Opposition Brief — Thompson v. Wise General Hospital
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No. 90-22
In The
Supreme Court of the United States
October Term, 1989
ee
LEVESTER THOMPSON, M.D.,
Petitioner,
WISE ARH GENERAL HOSPITAL, ST. MARY’S HOSPITAL,
INC., NORTON COMMUNITY HOSPITAL AND LONG TERM
CARE FACILITY, O. DAVIS BEVINS, RUBY SALYER,
SISTER ANNE CHRISTINA SULLIVAN, MARTY PRINCE,
M.D., CHARLES FULTON, M.D., ISAM ZEBDAH, M.D.,
A.W. NORTH, M.D., CHARLES P. MAINE, M.D., AND
R. CARTEGENA, M.D.,
Respondents.
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BRIEF BY RESPONDENTS IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
&
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JoHN T. Jesser, Esq.
D. Stan BARNHILL, Esq.
(Counsel of Record)
Woops, Rocrers & HAZLEGROVE
105 Franklin Road, S.W.
P.O. Box 720
Roanoke, VA 24004
(703) 982-4200
Counsel for St. Mary’s Hospital
and Sister Anne Christina
Sullivan
Ersey A. Harris, III, Esq.
MuLtins, THOMASON & HArris
P.O. Box 1200
Norton, VA 24273
(703) 679-3110
Counsel for Wise ARH General
Hospital, Ruby Salyer, and
A. W. North, M.D.
Witiiam W. Eskripcer, Esq.
PENN, STUART, EskRIDGE & JONES
P.O. Box 2288
Abingdon, VA 24210
(703) 628-5151
Counsel for Norton Community
Hospital and Long Term Care
Facility, O. David Bevins,
Marty Prince, M.D., Charles P
Maine, M.D., Charles Fulton,
M.D.
Joun B. Russert, Esq.
Browper & Russert
Suite 1100, One James Center
901 East Cary Street
Richmond, VA 23219
(804) 771-9303
Counsel for Isam Zebdah,
M.D., and R. Cartegena,
M.D.
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
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LIST OF PARTIES AND RULE 29.1 LIST
The petitioner in this case is Levester Thompson,
M.D. The individual respondents are O. Davis Bevins,
Ruby Salyer, Sister Anne Christina Sullivan, Marty
Prince, M.D., Charles Fulton, M.D., Isam Zebdah, M.D.,
A. W. North, M.D., Charles P. Maine, M.D., and R. Car-
tegena, M.D. The corporate respondents are St. Mary’s
Hospital, Inc., Norton Community Hospital and Long
Term Care Facility, and Wise ARH General Hospital.
St. Mary’s Hospital, Inc., is a non-profit, non-stock
corporation without any parent company or subsidiaries.
Norton Community Hospital and Long Term Care Facility
is a non-profit, non-stock corporation that is wholly
owned by Norton Community Health Services, Inc.,
which, in turn, has no parent company or subsidiaries,
other than wholly owned subsidiaries. Wise ARH General
Hospital is owned by Appalachian Regional Health Care,
Inc., a non-profit, non-stock corporation, which has no
parent company or subsidiaries.
il
TABLE OF CONTENTS
Page
LIST OF PARTIES AND RULE 29.1 LIST........... i
TABLE GP CRTC Ue so xn cs ceeaaucevewces veneeee ii
TABLE OF CITATIONS..... 4.2m k eee ee ee iv
6. ot 8 ft Srrerrer retry tr er l
STATEMENT OF THIG CABG. .o.5 i visine cccsssuness 1
(a) Thompson’s Original Complaint as Pled by
His Firet AtQOqney ... 2. ccc cccccasciceseuness 3
(b) Thompson’s Amended Complaint as Pled by
His Second Attorney....... wah Gk Maen ee 4
(c) Thompson’s Second Amended Complaint as
Pled by His Third Attorney................. 5
(d) Withdrawal of Thompson’s Third, and Last,
Attorney; Dismissal of the Non-Hospital
AUOUNIOUAS .. 5 no kk caer ccneecuasannnces 7
(e) Dismissal of the Hospital Respondents ...... 9
(f) Thompson’s Appeal to the Fourth Circuit as to
the Hospital Respondents ................... 11
(g) Thompson’s Petition for a Writ of Certiorari... 11
SUMMARY OF REASONS FOR DENYING THE
| PPP rrrrrrrrerrrrr Te: rer re err 12
REASONS FOR DENYING THE WRIT............. 14
(a) The Central Issue in This Case Was Correctly
Decided Below: Thompson Does Not Have a
Cognizable § 1981 Claim Against the Respon-
dents for Terminating His Hospital Privileges.. 14
(b) The Courts Below Correctly Held Thompson
Had Not Sufficiently Stated A Conspiracy
Claim to Survive Respondents’ Motions to
Te eee 19
ili
TABLE OF CONTENTS - Continued
Page
(c) The Courts Below Committed No Procedural
Errors to Justify this Court Granting a Writ.... 21
(d) Thompson’s Failure to File His § 1981 and
§ 1985(3) Claims Against Respondent St.
Mary’s Hospital and Its Administrator,
Respondent Sister Anne Christina Sullivan,
Within Two years After the Termination of His
Privileges Bars His Action as to These Respon-
dents
iv
TABLE OF CITATIONS
CASES
Arsenaux v. Roberts, 726 F.2d 1022 (5th Cir. 1982).
Bowman v. State Bank of Keysville, 229 Va. 534, 331
oe e.g. | RR ee Pere ere Cree
Brady v. Sowers, 453 F. Supp. 52 (W.D. Va. 1978)...
Briscoe v. Lahue, 663 F.2d 713 (7th Cir. 1981), aff'd,
Ue Rk Se NE ons cpawns na cusnnacsannesees
Buschi v. Kirven, 775 F.2d 1240 (4th Cir. 1985) ....
Carroll v. General Accident Insurance Co., 891 F.2d
re a a Sec chee kbae'
Carter v. Norfolk Community Hospital Ass'n, 761
yf bg. fe ee | rere eer ee Tee re Tee
Courtney v. Canyon Television & Appliance Rental,
inc., 699 F.2d S65 Cth Cie. 1900)... 2... ..5.4...
Cox v. United States Gypsum Co., 409 F.2d 289 (7th
SK EE Sk CRSAR CAEN EDR RWOS Kd SENS R EES NAD Ew RSS
Croatan Books, Inc. v. Commonwealth of Virginia, 574
i De. iw CEP. WH. Wee 6 ns ccc cccanees
Davis v. Sprouse, 405 F. Supp. 45 (E.D. Va. 1975)...
Deck v. Leftridge, 771 F.2d 1168 (8th Cir. 1985)....
De Leon Otero v. Rubero, 820 F.2d 18 (1st Cir. 1987) ....
Eggleston v. Prince Edward Volunteer Rescue Squad,
Inc., 569 F. Supp. 1344 (E.D. Va. 1983), aff’d, 742
ee 8 Ge S reeerererer rere
Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)..
Greggs v. Hillman Distributing Co., 719 F. Supp. 552
Ss I ROR Aw cA aUNN COUN Re ceeeeNaeeess
Page
ee |
er
re»
—S
Vv
TABLE OF CITATIONS - Continued
Page
Grossling v. Ford Memorial Hospital, 614 F. Supp.
ee ee ee ee 16
Guibor v. Manhattan Eye, Ear & Throat Hospital, 413
N.Y.S.2d 638, 386 N.E.2d 247 (N.Y. 1978).......... 16
Harris v. Obenshain, 452 F. Supp. 1172 (E.D. Va.
Serr eter errr ere rer ee. 25
Hodges v. Arlington Neuropsychiatric Center, Inc.,
628 S.W.2d 536 (Tex. Ct. App. 1962) .............. 16
Johnson v. United States Elevator Corp., 723 F. Supp.
Cen CA DN WD shah scunseasnenShapeeeenoiet 18
Joseph v. Zachary Manor Nursing Home, 729 F. Supp.
Ce SAA TTR os 6b son inh Aken cbaneincheeeanes 18
Khoury v. Community Memorial Hospital, Inc., 203
VO. SOG, TSS TBE Bas COME ove cece ssccescscsss 16
Lavender v. V & B Transmissions & Auto Repair, 897
Pie: GD COU EIS THRs ac ccscscsnesvasanscescnecs 18
Loewinthan v. Beth David Hospital, 9 N.Y.S.2d 367
es EGR Pe nc inne ccenaescncessbaukuenabes 16
Mahone v. Waddle, 564 F.2d 1018 (3rd Cir. 1977),
cart. dented, 5B UB. FOO CISPED 2... ncnsssscnscns 15
Manczur v. Southside Hospital, 183 N.Y.S.2d 960
eee SA Sk TR 5 kde cccdccccansdasanuaecbesen 16
Marmott v. Maryland Lumber Co., 807 F.2d 1180 (4th
Cir. 1986), cert. denied, 482 U.S. 929 (1987) ........ 20
McKnight v. General Motors Corp., Nos. 89-1379 and
89-1526 (7th Cir. July 2, 1990) (1990 WL 89739) .... 18
vi
TABLE OF CITATIONS —- Continued
Page
Modaber v. Culpepper Memorial Hospital, Inc., 674
oo 8 ge en nee 15
Mosher v. Saalfeld, 589 F.2d 438 (9th Cir. 1978), cert.
i a DEE CENFEP sks desncnescevccencenes 19
Patterson v. McLean Credit Union, 109 S. Ct. 2363
Ese bs 5G a0 60san see eennesas 11, 13, 17, 18
Phillips Co. v. Dumas Indep. School Dist., 361 U.S.
Tee yr er Tere Terre Te eer er Tee 12
Pillette v. Detroit Police Department, 661 F. Supp.
1145 (E.D. Mich. 1987), aff'd, 852 F.2d 1288 (6th
8 SA rere ere reer rer yer ere rere 19
Rivera v. AT&T Information Systems, Inc., 719 F.
Be. ee CEP. COM. TIGP). 6. cece cee cvesessccses 18
Shaare Tefila Congregation v. Cobb, 785 F.2d 523 (4th
Cir. 1986), rev'd on other grounds, 481 U.S. 615
CL TLG neh 660600 hiw eee re ROL eeEES EOS SSeS WRENS 15
Sherman v. Burke Contracting, Inc., 891 F.2d 1527
GG 5s 6 ahe sce hed eho veeaeae teen eee 18
Singleton v. Kellogg Co., No. 89-1073 (6th Cir. Nov.
Bee Cowes CAPOS LOS 1790) 22. wees cececevcenes 18
Sitwell v. Burnette, 349 F. Supp. 83 (W.D. Va. 1972) .... 25
Slotnick v. Staviskey, 560 F.2d 31 (1st Cir. 1977),
cert. denied, 434 U.S. 1077 (1978).................. 19
Taylor v. Bunge Corp., 775 F.2d 617 (5th Cir. 1985) .... 27
Thompson v. Wise General Hospital, 707 F. Supp. 849
(W.D. Va. 1989), aff'd, No. 89-2055 (4th Cir. Jan.
eee eee eee ee I, 9, 10
vii
TABLE OF CITATIONS —- Continued
Page
Weary v. Baylor University Hospital, 360 S.W.2d 895
I ree eer rrr e 16
West v. ITT Continental Baking Co., 683 F.2d 845
Sa SONNE 55s Faeedekends savas apiectesseuseua 27
Wilkenson v. Hamel. 381 F. Supp. 768 (W.D. Va.
oo See ETT T eT TET eer eee TT TTT TT Tree 25
Williams v. BLM Co., 731 F. Supp. 231 (N.D. Miss.
NN GAME KGRCAESAS ATE AES RAASESER EASED TREE REED 18
Williams v. Norfolk & Western Railway Co., 530 F.2d
8 Et SB . . MPPerrrererr erty Terre errr eT 26
Wood v. Hilton Head Hospital, Inc., 292 S.C. 403, 356
fe 8 8, RPP P TT TTOTT eT re ee eee ee 16
STATUTES AND RULES
1S UDA. GB fF Ge os cocci nsncsvcccenvcesesagass 6
Se. US. & WORD GHMGe cece sccwanccncccsasntnnes passim
G2 UG. © BORG CIBGDe.w nn ccc ccc seveccecscun passim
GS URE. B TORS CMe avn ck ncnvcccvesvccersswwanas 3, 4
Va. Code Ann. § 8.01-243(A)(1984) ....... 6.6... 6a 25
Federal Rule of Civil Procedure 11.................. 23
Federal Rule of Civil Procedure 12(b)(6)........ 4,5, 22
Federal Rule of Civil Procedure 54(c).......... 6, 9, 11
Beem GE. Bh OES. on carn kk vavduncccces sieeeccadanens 12
No. 90-22
Lh
vv
In The
Supreme Court of the United States
October Term, 1989
A.
vr
LEVESTER THOMPSON, M.D.,
Petitioner,
WISE ARH GENERAL HOSPITAL, ST. MARY’S HOSPITAL,
INC., NORTON COMMUNITY HOSPITAL AND LONG TERM
CARE FACILITY, O. DAVIS BEVINS, RUBY SALYER,
SISTER ANNE CHRISTINA SULLIVAN, MARTY PRINCE,
M.D., CHARLES FULTON, M.D., ISAM ZEBDAH, M.D.,
A.W. NORTH, M.D., CHARLES P. MAINE, M.D., AND
R. CARTEGENA, M.D.,
Respondents.
-s
BRIEF BY RESPONDENTS IN OPPOSITION TO PETITION
FOR WRIT O¢ CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
s
.
OPINION BELOW
The opinion of the United States District Court for
the Western District of Virginia is now reported at 707 F.
Supp. 849 (W.D. Va. 1989).
A.
STATEMENT OF THE CASE
The Petitioner, Dr. Levester Thompson, is a black
physician who formerly practiced medicine in Wise
County, Virginia, and now practices in Emporia, Virginia.
The respondents include three Wise County hospitals,
their respective hospital administrators, and six local
physicians who served on one or more of the hospitals’
medical staffs during the period in question. This case
arises out of separate decisions by the respondent hospi-
tals to terminate all or part of Thompson’s hospital privi-
leges over a two-year period: first St. Mary’s terminated
all his privileges in November, 1984; then Wise General
terminated his obstetrical privileges in January, 1986; and
lastly Norton Community terminated his ICU privileges
in August, 1986. Each termination occurred after one or
more patients under Thompson’s care developed serious
health complications while at the hospital in question.
Thompson’s Petition for the Writ of Certiorari does
not adequately set out the protracted procedural history
in the trial court below. Ignoring this history, Thompson
intimates that the trial court dismissed his claims without
affording him an adequate opportunity to plead his case.
To correct the misstatements contained in Thompson’s
Petition and to demonstrate that there is no merit to
Thompson’s alleged procedural irregularities, respon-
dents are providing this statement of the case.
As the statement of the case will show, during the
two years this case was before the trial court, Thompson’s
three separate attorneys filed three radically different
complaints which successively added and dropped par-
ties and causes of action without rhyme or reason.
Throughout this convoluted process, the trial court, with
remarkable patience, gave Thompson every reasonable
opportunity to advance his case beyond the pleading
stage. Despite repeated efforts, Thompson was never able
to allege sufficient facts or cognizable claims to avoid
dismissal of his case.
(a) Thompson’s Original Complaint as Pled by His
First Attorney
Thompson’s first counsel, Chester Smith, Esq., filed
an original complaint on Thompson’s behalf against the
respondents in December of 1986. The initial complaint
was exceedingly vague on the causes of action asserted or
the facts in support thereof. (Appendix at 1-15.) In a
conclusory fashion, Smith pled that the respondents, act-
ing pursuant to some undefined “conspiracy,” had vio-
lated Thompson’s civil rights by terminating his staff
privileges at the three respondent hospitals on the basis
of his race. Smith asserted that the termination of
Thompson’s privileges on racial discrimination grounds
violated §§ 1981, 1985(3) and 1986 of the Civil Rights
Acts, 42 U.S.C. §§ 1981, 1985(3) and 1986 (1982).
In response, the respondents filed motions for more
definite statements because the complaint was devoid of
sufficient facts to permit a response. Smith filed a written
response and appeared on Thompson’s behalf to oppose
the motions at a hearing in March of 1987. At the hearing,
the trial court granted respondents’ motions in part and
ordered Thompson to state facts that would clarify the
nature of his conspiracy claim, specify what acts gave rise
to each respondent’s individual liability, and indicate on
what factual basis Thompson contended he had a con-
tract with the respondents, the interference with which
would allegedly support a § 1981 claim.!
1 In his Petition, Thompson quotes the trial court’s ruling
on the respondents’ motions for more definite statements. (Pet.
at 9 n.1.)
(b) - Thompson’s Amended Complaint As Pled by His
Second Attorney
Following the March 1987 hearing, Smith filed a
motion voluntarily dismissing Thompson’s § 1985(3) and
§ 1986 conspiracy claims. Smith also filed a more definite
statement. Before the respondents could respond to
Smith’s revised pleading, however, Bruce Shine, Esq,.,
filed a notice of appearance as Thompson’s additional
counsel. Shine moved for leave to file an amended plead-
ing, ignoring the more definite statement that Smith had
filed. The trial court granted Shine’s motion and thereaf-
ter granted Shine a series of extensions for filing the
amended complaint.
Not until October of 1987 did Shine file the first
amended complaint on Thompson’s behalf. Shine’s
amended complaint added back the § 1985(3) conspiracy
claim that Smith had voluntarily dismissed and named
only the three hospitals as defendants. Shine also filed a
separate motion voluntarily dismissing Thompson’s
action against the eight doctors and three hospital admin-
istrators originally sued, which the trial court granted.
The hospital respondents promptly filed motions to
dismiss and answers to Shine’s amended complaint. The
respondents moved to dismiss the § 1981 and § 1985(3)
claims under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim. Additionally, respondent St.
Mary’s Hospital asserted a statute of limitations defense
to both causes of action and filed a brief in support of its
pleadings.
St. Mary’s contended in its brief that the statute of
limitations had run on Thompson’s civil rights claims
because he did not file his suit within two years after his
privileges at the hospital were revoked. Additionally, St.
Mary’s contended that the amended complaint did not
allege sufficient facts to establish a § 1985(3) conspiracy
claim. Finally, St. Mary’s argued that Thompson had no
§ 1981 claim because: (1) the “equal benefits” prong of
§ 1981 required state action, which was not present since
St. Mary’s was a private institution; and (2) the “contract”
prong of § 1981 was not available to Thompson because
hospital staff privileges are not contractual in nature.
The other two hospital respondents adopted the
arguments in St. Mary’s brief in support of their own
Rule 12(b)(6) motions to dismiss. These hospitals did not
join in St. Mary’s statute of limitations defense because
that defense was not available to them.
Upon receipt of St. Mary’s brief, the trial court
ordered Thompson to respond. Shine, Thompson’s sec-
ond attorney, thereupon filed a motion to withdraw. The
trial court granted Shine’s motion in April of 1988 and
directed Thompson to obtain new counsel within thirty
days.
~(c) Thompson’s Second Amended Complaint as Pled
by His Third Attorney
In June, 1988, Sa’ad El-Amin, Esq., filed a notice of
appearance as Thompson’s new counsel. El-Amin also
filed a motion to add as additional parties the doctors
and hospital administrators that Thompson, through ear-
lier counsel, had voluntarily dismissed. El-Amin further
requested leave to amend Thompson’s complaint yet
again to allege new causes of action against all respon-
dents. Finally, El-Amin filed a brief in opposition to St.
Mary’s motions to dismiss and statute of limitations
defenses. The trial court granted El-Amin’s motions and
ordered him to provide enough copies of the second
amended complaint to the clerk to permit service on the
non-hospital defendants to be added back into the case.
Thompson’s second amended complaint, as prepared
by El-Amin, consisted of five causes of action. (Appendix
at 82-126.) El-Amin set out Thompson’s civil rights claims
in counts one and four. In count one El-Amin alleged that
the respondents conspired to deprive Thompson of his
livelihood as a physician by terminating his privileges at
the three hospitals because of his race in violation of 42
U.S.C. § 1985(3). In count four El-Amin alleged that the
respondents’ actions interfered with Thompson’s contrac-
tual relations in violation of 42 U.S.C. § 1981. Count three
contained Thompson’s other federal claim - that the
respondents’ actions violated the Sherman Antitrust Act,
15 U.S.C. §§ 1, 2 (1982). Finally, in counts two and five, El-
Amin alleged that the respondents’ termination of
Thompson’s hospital privileges violated various Virginia
statutes and common law.
The hospital respondents again filed motions to dis-
miss and St. Mary’s renewed its statute of limitations
defense. The three hospitals additionally raised statute of
limitations defenses to the state law claim in count two.
All three hospitals moved to dismiss the antitrust count
for failure to state a claim.
(d) Withdrawal of Thompson’s Third, and Last, Attor-
ney; Dismissal of the Non-Hospital Respondents
Contemporaneously with the hospitals’ filing of their
responses, El-Amin filed a motion to withdraw as coun-
sel, which the trial court granted in August, 1988. The
court directed that the second amended complaint not be
served on the non-hospital respondents that El-Amin had
sought to reinstate as parties — but had not yet served -
until such time as Thompson obtained new counsel, who
would agree to assume responsibility for the allegations
stated in the second amended complaint.? The trial court
granted Thompson thirty days to obtain new counsel. In
September, 1988, after Thompson’s time to obtain new
counsel had run, the trial court gave him an additional
thirty days to effect service on the non-hospital respon-
dents. The trial court also set a hearing on the pending
defense motions for October 7, 1988.
At the October 7 hearing, the parties presented oral
argument on respondent hospitals’ motions to dismiss,
with Thompson representing himself.? The trial court
2 Thompson’s first counsel, Chester Smith, had remained
in the cace until this time although he had not signed the
second amended complaint or otherwise assumed respon-
sibility for it. With El-Amin’s withdrawal as counsel, Smith
likewise sought leave to withdraw, which the trial court per-
mitted in August 1988.
3 In his Petition, Thompson alleges that on the morning of
the October 7 hearing, the trial court refused to grant an
extension requested by Thompson’s “would-be new law firm”
during a long distance phone call. (Pet. at 10-11.) Actually, the
trial court correctly refused to postpone the hearing, which had
been properly noticed, because of the last-minute nature of the
(Continued on following page)
directed the parties to present any written argument they
chose within fifteen days after the hearing.
Counsel for hospital respondents and Thompson, act-
ing pro se, filed additional written argument within this
time frame. Thompson also improperly filed certain “in
camera” material for the trial court to consider in ruling
on the motions to dismiss. This material was never dis-
closed to respondents’ counsel, until it appeared in
Thompson’s Petition to this Court. (Appendix at 16-72.)
On October 26, 1988, the trial court entered an order
dismissing Thomipson’s action against the non-hospital
respondents because Thompson failed to effect service
within the thirty days ordered by the court. The dismissal
order was designated as final pursuant to Federal Rule of
Civil Procedure 54(c). Thompson then filed a “Memoran-
dum In Opposition” within fifteen days thereafter, which
the court ultimately treated as a motion to vacate. In late
October and eatly November, in direct contravention of
the court’s October 26 ruling, Thompson effectuated ser-
vice on the non-hospital respondents. This service was
promptly challenged by motions to quash. On November
16, 1988, the trial court entered another order as to the
non-hospital respondents quashing service, denying
(Continued from previous page)
extension request and because the new law firm was not mak-
ing an appearance on Thompson’s behalf; it was asking only
for additional time to consider the possibility of representing
Thompson. The law firm, which would have been the fourth to
appear in the case as Thompson’s counsel, apparently elected
not to represent Thompson as it subsequently made no formal
appearance.
Thompson’s motion to vacate, and dismissing
Thompson’s action against them. This order was likewise
designated final pursuant to Rule 54(c).
On November 28, 1988, Thompson filed yet more
papers arguing against dismissal of the non-hospital
respondents. The trial court treated Thompson’s filing as
an additional motion to vacate the judgement and denied
it by a third Rule 54(c) order entered on November 30,
1988. Thompson did not appeal this order to the Fourth
Circuit Court of Appeals within thirty days thereafter as
required by law.
(e) Dismissal of the Hospital Respondents
On February 23, 1989, the trial court entered an order
dismissing Thompson’s action against the hospital
respondents for the reasons set out in the court’s accom-
panying opinion. Thompson v. Wise General Hospital, 707 F.
Supp. 849 (W.D. Va. 1989), aff'd, No. 89-2055 (4th Cir. Jan.
30, 1990). Essentially, the trial court dismissed the
§ 1985(3) claim because Thompson failed to allege suffi-
cient facts of conspiracy. The court observed that the
conspiracy allegations were conclusory in nature and
were devoid of any material facts to suggest the requisite
meeting of the minds.
4 The trial court described the absence of sufficient facts to
support a conspiracy claim in the amended complaint as fol-
lows:
Assuming that everything happened exactly the way
the complaint alleges that it did, the most that it has
(Continued on following page)
10
The trial court likewise dismissed the § 1981 claim
because the private nature of the hospital respondents
precluded that claim under § 1981’s “equal benefits”
prong, and Thompson had no contractual right to hospi-
tal privileges to support a claim under § 1981’s “contract”
prong. Id. at 852-53. The trial court also dismissed the
antitrust claim because Thompson had failed to allege
sufficient facts to show how the respondents’ alleged
conduct affected interstate commerce, a jurisdictional
prerequisite. Id. at &54-56. Finally, the trial court dis-
missed the two state law counts for lack of pendent
jurisdiction. Id. at 856.
(Continued from previous page)
shown is that each hospital, apparently acting inde-
pendently, terminated Dr. Thompson’s privileges for
problems that were someone else’s fault. Notably,
the termination by Wise General came 14 1/2 months
after the termination by St. Mary’s, and Norton
Community terminated Dr. Thompson’s ICU privi-
leges more than six months after that, or nearly two
years after St. Mary’s. A hospital, being an inanimate
entity, cannot itself conspire with anyone or any-
thing; some human agency must be involved. There
is no indication in the complaint of who, when, how,
or where any doctors, administrators, or other indi-
viduals connected with any of the defendants con-
spired to deprive Dr. Thompson of any rights or
privileges. And the timetable of the terminations,
spread out over two years, is hardly silent evidence
of a conspiracy.
Thompson v. Wise Gen. Hosp., 707 F. Supp. at 852.
11
(f) Thompson’s Appeal to the Fourth Circuit as to the
Hospital Respondents
Thompson, acting pro se, filed a timely notice of
appeal of the February 23, 1989, order dismissing the
hospital respondents. The Fourth Circuit, thereafter, pur-
suant to Local Rule 34(b), directed the parties to file
informal briefs because of Thompson’s pro se status. Sub-
sequent to the filing of briefs, hospital respondents’ coun-
sel presented to the Fourth Circuit additional argument
for dismissing Thompson’s § 1981 claim based on the
recently decided case of Patterson v. McLean Credit Union,
109 S. Ct. 2363 (1989).
By unpublished opinion, the Fourth Circuit, on Janu-
ary 30, 1990, affirmed the trial court’s dismissal of
Thompson’s civil rights, antitrust and state law claims for
the reasons articulated in the trial court’s written opinion.
The Fourth Circuit additionally held that Patterson also
foreclosed Thompson’s § 1981 claim. Finally, the Fourth
Circuit noted that Thompson’s appeal was not timely as
to the non-hospital respondents, who had been dismissed
by the earlier Rule 54(c) order. Thompson had not there-
after filed an appeal of that dismissal order within the
requisite 30-day period. (Appendix at 156-59.) Thompson
then moved for a rehearing in the Fourth Circuit, which
was denied on March 13, 1990.
(g) Thompson’s Petition for a Writ of Certiorari
Thompson filed a Petition for a Writ of Certiorari
with this Court on April 27, 1990, without providing
notice or a copy of the Petition to any of respondents’
counsel. The Clerk of this Court subsequently rejected
12
that Petition as not being in compliance with this Court’s
rules. Thompson then filed a second Petition in early July
of 1990, copies of which were first received by one of
respondents’ counsel on July 5, 1990.
in his Petition, Thompson assigns error only to mat-
ters dealing with his civil rights claims under § 1981 and
§ 1985(3). He does not assign error or otherwise address
the merits of the dismissal of his antitrust claim or the
Fourth Circuit’s ruling that his appeal was untimely as to
the non-hospital respondents.®
sa
7
SUMMARY OF REASONS FOR DENYING THE WRIT
The courts below fully considered and correctly
decided the issues which Thompson raises in his Petition.
First, the courts correctly held that Thompson did not
have a cognizable claim under 42 U.S.C. § 1981 against
the respondents for terminating his hospital privileges at
the three hospitals in question. Section 1981 requires state
action for recovery under the “equal benefits” clause,
which was absent in this case. Additionally, hospital priv-
ileges do not confer contractual rights so as to support a
claim under the “contract” clause of § 1981. Finally, even
° Thompson’s failure to assign error to the rulings below
on the antitrust issue and the untimeliness of his appeal as to
the non-hospital respondents represents a waiver on his part to
seek review in this Court. See Phillips Co. v. Dumas Indep. School
Dist., 361 U.S. 376, 386 (1960); Sup. Ct. R. 14.1(a). The respon-
dents accordingly will not address the merits of these decisions
in this brief other than to endorse the lower courts’ reasons for
ruling against Thompson.
13
if hospital privileges were to confer contractual rights,
this Court’s recent decision in Patterson v. McLean Credit
Corporation, 109 S. Ct. 2363 (1989), precludes recovery
under § 1981 because the conduct in question postdated
alleged contract formation.
Second, the courts below correctly decided that
Thompson failed to state a claim of conspiracy under 42
U.S.C. § 1985(3). Despite three attempts through three
separate attorneys, Thompson never provided any facts
to show that any of the respondents conspired to harm
him because of his race. The case law followed by the
courts below correctly holds that a sufficient § 1985(3)
claim must go beyond pure conclusory allegations to
state the factual basis of the claim, which is totally lack-
ing in Thompson’s pleadings.
Third, the trial court provided Thompson every
opportunity to present his claim and did not commit the
numerous procedural errors Thompson vaguely alleges in
his Petition.
Fourth, although the courts below did not reach the
issue, the statute of limitations plea of two of the respon-
dents, St. Mary’s and Sister Anne Christina Sullivan, bars
Thompson’s § 1981 and § 1985(3) claims against them.
Thompson did not file his action against these respon-
dents within two years after St. Mary’s terminated his
privileges, which is when his cause of action would have
accrued. Thompson’s effort to avoid the statute of limita-
tions with his “continuing violation” tolling argument is
unsupported by the applicable case law. This case law
recognizes that the statute of limitations begins to run
14
upon termination of the professional or employment rela-
tionship and is not thereafter tolled by subsequent efforts
by the plaintiff to obtain a reversal of that termination.
a
4
REASONS FOR DENYING THE WRIT
(a) The Central Issue in This Case Was Correctly
Decided Below: Thompson Does Not Have a Cog-
nizable § 1981 Claim Against the Respondents for
Terminating His Hospital Privileges.
In the second and fourth “Questions Presented,” and
in his second argument, Thompson sets forth his central
claim that respondents unlawfully interfered with his
contractual rights in violation of 42 U.S.C. § 1981 when
they separately terminated his hospital privileges. He
contends the trial court erred in dismissing count four of
his second amended complaint, which sets out the § 1981
claim. (Appendix at 120-21.) As the courts below correctly
held, however, § 1981 does not afford Thompson a cause
of action under the facts alleged.
Section 1981 protects the rights of racial minorities
“to make and enforce contracts” and to enjoy the “equal
benefits” of law. The statute thus contains two separate
prongs which will support a § 1981 claim. The courts
below correctly recognized that neither prong was avail-
able to Thompson.
Thompson had no claim under the “equal beriefits”
clause because recovery under this clause requiies proof
of state action. As the Third Circuit has correctly stated:
The words “full and equal benefit of all laws
and proceedings for the security of persons and
15
property” . .. suggest a concern with the rela-
tions between the individual and the state, not
between two individuals. The state, not the indi-
vidual, is a sole source of law, and it is only the
state acting through its agents, not the private
individual, which is capable of denying to
blacks the full and equal benefit of the law.
Thus, . . . the concept of state action is implicit
in the equal benefit clause.
Mahone v. Waddle, 564 F.2d 1018, 1029 (3rd Cir. 1977), cert.
denied, 438 U.S. 904 (1978).
The Fourth Circuit approved the state action require-
ment recognized in Mahone in Eggleston v. Prince Edward
Volunteer Rescue Squad, Inc., 569 F. Supp. 1344 (E.D. Va.
1983), aff'd, 742 F.2d 1448 (4th Cir. 1984), and Shaare Tefila
Congregation v. Cobb, 785 F.2d 523 (4th Cir. 1986), rev'd on
other grounds, 481 U.S. 615 (1987). In Eggleston, the Fourth
Circuit affirmed the district court’s holding that a black
plaintiff had no § 1981 “equal benefits” claim against a
volunteer rescue squad that had dismissed him, because
no state action: was involved. In Shaare, the Fourth Circuit
affirmed the granting of a motion dismissing plaintiff's
§ 1981 “equal benefits” claim, finding, inter alia, that there
was no state action in the private defendants’ desecration
of a Jewish synagogue.
Each of the respondent hospitals is a private hospital.
As such, each hospital’s decision concerning staff privi-
leges did not constitute the requisite state action to sup-
port recovery under the civil rights laws. See Carter v.
Norfolk Community Hospital Ass‘n, 761 F.2d 970 (4th Cir.
1985); Modaber v. Culpepper Memorial Hospital, Inc., 674
16
F.2d 1023 (4th Cir. 1982). Consequently, Thompson pos-
sessed no cognizable § 1981 claim under the “equal bene-
fits” prong.
Similarly, Thompson failed to establish a claim under
the “contract” prong of § 1981, even though this clause
does not require state action. This clause, as the statutory
language reveals, requires only interference with contract
rights. The hospital privileges Thompson lost, however,
were not contractual in nature. Hospital privileges confer
associational status only and not a contractual right that
can be enforced in the courts. Guibor v. Manhattan Eye, Ear
& Throat Hospital, 413 N.Y.S.2d 638, 639, 386 N.E.2d 247
(N.Y. 1978) (At common law “denial of staff privileges for
whatever reason, or for no reason at all, constituted no
legal wrong.”) See also Manczur v. Southside Hospital, 183
N.Y.S.2d 960 (N.Y. Sup. Ct. 1959); Loewinthan v. Beth David
Hospital, 9 N.Y.S.2d 367 (N.Y. Sup. Ct. 1938); Weary v.
Baylor University Hospital, 360 S.W.2d 895 (Tex. Ct. App.
1962); Hodges v. Arlington Neuropsychiatric Center, Inc., 628
S.W.2d 536 (Tex. Ct. App. 1982); Grossling v. Ford Memorial
Hospital, 614 F. Supp. 1051 (E.D. Tex. 1985); Wood v. Hilton
Head Hospital, Inc., 292 S.C. 403, 356 S.E.2d 841 (1987). Cf.
Khoury v. Community Memorial Hospital, Inc., 203 Va. 236,
245, 123 S.E.2d 533, 539 (1962) (Doctor has no constitu-
tional right to be granted privileges which a private
hospital must honor.). The Fourth Circuit has similarly
held that an organization’s grant of associational status —
as occurs with hospital privileges —- does not confer con-
tractual rights which are protected by § 1981. Eggleston v.
Prince Edward Volunteer Rescue Squad, 569 F. Supp. 1344
(E.D. Va. 1983), aff'd, 742 F.2d 1448 (4th Cir. 1984) (termi-
nation of membership status in rescue squad).
17
An examination of Thompson’s relationship with the
hospital respondents demonstrates that it was not con-
tractual in nature. Thompson paid no fee to enjoy privi-
leges and the hospitals received no direct pecuniary
consideration in return. Furthermore, Thompson could
have unilaterally surrendered his privileges and the hos-
pitals would have had no contractual claim against him.
Thus, there was no consideration or mutuality of obliga-
tion to support a contract. As the common law recog-
nizes, the essential components of an enforceable contract
simply do not exist in the context of hospital privileges.
Thompson’s § 1981 claim under the “contract” prong
must accordingly fail.
But even if hospital privileges under Virginia law
conferred contractual rights to Thompson, he would still
have no § 1981 claim. This Court recently held that § 1981
only reaches racial discrimination which interferes with
the formation or enforcement of contracts, and not
alleged discriminatory treatment which occurs after con-
tract formation:
[T]he right to make contracts does not extend, as
a matter of either logic or semantics, to conduct
by the employer after the contract relation has
been established, including breach of the terms of
the contract or imposition of discriminatory
working conditions. Such post-formation conduct
does not involve the right to make a contract, but
rather implicates the performance of established con-
tract obligations and the conditions of continuing
employment, matters more naturally governed by
state contract law and Title VII.
Patterson v. McLean Credit Corporation, 109 S. Ct. 2363,
2373 (1989) (emphasis added).
18
The Fourth Circuit, in its decision below, held
Thompson’s claim of discriminatory termination of his
hospital privileges, which involved conduct after alleged
“contract” formation, was barred under Patterson.
(Appendix at 158.) The better reasoned federal cases have
similarly interpreted Patterson to bar a § 1981 claim for
termination of contract rights. These courts have held
that plaintiffs in such contexts are limited to state law and
Title VII remedies. See McKnight v. General Motors Corp.,
Nos. 89-1379 and 89-1526 (7th Cir. July 2, 1990) (1990 WL
89739); Courtney v. Canyon Television & Appliance Rental,
Inc., 899 F.2d 845 (9th Cir. 1990); Lavender v. V & B
Transmissions & Auto Repair, 897 F.2d 805 (5th Cir. 1990);
Carroll v. General Accident Insurance Co., 891 F.2d 1174 (5th
Cir. 1990); Sherman v. Burke Contracting, Inc., 891 F.2d 1527
(11th Cir. 1990); Singleton v. Kellogg Co., No. 89-1073 (6th
Cir. Nov. 29, 1989) (1989 Lexis 17920); Joseph v. Zachary
Manor Nursing Home, 729 F. Supp. 41 (M.D. La. 1990);
Williams v. BLM Co., 731 F. Supp. 231 (N.D. Miss. 1990);
Johnson v. United States Elevator Corp., 723 F. Supp. 1344
(E.D. Mo. 1989); Rivera v. AT&T Information Systems, Inc.,
719 F. Supp. 962 (D. Colo. 1989); Greggs v. Hillman Distrib-
uting Co., 719 F. Supp. 552 (S.D. Tex. 1989). Under tlie
construction of § 1981 promulgated in Patterson,
Thompson has no § 1981 claim for termination of his
hospital privileges.
In summary, because the respondent hospitals are not
state actors so as to trigger the “equal benefits” clause of
§ 1981 and Thcmpson had no contractual relationship
with the hospitals, he has no enforceable civil rights
action under § 1981. Moreover, even assuming that hospi-
tal privileges do confer contractual rights, Patterson and
19
its progeny demonstrate that Thompson would still lack a
§ 1981 remedy. For these reasons this Court should not
grant Thompson’s Petition for a writ of certiorari on this
issue.
(b) The Courts Below Correctly Held Thompson Had
Not Sufficiently Stated a Conspiracy Claim to Sur-
vive Respondents’ Motions to Dismiss.
In his second “Questions Presented,” and his first
argument, Thompson assigns error to the dismissal of his
conspiracy claim as set out in Count I of his second
amended complaint. In that count, Thompson alleged in
conclusory language that the respondents conspired to
deprive him of his livelihood in violation of 42 U.S.C.
§ 1985(3). (Appendix at 115-116.) Nowhere, however, did
Thompson in that complaint (or in his two earlier com-
plaints) allege conspiracy “with sufficient specificity and
factual support to suggest a ‘meeting of the minds’” by
the alleged conspirators. Deck v. Leftridge, 771 F.2d 1168,
1170 (8th Cir. 1985). Mere conclusory allegations of con-
spiracy, as contained in Thompson’s various complaints,
will not survive a motion to dismiss. See Arsenaux v.
Roberts, 726 F.2d 1022 (5th Cir. 1982) (citing Slotnick v.
Staviskey, 560 F.2d 31, 33 (1st Cir. 1977), cert. denied, 434
U.S. 1077 (1978)); Briscoe v. Lahue, 663 F.2d 713, 723 (7th
Cir. 1981), aff’d, 460 U.S. 325 (1983); Pillette v. Detroit Police
Department, 661 F. Supp. 1145 (E.D. Mich. 1987), aff’d, 852
F.2d 1288 (6th Cir. 1988); Mosher v. Saalfeld, 589 F.2d 438
(9th Cir. 1978), cert. denied, 442 U.S. 941 (1979); Croatan
Books, Inc. v. Commonwealth of Virginia, 574 F. Supp. 880
(E.D. Va. 1983); Davis ». Sprouse, 405 F. Supp. 45, 46-47
(E.D. Va. 1975).
20
The courts below correctly held that Thompson’s fac-
tual allegations do no more than show successive inde-
pendent action by the three hospital respondents to
terminate Thompson’s privileges over a twenty-month
period. Each termination occurred only after certain
patients developed serious health complications while in
Thompson’s care. St. Mary’s Hospital first terminated
Thompson’s privileges in November of 1984 without any
alleged consultation by its employees or agents with any
of the employees or agents of the other two hospital
respondents. Wise General Hospital subsequently termi-
nated Thompson’s obstetrical privileges over a year later
in January of 1986. Norton Community Hospital finally
terminated Thompson’s ICU privileges in August of 1986.
Thompson, through his former counsel, conceded in
the trial court that each hospital could not conspire with
its own medical staff because of the general rule that a
corporation and its agents constitute a single legal entity.
See Marmott v. Maryland Lumber Co., 807 F.2d 1180 (4th
Cir. 1986), cert. denied, 482 U.S. 929 (1987); Buschi v.
Kirven, 775 F.2d 1240 (4th Cir. 1985); Bowman v. State Bank
of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985). Thompson
nowhere alleged facts in any of his complaints to suggest
conspiratorial consultation among or between agents or
employees of the three hospitals prior to any decision on
his privileges. Thus, the facts to support the requisite
“meeting of the minds” for a § 1985(3) claim are simply
nowhere pled.
Thompson was afforded three attempts in the trial
court to plead an adequate conspiracy claim. Yet each
time his counsel alleged conspiracy in conclusory terms
21
without any factual support. Absent such factual allega-
tions, the courts below properly ruled that Thompson
had failed to state an adequate § 1985(3) claim. This Court
accordingly should refuse Thompson a writ as to this
issue.
(c) The Courts Below Committed No Procedural Errors
to Justify this Court Granting a Writ.
Thompson assigns several errors of a procedural
nature in his first and sixth through ninth “Questions
Presented.” These questions are largely unintelligible and
there are no corresponding arguments in the Petition to
explain their meaning. Under Supreme Court Rule 14,
Thompson’s failure to state his questions and arguments
clearly is itself a sufficient ground for this Court to deny
his Petition. To the extent it is possible to discern what
Thompson is complaining about as to the procedural
issues he raises, a brief reference to the procedural his-
tory in the case will show there is absolutely no merit to
them.
First, in question one Thompson apparently criticizes
the trial court for refusing to entertain the “in camera”
material he filed by letter to the court in October of 1988.
Thompson never provided this material to respondents’
counsel until he included it in his Petition to this Court.
The material appears to be a consultant’s report sent to
Dr. Thompson’s counsel. The consultant apparently
reviewed from a malpractice perspective the five cases
that had resulted in the hospital respondents terminating
Dr. Thompson’s privileges. After his last counsel with-
drew from the case, Thompson submitted this material to
22
the trial court in response to hospital respondents’ pend-
ing Rule 12(b)(6) motions to dismiss.
The trial court certainly was correct in not consider-
ing this material in deciding the merits of the 12(b)(6)
motions. Not only was the material improperly submit-
ted, it was irrelevant to the trial court’s ruling on the
motions to dismiss. These motions did not require the
trial court to consider the issue of Dr. Thompson’s mal-
practice; the motions raised legal objections to the suffi-
ciency of his pleading on other issues entirely, as the
prior sections of this brief demonstrate. Thus,
Thompson’s assignment of error on this point is without
rnerit.
Similarly, Dr. Thompson has not identified a mer-
itorious error in his sixth “Question Presented.” The
question is largely unintelligible but respondents assume
the question represents criticism of the trial court for not
permitting Thompson to proceed to trial on the merits of
his claims. Thompson fails to recognize that his right to
trial arose only after he had stated a sufficient cause of
action in his pleadings. In granting the respondents’
12(b)(6) motions, the trial court obviously concluded that
Thompson had not, despite three efforts, sufficiently pled
a claim upon which relief could be granted. Since the trial
court found the 12(b)(6) motions to have merit, it had no
discretion but to dismiss Thompson’s complaint. Thus,
there is obviously no error to support a writ on this issue.
Thompson’s question seven is likewise obscure and
unenlightening. It is difficult to discern what Thompson
means by his allegation that the trial court ignored his
counsel and issued orders directly to him. The only
be
orders the trial court issued directing Thompson to do
anything, as opposed to his counsel, occurred after his
last counsel had withdrawn from the case in August of
1988, and Thompson thereafter elected to proceed pro se.
Orders subsequent to that time by necessity treated
Thompson as his own counsel. Accordingly, Thompson’s
petition for a writ on this point is absurd.
In question eight, Thompson accuses the trial court of
making improper use of sanctions under Federal Rule of
Civil Procedure 11. The trial court, however, never
imposed any sanctions against Thompson or his attor-
neys. It did refer to Rule 11 in its August 8, 1988, order
permitting Thompson’s third attorney to withdraw. The
order directed the Clerk not to issue service on the non-
hospital respondents, who Thompson’s third counsel had
named as additional parties but had not served, until
Thompson had procured new counsel who would accept
responsibility for the pleadings pursuant to Rule 11.
There was nothing improper about this reference, partic-
ularly given the convoluted procedural history which
preceded the court’s order. Therefore, the trial court took
no improper action which would support a writ.
In question nine, Thompson appears to assign error
to the trial court’s decision in November, 1988, granting
the non-hospital respondents’ motions to quash service
and dismissing them from the lawsuit. As the statement
of the case reveals, Thompson did not file a timely appeal
of the trial court’s November dismissal order and thus he
has waived any right to obtain a writ on this point.
Nevertheless, the respondents’ statement of the case cor-
rectly sets out the protracted procedural history which
predated the court’s dismissal order and graphically
24
demonstrates the wisdom of the trial court’s action. The
non-hospital respondents had been originally sued by
one attorney, voluntarily dismissed by a second, and
added back by a third, who thereafter immediately with-
drew from the case. Even then, the trial court provided
Thompson thirty days to obtain new counsel to effectuate
service on the non-hospital respondents, and, when
Thompson failed to meet this deadline, gave him an
additional thirty days to effectuate service himself.
Thompson made no effort to comply with the time limit
set out in either order. Therefore, the trial court acted
properly in thereafter ordering Thompson’s actions
against the non-hospital respondents dismissed. There is
no basis to grant Thompson a writ on this issue.
(d) Thompson’s Failure to File His § 1981 and § 1985(3)
Claims Against Respondent St. Mary’s Hospital
and Its Administrator, Respondent Sister Anne
Christina Sullivan, Within Two Years After the Ter-
mination of His Privileges Bars His Action as to
These Respondents.
In his fifth “Question Presented” Thompson improp-
erly assigns error on an issue that the courts below did
not reach — whether the applicable statuic of limitations
had run on his § 1981 and § 1985(3) claims against St.
Mary’s Hospital and Sister_Anne Christina Sullivan, its
administrator. While the courts below did not decide this
limitations defense, it provides an additional reason for
denying Thompson a writ as to these respondents.
Thompson’s own pleadings reveal that his privileges
at St. Mary’s Hospital were terminated on November 16,
25
1984. (Appendix at 89, J 21 & 22.) Sister Anne, the Hospi-
tal’s administrator at the time, in an undisputed affidavit
filed with the trial court affirmed that after November 16
Thompson had no further professional relationship with
the Hospital. Thompson could have filed a lawsuit rela-
tive to termination of his privileges any time after
November 16. Yet he did not file his initial complaint
until December 23, 1986, over two years later.
This Court has held that, because § 1981 lacks its own
limitation period, the forum state’s statute governing per-
sonal injury claims applies. Goodman v. Lukens Steel Co.,
482 U.S. 656 (1987). In Virginia, the applicable personal
injury statute requires suit to be filed “within two years
after the cause of action shall have accrued.” Va. Code
Ann. § 8.01-243(A) (1984).
The federal courts in Virginia have likewise held that
conspiracy claims under § 1985 are governed by the same
two-year limitations period. See Brady v. Sowers, 453 F.
Supp. 52 (W.D. Va. 1978); Harris v. Obenshain, 452 F. Supp.
1172 (E.D. Va. 1978); Wilkenson v. Hamel, 381 F. Supp. 768
(W.D. Va. 1974); Sitwell v. Burnette, 349 F. Supp. 83 (W.D.
Va. 1972). Under this case law, Thompson’s claims under
§ 1981 and 1985(3) were clearly time-barred when suit
was filed over two years after he lost his privileges.
Thompson, however, asserts in his Petition that his
civil rights claims are not barred because St. Mary’s
engaged in a “continuing violation” by failing to afford
him a post-termination hearing. Thompson’s argument is
plainly wrong. He ignores the fact that the substance of
his civil rights claims was for damages arising out of loss
of his privileges. That act was complete in November of
26
1984 and at that moment he had a mature right to sue.
Any alleged refusal on St. Mary’s part thereafter to recon-
sider its decision does not amount to a “continuing viola-
tion” so as to toll the statute of limitations.
The cases Thompson cites at pages 26-28 of his Peti-
tion to support his “continuing violation” argument are
inapplicable. Contrary to his contention, the Fourth Cir-
cuit’s decision in Williams v. Norfolk & Western Railway
Co., 530 F.2d 539 (4th Cir. 1975), actually supports St.
Mary’s argument. In that case the Fourth Circuit held that
an employee who had retired more than two years before
filing his § 1981 claim could not bring that claim as a
continuing violation. The court did hold that certain of
the retired employee’s other claims, not applicable here,
had not accrued at the time of his retirement.
Similarly, the other cases Thompson cites in his Peti-
tion involve allegations of discrimination in an ongoing
employment context. None of the cases apply the “con-
tinuing violation” rule to a situation where, as here, the
professional relationship had been completely severed.
See, e.g., Cox v. United States Gypsum Co., 409 F.2d 289 (7th
Cir. 1969) (continuing violation where laid-off workers
would have enjoyed prospect of reemployment but for
alleged discrimination in subsequent recall decisions).
The applicable case law demonstrates that a plaintiff
who has been terminated from a professional or employ-
ment relationship cannot avoid the statute of limitations
by alleging that a later refusal to reconsider that decision
amounts to a “continuing violation” of plaintiff’s rights.
For instance, in De Leon Otero v. Rubero, 820 F.2d 18 (1st
Cir. 1987), the First Circuit held that an employer’s
) |
27
refusal to reinstate a demoted employee, after the
employee’s successful appeal to a personnel administra-
tion board, did not convert the initial demotion into a
continuing violation of the employee’s civil rights.
Similarly, the Fifth Circuit has observed that dis-
charge from employment, as opposed to temporary lay-
off, cannot give rise to a continuing violation “because
the individual ceases to be an employee on the date of his
discharge and all of his legal claims mature at that time.”
Taylor v. Bunge Corp., 775 F.2d 617, 619 (5th Cir. 1985).
Finally, the Fourth Circuit has held that the statute of
limitations begins to run on an alleged claim of conspir-
acy to deny collective bargaining rights at the time of
initial discharge and not at any later date when the
employer refuses to reinstate the employee. West v. ITT
Continental Baking Co., 683 F.2d 845 (4th Cir. 1982). The
Fourth Circuit’s reasoning is directly applicable to the
instant case:
The change in employment status was the sig-
nificant event of which [plaintiff] complained.
After his discharge from employee status, all of
the wrongs alleged relate solely to that event
and ITT’s refusal to change its decision. Thus
the continuing violation doctrine does not apply
.... Under [plaintiff’s] suggested application of
the continuing violation doctrine, he could keep
his claim of wrongful discharge forever alive by
requesting once every three years that ITT reins-
tate him. This, of course, would destroy the
policies of finality and repose underlying the
statute of limitations.
Id. at 846 (citations omitted).
CE
28
As in the cases cited above, Thompson’s civil rights
allegations against St. Mary’s pertain to his termination
of privileges in November, 1984. The Hospital’s alleged
refusal to reconsider that decision cannot convert that
discrete act of termination into an ongoing violation.
Otherwise, as the Fourth Circuit acknowledged in West,
Thompson could continually revive his civil rights claims
by merely renewing a request fur a post-termination
reconsideration every two years.
For these reasons, Thompson’s § 1981 and § 1985(3)
claims as to respondents St. Mary’s and Sister Anne
Christina Sullivan are time-barred and no writ relative to
these claims and these respondents should be granted.
a
_
29
CONCLUSION
The courts below correctly decided the principal
issues in this case and the respondents, therefore, urge
that the Petition for a Writ of Certiorari be denied.
Respectfully submitted,
JouHN T. Jessee, Esq.
D. Stan BARNHILL, Esq.
(Counsel of Record)
Woops, Rocrers &
HAZLEGROVE
105 Franklin Road, S.W.
P.O. Box 720
Roanoke, VA 24004
(703) 982-4200
Counsel for St. Mary’s
Hospital and Sister Anna
Christina Sullivan
Ersey A. Harris, Ill, Esq.
Mu i.Ins, THOMASON &
Harris
P.O. Box 1200
Norton, VA 24273
(703) 679-3110
Counsel for Wise ARH
General Hospital, Ruby
Salyer, and A. W. North,
M.D.
WituiaMm W. Esxripce, Esq.
PENN, STUART, ESKRIDGE &
JONES
P.O. Box 2288
Abingdon, VA 24210
(703) 628-5151
Counsel for Norton
Community Hospital and
Long Term Care Facility, O.
David Bevins, Marty Prince,
M.D., Charles P. Maine,
M.D., Charles Fulton, M.D.
JouN B. Russet, Esq.
Browper & RusseLi
Suite 1100, One James
Center
901 East Cary Street
Richmond, VA 23219
(804) 771-9303
Counsel for Isam Zebdah,
M.D., and R. Cartegena,
M.D.
August, 1990
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.