on [the four cases related to

the license revocation] with any disciplinary actions [] until Dr.

Williams’ case against the remaining defendants in this case,

Pulaski County Circuit Case No. 60CV14-808, is concluded.” (APP.

655) (Emphasis Added.)

76a

The district court’s reasoning referenced above

is erroneous because it conflates the doctrines of claim

preclusion and issue preclusion under Arkansas law.

Indeed, the specific issue11 related to the

appropriateness of the revocation of Plaintiff’s

Arkansas medical license in April, 2014 was decided in

Plaintiff’s favor when it was Ordered that his license be

reinstated immediately on November 5, 2015, and that,

“the Board shall not proceed on those cases with any

disciplinary actions regarding those cases until Dr.

Williams’ case against the remaining defendants in this

case, Pulaski County Circuit Case No. 60CV14-808, is

concluded.” (APP. 655).

“Arkansas preclusion law has two facets. One

being issue preclusion and the other being claim

preclusion.12 Issue preclusion bars relitigation of issues

of law or fact previously litigated, provided that the

party against whom the earlier decision is being

asserted had a full and fair opportunity to litigate the

issue in question and that the issue was essential to the

judgment.” Germain Real Estate Co. v. HCH Toyota,

LLC, 778 F.3d 692, 695 (8th Cir. 2015). (Citations

Omitted.) (Footnote Added.)

The revocation of Plaintiff’s Arkansas medical

license was a new, distinct overt act causing new

distinct injuries to Plaintiff subsequent to the day in

“Arkansas courts apply issue preclusion when the following

elements are met: (1) the issue sought to be precluded is the same

issue involved in the prior litigation, (2) the issue was actually

litigated, (3) the issue was determined by a valid and final

judgment, and (4) the determination was essential to the

judgment.” Germain Real Estate Co., at 695.

Plaintiff’s “claim” for damages arising from the “unlawful”

revocation of his Arkansas medical license, however, was never at

issue before the Arkansas state court.

77a

April, 2014 when his Arkansas medical license was

revoked, without regard to the appropriateness of any

related injunctive13 relief that had been first sought by

Plaintiff in his February 25, 2014-Complaint.

Moreover, although it may have been premised

on the same perceived discriminatory treatment that

had continually existed and which caused Plaintiff to

seek injunctive relief from the Medical Board in the

first instance, the revocation of Plaintiff’s medical

license, a distinct overt act, had not yet occurred when

Plaintiff’s Complaint was filed on February 25, 2014.

See Varner v. Peterson Farms, 371 F. 3d 1011, 1019

(8th Cir. 2004), (“even when a plaintiff alleges a

continuing violation, an overt act by the defendant is

required to restart the statute of limitations and the

statute runs from the last overt act. For statute of

limitation purposes, the focus is on the timing of the

causes of the injury, i.e., the defendant’s overt acts, as

opposed to the effects of the overt acts.”)

Further, on February 25, 2014, Plaintiff could

not have included claims for damages related to the

April, 2014 retaliatory revocation of his medical license

that had not yet occurred. “It is well settled that claim

preclusion does not apply to claims that did not arise

until after the first suit was filed.” The Baker Group,

See Walker v. Mem’l Health Sys., 231 F. Supp. 3d 210, 217 (E.D.

Texas 2017), (The district court ordered “Defendant [hospital], its

respective officers, agents, employees, and anyone acting on its

behalf to immediately submit to the National Practitioners Data

Bank a Void Report regarding Dr. Walker, and all such entities

and persons shall refrain from filing any other statements or

reports with the National Practitioners Data Bank relating to the

actions the Hospital has taken against Dr. Walker in connection

with the peer review process that is the subject of this lawsuit,

including the imposition of a proctoring requirement, during the

pendency of this suit.”)

78a

L.L.C. v. Burlington Northern and Santa Fe Railway

Co., 228 F.3d 883, 886 (8th Cir. 2000). See also

Lundquist v. Rice Memorial Hospital, 238 F.3d 975, 977

(8th Cir. 2001), (“Claim preclusion, however, does not

apply to claims that did not exist when the first suit

was filed.”)14

It would be irrational to allow the Medical Board

defendants to knowingly agree to go forward with a

hearing without providing the required statutory

notice15 to Plaintiff and revoke his medical license in his

absence after being served with a Complaint seeking

injunctive relief which is consistent with the Board’s

customary policies and procedures.

“As a matter of logic, when the second action

concerns

transaction

occurring

after

the

commencement of the prior litigation, claim preclusion

generally does not come into play. Claims arising

subsequent to a prior action need not, and often

perhaps could not, have been brought in that prior

action; accordingly, they are not barred by res judicata

regardless of whether they are premised on facts

See also Curtis v. Citibank, N.A., 226 F.3d 133, 139 (2nd Cir.

2000), (“The crucial date is the date the complaint was filed. The

plaintiff has no continuing obligation to file amendments to the

complaint to stay abreast of subsequent events; plaintiff may

simply bring a later suit on those later-arising claims.”)

See A.C.A. § 17-95-410(c)(2), which requires that the Board send

“by registered mail to the person’s last known address of record a

copy of the order·and notice of hearing along with a written notice

of the time and place of the hearing ...” (Emphasis Added.) See also

Davis v. Schimmel, 253 Ark. 1201, 482 S.W.2d 785, 792 (Ark. 1972),

(“When an action is based on constructive service, no action is

commenced or cause pending until the proceedings provided for in

the governing statute are complied with and if there is no such

compliance, the proceedings are void, and the court has no power

to take affirmative action.”) (Emphasis Added.)

79a

representing a continuance of the same course of

conduct.” Legnani v. Alitalia Linee Aeree Italiane,

S.P.A., 400 F.3d 139, 141 (2nd Cir. 2005). See also

Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1357

(11th Cir. 1998), (“the parties frame the scope of

litigation at the time the complaint is filed.”) When he

responded to the Baptist Defendants’ motion to

dismiss, Plaintiff made it clear that the federal claims

and supplemental state law claims raised in his

Complaint accrued in April, 2014 when his Arkansas

medical license was revoked. (APP. 435-436). Clearly,

these claims did not exist at the time that Plaintiff filed

his Complaint in state court on February 25, 2014. In

Ripplin Shoals Land Co., LLC v. United States Corps

of Eng’rs, 440 F.3d 1038, 1042 (8th Cir. 2006), another

case appealed to this Court from the district court in

the Eastern District of Arkansas, this Court recognized

that, “res judicata does not apply to claims that did not

exist when the first suit was filed.”

“The determination of whether a litigant has

asserted the same cause of action in two proceedings

depends upon whether the primary right and duty are

the same in both cases.” Pleming, supra, at 1356. The

primary right and duty in the state court action

(Williams I) involve the damages arising from the

termination of Plaintiff’s medical staff privileges at

Baptist in 2011. The primary right and duty in this

federal action (Williams II) involve the damages

arising from the revocation of Plaintiff’s Arkansas

medical license in April, 2014.

The Eleventh Circuit Court of Appeals in

Pleming held that, “we cannot accept UniversalRundle’s contention that Pleming litigated her claims

arising out of the October 1994 incidents, including her

claims of retaliation for filing Pleming I, simply by

80a

offering the incidents as evidence of pretext in a

distinct employment decision. This is not a case in

which the plaintiff squarely presented an issue for

decision in the first litigation and failed to carry the

burden of proof; rather, it was neither framed by the

pleadings as an issue nor decided by the district judge.”

Id., at 1360.

Here, Appellant did not present his claims

arising from the revocation of his medical license in

April, 2014, to include the retaliation claim, to the state

court in Williams I for disposition, and it is also clear

that the state court did not decide the issues related to

the April, 2014 revocation of Plaintiff’s medical license.

In fact, Plaintiff expressly reserved any such claims

related to the April, 2014 revocation of his medical

license pursuant to England v. Louisiana State Board of

Medical Examiners, 375 U.S. 411, 421 (1964).16 See

December 1, 2014 Plaintiff Victor Bernard Williams,

M.D.’s Brief in Support of Plaintiff’s Motion for

Declaratory Judgment and Motion to Disqualify Mr.

Kevin O’Dwyer And the Law Firm of Hope, Trice &

O’Dwyer, P.A., As Counsel in the Action as Referenced

above, (APP. 456-457).

Further, and more importantly, the state court’s

November 5, 2015 Order reinstating Plaintiff’s

Arkansas medical license tacitly recognized Plaintiff’s

England reservation and the possibility of future claims

for damages related to the April, 2014-revocation of

See First American Bank & Trust Co. v. Ellwein, 520 F.2d 1309,

1311 (8th Cir. 1975), (“an express reservation of constitutional

questions need not be made to invoke the judge-made rule in

England. A litigant may return to federal court with his federal

constitutional questions without an express reservation ‘unless it

clearly appears that he fully litigated his federal claims in the state

courts.” (Citation Omitted.”)

81a

Plaintiff’s Arkansas medical license by holding that,

“neither party shall retaliate against the other party for

claims and/or counterclaims made against each other in

any lawsuit filed to date or in the future.” (APP. 655).

(Emphasis Added.) See Pleming, supra, at 1357, (“A

court, therefore, must examine the factual issues that

must be resolved in the second suit and compare them

with the issues explored in the first case.”)

B. The State Court’s Limitations on Discovery

Thwarted Plaintiff’s A

Ability

bility to Litigate His

Discrimination Claims in State Court

In arguing that he did not have a full and fair

opportunity to litigate his claims in state court, Plaintiff

argued that since all but one of his state law claims

were decided on summary judgment, the withholding of

discovery of peer review records of other physicians

deprived him of a fair opportunity to respond to the

motions for summary judgment against him (i.e., that

they were not “fully contested in good faith”) because

the discovery orders deprived him of evidence that he

needed to show that he was treated differently than

similarly situated white physicians on the Baptist

medical staff. (APP. 436-437); (APP. 680-682). In

granting the Baptist Defendants’ motion to dismiss, the

district court held that, “A judge’s determination that

certain information could not be obtained by Plaintiff

due to Arkansas law does not result in a failure to fully

contest the case in good faith.” (APP. 1056).

Appellant’s federal claims being asserted here

against the Baptist Defendants could not have been

fairly litigated in state court without Plaintiff being

able to first obtain discovery of information related to

82a

other physicians on the medical staff at Baptist.17

Therefore, the district court erred in holding that

Plaintiff had a fair opportunity to litigate his federal

claims being asserted here in state court.

C. The Trial Court Erred in Holding that the

Baptist Defendants Were in Privity with Defendant

Surgical Clinic of Central Arkansas

“The doctrine of res judicata does not bar claims

even arising out of the same facts against defendants

who were not parties to the first action.” Headley v.

Bacon, 828 F.2d 1272, 1275 (8th Cir. 1987). Here, it is

clear that Defendant Surgical Clinic of Central

Arkansas was not a defendant in Williams I. In

opposing the Baptist Defendants’ motion to dismiss,

Plaintiff argued that, “privity would be lacking for

purposes of res judicata” with respect to his claims

against Defendant Surgical Clinic of Central Arkansas.

(APP. 438-439).

First, “[n]othing requires a plaintiff to sue the

prospective defendants simultaneously.” Winkler v.

Bethell, 210 S.W.3d 117, 121 (Ark. 2005). Secondly,

“because two additional defendants [Surgical Clinic of

Central Arkansas and Beck] were named in the second

suit, the question remains whether these additional

defendants may be said to be in privity for res judicata

purposes with the defendants in the first suit. The

answer depends on whether their interests in the later

litigation were adequately congruent to those of the

After the district court entered its order dismissing the Baptist

Defendants on the ground of res judicata, Plaintiff unsuccessfully

sought to have the district court amend its Order and abstain until

the Arkansas Appellate Court’s final disposition of the appeal of

the discovery orders. See Section IV below.

83a

defendants in the earlier suit.” Mills v. Des Arc

Convalescent Home, 872 F.2d 823, 827 (8th Cir. 1989).

The Orders (APP. 310, 311, 386, & 389) entered by the

state court, and which are currently being appealed to

the Arkansas Appellate courts fail to provide the

requisite specificity needed to grant summary

judgment here based on res judicata.

II. The District Court Erred in Granting Counce and

Mabry’s Motions18 for Summary Judgment

Summary Judgment is reviewed de novo

viewing the evidence in the light most favorable to the

nonmoving party. Wealot v. Brooks, 865 F.3d 1119, 1124

(8th Cir. 2017). This Court reviews de novo the district

court’s dismissal of a claim based on res judicata,

accepting the plaintiff’s factual allegations as true.

Smith v. Johnson, 779 F.3d 867, 870 (8th Cir. 2015).

In its March 8, 2018 Order granting Counce and

Mabry’s motion for summary judgment, the district

court held that, “Plaintiff did not include Counce and

Mabry as defendants but he was well aware of their

reports during the time Williams I was pending. Res

judicata bars Plaintiff’s claims against Drs. Counce and

Mabry because they could have been litigated in

Williams I.” (APP. 3395)

Counce filed his two motions for summary judgment on

November 16, 2017 (APP. 1524, 1557 & 1567) and January 25, 2018

(Docs. 83, 84 & 85). Mabry filed his two motions for summary

judgment on November 22, 2017 (APP. 1561, 1601 & 1604) and

January 25, 2018 (APP. 3020, 3024 & 3028). Plaintiff’s responses

and briefs in opposition were filed on December 18, 2017 (APP.

1665, 1828, 2132, 2491 & 2519), and February 8, 2018 (APP. 3039,

3192, 3203 & 3366).

84a

The district court erred when it held that

Plaintiff’s claims against Counce and Mabry19 were

barred by res judicata because they were not parties in

the state court action. Further, “the admissibility,

veracity, plausibility, and/or reliability of the opinions,

statements, and/or conclusions contained [Counce and

Mabry’s] “narrative reports” have never been

adjudicated and/or otherwise evaluated by any court

during the litigation of any of the previous three civil

actions [brought by Plaintiff] that involved the patient

care at issue in this case. (APP. 2140), (APP. 1669).

When Counce and Mabry moved for summary

judgment in this case, Plaintiff objected to their

“narrative reports” “to the extent [they purport] to

establish as an evidentiary fact, that Plaintiff

committed “gross negligence” and/or “ignorant

malpractice.” (APP. 2140), (APP. 1669). Plaintiff

objected to the conclusions contained in the reports

because they failed not only to comply with Rule 702 of

the Federal Rules of Evidence and Daubert v. Merrell

Dow Pharmaceuticals, Inc., but they also failed to

comply with the requirements of Arkansas law with

respect to allegations of medical negligence (A.C.A. §

16-114-206(a)), as interpreted by the Arkansas courts in

Dodd v. Sparks Regional Medical Center, 204 S.W.3d

579 (2005), Neal v. Sparks Reg’l Med. Ctr., 422 S.W.3d

In further responding to Mabry’s first motion for summary

judgment, Plaintiff argued that the medical treatment reviewed by

Mabry, which occurred in February and March, 2009, “was

necessarily encompassed by the renewal of Plaintiff’s medical staff

privileges on April 1, 2010, as it occurred well within the look back

period applicable to Plaintiff’s reapplication process.” (APP. 1680).

During the state court bench trial, the court found that the

“lookback period” for the re- application process was from

September 1, 2007 to August 30, 2009.

85a

116, Fryar v. Touchstone Physical Therapy, Inc., 229

S.W.3d 13 (Ark. 2006), and Ford v. St. Paul Fire &

Marine Ins. Co., 339 Ark. 434, 437, 5 S.W.3d 460, 462

(1999). (APP. 2139-2144), (APP. 1670-1673).

With respect to the district court’s holding that

Counce and Mabry are entitled to immunity, this

holding is erroneous because “Congress [has]

specifically provided that [such] immunity [does] not

extend to actions for damages for violations of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e, et. seq., and the

Civil Rights Act, 42 U.S.C. §§ 1981, et seq.” See

Braswell v. Haywood Reg’l Med. Ctr., 352 F.Supp. 2d

639, 650 (W.D. N.C. 2005).

III. The District Court Erred in Granting Beck and

Hearnsberger’s Motion for Summary Judgment

In granting Hearnsberger and Beck’s motion for

summary judgment, the district court held that,

“Defendants Hearnsberger and Beck are immune from

suit for all federal and state law damage claims

pursuant to Ark. Code Ann. § 17-80-103.” (APP. 5307).

(Emphasis Added.)

It is clearly established, even under Arkansas

state law, that a state statute, A.C.A. § 17-80-103, may

not be used to immunize Beck and Hearnsberger from

Plaintiff’s federal claims, even had Plaintiff attempted

to bring them in state court. See Ark. State Med. Bd. v.

Byers, 521 S.W.3d 459, 465 (2017). See also Howlett v.

Rose, 496 U.S. 356, 376 (1990), (“Conduct by persons

acting under color of state law which is wrongful under

42 U.S.C. § 1983 or § 1985(3) cannot be immunized by

state law.”)

Secondly, Beck and Hearnsberger are not

“absolutely immune from personal liability under § 1983

86a

solely by virtue of the ‘official’ nature of their acts.”

Hafer v. Melo, 502 U.S. 21, 31 (1991). Instead, the focus

should be on the state official’s specific acts or

omissions that caused and/or contributed to the injury

suffered by Plaintiff. In Hafer, the United States

Supreme Court repeated its holding that, “no more

than a qualified immunity attaches to administrative [ ]

decisions, even if the same official has absolute

immunity when performing other functions.” Id., at 29.

The Supreme Court in Hafer also reiterated its holding

that, “Congress enacted § 1983 ‘to enforce provisions of

the Fourteenth Amendment against those who carry a

badge of authority of a State and represent it in some

capacity, [regardless of] whether they act in accordance

with their authority or misuse it.’” Id., at 28. (Citations

Omitted.) “Through § 1983, Congress sought ‘to give a

remedy to parties deprived of constitutional rights,

privileges and immunities by an official’s abuse of his

position.’” Id., at 27.

In this case, the distinction between acts that

were undertaken within and/or outside the scope of

duties in this action only pertain to the pendent state

law claims Count V (abuse of process), Count VI

(tortuous interference with contractual and business

relationships), & Count VII (defamation)) raised by

Plaintiff in his federal action. (APP. 57-59).

In his Complaints, both here and in state court,

Plaintiff alleged that the investigatory actions

undertaken by defendant Hearnsberger were

unauthorized20 and in violation of A.C.A. § 17-9520

In his Complaint, Plaintiff alleged that Hearnsberger “acted

maliciously, outside the scope of his lawful authority, as a member

of Defendant Arkansas State Medical Board, and is being sued

individually and in personal capacity.” (APP. 20). (Emphasis

87a

301(h)(2), which provides that, “[n]o member of the

Board may be involved in the conduct of the

investigation except to cooperate with the investigation

as required by the investigator.” Williams I

Complaint, ¶37 (APP. 166). The medical Board

routinely utilizes investigators in order to obtain

material facts related to cases pending before the

Medical Board. See Hollabaugh v. Arkansas State

Medical Bd., 861 S.W.2d 317, 320, 43 Ark. App. 83, 86

(Ark. App. 1993), and Arkansas State Medical Bd. v.

Grimmett, 463 S.W.2d 662, 665 (Ark. 1974). Indeed, the

Board used at least one of its investigators to

investigate Plaintiff. The “February 6, 2014 Board

minutes indicate that, “[u)pon a motion by Dr. J.

Hearnsberger, seconded by Dr. J. Weiss, (partner with

Dr. Counce, Board expert) the Board voted

unanimously to canvas Little Rock surgery centers to

determine whether Dr. Williams is performing

surgeries and if so, whether he was the primary or

assistant surgeon. If it is determined that he has

performed surgeries, a Board poll will be conducted

concerning the issue of an Emergency Order of

Suspension.” Williams I Complaint, ¶32, FN3. (APP.

164). See also October 4, 2012, and February 6, 2014

Board Minutes. (APP. 651-652). The investigator did

not find any violations as Williams did not violate the

agreement that he had entered into with the Board

regarding the proctor and not performing any surgeries

after the June 8, 2012 hearing. (APP. 1082).

To the extent that a fact question exists as to

whether Hearnsberger’s investigatory conduct violated

A.C.A. § 17-95-301(h)(2), and was a contributing factor

Added.) Regarding Hearnsberger’s authority to investigate, see

Cryer Depo., (APP. 4114-4116).

88a

in the other Board members’ decision to vote to revoke

Plaintiff’s Arkansas medical license, a jury question

also exists as to malice. In defining malice, the

Arkansas Supreme Court has stated:

It is true that in law malice is not

necessarily personal hate. It is rather an intent

and disposition to do a wrongful act greatly

injurious to another. Malice is also defined as the

intentional doing of a wrongful act without just

cause or excuse, with an intent to inflict an

injury or under circumstances that the law will

imply an evil intent.... A conscious violation of

the law ... which operates to the prejudice of

another person. A condition of the mind showing

a heart ... fatally bent on mischief.

Stoner v. Ark. Dep’t of Corr., 983 F. Supp. 2d 1074,

1103 (E.D. Ark. 2013).

In addition, Dr. Hearnsberger engaged in ex

parte21 conduct by calling several of Dr. Williams’

professors, and it is clear that making such calls would

not be encompassed by the official duties for which

Hearnsberger may be entitled to “judicial immunity,”

(i.e., for adjudicatory, and/or “quasi judicial” role sitting

A.C.A. § 25-15-209(a) requires that, “[u]nless required for the

disposition of ex parte matters authorized by law, members or

employees of an agency assigned to render a decision or to make

final or proposed findings of fact or conclusions of law in any case

of adjudication shall not communicate, directly or indirectly, in

connection with any issue of fact with any person or party nor, in

connection with any issue of law, with any party or his

representative, except upon notice and opportunity for all parties

to participate.”

89a

in judgment with respect to the medical cases then

pending before the Board.)

There is a genuine issue of fact as to whether

Hearnsberger was acting within the scope of his official

duties when he sent an email to the Board’s executive

secretary

purportedly

memorializing

negative

comments made by one of Plaintiff’s former professors

and directed that the email be distributed to the other

Board members.22 See Hearnsberger depo., (APP. 36673669 & 3673). He clearly intended for the other Board

members to have the information provided by him

when considering any future action(s) that may be

taken against Plaintiff. There is no evidence in the

record that the Medical Board ever voted to give

Hearnsberger the authority to conduct this

independent investigation, in addition to fulfilling his

“quasi judicial” role as a Medical Board member. “That

the combination of investigative and adjudicative

functions does not, without more, constitute a due

process violation does not, of course, preclude a court

from determining from the special facts and

circumstances present in the case before it that the risk

of unfairness is intolerably high.” Winthrow v. Larkin,

421 U.S. 35, 58 (1975).

It was only immediately after Plaintiff appeared

before the scheduled June, 2012 hearing with witnesses

to testify on his behalf, one of whom was a current

UAMS professor, that Hearnsberger took it upon

himself to call Plaintiff’s former professors and direct

Dr. Eidt, according to Hearnsberger, referred to Plaintiff as

“hard-headed and [a] poor resident.” Hearnsberger Depo., (APP.

3668-3669). Yet, Eidt rated Plaintiff as “above average” in all

categories on the evaluation form executed by Eidt, which was

obtained by Plaintiff from his file at UAMS after he learned of

Hearnsberger’s email. See APP. 477

90a

that a purportedly negative report from one23 of them

be submitted to the other Medical Board members.

“Clearly, if the initial view of the facts based on the

evidence derived from nonadversarial processes as a

practical or legal matter foreclosed fair and effective

consideration of a subsequent adversary hearing

leading to ultimate decision, a substantial due process

question would be raised.” Id.

Hearnsberger’s investigatory actions are even

more troubling, when considered along with the

objective evidence (morbidity/mortality rates) that

Plaintiff submitted to be evaluated at the Medical

Board’s request, which was given to Hearnsberger,24

but was apparently never evaluated by him and/or

considered by the Medical Board. See (APP.650),

December 2, 2010-Medical Board minutes wherein it is

reflected that the Medical Board requested that “the

physician provide the Board his morbidity rate

statistics.” There are issues of fact, as to what, if

anything, the Medical Board did with this information

(morbidity/mortality statistics). Compare Cryer Depo.,

(APP. 4112), Hearnsberger Depo., (APP. 3717-3719);

and Beck Depo., (APP. 4934).

The morbidity/mortality information is objective

in nature and could be used to evaluate discrimination

claims like those being asserted here. See Ennix v.

Stanten, 556 F. Supp. 2d 1073, 1086 (N.D. Cal. 2008),

(“[t]he argument made by defendant is that Dr. Ennix

had an abnormally high mortality rate associated with

his surgeries, whereas the argument made by Dr.

Hearnsberger did not make records of the conversations he had

with Plaintiffs other professors, including Dr. Westbrook, and Dr.

Richard Turnage. Hearnsberger Depo., (APP. 3674-3677).

Hearnsberger 2014 Depo., (APP. 3717-3719).

91a

Ennix is that this was not so.”) In denying the

defendants’ motion for summary judgment on the

plaintiff cardiac surgeon’s Section 1981 claim and

finding that “the battle of statistics cannot be resolved

on summary judgment and needs to be sorted out

through the examination of qualified witnesses,” the

district court in Ennix also held that, “[a] jury could

also reasonably find that Dr. Ennix was denied the

right to contract for those services. The summary

suspensions and proctoring requirement impeded the

contractual relationship because Dr. Ennix either could

not practice at all or he could no longer be lead

surgeon.”)

In addition to its failure to properly evaluate the

morbidity/mortality rates provided by Plaintiff, there is

no evidence that the Medical Board has ever sought to

compare Plaintiff’s morbidity/mortality rates to the

other physicians on the medical staff at Baptist. The

district court’s Order granting the Baptist defendants’

motion to dismiss in this case based upon res judicata

rendered any potential efforts to obtain such

information during discovery in this case either moot

and/or futile. In the state court action (Williams I),

Plaintiff sought discovery of the Mortality and

Morbidity rates of the other surgeons on the medical

staff at Baptist but Baptist objected to providing them

during discovery asserting, among other things, the

Arkansas peer review privilege.25 (APP. 572-573).

In addition to allowing Hearnsberger to conduct

his individual ex parte investigation,26 Plaintiff alleged

At Baptist, Morbidity/Mortality rates are types of information

that are reviewed when a surgeon is re-credentialed because “it

gives some information to the reviewer as to clinical outcomes,

clinical efficiency, things of that nature.” (APP. 2088).

See Cryer Depo., (APP. 4115-4116).

92a

that Beck “condoned and/or ratified the Board’s

initiation of an unauthorized investigation against

Plaintiff even though he knew that it was the Board’s

policy to wait until the final decision from the hospital

and/or the conclusion of any related judicial proceedings

before seeking to discipline a physician regarding

matters that have been subject to hospital disciplinary

proceedings. See Williams II Complaint, 22, ¶ 49 (APP. 34).

In granting Hearnsberger and Beck’s motion for

summary judgment, the district court held that, “[e]ven

if the Doctors were not immune to Plaintiff’s claims,

Plaintiff has failed to present any evidence that the

actions taken by Doctors Hearnsberger or Beck

regarding Plaintiff’s licensure were based on racial

animus or in retaliation.” (APP. 5307).

First, in order to pursue a claim of retaliation27

for having opposed perceived discrimination by filing a

lawsuit, it is not required that a Plaintiff must first

show evidence that discrimination did in fact occur. See

Wallace v. Sparks Health Sys., 415 F.3d 853, 858 (8th

Cir. 2005), (“We are mindful that a [party] must be

shielded from retaliation for protected activity, even if

a court eventually decides that the [party’s] complaints

are without merit, as long as the [party] reasonably

believed the employer’s conduct [was unlawful

discrimination].” See also CBOCS West, Inc. v.

Humphries, 553 U.S. 442, 457 (2008), (“42 U.S.C. § 1981

encompasses claims of retaliation.”)

To establish a prima facie case of retaliation under [§ 1981], a

plaintiff must show that he engaged in protected conduct, that

defendants took an adverse action against him, and that there was

a causal link between the two. McCullough v. Univ. of Ark. for

Med. Scis., 559 F. 3d 855, 864 (8th Cir. 2009).

93a

In addition, with respect to Plaintiff’s First

Amendment retaliation claim, “[t]he cases from this

Circuit, as well as from others, make it clear that state

officials may not take retaliatory action against an

individual designed either to punish him for having

exercised his constitutional right to seek judicial relief

or to intimidate or chill his exercise of that right in the

future.” Harrison v. Springdale Water & Sewer Com.,

780 F.2d 1422, 1425-1426 (8th Cir. 1985). “An individual

is entitled to free and unhampered access to the

courts.” Id., at 1428. “An act taken in retaliation for the

exercise of a constitutionally protected right is

actionable under § 1983 even if the act, when taken for

a different reason, would have been proper.” Id., at

1428, citing Matzker v. Herr, 748 F.2d 1142, 1150-1151

(7th Cir. 1984).

Regarding the malice necessary in order to

overcome immunity from Plaintiff’s state law claims, in

addition to the violations of state law referenced above,

Plaintiff also argued that genuine issues of material fact

exist regarding whether Hearnsberger and Beck

engaged in bad faith conduct during the settlement

negotiations by insisting that Plaintiff’s claims be

dismissed “with prejudice.” See (APP. 4145-4148).

In Wade v. Haynes, 663 F.2d 778, 786 (8th Cir.

1981), this Court held that, “[m]alicious conduct has

long been defined so as to include ‘culpable recklessness

or a willful and wanton disregard’ of another’s rights...

liability in civil rights cases may be incurred even

though an official does not possess ‘any actual malice or

intent to harm (but) is so derelict in his duties that he

must be treated as if he in fact desired the harmful

results of his inactions.’ This is so because deliberate

intent may be predicated on factual circumstances

which are so egregious and reckless that the natural

94a

consequences of the actor’s conduct implies the

requisite malicious intent to do wrong. ... Thus we

conclude a finding of malice may be found from an

official’s reckless and callous disregard of known

dangers.” (Citations Omitted.)

In granting Beck and Hearnsberger’s motion for

summary judgment, the district court found that, “[t]he

Board’s version of the Consent Order, which was filed

in the case on November 5, 2015, did not include the

Plaintiff’s proposed language regarding reports made

to the NPDB by ASMB.” (APP. 5308). In fact, the

November 5, 2015 Consent Order did not include any

language regarding NPDB reports, and therefore, that

issue was not decided and was not material to the

action taken by the trial court on Plaintiff’s Petition for

Judicial Review in remanding28 the case back to the

ASMB. “Issue preclusion bars the relitigation of an

issue that was actually litigated in a prior action and

was determined by, and essential to, a valid and final

judgment.” Smith v. Johnson, 779 F.3d 867, 871 (8th

Cir. 2015). “The Arkansas Supreme Court requires a

party invoking issue preclusion to establish ‘the precise

issue’ was decided in the first proceeding, and

interprets ‘very narrowly’ whether an issue was

previously litigated.” Id., at 871.

Here, there should not have been any NPDB

reports submitted by the ASMB because there had

been no proper adjudication. “‘Adjudication’ is defined

as an ‘agency process for the formulation of an order.’

‘Order’ is defined as the ‘final disposition of any agency

“A circuit court’s order of remand to an administrative agency

for further proceedings is not a final order. This is true even

where, as here, the circuit court has affirmed the agency’s findings

in part.” Ark. Ins. Dep’t v. Henley, 481 S.W.3d 467, 468 (Ark. App.

2016), (Footnotes and Citations Omitted.)

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in any matter other than rule making, including

licensing and rate making, in which the agency is

required by law to make its determination after notice

and hearing.’ Where there has been no adjudication

before the administrative agency, there has been no

‘final agency action’ to be reviewed pursuant to Ark.

Code. Ann. § 25-15-212.” Baber v. Ark. State Med. Bd.,

2010 Ark. 243, 248, 368 S.W.3d 897, 901 (Ark. 2010).

The fact that the Consent Order contains

language that the “Arkansas State Medical Board and

the Arkansas State Medical Board members in their

official capacity shall be dismissed by Dr. Williams with

prejudice,” can not be separated from additional the

words that follow, “upon certain conditions.” (APP.

654) (Emphasis Added.)

“[U]sually, a dismissal with prejudice is as

conclusive of the rights of the parties as if there had

been an adverse judgment as to the plaintiff after a

trial, but there are limitations to the doctrine of res

judicata as recognized by our court of appeals.” Lindsey

v. Green, 2010 Ark. 118, 369 S.W.3d 1, 7 (Ark. 2010). See

also Crawford v. Paris, 897 F. Supp. 928, 931 (D. Md.

1995), (“Inasmuch as no hearing has been held by the

BPQA, much less no final decision rendered by it, any

court challenge is premature.”)

Plaintiff’s claims asserted against Hearnsberger

and Beck in their individual capacities, however, do not

have to await a final disposition by the Arkansas State

Medical Board after remand. See Conner v. Reinhard,

847 F.2d 384, 395 (7th Cir. 1988), wherein the Seventh

Circuit Court of Appeals held that, “[a]lthough we

recognized that FBI agents sued in their official

capacities would be in privity with each other, where

government officials are sued in their personal

capacities, privity does not exist.” “For liability under

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section 1983, direct participation by a defendant is not

necessary. Any official who ‘causes’ a citizen to be

deprived of her constitutional rights can also be held

liable. The requisite causal connection is satisfied if the

defendant set in motion a series of events that the

defendant knew or should have reasonably have

known29 would cause others to deprive the plaintiff of

her constitutional rights.” Id., at 396-397. (Footnote

Added.)

Further, when responding to Beck’s motion for

summary judgment, Plaintiff argued that his position

was analogous to that of a supervisor. (App. 4140). “A

supervisor may be held individually liable under § 1983

if he directly participates in the constitutional violation

or if he fails to train or supervise the subordinate who

caused the violation.” Riehm v. Engelking, 538 F.3d

952, 962-963 (8th Cir. 2008).

IV. The District Court Erred in Denying Plaintiff’s

Motion to Amend the September

September 19, 2017 Order

Granting the Baptist Defendants’ Motion to Dismiss

After the district court entered its order (APP.

1053) granting the Baptist defendants’ Rule 12(b)(6)

motion to dismiss, Plaintiff filed a motion pursuant to

Rule 59(e) and Rule 60(b) to alter or amend the

September 19, 2017 Order dismissing the Baptist

defendants, and a motion to stay further proceedings

See Hearnsberger 2018 Depo., (APP. 3533), “He volunteered to

have a proctor, and as far as I remember, it was an unrestricted

license.” See Beck 2018 Depo., (APP. 3496), “Before I left the

board there was some back-and-forth between Juli and Kevin

about [the National Practitioner Data Bank Report], but I wasn’t a

party to it.”

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and/or to abstain pending the final disposition of the

Arkansas state court proceedings that remain subject

to appeal in the Arkansas Appellate Courts. (APP.

1062). On November 1, 2018, the district court entered

an Order denying both motions without reasoning or

explanation. (APP. 1471).

“A district court has broad discretion in

determining whether to grant a Fed.R.Civ.P. 59(e)

motion to alter or amend judgment, and this court will

not reverse absent a clear abuse of discretion. An abuse

of discretion will only be found if the district court’s

judgment was based on clearly erroneous factual

findings or erroneous legal conclusions.” Innovative

Home Health Care v. P.T.-O.T. Assoc., 141 F.3d 1284,

1286 (8th Cir. 1998). Similarly, this Court reviews a

district court’s denial of relief under Rule 60(b) only for

abuse of discretion. Arnold v. Wood, 238 F.3d 992, 998

(8th Cir. 2001). Abstention decisions are also reviewed

for abuse of discretion, but the underlying legal

questions are subject to plenary review. Beavers v.

Arkansas State Bd. of Dental Exam’rs, 151 F.3d 838,

840 (8th Cir. 1988). In Robinson v. Omaha, 866 F.2d 1042,

1043 (8th Cir. 1989), this Court held that, “since the

practice of abstention is equitable in nature, this court

may raise the issue of the appropriateness of abstention

sua sponte.”

“Under Rule 60(b) the movant must demonstrate

exceptional circumstances to justify relief. Exceptional

circumstances exist where the judgment bars adequate

Because Plaintiff’s Complaints raised racial discrimination claims

against Baptist in both his federal and state court actions, after the

district court granted the Baptist defendants’ motion to dismiss on

grounds of res judicata, Plaintiff sought to have the district court

abstain, pending the disposition of the appeal of his state court

action.

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redress. While relief under Rule 60(b) is

‘extraordinary,’ a Rule 60(b) motion is to be given a

liberal construction so as to do substantial justice and

‘to prevent the judgment from becoming a vehicle for

injustice. This motion is grounded in equity and exists

‘to preserve the delicate balance between the sanctity

of final judgments and the incessant command of a

court’s conscience that justice be done in light of all the

facts.’” Baker v. John Morrell & Co., 266 F.Supp.2d 909,

920 (N.D. Iowa 2003), citing MIF Realty L.P. v.

Rochester Assoc., 92 F.3d 752, 755-756 (8th Cir. 1996).

(Additional Citations Omitted.)

In support of his motion to amend and/or alter

the September 19, 2017 Order granting the Baptist

Defendants’ motion to dismiss on the grounds of res

judicata, Plaintiff argued that, “a stay would be

appropriate here, particularly given the fact that

Plaintiff [had] not yet presented his federal

[discrimination] claims to state court, and the

possibility that on appeal, the Arkansas appellate

courts may reverse the trial court’s summary judgment

on Plaintiff’s discrimination claims [against the

Baptist defendants that were] brought pursuant to the

Arkansas Civil Rights Act.” (APP. 1069).

In arguing that the district court should have

abstained from ruling on Plaintiff’s discrimination

claims against the Baptist defendants here, Plaintiff

relies primarily upon the Pullman abstention doctrine

even though the district court’s order dismissing

Plaintiff’s claims against the Baptist defendants based

upon res judicata, if correct, may also implicate the

Younger abstention doctrine.

“In Younger v. Harris, 401 U.S. 37 (1971), the

United States Supreme Court directed ‘federal courts

to abstain from hearing cases when (1) there is an

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ongoing state judicial proceeding which (2) implicates

important state interests, and when (3) that proceeding

affords an adequate opportunity to raise the federal

questions presented.” Norwood v. Dickey, 409 F.3d 901,

903 (8th Cir. 2005).

The Eighth Circuit considers five factors in

deciding whether to abstain from a case under the

Pullman abstention doctrine: “what effect will

abstention have on the rights to be protected, whether

there are available state remedies, whether the

challenged state law is unclear, whether the state law is

fairly susceptible of an interpretation that would avoid

any federal constitutional question, and whether

abstention will avoid unnecessary federal interference

in state operations.” R. v. Adams, 649 F.2d 625, 628

FN6 (8th Cir. 1981). (Citation Omitted.)

“Abstention is proper when a federal

constitutional issue might be mooted by a state-court

determination of pertinent questions of state law.

‘Pullman requires a federal court to refrain from

exercising jurisdiction when the case involves a

potentially controlling issue of state law that is unclear,

and the decision of the issue by the state courts could

avoid or materially alter the need for a decision on

federal constitutional grounds.” Doe v. McCulloch, 835

F. 3d 785, 788 (8th Cir. 2016). Applying this reasoning

here, the district court should have abstained from

proceeding further pending the final disposition of the

appeal of Plaintiff’s parallel state court action by the

Arkansas Appellate courts.

In the event of a reversal of the state court’s

discovery orders, summary judgment order(s), and/or

denial of jury trial denial order, by the Arkansas

Appellate court(s), there is no reason why Plaintiff

couldn’t obtain full relief from the Baptist defendants

100a

at trial on his claims brought pursuant to the Arkansas

Civil Rights Act in the state court action. See Baker,

supra, 266 F. Supp. 2d at 921, (“In Baker’s complaint,

she specifically averred a cause of action under Title

VII. Yet, the factual allegations contained in her

complaint also support claims under Iowa’s parallel

anti-discrimination statute, the ICRA.”) The district

court in Baker further held that the “ICRA claims do

not present any new issues but merely a separate

statutory provision that provides for recovery under

the same set of facts and for the same conduct.” Id., at

928.

Plaintiff first filed his discrimination claims in

Arkansas state court pursuant to the Arkansas Civil

Rights Act. See Alexander v. E. Tank Services, Inc.,

2016 Ark. App. 185, 486 S.W.3d 813, 816 (Ark. App.

2016), (“The ACRA provides citizens of the state legal

redress for civil-rights violations of state constitutional

or statutory provisions, hate offenses, and

discrimination offenses, and ACRA claims are analyzed

under the same principles as [federal discrimination]

claims.”) However, based upon the discovery rulings of

the Arkansas circuit court, and apparently31 because he

relied upon the Arkansas Civil Rights Act instead of

federal law, Plaintiff was deprived of discovery

notwithstanding the expressed provision of the

which provides that, “when construing this section, a

court may look for guidance to State and Federal

decisions interpreting the federal Civil Rights Act of

The trial court’s order denying Plaintiff’s motion to compel

discovery from the Baptist defendants which is at issue in the

appeal of the state court action failed to state the reasoning for the

denial. (APP. 642.)

101a

1871, as amended and codified in 42 U.S.C. § 1983, as in

effect on January 1, 1993, which decisions and act shall

have persuasive authority only.” (APP. 484). See also

Island v. Buena Vista Resort, 103 S.W.3d 671, 675 (Ark.

2003), (“the Arkansas Civil Rights Act expressly

instructs [the Arkansas trial and appellate courts] to

look to federal civil-rights law when interpreting the

Act.”)

The Arkansas Appellate courts may agree with

Plaintiff’s argument that he is entitled to the discovery

sought from Baptist regarding the disciplinary

treatment (to include the lack of any disciplin

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