Robert Jablonsky, M.D. v. Sierra Kings Health Care District, Et Al., No. 1:2006cv01299 - Document 115 (E.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER GRANTING Plaintiff's Motion To Void Judgment Pursuant To F.R.C.P. 60 And Order Granting Defendant's Motion For Summary Judgment (Doc.s # 111 , [111-3] and 67 ), signed by Chief Judge Anthony W. Ishii on 7/14/2011. (Fahrney, E)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 ROBERT JABLONSKI, MD. ) ) Plaintiff, ) ) ) v. ) ) SIERRA KINGS HEALTHCARE ) DISTRICT, et al., ) ) Defendants. ) ____________________________________) 15 CV F 06-1299 AWI GSA MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF S MOTION TO VOID JUDGMENT PURSUANT TO F.R.C.P. 60 AND ORDER GRANTING DEFENDANT S MOTION FOR SUMMARY JUDGMENT Doc. # s 111, 111-3 and 67 16 17 In this action by plaintiff Robert Jablonsky, M.D. ( Plaintiff ) for damages pursuant to 42 18 U.S.C. § 1983 against defendant Sierra Kings Health Care District ( Defendant ), the court 19 dismissed the action and ordered that judgment be entered in favor of Defendant on June 6, 2010. 20 The court s order dismissing the action was based primarily on the lack of any response by 21 Plaintiff to an order to show cause that was filed by the court on September 24, 2009. Currently 22 before the court is Plaintiff s motion to set aside void judgment pursuant to Rule 60(b)(4) of the 23 Federal Rules of Civil Procedure. Doc. # 111. Also before the court is Plaintiff s response to the 24 court s order to show cause. Doc. # 111-3. For the reasons that follow the court s order 25 dismissing the action and order directing entry of judgment in favor of Defendants will remain in 26 effect. 27 28 1 2 FACTUAL BACKGROUND AND PROCEDURAL HISTORY The factual background of this action has been set forth in some detail in prior decisions 3 of this court and need not be repeated in detail here. See Doc. # s 11, 39 and 103. Briefly, 4 Plaintiff is a physician and surgeon whose privileges to practice at defendant Sierra Kings 5 District Hospital were summarily revoked or suspended in September 1997. Prior orders of the 6 court have dismissed all state law claims that were previously adjudicated in state proceedings 7 and have limited Plaintiff to a claim or claims arising from the procedural Due Process Clause of 8 the Fourteenth Amendment. In its Order on Defendant s Motion for Summary Judgment, filed 9 on September 24, 2009, (the September 24 Order ) the court found that Plaintiff s action turned 10 on the issue of whether the procedures that had been provided by Defendant at the time of, or 11 immediately following the summary suspension/revocation of privileges, were constitutionally 12 sufficient for purposes of Fourteenth Amendment due process. The court found that the parties 13 failure to focus sufficiently on that issue prevented a final determination of Defendant s motion 14 for summary judgment. Specifically, the court observed: 15 16 17 18 19 20 21 22 Unfortunately, the parties nearly exclusive focus on the delay in the completion of the administrative process has resulted in pleadings that lack any allegation or discussion of the process [that] was provided to Plaintiff, either by design or by happenstance, at the time of or immediately after the summary suspension. For purposes of the present discussion, the court will rely on its review of the information provided in Defendant s exhibits in support of its motion for summary judgment. It appears that for purposes of this preliminary discussion that the information the court can glean from the documents provided is sufficient to allow the court to make fairly accurate presumption[s] about the process that was provided initially. The court will leave it to the parties to dispute, modify or add to the factual basis of the motion for summary judgment or opposition thereto. Doc. # 103 at 14:5-14. The court s September 24 Order, after noting the absence of allegation or argument with 23 regard to the procedures that were provided in the 30 days following the revocation/suspension of 24 privileges, deduced what facts it could from the exhibits that were provided in support of 25 Defendant s motion for summary judgment. The court concluded: 26 27 28 The materials noted above show that the administrative process available to Plaintiff within the first thirty days after summary suspension of Plaintiff s medical staff privileges offered Plaintiff notice and the opportunity to respond, 2 1 2 3 4 both in person and in writing, to both the general and specific charges against Plaintiff. In light of [ Laudermill v. Cleveland Bd. Of Educ., 470 U.S. 532 (1985)], which held that basic notice and opportunity to respond meaningfully to charges is sufficient where more extensive post-deprivation procedures are provided and given the elements of formality that are not constitutionally mandated by the Due Process Clause of the Fourteenth Amendment as listed in [Yashon v. Hunt, 825 F.2d 1016 (6th Cir. 1987), the court finds that Plaintiff may well have been afforded the process that was due immediately post-deprivation. 5 Doc. # 103 at 16:8-16 (italics added). 6 The court s September 24 Order provisionally found that the facts available in the parties 7 pleadings at that time indicated that Plaintiff was probably provided constitutionally sufficient 8 process immediately post-deprivation and that summary judgment was probably appropriate 9 given the state of the facts. In the interest of a full opportunity for both parties to address the 10 issue, the court offered Plaintiff an opportunity to further elaborate on the factual context in light 11 of the court s tentative decision. The order was set forth in the form of an order to show cause 12 that directed Plaintiff to either show that the pleading set forth in the First Amended Complaint 13 was sufficient to state a claim for relief or to seek leave to amend. Any response to the court s 14 September 24 Order was due not later than October 19, 2009. 15 On October 13, 2009, a notice was filed by Plaintiff concerning the initiation of 16 bankruptcy proceedings by Defendant Sierra Kings. On October 21, 2009, a Notice of Filing of 17 Bankruptcy was filed by Defendant Sierra-Kings. On June 7, 2010, the court issued an order 18 dismissing the case with prejudice and ordered the entry of judgment in favor of Defendant. The 19 clerk of the court entered judgment on the same day. The instant motion for relief from void 20 judgment was filed on June 7, 2011. 21 LEGAL STANDARDS 22 Summary judgment is appropriate when it is demonstrated that there exists no genuine 23 issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. 24 Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Poller v. 25 Columbia Broadcast System, 368 U.S. 464, 467 (1962); Jung v. FMC Corp., 755 F.2d 708, 710 26 (9th Cir. 1985); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th 27 28 3 1 2 3 4 Cir. 1984). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. 5 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Although the party moving for summary 6 judgment always has the initial responsibility of informing the court, the nature of the 7 responsibility varies depending on whether the legal issues are ones on which the movant or the 8 non-movant would bear the burden of proof at trial. Cecala v. Newman, 532 F.Supp.2d 1118, 9 1132-1133 (D. Ariz. 2007). When the moving party has the burden of proof at trial, that party 10 must carry its initial burden at summary judgment by presenting evidence affirmatively showing, 11 for all essential elements of its case, that no reasonable jury could find for the non-moving party. 12 United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991) (en banc); 13 Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986); see also E.E.O.C. v. Union 14 Independiente De La Autoridad De Acueductos Y Alcantarillados De Puerto Rico, 279 F.3d 49, 15 55 (1st Cir. 2002) (stating that if party moving for summary judgment bears the burden of proof 16 on an issue, he cannot prevail unless the evidence that he provides on that issue is conclusive. ) 17 If the moving party meets its initial responsibility, the burden then shifts to the opposing 18 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 19 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); First Nat'l Bank of Arizona v. Cities 20 Serv. Co., 391 U.S. 253, 288-89 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 21 (9th Cir. 1979). In attempting to establish the existence of this factual dispute, the opposing 22 party may not rely upon the mere allegations or denials of its pleadings, but is required to tender 23 evidence of specific facts in the form of affidavits, and/or admissible discovery material, in 24 support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n.11; 25 First Nat'l Bank, 391 U.S. at 289; Strong v. France, 474 F.2d 747, 749 (9th Cir. 1973). The 26 opposing party must demonstrate that the fact in contention is material, i.e., a fact that might 27 affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 28 4 1 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th 2 Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 3 return a verdict for the nonmoving party, Anderson, 477 U.S. 248-49; Wool v. Tandem 4 Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 5 In the endeavor to establish the existence of a factual dispute, the opposing party need not 6 establish a material issue of fact conclusively in its favor. It is sufficient that the claimed factual 7 dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at 8 trial. First Nat'l Bank, 391 U.S. at 290; T.W. Elec. Serv., 809 F.2d at 631. Thus, the purpose 9 of summary judgment is to pierce the pleadings and to assess the proof in order to see whether 10 there is a genuine need for trial. Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) 11 advisory committee's note on 1963 amendments); International Union of Bricklayers v. Martin 12 Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985). 13 In resolving the summary judgment motion, the court examines the pleadings, 14 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 15 any. Rule 56(c); Poller, 368 U.S. at 468; SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th 16 Cir. 1982). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and 17 all reasonable inferences that may be drawn from the facts placed before the court must be drawn 18 in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 19 369 U.S. 654, 655 (1962)(per curiam); Abramson v. University of Hawaii, 594 F.2d 202, 208 20 (9th Cir. 1979). Nevertheless, inferences are not drawn out of the air, and it is the opposing 21 party's obligation to produce a factual predicate from which the inference may be drawn. 22 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 23 898, 902 (9th Cir. 1987). 24 25 26 27 28 DISCUSSION I. Motion for Relief from Void Judgment Rule 60(b)(4) sets forth bases for relief from final judgment. Among the grounds for such relief is the situation in which judgment is void because the court lacked authority to enter 5 1 judgment at the time it did. Plaintiff also contends that he was prevented from filing a response 2 to the order to show cause because such response was prohibited by the stay imposed 3 automatically pursuant to 11 U.S.C. § 362(d) upon Defendant s filing of bankruptcy on October 4 8, 2009. Plaintiff alleges the bankruptcy stay was not lifted until February 20, 2011, and that the 5 court s entry of judgment in favor of Defendant during the period the stay was in force was void. 6 Plaintiff requests that the court relieve him of the judgment against him and accept the Document 7 at docket number 111-3 as Plaintiff s response to the court s order to show cause. 8 Defendant opposes Plaintiff s motion for relief primarily on the grounds of latches, 9 waiver and estoppel. In addition, Defendant contends Plaintiff s motion is untimely in that the 10 motion for relief was filed more than four months after the bankruptcy court lifted the automatic 11 stay. 12 While the court tends to agree with Defendant that Plaintiff was dilatory in filing the 13 instant motion for relief, the court also agrees that this action has aged sufficiently and that the 14 time has arrived to bring the case to a close leaving the fewest issues in play should either party 15 wish to pursue appeal. Because the court will, for the reasons discussed infra, determine that 16 there remain no material issue of fact to be resolved and that summary judgment is therefore 17 appropriate, the court will grant Plaintiff s motion for relief from void judgment and will proceed 18 to a determination of the viability of Plaintiff s claims against Defendant on the merits based on 19 Plaintiff s proposed response to the court s order to show cause. 20 II. Plaintiff s Response to the Order to Show Cause and Defendant s Motion for Summary 21 Judgment 22 The crux of Plaintiff s response to the court s order to show cause is the contention that 23 Plaintiff s position as a medical staff provider with patient care responsibilities entitled Plaintiff 24 to an evidentiary hearing immediately following the summary suspension/revocation of 25 privileges to determine the nature and duration of the emergent situation that gave rise to the 26 summary suspension. Plaintiff contends that his First Amended Complaint ( FAC ) adequately 27 sets forth both facts and legal contentions to support a claim of constitutional deprivation. 28 6 1 Plaintiff s argument recognizes that the constitutional dimensions of his Fourteenth 2 Amendment due process claim are defined and delimited by the Supreme Court s holding in 3 Laudermill v. Cleveland Bd. of Edu., 470 U.S. 532 (1985). Plaintiff correctly notes that the 4 Laudermill court held: 5 6 We conclude that all the process that is due is provided by a pretermination opportunity to respond, coupled with post termination administrative procedures as provided by the [State] statute. 7 Doc. # 111-3 at 3:14-16 (quoting Laudermill,470 U.S. 532 at 547). Plaintiff also recognizes that 8 due process rights under the Fourteenth Amendment are not offended where a State must act 9 quickly, or where it would be impractical to provide predeprivation process, provided post- 10 deprivation process is provided without undue delay. Gilbert v. Homar, 520 U.S. 924, 930 11 (1997). California Business And Professions Code § 809.5 defines the situations where 12 summary termination/suspension of professional privileges is warranted by providing that 13 summary suspension or restriction of privileges may be imposed where the failure to take that 14 action may result in an imminent danger to the health of any individual. Id. (italics added). As 15 the court noted in its September 24 Order: 16 17 18 19 Under California case authority, the question of whether due process requires predeprivation notice and opportunity to be heard turns on whether the purpose of the action is to avoid imminent danger to the health of any individual. See Sahlolbei v. Providence Healthcare, Inc., 112 Cal.App.4th 1137, 1148-1149 (4 Dist. 2004) (observing that the procedures set forth in Cal. Bus. & Prof. Code § 809.5 for summary suspension of medical staff privileges where the threat of patient harm is imminent is the exception to the general rule set forth in sections 809.1 - 809.4 that require pre-deprivation notice and hearing.) 20 Doc. # 103 at 10:19-25. 21 Plaintiff s response to the court s order to show cause consists primarily of an extended 22 argument that, in sum, asserts that the interests of the physician in providing continuous patient 23 care and the interests of the patients in being provided care by the physician of their choice 24 impose a due process requirement upon Defendants. Plaintiff contends Defendant was required 25 to provide evidentiary proof of an imminent threat to patient well being immediately following 26 the imposition of the summary suspension/termination of privileges. Plaintiff contends that a 27 28 7 1 hospital imposing summary suspension/revocation of a physician s clinical privileges must meet 2 an exceptionally high standard of proof in order to not run afoul of the physician s Fourteenth 3 Amendment due process rights. Plaintiff contends that such a high standard cannot be met by a 4 mere meet and confer session prior to suspension or revocation of staff privileges. Further, 5 Plaintiff contends that the constitutional interests at stake require a speedy determination. As 6 Plaintiff puts the issue: 7 8 9 10 11 12 A simple determination of incompetence by a majority vote of the medical staff cannot be constitutionally adequate to separate the physician from the patients until a hearing could be granted many weeks if not months later. Professional competence, including professional courtesy, is the subject of considerable deliberation. Imminent danger is not at all of that nature. There must be some additional factor beyond mere professional incompetence or discourtesy to warrant taking an action that will clearly deprive the physician of his right to practice medicine in the hospital without giving him a full opportunity to prove his competence. It is the proof of that additional factor or the lack of proof thereof that demands a hearing of some sort where the physician has the opportunity to challenge the allegation of imminence while it is still imminent and before the deprivation becomes irremediable. 13 Doc. # 111-3 at 10:4-14. 14 In analyzing Plaintiff s contention, the court begins by noting that the motivating factor in 15 Defendant s suspension/revocation of Plaintiff s hospital privileges was the abrasive and 16 disruptive nature of Plaintiff s behavior that lead to what Defendant characterizes as a breakdown 17 in communications between Plaintiff and the hospital s staff and other physicians. In this regard, 18 the court notes that the idea of professional competence or incompetence is broad. In the context 19 of patient care in the extraordinarily complex setting of a hospital, it is obvious that 20 competence is multi-dimensional. It includes not only medical knowledge and skill, but also a 21 basic knowledge of the workings and needs of the institution and the ability to constructively 22 interact with other healthcare providers in an institutional setting. Further, the court notes that, 23 contrary to Plaintiff s contention, there is no requirement that there be an imminent threat to the 24 physician s patient or patients or to any identifiable patient. The court finds that the term any 25 patient as used in section 809.5 incorporates patients in the abstract as well as any identifiable 26 patient. Thus, summary suspension would be warranted where a physician s behavior is 27 28 8 1 sufficiently disruptive as to potentially jeopardize the flow of care to any patient anywhere in the 2 hospital at any time. 3 Plaintiff s argument is notable for two features. First, it is devoid of any reference to 4 legal authority other than cases already cited by the court for the propositions set forth by the 5 court in its September 24 Order. Second, Plaintiff, lacking any legal authority for the 6 exceptionally high standard he is trying to assert, frames the facts of this case using the 7 concepts of competence, proof, imminence and the identifiable patient. While 8 Plaintiff s arguments are rhetorically well crafted, they are legally unconvincing. While one 9 normally associates the term competence with care of identifiable patients and the 10 susceptibility of incompetence to proof, such is not the case here. Fundamentally, Plaintiff was 11 determined by his peers to be rude and abrasive to the point of disruptiveness. Absent some form 12 of cross-cultural misunderstanding, it can generally be said that a person is intolerably and 13 disruptively rude and abrasive when the persons on the receiving end of his communications 14 collectively determine that he is. When the individuals who have been on the receiving end of 15 the individual s communications determine that the individual s rudeness and/or disruptive 16 behavior has reached a level that potentially compromises care of any patient, that conclusion is 17 generally not susceptible to argument to the contrary. 18 Significantly, Plaintiff asserts that [t]he only option offered to [Plaintiff] at the due 19 process meeting was to admit the incompetence and apologize to the hospital staff for being 20 unkind to them. Doc. # 111-3 at 6:6-8. While Plaintiff brushes this meeting off as woefully 21 inadequate to even scratch the service of the harm it potentially caused [Plaintiff] and his 22 patients, Doc. # 111-3 at 6:8-9, the court finds that what apparently transpired at the meeting 23 goes straight to the heart of the concern that Defendant had with Plaintiff. Given the nature of 24 the conflict between Plaintiff and Defendant, the opportunity for Plaintiff to acknowledge the 25 inappropriate nature of his interactions with the medical staff and to resolve to improve was all 26 that Defendant could logically offer. At that point Plaintiff had the choice to accept the offer to 27 improve his interactions with the medical staff, an offer he did not take, or to embark on a 28 9 1 foreseeably long and logically questionable effort to prove that what others had found was 2 abusive and disruptive behavior was, in fact, not disruptive. 3 Plaintiff s claim for relief for infringement of his Fourteenth Amendment rights fails for 4 two reasons. First, Plaintiff has not and cannot successfully argue under the facts of this case that 5 he was entitled to an evidentiary hearing to prove or disprove the imminence of harm to any 6 identifiable patient. To the extent Plaintiff asserts prejudice to himself and to his patients from 7 Defendant s actions, that prejudice is contemplated by section 809.5. Pursuant to Laudermill, 8 and section 809.5, a physician whose hospital staff privileges are summarily suspended or 9 revoked is entitled to notice and the opportunity to be heard directly after the summary action so 10 long as an evidentiary hearing is provided in due course. Plaintiff has provided no legal authority 11 whatsoever for the proposition that a hospital imposing summary restrictions on physician 12 practice must meet some elevated standard of proof to show imminence or the lack thereof based 13 on danger to any identifiable patient. 14 Second, and perhaps more convincing, the due process requirements of the Fourteenth 15 Amendment are intended, inter alia, to safeguard against the erroneous deprivation of the 16 plaintiff s property interest in medical staff privileges. See Mathews v. Eldridge, 424 U.S. 319, 17 334 (1976) (listing the factors that give rise to due process concerns in the employment setting). 18 What is not compensable under the Fourteenth Amendment is the remote potential that the 19 deprivation of the property interest could possibly have been erroneous. Plaintiff has tried his 20 state law claims in prior actions in state court and has failed to prevail on any of them. In other 21 words, Defendant has essentially vindicated its actions in summarily terminating or suspending 22 Plaintiff s medical staff privileges in state court. It would be contrary to the purposes of 23 Fourteenth Amendment jurisprudence to provide reward for the mere potentiality that the 24 termination of privileges could have been imposed erroneously when state court proceedings 25 indicate that there was no error. 26 27 28 The court finds that there remains no issue of material fact as to Plaintiff s claims against Defendant. Summary judgment will therefore be granted in favor of Defendant. 10 1 2 THEREFORE, it is hereby ORDERED that: 1. Plaintiff s motion for relief from void judgment pursuant to Rule 60(b)(4) of the Federal 3 Rules of Civil Procedure is hereby GRANTED. Judgment entered by this court on June 4 7, 2010, is hereby VACATED. 5 2. 6 7 as Plaintiff s response to the court s September 24 Order. 3. 8 9 The document submitted by Plaintiff at Document 111-3 is hereby accepted by the court Defendants Motion for summary Judgment filed on June 1, 2009, is hereby GRANTED. The Clerk of the Court shall RE-ENTER JUDGMENT in favor of Defendant. 4. The Clerk of the Court shall CLOSE THE CASE. 10 11 IT IS SO ORDERED. 12 13 Dated: 0m8i78 July 14, 2011 CHIEF UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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