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
NO 97-1197-CV-ORL- 19B

MEREDITH T RANEY, JR,
Plaintiff,
v.
AWARE WOMAN CENTER FOR CHOICE, INC. et al,
Defendants.

ORDER

This cause came before the Court on the following matters:

1) The Court's sua sponte reconsideration of Defendants' Dispositive Motion for Summary Judgment (Doc. No. 46, filed May 29, 1998).

2) Defendants' Motion & Memorandum for Certification of Interlocutory Appeal Under 28 U.S.C. § 1292(b) from Denial of AWCC Motion for Summary Judgment (Doc. No. 108, filed December 28, 1998) and Plaintiff's Response to Motion for Certification of Interlocutory Appeal (Doc. No. 113, filed January 8, 1998).

3) The Court's Notice to both parties that it is considering sua sponte whether summary judgment should be granted for the Defendants on the Plaintiffs' Complaint.

BACKGROUND

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. S 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.

The Rooker-Feldman Doctrine

In the Court's December 16, 1998 Order, the Court inter alia denied Defendants' Motion for Summary Judgment based on the Rooker-Feldman doctrine. (Doc. No. 100, filed December 16, 1998) . The Court sua sponte reconsiders that section of its December 16, 1998 Order. The Court is free to reconsider a denial of summary judgment for any reason it deems sufficient. See McKethan v. Texas Farm Bureau, 996 F.2d 734, 738 n-6 (5th Cir. 1993) (quoting Lavespere v. Nigara Mach. & Tool Works. Inc., 910 F.2d 167, 185 (5th Cir. 1990)) ("because the denial of a motion for summary judgment is an interlocutory order, the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law"). Further, the Rooker-Feldman doctrine relates to whether the Court has subject matter jurisdiction over a claim. The Court may consider sua sponte whether it has subject matter jurisdiction over a claim at any time. See Gary v. Geils, 82 F.3d 1362, 1364 (7th Cir. 1996) ("[s]ince the Rooker-Feldman doctrine is about whether inferior federal courts have the authority (i.e., subject matter jurisdiction) to hear a given case, it can be raised at any time, by either party, or sua sponte by the court"). Therefore, the Court may reconsider at this time whether it has subject matter jurisdiction over Plaintiff's claims.

The Rooker-Feldman doctrine bars a party that loses in state court from seeking what in substance would be appellate review of the state judgment in United States district court based on the losing party's claim that the state judgment violates the losing party's federal rights. See Johnson v. DeGrandy, 512 U.S. 997, 1005-06 (1994) . The doctrine, thus, prohibits federal district courts from deciding federal claims which are "inextricably intertwined" with a final state court judgment. See District of Columbia Court of Appeals V. Feldman, 460 U.S. 462, 486 (1983); Blue Cross and Blue Shield of Md.. Inc. v. Weiner, 868 F.2d 1550, 1553 (11th Cir. 1989) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923)); Thompson v. McFatter, 951 F.Supp. 221, 223 (M.D. Ala. 1996). The doctrine applies to both constitutional and non- constitutional federal claims. See Weiner, 868 F.2d at 1554.

The Eleventh Circuit has repeatedly held that federal district courts lack jurisdiction to review final decisions of state courts where the plaintiffs had a reasonable opportunity to raise their federal claim during the state court proceedings. See e.g. Liedel v. Juvenile Court of Madison County. Alabama, 891 F.2d 1542 (11th Cir. 1990); Weiner, 868 F.2d 1550; Rolleston v. Eldridge, 848 F.2d 163 (11th Cir. 1988); Staley v. Ledbetter, 837 F.2d 1016 (11th Cir. 1988). However, the doctrine does not apply where the plaintiff did not have a reasonable opportunity to raise his or her federal claim in state proceedings. See Dale v. Moore, 121 F.3d 624, 626 (11th Cir. 1997); Wood v. Orange County, 715 F.2d 1543, 1547 (11th Cir. 1983). "Where the plaintiff has had no such opportunity, he cannot fairly be said to have 'failed to raise the issue.' Moreover, an issue that a plaintiff had no reasonable opportunity to raise cannot properly be regarded as part of the state case." Wood, 715 at 1547.

In this case, Plaintiff's three claims involve arrests for violating a state court injunction which created a thirty-six foot buffer zone around the Aware Woman's Center for Choice, Inc.. (Doc. No. 47, Exh. 5, filed May 29, 1998). Plaintiff was not prosecuted for any of these three arrests. Thus, Plaintiff did not have a reasonable opportunity to assert any rights under F.A.C.E. in conjunction with these arrests.

Plaintiff was prosecuted for a violation of this injunction in 1993. (Doc. No. 47, Exh. 2, filed May 27, 1998; Doc. No. 71 at 44, filed July 20, 1998). However, Plaintiff could not have asserted any rights under F.A.C.E. at that time because F.A.C.E. had not been enacted and because F.A.C.E. only applies to conduct that occurred on or after the date of its enactment. See Freedom of Access to clinic Entrances Act of 1994, Pub. L. 103-259 § 6 ("This Act . . . takes effect on the date of enactment of this Act [May 26, 1994], and shall apply only with respect to conduct occurring on or after such date").

Also, Plaintiff has not had a reasonable opportunity to assert any federal rights under F.A.C.E. with respect to the injunction because he was not a party to the original injunction. (Doc. No. 88, Exh. 3, filed November 10, 1998). Further, even if he did have a right to request a modification of the original state court injunction, such a request would be collateral to the state court order, and thus, the right to seek such a request would not trigger the Rooker- Feldman doctrine. See Fla.R.Civ. P. 1.540; Wood, 715 F.2d at 1548.[Footnote 1]

Accordingly, summary judgment is not warranted for Defendants based on the Rooker-Feldman doctrine. Therefore, on reconsideration, the Court again denies the Defendants' Motion for Summary Judgment.

MOTION FOR CERTIFICATION OF INTERLOCUTORY APPEAL

Defendants have filed a Motion for Certification of Interlocutory Appeal of the denial of their motion for summary judgment. Because the Court has reconsidered the denial of summary judgment in this Order, the Court treats the motion as a motion for certification of interlocutory appeal from both the Court's December 16, 1998 Order and from this Order.

In their motion, Defendants assert that the Court decided the following issues as a matter of law in denying their motion for summary judgment:

(1) McKusick-Younger Abstention,

(2) Rooker-Feldman and collateral estoppel preclusion of FACE, 18 USC § 248, false arrest claims, following buffer zone arrests of persons previously convicted, affirmed, and certiorari denied, for identical buffer zone violations,

(3) refusal to dismiss FACE, 18 USC § 248, false arrest claims for Madsen buffer zone violation arrests, although plaintiff Raney made no allegation and presented no evidentiary proffer of absence of probable cause,

(4) determination as a matter of law that the Madsen 36 foot buffer zone may possibly be a part of the AWCC "facility" for purposes of plaintiff Raney's FACE claim to be an unwanted counselor in the open street and very zone protecting AWCC from him, where no facts were in dispute,

(5) determination as a matter of law that the Melbourne City police may possibly have been employees or agents of AWCC although contrary facts were not in dispute, and plaintiff Raney proffered no affidavit whatsoever on the agency issue in the fourteen months since he filed this lawsuit, and

(6) determination as a matter of law that the individual Defendant Windles may possibility be responsible down the respondeat superior line, although contrary proffered facts were not in dispute, and plaintiff Raney proffered no affidavits whatsoever on this agency or control issue in the past fourteen months.

(Doc. No. 108, filed December 28, 1998). However, contrary to Defendants' assertions, the Defendants only moved for summary judgment on the Younger abstention doctrine and on the Rooker-Feldman doctrine. The Court has not decided the other issues discussed by the Defendants with respect to their motion for summary judgment.

In order for a court to grant a motion for certification of interlocutory appeal under 28 U.S.C. § 1292(b), "three separate elements must be established. First, the subject order must involve a controlling question of law. Second, there must be a substantial ground for difference of opinion. Third the interlocutory appeal must 'materially advance the ultimate termination of the litigation.'" In this case, the Court's determination that the Rooker-Feldman doctrine and the Younger abstention doctrine do not apply in this case is not a controlling question of law. Also, based on a review of the relevant case law, the Court finds that there is not a substantial ground for difference of opinion as to whether these doctrines apply. Therefore, an interlocutory appeal is not warranted in this case.

Notice of Sua Sponte Consideration of Summary Judgment

In their motion for interlocutory appeal, the Defendants assert that the Court has decided as a matter of law that the police were acting as agents for the Defendants when Plaintiff was arrested. As noted above, the Court has not made such a ruling. Defendants did not move for summary judgment on this ground. However, summary judgment may be warranted for the Defendants if the Plaintiff is unable to provide colorable evidence that would show that the police were acting as agents for the Defendants when he was arrested. See generally McGeorge v, Continental Airlines. Inc., 871 F.2d 952, 955 (10th Cir. 1989) (affirming dismissal of battery claim against defendant where the trial court, in effect, "ruled that plaintiff could not show defendant had control over the officer, and without control the officer could not have been [the defendant's] agent").

This court has the authority to enter summary judgment sua sponte. See Massey v. Congressional Life Ins. Co., 116 F.3d 1414, 1417 (11th Cir. 1997). However, the party against whom summary judgment may be entered has a right to notice that the Court is considering entering summary judgment. See id.

Accordingly, Defendants shall have until February 10, 1999 to file a brief and any supporting evidence with respect to the Court's sua sponte consideration of summary judgment against Plaintiff on his Complaint based on the assertion that the police were not acting as agents for the Defendants when Plaintiff was arrested. Plaintiff, then, shall have until February 22, 1999 to file a brief and any supporting evidence in response.

CONCLUSION

Based on the foregoing, the Court rules as follows:

1) The section of the Court's December 16, 1998 Order (Doc. No. 100, filed December 16, 1998) relating to the Rooker-Feldman doctrine is VACATED. After sua sponge reconsideration of Defendants' Dispositive Motion for Summary Judgment (DOC. No. 46, filed May 29, 1998), the Motion for Summary Judgment is again DENIED.

3) Both parties are directed to TAKE NOTICE that the Court is considering granting summary judgment in favor of Defendants on Plaintiff's Complaint. Defendants shall have until February 10, 1999 to file a brief and any supporting evidence with respect to the Court's sua sponte consideration of summary judgment. Plaintiff, then, shall have until February 22, 1999 to file a brief and any supporting evidence in response.

DONE AND ORDERED this 1st day of February, 1999

PATRICIA C. FAWSETT <signed>
UNITED STATES DISTRICT JUDGE

[Footnote 1] Additionally, the Court notes that the Rooker-Feldman doctrine may not apply to arrests carried out to enforce an injunction. See Kiowa Indian Tribe of Oklahoma v. Hoover, 150 F.3d 1163, 1169 (10th Cir. 1998) (citing Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 4-6 (1987) for the proposition that the Rooker-Feldman doctrine does not apply to post-judgment collection procedures that allegedly violate a party's federal rights); but see Bohling v. Security Federal Bank, 1995 WL 578183, *1 (7th Cir. September 27, 1995) ("[b]ecause [the plaintiff's] attempt to obtain damages for the execution of an allegedly erroneous judicial order is simply another way to contest the court's judgment, the federal district court lacked jurisdiction to hear this claim"). However, the Court does not need to reach. this issue for the reasons stated above.