# Opposition Brief — Cole v. Huntsville Memorial Hospital > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0121%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1997 - **Citation:** 520 U.S. 1143 ## Text No. 96-1142 In The Supreme Court of the United States October Term, 1996 e a THOMAS C. COLE, JR. M.D., Yotaty? y Petitioner HUNTSVILLE MEMORIAL HOSPITAL, Respondent. . On Petition For Writ Of Certiorari To The Texas Court Of Appeals [First Dist.] Houston, Texas ¢— RESPONDENT'S BRIEF IN OPPOSITION + KertH S. DUBANEVICH Counsel of Record WituraM J. Boyce 1301 McKinney, Suite 5100 Houston, Texas 77010-3095 Telephone: (713) 651-5151 Facsimile: (713) 651-5246 Counsel for Respondent Huntsville Memorial Hosvital COCKLE LAW BRIEF PRINTING CO., (800) 225- OR CALI COLLECT (402) 342-2831 QUESTION PRESENTED Did the court of appeals properly conclude that no state action was implicated when the Hospital decided not to renew Cole’s staff privileges, given that (1) Cole never pleaded a first amendment claim as to the Hospital; (2) Cole never argued in the trial court, on appeal, or in the Texas Supreme Court that a different level of scrutiny should be afforded to the state action inquiry to accommodate his unasserted first amend- ment claim; the Hospital was not accused of racial dis- crimination against Cole, resulting in a more narrow construction of the state action concept; the Hospital, rather than the Walker County Hospital District, was ultimately responsible for daily maintenance and — operation of its facility; no benefit to the Walker County Hospital Dis- trict was directly attributable to the decision not to renew Cole’s staff privileges; the Walker County Hospital District had no power to change the Hospital’s decision, and did not directly or indirectly partici- pate in the decision not to renew Cole’s staff privileges; and Cole identifies no conflict between the decision below and any published deci- sions by this Court or any other court. LIST OF PARTIES Petitioner Thomas Cole, M.D. 1203 Avenue J P.O. Box 119 Huntsville, Texas 77340 Petitioner’s Counsel: C.L. Ray 400 W. 15th Street, Suite 600 Austin, Texas 78701 Respondent Huntsville Memoria! Hospital Its Counsel: Keith S. Dubanevich William J. Boyce 1301 McKinney, Suite 5100 Houston, Texas 77010-3095 ili TABLE OF CONTENTS Page Peg i i eas c au cue uhas us Céaneebbucdcaeek ii peo ee ey ke iv co 8) ee pe. STATEMENT OF THE CASE..................0000. 1 REASONS FOR DENYING THE WRIT............. 2 I. Cole Pleaded No First Amendment Claims EE inns swe nue nnt/ae ehawa ey od 3 II. Cole Never Argued Below That Free Speech Interests Are Implicated, Or That Such Interests Mandate A Different State Action Analysis .... 4 I as Wik ihe did ta 0 geo 60 ak ae an 7 TABLE OF AUTHORITIES Page(s) CASES Albright v. Longview Police Dept., 884 F.2d 835 (5th et: CD.» kkeee read anv baancesete hisuawesenteaenes 6 Beck v. Washington, 369 U.S. 541 (1962)............. >, © Capital City Dairy Co. v. Ohio, 183 U.S. 238 (1902)..... + City of Houston v. Clear Creek Basin Auth., 589 Oe see OER Ra WE ied skh cdacaden seekeust easel 5 F. G. Oxley Stave Co. v. County of Butler, 166 U.S. tt er re err ry yee ae Or Orr Rt ee 4 Fox Film Corp. v. Muller, 296 U.S. 207 (1935) ......... 3 Greco v. Orange Memorial Hosp. Corp., 513 F.2d 873 (5th Cir.), cert. denied, 423 U.S. 1000 (1975)......... 6 Harding v. Illinois, 196 U.S. 78 (1904)................. 4 Herndon v. Georgia, 295 U.S. 441 (1935)............. 4,6 sitsnets v. Gates, 462 US. Zid CIPGB) «nce cccsvccccess 6 Jatoi v. Hurst-Euless-Beford Hospital Auth., 807 F.2d 1214 (5th Cir. 1987), cert. denied, 484 U.S. 1010 CR acs SAS eRe ence eT Cae tas aoe ka eee 5, 6 vurme. ©. FEOOO, GGL US. Ge CGE inc occ ccc cae kwensacs 4 et 0. Eeceudeko, SUS US. SID CUSED. ow os ccc vccevcces 6 STATUTES INVOLVED Cole’s reference to the first amendment is super- fluous because Cole never pleaded a first amendment claim against the Hospital. App. at 39. + STATEMENT OF THE CASE Respondent Huntsville Memorial Hospital incorpo- rates by reference the statement of the facts from the opinion below. The Hospital notes the following misstatements and omissions in the petition. Cole contends he was subjected to retaliation because of his activities while he was a member of the Walker County Hospital District Board. Petition at 11. How- ever, the initial recommendation not to renew his privileges was made in August 1987. Cole was not elected to the district board until November 1987. Cole asserts that the Hospital District agreed to pay certain operating expenses. Petition at 7. These pay- ments were merely advances which have since been repaid by the Hospital. Cole’s references to the submission of a plan of opera- tion for approval by the Hospital District (Petition at 8-9) are irrelevant because these provisions came into play only if the Hospital opted not to contract with a professional hospital management company. The Hos- pital contracted with HCA Management Company, Inc. and Quorum Health Resources to operate the Hospital. Therefore, the provisions with respect to plans or approval of such plans by the Hospital Dis- trict were not in effect. ¢ Contrary to Cole’s assertion at page 15 of the Petition, the Hospital was not formed to carry out a public purpose of the Hospital District. The Hospital was incorporated in 1927; the Hospital District was not created until 1971. REASONS FOR DENYING THE WRIT The facts of this case do not raise the issue put forth in Cole’s petition. Cole’s petition berates the court of appeals for “choosing to ignore the First Amendment claims” (Peti- tion at 18) and for not considering whether the state action standard “should require deference to the First Amendment” (Petition at 14). Cole’s belated effort to conjure up a constitutional issue worthy of this Court’s ittention must be rejected because Cole ¢ did not assert a first amendment claim against the Hospital; and e did not argue to any court below that the conven- tional standards for determining whether state action occurred should be altered based upon the presence of his purported first amendment claims. In essence, Cole (who has been represented by coun- se] throughout these lengthy legal proceedings) com- plains that the court of appeals erred by tailing to consider claims he never asserted, arguments he never made, and theories he never raised. * I. Cole Pleaded No First Amendment Claims Against The Hospital Paragraph 26 of Cole’s live pleading complains in generic fashion that the Hospital deprived him of “rights, privileges, or immunities secured by the Constitution and laws under color of law.” App. at 39. Nowhere in that pleading does Cole refer to the first amendment or free speech rights in connection with his claims against the Hospital. Cole’s petition tries to obscure this fact by combining cites to his pleading against the hospital with cites and quotes from a separate lawsuit asserting separate claims against a separate group of defendants — namely, a collec- tion of individual doctors. See Petition at 12-13 (citing “App. at 44, 45” and “App. at 37-45”). Unlike Cole’s generic complaint in his pleading against the Hospital (App. at 39), his pleading against the individual doctors (beginning at page 40 of his Appen- dix) specifically alleged that Cole’s “legal right to free speech” had been abridged by the indiv‘dual doctors. App. at 44. Of course, Cole’s complaints against the individual doctors are immaterial for purposes of section 1983 because the actions of these private citizens were not alleged to constitute - and cannot constitute - state action. Cole’s claims involving the individual doctors were resolved on independent and adequate state law grounds when the court of appeals affirmed the striking of all of Cole’s claims as a proper sanction for discovery abuse under state procedural standards. App. 17-27. See, e.g., Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935) (Supreme Court’s “jurisdiction fails” if state court judg- ment rests upon independent and adequate state law grounds). When one focuses solely upon Cole’s pleading against the Hospital, it becomes apparent that the first amendment claim discussed in his petition for writ of certiorari is an after-the-fact invention. Global references to the “Constitution of the United States,” the “Constitu- tion and laws of the United States,” or similarly broad phrases are insufficient to raise a federal question predi- cated on a particular portion of the federal Constitution. Webb v. Webb, 451 U.S. 493, 496-98 (1981); Herndon v. Georgia, 295 U.S. 441, 443 (1935); Harding v. Illinois, 196 U.S. 78, 88 (1904); Capital City Dairy Co. v. Ohio, 183 U.S. 238, 248 (1902); F. G. Oxley Stave Co. v. County of Butler, 166 U.S. 648, 655 (1897). As Cole’s own appendix makes plain, he asserted no first amendment claim against the Hospital. It follows that he cannot now inject such a claim into this case in a belated effort to put a first amendment spin on this run- of-the-mill fight over hospital privileges. II. Cole Never Argued Below That Free Speech Inter- ests Are Implicated, Or That Such Interests Man- date A Different State Action Analysis Cole’s tactic cannot succeed even if one assumes he pleaded a first amendment claim against the Hospital with sufficient particularity. Cole never asserted below that the presence of this purported first amendment claim required a different level of scrutiny in connection with ul the inquiry into whether the Hospital’s activities consti- tute state action. Cole appealed from the state trial court’s grant of summary judgment in favor of the Hospital. Cole’s response to the Hospital’s motion for summary judgment neither mentions the first amendment nor asserts that the state action issue should be evaluated differently due to the presence of purported first amendment claims. App. at 47-56. In his summary judgment response, Cole framed the constitutional issue solely in terms of whether (1) he enjoyed a protected property interest in the continuation of his medial staff privileges at the Hospital; and (2) he was deprived of this asserted property interest without due process. App. at 50-51. Although the court of appeals noted Cole’s newly raised contention on appeal that he had asserted a first amendment claim against the Hospi- tal (App. at 4), the court’s opinion did not address that purported claim separately in conformity with state pro- cedure precluding consideration on appeal of grounds for defeating summary judgment that were not raised by the non-movant in its response to the summary judgment motion. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677-79 (Tex. 1979); see also Beck v. Washington, 369 U.S. 541, 549-54 (1962) (federal question must be raised in state court in the manner and with the degree of specificity required by state rules of practice). In any event, Cole never asserted below that the state action inquiry should be handled differently based upon the presence of purported free speech violations. App. at 51-56. Instead, he relied upon Jatoi v. Hurst-Euless-Beford SPE NRE ERR oe cs 6 Hospital Auth., 807 F.2d 1214 (5th Cir. 1987), cert. denied, 484 U.S. 1010 (1988). App. at 54-55. The court of appeals properly recognized that Jatoi is inapplicable because it involved claims of racial discrimination which are absent here. App. at 7. The court then predicated its state action analysis on the factors enumerated in Albright v. Longview Police Dept., 884 F.2d 835, 841 (5th Cir. 1989), and Greco v. Orange Memorial Hosp. Corp., 513 F.2d 873, 877 (5th Cir.), cert. denied, 423 U.S. 1000 (1975). App. at 7-11. Cole’s application for writ of error to the Texas Supreme Court makes no mention whatsoever of his new- found contention that the state action inquiry should be affected by the presence of purported free speech inter- ests. App. at 74-76. Cole merely quibbles with the court of appeals’ weighing of the non-speech factors discussed in Jatoi, Albright, and Greco. App. at 74-76. In fact, the peti- tion for writ of certiorari itself really does not take issue with the court of appeals’ analysis of these three cases; instead, Cole criticizes that court for failing to consider a factor he never asked it to consider. See Petition at 18. This Court will not review a judgment rendered by the highest court of a state unless the claimed federal question at issue has been raised and decided in the state court below. Yee v. Escandido, 503 U.S. 519, 533 (1992) (in reviewing judgments of state courts under 28 U.S.C. § 1257, Court will refuse to consider claims that were not raised or addressed below); Illinois v. Gates, 462 U.S. 213, 217-18 (1983) (same). See also Beck v. Washington, 369 U.S. at 550-53 (because petitioner failed to raise argument in state court that state statute denied equal protection, question was not before the Supreme Court); Herndon v. HAAR iintit, . aii aT 7 Georgia, 295 U.S. at 443 (failure to follow the appellate channels provided by the state court is fatal). Cole’s utter failure to present his free speech theory for consideration by the Texas state courts is sufficient by itself to justify denial of the petition for writ of certiorari. Cole’s simultaneous failure to explain precisely how the court of appeals’ decision in this case conflicts with any other cases addressing the state action question under- scores the lack of merit of his petition. See Petition at 18. + CONCLUSION The petition for writ of certiorari should be denied. Respectfully submitted, KeitH S. DUBANEVICH Counsel of Record WiLuraM J. Boyce 1301 McKinney, Suite 5100 Houston, Texas 77010-3095 Telephone: 713/651-5151 Telecopier: 713/651-5246 Counsel for Respondent Huntsville Memorial Hospital --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0121%3A2. Public record. Not legal advice.