DEFENDANTS' MEMO IN SUPPORT OF MOTION TO DISMISS

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
ROE V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
DEFENDANTS' MEMO IN SUPPORT OF MOTION TO DISMISS

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CASE NO.: 99-850-CV-19-A

JANE ROE, II
Plaintiff,
v.
AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR.,
PATRICIA B. WINDLE and
WILLIAM P. EGHERMAN, M.D.,
Defendants

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION TO DISMISS

The Defendants, AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation, EDWARD W. WINDLE, JR., PATRICIA B. WINDLE and WILLIAM P. EGHERMAN, M.D., by and through their undersigned attorneys, and pursuant to Fed.R.Civ.P. 7 and Fla.Loc.R. 3.01(b) files this their Memorandum of Law in Support of their Motion to Dismiss Plaintiffs complaint for damages. As discussed herein and in Defendant's Motion to Dismiss the Plaintiff's complaint fails to state a claim upon which relief can be granted and should therefore be dismissed.

The Plaintiff, Jane Roe II, filed a complaint for damages against Defendants alleging violations of the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248. The Plaintiff's complaint consists of one count which commingles and includes all Defendants and seeks to impose liability against each Defendant under said Act for the same incident.

Plaintiff's complaint alleges Plaintiff checked into Aware Woman Center for Choice, Inc. for an abortion and during the course of the abortion began to experience pain and demanded immediately an ambulance be called to take her to the emergency room at local hospital. Plaintiff further alleges the acts of Defendants (without specifying any individual actions of Edward W. Windle, Jr. or Patricia B. Windle) violated the Federal Civil Rights Act known as FACE, 18 U.S.C. § 248 by preventing the egress of Plaintiff from the facility when Defendant's and/or their employees unlawfully interfered with, intimidated and used physical obstruction to restrain Plaintiff from leaving said facility. Plaintiff's allegations in and of themselves are insufficient to support a right of action under 18 U.S.C. § 248 (c) (1).

It is well known the Court may grant a Defendant's Motion to Dismiss only if the Defendant demonstrates "beyond doubt that the Plaintiff can prove no set of facts in support of this claim which would entitle him to relief". Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir. 1998), see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Court must also' accept the allegations in the complaint as true and view them in a light most favorable to the Plaintiff. See Linder v. Portocarrero, 963 F.2d 332, 334 (11 Cir. 1992).

The Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248 states in part;

(a) Prohibited activities. -whoever-

(1) 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; ... shall be subject to the penalties provided in Subsection (b) and the civil remedies provided in subsection (c)...

(1) Right of Action

A. In general. Any person aggrieved by reason of the conduct prohibited by subsection (a) may commence a civil action for the relief set forth in subparagraph (B) except that in action may be brought under subsection (a)(1) only by a person involved in providing or seeking to provide or obtaining or seeking to obtain, the services in a facility that provides reproductive health services...

It is uncontroverted that Plaintiff was an individual who was seeking an abortion and did in fact undergo said procedure. The act by its plain language prohibits intentionally injuring, intimidating, or interfering 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. Nowhere is it alleged that Plaintiff was intentionally injured, intimidated or interfered with or being prevented from having an abortion by the Defendants. See United States v. Hill, 893 F.Supp. 1034, 1038 (N.D. Fla. 1994). The acts intent (as shown in the congressional house reports) can be gleamed from the legislative history which clearly indicates that the act covers attacks, threats and blockades used directly against a person who is obtaining or providing reproductive health services and also covers a attacks, threats and blockades against a particular victim that are meant to intimidate other persons or classes of persons who may be obtaining and providing reproductive health services. Id. at 1038. Further the House report states the act is intended to be used against those who use assaults and other violent and threatening tactics against woman who seek reproductive health services, the providers of such services and their respective families. Id., see also Pub. L.. No. 103-259, § 2, 108 Stat. 694 and House report, at p. 12, 1994 U.S.C.C.A.N. p. 709.

Based upon the allegations in the Plaintiff's complaint it is beyond doubt that Plaintiff cannot prove the facts to support a claim which will entitle her to relief under 18 U.S.C. § 248. Considering all the allegations in the complaint as true and construing them in the light most favorable to the Plaintiff, Plaintiff's claim falls outside the plain language and construction of said act and Plaintiff is not entitled to pursue a civil remedy under said act.

To the extent Plaintiff's complaint could be construed as a medical negligence action it should be dismissed for failure to state a claim upon which relief can be granted, it is beyond the applicable two year statute limitations set forth in Section 95.11, Florida Statutes, and fails to allege as a condition precedent to bringing the action compliance with the pre-suit screening process set forth in Chapter 766, Florida Statutes. The Plaintiff in the complaint alleges the incident occurred on March 29, 1997 and on that day she recognized she incurred injury on said date. This action was filed more than two years from March 27, 1999, and therefore, it is barred by the applicable statute of limitations.

Nowhere in the four corners of the Plaintiff's complaint does it allege the Defendants intentionally injured, intimidated or interfered with, or attempted to injure, intimidate or interfere with Plaintiff from obtaining or providing reproductive health services. In fact, the complaint sets forth repeated allegations Plaintiff underwent an abortion procedure, and during the procedure she claimed she was injured and was physically obstructed from leaving until a completion of the procedure. Plaintiff attempts to seek a recovery against the Defendants pursuant to 18 U.S.C. § 248 on the basis of Defendants preventing the egress of Plaintiff from the facility, during the middle of the procedure. This allegation is in and of itself insufficient to bring Plaintiff's claim within the parameters of civil remedy set forth in the Freedom of Access to Clinic Entrances Act set forth in 18 U.S.C. § 248.

Conclusion

The Freedom of Access to Clinic Entrances Act affords a civil remedy to those individuals intimidated, interfered or physically obstructed from obtaining and seeking reproductive help services, i.e. an abortion. Viewing Plaintiff's complaint in light most favorable to the Plaintiff, accepting allegations as true, the Plaintiff has failed to state a claim for civil remedy under said Act.,

WHEREFORE Defendants, AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation, EDWARD W. WINDLE, JR., PATRICIA B. WINDLE and WILLIAM P. EGHERMAN, M.D., respectfully request this Court grant Defendants Motion to Dismiss Complaint.

Respectfully submitted,
ANDREW W. MENYHART, ESQUIRE <signed>
Florida Bar No. 0961507
SHELDON D. STEVENS, ESQUIRE
Florida Bar No. 0202754
Stevens & Menyhart, P.A.
60 McLeod Street
P. O. Box 541760
Merritt Island, FL 32954-1760
Tel.: (407) 453-2221
Fax: (407) 459-3024
Attorneys for Defendants

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by U.S. Mail this 13^th day of August, 1999 to Christopher F. Sapp, Esq., Attorney for Plaintiff, P. O. Box 1012, Lehigh Acres, FL 33970

ANDREW W. MENYHART, ESQUIRE <signed>