ORDER

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
ORDER

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CASE NO. 97-1197-CV-ORL-19B

MEREDITH T RANEY, JR.,
Plaintiff,
v.
AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation, EDWARD W. WINDLE, JR., and PATRICIA B. WINDLE,
Defendants/
Counter-Plaintiffs,
v.
MEREDITH T. RANEY, JR., JOHN AND JANE DOES I through X, and DOE CORPORATIONS I through X,
Counter-Defendants,

ORDER

This cause came before the Court on the following matters:

1) Plaintiff's Motion to Dismiss Defendants' First Amended Counterclaim (Doc. No. 51, filed June 8, 1998) and Defendant's Memorandum of Law in Opposition to Plaintiff's Motion to Dismiss Amended Counterclaims (Doc. No. 55, filed June 22, 1998).

2) Defendants' Dispositive Motion for Summary Judgment (Doc. No. 46, filed May 29, 1998); Defendants' Memorandum of Law in Support of Motion for Summary Judgment Dismissing Plaintiff Raney's Claims on McKusick, Hoover, Samuels Grounds (Doc. No. 47, filed May 29, 1998); and Plaintiff's Memorandum in Opposition to Summary Judgment (Doc. No. 56, filed June 23, 1998).

3) Plaintiff's Motion for Summary Judgment Against All Defendants (Doc. No. 83, filed October 15, 1998); Plaintiff's Memorandum in Support of His Dispositive Motion for Summary Judgment Against All of the Defendants (Doc. No. 84, filed October 15, 1998); and Memorandum of Defendants AWCC et al in Opposition to Motion of Plaintiff Raney for Summary Judgment (Doc. No. 88, filed November 10, 1998).

4) Plaintiff's Motion for Certification of Interlocutory Appeal (Doc. No. 54, filed June 18, 1998) and Defendant's Memorandum of Law in Opposition to Plaintiff's Motion for Certification of Interlocutory Appeal (Doc. No. 60, filed July 8, 1998).

5) Plaintiff's Motion for Certification of Interlocutory Appeal (Doc. No. 58, filed June 29, 1998).

I. Introduction

Plaintiff Meredith T. Raney, Jr., has brought this suit against Defendants Aware Woman Center For Choice, Inc. ("Aware Woman Center"), Edward W. Windle, Jr., and Patricia B. Windle for violation of the Freedom of Access to Clinic Entrances Act of 1994 ("FACE"), 18 U.S.C. § 248. Plaintiff asserts that he was unlawfully interfered with, threatened, and physically prevented from providing reproductive health services at a facility performing such services by the Melbourne City Police, who were allegedly acting as Defendants' agents. On three separate occasions, Plaintiff contends that he was physically removed from the reproductive health services facility after having been threatened and intimidated by Melbourne City Police.

Defendants have filed an Amended Counterclaim against Plaintiff, John and Jane Does I through X, and Doe Corporations I through X. In Count I of the Amended Counterclaim, Defendants seek a mandatory injunction prohibiting the institution of court actions against Defendants for violations of 18 U.S.C. § 248(a) (1) occurring on the Defendants' property or in connection with them or their business by persons other than those authorized to provide reproductive health services for the Defendants or those attempting to obtain reproductive health services from the Defendants. In Count II of the Amended Complaint, Defendants seek damages under 18 U.S.C. § 248 and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961 et seq..

II. Plaintiff's Motion to Dismiss Counterclaims

For purposes of a motion to dismiss, this Court must review the allegations of the Counterclaim in the light most favorable to the Defendants, consider the allegations of the Counterclaim as true, and accept all reasonable inferences therefrom. See generally Jackson v. Okaloosa County, Florida, 21 F.3d 1531, 1534 (11th Cir. 1994); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Furthermore, this Court must limit its consideration to the pleadings and written instruments attached as exhibits thereto. See Fed. R. Civ. Pro. 10(c); GSW, Inc. v. Long County. Ga., 999 F.2d 1508, 1510 (11th Cir. 1993). The Counterclaim should not be dismissed for failure to state a claim unless it appears beyond doubt that the Defendants can prove no set of facts that would entitle them to relief. See generally Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hunnings v. Texaco. Inc., 29 F.3d 1480, 1483 (11th Cir. 1994).

Plaintiff moves to dismiss both counts of Defendants' First Amended Counterclaim for failure to state a claim upon which relief can be granted. Plaintiff has not filed a memorandum of law in conjunction with his motion as he is required to do under Local Rule 3.01(a).

In Count I of the First Amended Counterclaim, Defendants seek a mandatory injunction against Plaintiff and others from instituting court actions under 18 U.S.C. § 248 against Defendants based on activities that occur on Defendants' property. Neither party has pointed to any case law discussing whether or not the Court has the authority to issue such an injunction. Based on the Court's independent research, the Court determines that it has a limited authority to issue such an injunction.

The Eleventh Circuit has stated that a court does not have the authority to completely foreclose a party from access to the court. See Traylor v. City of Atlanta, 805 F.2d 1420, 1422 (11th Cir. 1986); Procup v. Strickland, 792 F.2d 1069, 1073-74 (11th Cir. 1986) (en banc) . However, a court does have authority to enter substantial injunctive restrictions against a party that would limit the party's ability to file harassing or frivolous lawsuits. See Traylor, 805 F.2d at 1422; Procup, 792 at 1073-74; see also In re Roy Day Litigation, 976 F.Supp. 1455, 1457-59 (M.D. Fla. 1995) .

In Traylor, the Eleventh Circuit upheld an injunction that prohibited the plaintiff from continuing to harass specific defendants that were involved in his termination from employment with the city of Atlanta. See Traylor, 805 F.2d at 1421-22. The Eleventh Circuit upheld the district court's order that none of the defendants would have to respond to anything the plaintiff filed in the court or in the bankruptcy court. See id. It also upheld the district court's order prohibiting the plaintiff from using the service process of the United States Marshal. See id.

In this case, Defendants seek an injunction against Plaintiff and others from instituting court actions under 18 U.S.C. § 248 based on activities that occur on Defendants' property. Since the Court has the authority to issue an injunction restricting a party's ability to file harassing lawsuits, the Court finds that Defendants have stated a claim in Count I of their First Amended Counterclaim.

In Count II of the First Amended Counterclaim, Defendants seek damages under FACE, 18 U.S.C. § 248, and under the RICO Act, 18 U.S.C. § 1961 et seq.. FACE specifically provides for civil remedies under 18 U.S.C. § 248(c). The Counterclaim alleges facts that state a claim for relief under this statute.

However, Defendants have failed to state a claim under the RICO Act, 18 U.S.C. § 1961 et seq.. In order to state a claim under the RICO Act, a party must allege facts sufficient to support each of the statutory elements of at least two predicate acts as set out in 18 U.S.C. § 1961. See 18 U.S.C. § 1961; Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 948 (11th Cir. 1997). Defendants have failed to allege any predicate acts or racketeering activity under 18 U.S.C. § 1961.

In their Amended Counterclaim, Defendants allege that they are entitled to damages under the RICO Act, 18 U.S.C. § 1961 et seq. as construed in National Organization For Women Inc. v. Scheidler, 510 U.S. 249 (1994). In Scheidler, the United States Supreme Court found that the RICO Act does not require proof of economic purpose for either the racketeering enterprise or the predicate acts of racketeering in 18 U.S.C. § 1962(c) . See id. at 262. Based on this finding, the Supreme Court held that the district court had erred in dismissing the underlying claim. See id. However, Scheidler is distinguishable from this case because the amended complaint in Scheidler alleged a violation of one of the underlying statutes indicated in 18 U.S.C. § 1961. See 18 U.S.C. § 1961; Scheidler, 510 U.S. at 253. Specifically, the amended complaint in Scheidler alleged a violation of the Hobbs Act, 18 U.S.C. § 1951. In this case, Defendants have not alleged a violation of one of the underlying statutes indicated in 18 U.S.C. § 1961.

Based on the foregoing, the Court denies the motion to dismiss with respect to Count I of the First Amended Counterclaim. The Court also denies the motion to dismiss with respect to the FACE claim in Count II of the First Amended Counterclaim. However, the Court grants the motion to dismiss with respect to the RICO claim in Count II.

III. Defendants' Motion for Summary Judgment

Summary judgment is authorized "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Summary judgment is appropriate only in circumstances where "the evidence is such that a reasonable jury could [not] return a verdict for the nonmoving party." Id. at 248. The moving party bears the burden of proving that no genuine issue of material fact exists. Celotex v. Catrett, 477 U.S. 317, 323 (1986). In determining whether the moving party has satisfied the burden, the Court considers all inferences drawn from the underlying facts in the light most favorable to the party opposing the motion and resolves all reasonable doubts against the moving party. Anderson, 477 U.S. at 255. The Court may not weigh conflicting evidence or weigh the credibility of the parties. See Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 919 (11th Cir. 1993) (citation omitted). If a reasonable fact finder could draw more than one inference from the facts and that inference creates an issue of material fact, then the Court must not grant summary judgment. Id. (citation omitted}.

Defendants assert that summary judgment is warranted on Plaintiff's Complaint on abstention grounds based on the Eleventh Circuit's decision in McKusick v. City of Melbourne, 96 F.3d 478 (11th Cir. 1996). Defendants also assert that the Court should dismiss on abstention grounds based on the Rooker-Feldman doctrine. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust, 263 U.S. 415-16 (1923); see also Hoover v. Wagner, 47 F.3d 845, 849 (7th Cir. 1995).

However, contrary to Defendants' assertions, a court should only dismiss a suit on abstention grounds when a plaintiff seeks equitable or other discretionary relief. See Quackenbush v, Allstate Ins. Co., 517 U.S. 706, 730 (1996) ("Under our precedents, federal courts have the power to dismiss or remand cases based on abstention principles only where the relief being sought is equitable or otherwise discretionary"). In this case, Plaintiff seeks damages for an alleged violation of a federal statute. Thus, summary judgment is not appropriate on abstention grounds.

In McKusick, the Eleventh Circuit acknowledged that a court should not dismiss a claim for damages on abstention grounds. See McKusick, 96 F.3d at 489. In McKusick, the Eleventh Circuit held that a district court did not abuse its discretion by refusing to issue an injunction prohibiting the over-enforcement of a facially valid state court injunction. See id. However, the Eleventh Circuit noted that the plaintiff would have the right to sue for damages if she was wrongfully arrested for violating the injunction. See id. The court noted that such an action "would not be subject to dismissal under the abstention principles governing her present claim for equitable relief." Id.

Accordingly, in this case, Plaintiff's claim is not subject to summary judgment on abstention principles.

IV. Plaintiff's Motion for Summary Judgment

Plaintiff has moved for summary judgment on his Complaint. In his Complaint, Plaintiff asserts that he was unlawfully interfered with, threatened, and physically prevented from providing reproductive health services at a facility performing such services by the Melbourne City Police, who were allegedly acting as Defendants' agents. On three separate occasions, Plaintiff contends that he was physically removed from the reproductive health services facility after having been threatened and intimidated by Melbourne City Police.

FACE authorizes criminal penalties and civil remedies against anyone who by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been. or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services ..." 18 U.S.C. § 248(a)(1). A private civil right of action may be brought under the foregoing provision "only by a person involved in providing or seeking to provide, or obtaining or seeking to obtain, services in a facility that provides reproductive health services ..." 18 U.S.C. §248(c)(1)(A). FACE defines the term facility" and "reproductive health services." "The term 'facility' includes a hospital, clinic, physician's office, or other facility that provides reproductive health services, and includes the building or structure in which the facility is located." 18 U.S.C. § 248(e) (1). The term 'reproductive health services' means reproductive health services provided in a hospital, clinic, physician's office, or other facility, and includes medical, surgical, counseling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy." 18 U.S.C. 248(e) (5) .

Summary judgment is not warranted on Plaintiff's claim because a number of issues of material fact exist. An issue of material fact exists as to whether Defendants committed the acts described in the Complaint. Specifically, an issue of material fact exists as to whether the Melbourne City Police were acting as agents of the Defendants. Another issue of material fact exists as to whether Mr. Raney was in a facility that provides reproductive health services as required by 18 U.S.C. § 248(c) (1) (A). Thus, summary judgment is not warranted on Plaintiff's Complaint.

V. Plaintiff's Motion for Certification of Interlocutory Appeal

Plaintiff has moved for certification of an interlocutory appeal of the Order of the United States Magistrate Judge dated June 5, 1998 (Doc. No. 50, filed June 5, 1998) denying Plaintiff's Motion for Reconsideration of the Magistrate's Denial of Plaintiff's Motion to Compel Discovery (Doc. No. 48, filed June 1, 1998). (Doc. No. 54, filed June 18, 1998). The Court treats the Motion as an objection to the Order of the United States Magistrate Judge. The Court reviews the Order of the United States Magistrate Judge to determine whether the Order is clearly erroneous. 28 U.S.C. § 636(b)(1) (A). After careful consideration of the United States Magistrate Judge's Order and Plaintiff's Motion, the Court overrules the objection to the United States Magistrate Judge's Order.

VI. Conclusion

Based on the foregoing, the Court rules as follows:

1) Plaintiff's Motion to Dismiss Defendants' First Amended Counterclaim (Doc. No. 51, filed June 8, 1998) is GRANTED IN PART AND DENIED IN PART in accordance with this Order. The RICO claim in Count II of Defendants' First Amended Counterclaim (Doc. No. 35, filed May 20, 1998) is DISMISSED. The other claims in Counts I and II are NOT DISMISSED.

2) Defendants' Dispositive Motion for Summary Judgment (Doc. No. 46, filed May 29, 1998) is DENIED.

3) Plaintiff's Motion for Summary Judgment Against All Defendants (Doc. No. 83, filed October 15, 1998) is DENIED.

4) Plaintiff's Motion for Certification of Interlocutory Appeal (Doc. No. 54, filed June 18, 1998) is treated as an objection to the Order of the united States Magistrate Judge (Doc. No. 50, filed June 5, 1998). The objection is OVERRULED. The Order of the United States Magistrate Judge (Doc. NO. 50, filed June 5, 1998) is AFFIRMED.

5) Plaintiff's Motion for Certification of Interlocutory Appeal (Doc. No. 58, filed June 29, 1998) is STRICKEN because it is a duplicate.

DONE AND ORDERED at Orlando, Florida this, 16th day of December, 1998.

PATRICIA C. FAWSETT <signed>
UNITED STATES DISTRICT JUDGE