2005
THERESA MARIE
SCHINDLER SCHIAVO, Incapacitated ex rel., ROBERT
SCHINDLER and MARY SCHINDLER, her Parents and Next Friends, Plaintiffs, vs.
MICHAEL SCHIAVO, JUDGE GEORGE W. GREER and THE HOSPICE
OF THE FLORIDA SUNCOAST, INC., Defendants.
Case No.
8:05-CV-530-T-27TBM
UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF
2005
March 22, 2005, Decided
CORE TERMS:
injunctive relief, substantial likelihood, guardian ad litem,
deprivation, temporary, guardian, injunction, statutory scheme, religious,
temporary restraining order, appointed, surrogate, proxy, decision-maker,
medical treatment, feeding tube, appoint, preliminary injunction, irreparable
injury, fulfilling, burdened, impartial trial, life support, implicated,
artificial, personally, outweighs, removal, movant, ward
COUNSEL:
[*1] For Theresa
Marie Schindler Schiavo, incapacitated ex rel, Robert
Schindler and Mary Schindler, her parents and next friends, Plaintiff: David C.
Gibbs, III, Gibbs Law Firm, Seminole, FL; George E. Tragos, Law Office of George
E. Tragos, Clearwater, FL; Robert A. Destro, Columbus School Of Law, Washington,
DC.
For Michael Schiavo, as guardian of the
person of Theresa Marie Schindler Schiavo,
incapacitated, Defendant: George J. Felos, Felos & Felos, P.A., Dunedin, FL;
Iris Bennett, Jenner & Block LLC, Washington, DC; Randall C. Marshall,
American Civil Liberties Union Foundation of Florida, Inc., Miami, FL; Rebecca
H. Steele, ACLU Foundation of Florida, Inc., West Central Florida Office, Tampa,
FL; Robert M. Portman, Jenner & Block, Washington, DC; Thomas J. Perrelli,
Jenner & Block, Washington, DC.
For The Hospice of the Florida
Suncoast, Inc., Defendant: Gail Golman Holtzman, Constangy, Brooks & Smith,
LLC, Tampa, FL; John W. Campbell, Constangy, Brooks & Smith, LLC, Tampa, FL;
Robin G. Midulla, Robin Greiwe Midulla, P.A., Tampa, FL.
For
Liberty Counsel, Inc., Amicus: Erik W. Stanley, Liberty Counsel,
For United States, Interested
Party: Paul I. Perez, [*2] U.S. Attorney's Office, Middle District of
Florida, Orlando, FL; Warren A. Zimmerman, U.S. Attorney's Office, Middle
District of Florida, Tampa, FL.
For Morton Plant Hospital
Association, Inc., Victor E. Gambone, M.D., Morton Plant Mease Primary Care,
Inc., Stanton P. Tripodis, M.D., Interested Parties: James Addison Martin, Jr.,
Macfarlane Ferguson & McMullen, Clearwater, FL; Jeffrey W. Gibson,
MacFarlane Ferguson & McMullen, Clearwater, FL.
Gordon Wayne
Watts, Interested Party, Pro se,
JUDGES: JAMES D.
WHITTEMORE, United States District Judge.
OPINIONBY: JAMES D.
WHITTEMORE
OPINION: ORDER
BEFORE THE COURT is Plaintiffs' Motion for
Temporary Restraining Order (Dkt. 2). In their motion, Plaintiffs seek an order
directing Defendants to Schiavo and Hospice to transport
Theresa Schiavo to
The
court [*3] conducted a
hearing on Plaintiffs' motion after notice to Defendants. Upon consideration,
Plaintiffs' Motion for Temporary Restraining Order is denied.
Plaintiffs,
the parents of Theresa Marie Schindler Schiavo, brought
this action pursuant to a Congressional Act signed into law by the President
during the early morning hours of March 21, 2005. n1 The Act, entitled "An Act
for the relief of the parents of Theresa Marie Schiavo,"
provides that the:
United States District
Court for the Middle District of Florida shall have jurisdiction to hear,
determine, and render judgment on a suit or claim by or on behalf of Theresa
Marie Schiavo for the alleged violation of any right of
Theresa Marie Schiavo under the Constitution or laws of
the United States relating to the withholding or withdrawal of food, fluids, or
medical treatment necessary to sustain life.
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n1 Pub. L.
No. 109-3 (March 21, 2005).
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Footnotes- - - - - - - - - - - - - -
Jurisdiction and Standing
The
federal district courts are courts of limited jurisdiction, "empowered [*4] to hear only those cases
. . . which have been entrusted to them by a jurisdictional grant authorized by
Congress." University of S. Ala. v.
American Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v.
Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). The plain
language of the Act establishes jurisdiction in this court to determine de novo "any claim of a violation of any
right of Theresa Schiavo within the scope of this Act."
The Act expressly confers standing to Plaintiffs as her parents to bring any
such claims. There can be no substantial question, therefore, that Plaintiffs
may bring an action against a party to the state court proceedings in this court
for claimed constitutional deprivations or violations of federal law occasioned
on their daughter relating to the withholding or withdrawal of food, fluids, or
medical treatment necessary to sustain her life. Whether the Plaintiffs may
bring claims in federal court is not the issue confronting the court today,
however. The issue confronting the court is whether temporary injunctive relief
is warranted.
Applicable
Standards
While there may be substantial issues
concerning [*5] the
constitutionality of the Act, for purposes of considering temporary injunctive
relief, the Act is presumed to be constitutional. Benning v.
Georgia, 391 F.3d 1299, 1303 (11th Cir. 2004).
The purpose
of a temporary restraining order, like a preliminary injunction, is to protect
against irreparable injury and preserve the status quo until the district court
renders a meaningful decision on the merits. Canal Auth. of State of
Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). A
district court may grant a preliminary injunction only if the moving party shows
that:
(1) it has a
substantial likelihood of success on the merits;
(2) irreparable
injury will be suffered unless the injunction issues;
(3) the
threatened injury to the movant outweighs whatever damage the proposed
injunction may cause the opposing party; and
(4) if issued, the
injunction would not be adverse to the public
interest.
Klay v. United Healthgroup,
Inc., 376 F.3d 1092, 1097 (11th Cir. 2004); Suntrust Bank v. Houghton
Mifflin Co., 268 F.3d 1257, 1265 (11th Cir. 2001). A preliminary
injunction is "an extraordinary [*6] and drastic remedy" and is "not to be
granted unless the movant 'clearly established the burden of persuasion' as to
the four prerequisites." United States v. Jefferson
County, 720 F.2d 1511, 1519 (11th Cir. 1983) (quoting Canal Auth. of State of
Florida, 489 F.2d at 573). n2
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Footnotes - - - - - - - - - - - - - - -
n2 The Act does not address
the traditional requirements for temporary injunctive relief. Accordingly, these
standards control whether temporary injunctive relief is warranted,
notwithstanding Congress' intent that the federal courts determine de novo the merits of Theresa Schiavo's claimed constitutional
deprivations.
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It is apparent that Theresa Schiavo will die unless temporary injunctive relief is
granted. This circumstance satisfies the requirement of irreparable injury.
Moreover, that threatened injury outweighs any harm the proposed injunction
would cause. To the extent Defendants urge that Theresa Schiavo would be harmed by the invasive procedure reinserting
the feeding tube, this court finds [*7] that death outweighs any such harm.
Finally, the court is satisfied that an injunction would not be adverse to the
public interest. Notwithstanding these findings, it is essential that Plaintiffs
establish a substantial likelihood of success on the merits, which the court
finds they have not done.
The first of the four prerequisites to
temporary injunctive relief is generally the most important. Gonzalez v.
A substantial likelihood of success on the merits requires a
showing of only likely or
probable, rather than certain,
success. Home Oil Company, Inc. v.
Sam's East, Inc., 199 F. Supp. 2d 1236, 1249 (M.D. Ala. 2002)
(emphasis in original); see also
Ruiz, 650 F.2d at
565. "Where the 'balance [*8] of the equities weighs heavily in favor of
granting the [injunction],' the movant need only show a 'substantial case on the
merits.'" Garcia-Mir v.
Meese, 781 F.2d 1450, 1453 (11th Cir. 1986) (citing Ruiz, 650 F.2d at
565).
This court has carefully considered the Act and is mindful of
Congress' intent that Plaintiffs have an opportunity to litigate any deprivation
of Theresa Schiavo's federal rights. The Court is
likewise mindful of Congress' directive that a de novo determination be made
"notwithstanding any prior State court determination." In resolving Plaintiffs'
Motion for Temporary Restraining Order, however, the court is limited to a
consideration of the constitutional and statutory deprivations alleged by
Plaintiffs in their Complaint and motion. Because Plaintiffs urge due process
violations are premised primarily on the procedures followed and orders entered
by Judge Greer in his official capacity as the presiding judge in the dispute
between Michael Schiavo and Plaintiffs, their Complaint
necessarily requires a consideration of the procedural history of the state
court case to determine whether there is a showing of any due process [*9] violations. On the face
of these pleadings, Plaintiffs have asserted five constitutional and statutory
claims. To obtain temporary injunctive relief, they must show a substantial
likelihood of success on at least one claim. n3
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n3 Plaintiffs have
submitted affidavits of health care professionals regarding Theresa's medical
status, treatment techniques and therapies which are available and their
opinions regarding how and whether these treatments might improve Theresa's
condition. Plaintiffs have not, however, discussed these affidavits in their
papers and how they relate to the claimed constitutional
deprivations.
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A. Count I - Violation
of Fourteenth Amendment Due Process Right to a Fair and Impartial
Trial
Plaintiffs allege in Count I that Theresa Schiavo's Fourteenth Amendment right to a fair and impartial
trial was violated, contending that the presiding judge "became Terri's health
care surrogate" and "also purported to act as an impartial trial judge in the
same proceeding." (Dkt. 1, PP 47-48). They [*10] allege that once he "became an advocate
for Terri's death, it became impossible for Judge Greer to maintain his role as
an impartial judge in order to review his own decision that Terri would want to
die." (Dkt. 1, P 49). Finally, they allege that "Judge Greer's dual and
simultaneous role as judge and health-care surrogate denied Terri a fair and
impartial trial." (Dkt. 1, P 50). These contentions are without
merit.
Plaintiffs offer
no authority for their contention that Judge Greer compromised the fairness of
the proceeding or the impartiality of the court by following
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n4 During argument, Plaintiffs' counsel explained their
criticism of Judge Greer's official actions as Judge Greer having exceeded his
lawful authority by acting as a guardian contrary to Fla. Stat. § 744.309(1)(b). Contrary to
Plaintiffs' argument, § 744.309 merely prohibits a judge from acting as a
guardian except under certain specified familial
circumstances.
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Plaintiffs' argument effectively ignores the role of the
presiding judge as judicial fact-finder and decision-maker under the
B. Count II - Violation of
Fourteenth Amendment Procedural Due Process Rights
In Count
II, Plaintiffs contend that Theresa Schiavo's Fourteenth
Amendment procedural due process rights were violated by Judge Greer's (1)
failure to appoint a guardian ad
litem (Dkt. 1, P 53), (2) failure to appoint an independent attorney
to represent Theresa Schiavo's legal rights (Dkt. 1, P
54) and (3) denial of what Plaintiffs describe as "access to court" by his
"failure to ever meet Terri personally" and failure to "personally assess
Terri's level of cognition and her responsiveness" (Dkt. 1, P
55).
Initially, the Court finds no authority recognizing as a matter of
federal constitutional or statutory right that a state trial judge is required
to "personally assess" a ward's "level of cognition [*14] and ...responsiveness." Fla. Stat. § 744.3725, on which Plaintiffs
rely, is applicable to an action seeking to commit the ward to a facility and
other circumstances not relevant to this case. Plaintiffs' conclusory allegation
that Judge Greer denied Theresa Schiavo access to court
by not requiring her presence is without merit.
With respect to
Plaintiffs' contention that Judge Greer violated Theresa Schiavo's procedural due process rights by failing to appoint
a guardian ad litem, the record
belies this contention. In June, 1998, Judge Rives sua sponte appointed Richard L. Pearse,
Jr., Esq. as guardian ad litem
"for the purpose of reviewing the request for termination of life support on
behalf of the wards [sic]." In re
Guardianship of Schiavo, No. 90-2908-GD-003
(Pinellas Cty.
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- - -
n5 The record also reveals that attorney John H. Pecarek was
appointed as guardian ad litem
early in the proceedings. In re Guardianship
of Schiavo, No. 90-2908-GD-003 (Pinellas Cty.
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Plaintiffs' last contention
is that Theresa Schiavo's procedural due process rights
were violated by Judge Greer's refusal to appoint an independent attorney to
represent her interests. The due process clause is [*16] implicated when there is a "deprivation of
life, liberty or property at the hands of the government." Grayden v. Rhodes,
345 F.3d 1225, 1232 (11th Cir. 2003). If one or more of these
constitutionally protected interests is at stake, as they undoubtedly are in
this case, the due process clause requires notice and the opportunity to be
heard. Id. "It is . . .
fundamental that the right to notice and an opportunity to be heard must be
granted at a meaningful time and in a meaningful manner." Fuentes v. Cortes,
407 U.S. 67, 80 (1972). Unquestionably, in some circumstances, a meaningful
opportunity to be heard includes the right to be represented by counsel.
However, "due process is a flexible concept that varies with the particular
circumstances of each case, and to determine the requirements of due process in
a particular situation we must apply the balancing test articulated in Mathews v.
Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18 (1976)." Grayden, 345 F.3d
at 1232-33.
The Mathews balancing test requires
consideration of three distinct factors: "First, the private interest that will
be affected by the official [*17] action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards; and finally,
the Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail." Mathews, 424 U.S.
at 335.
The first factor weighs the interest at stake. Plaintiffs
urge that Theresa Schiavo's life is at stake, while
Defendant argues that her liberty to exercise her right to refuse medical
treatment is the interest being adjudicated. In either case, a fundamental and
important interest is implicated in the court proceedings determining the
removal of artificial life support.
The second Mathews factor requires consideration of
the risk of erroneous deprivation under the procedures used and the probable
value of the additional protections urged by the Plaintiffs. Theresa Schiavo's case has been exhaustively litigated, including an
extensive trial, followed by another "extensive hearing at which many highly
qualified physicians testified" to reconfirm that no meaningful
treatment [*18] was
available, and six appeals. As the Florida Second District Court of Appeal
stated, "few, if any, similar cases have ever been afforded this heightened
level of process." Schiavo VI, 2005 WL 600377 at
*3.
Throughout the proceedings, the parties, represented by able counsel,
advanced what they believed to be Theresa Schiavo's
intentions concerning artificial life support. In
With regard to the third factor, without question the
state of Florida has an interest in the welfare of its citizens and in the legal
process for adjudicating disputed claims such as were presented to Judge Greer
in this case, as evidenced by Florida's well defined statutory scheme. The
court's inherent authority to appoint [*19] a guardian ad litem, consult independent experts or
appoint an attorney if warranted protects the state's interest.
Balancing
the three factors, this court concludes that Theresa Schiavo's life and liberty interests were adequately protected
by the extensive process provided in the state courts. Defendant Michael Schiavo and Plaintiffs, assisted by counsel, thoroughly
advocated their competing perspectives on Theresa Schiavo's wishes. Another lawyer appointed by the court could
not have offered more protection of Theresa Schiavo's
interests. Accordingly, Plaintiffs have not established a substantial likelihood
of success on the merits on Count II.
C. Count Three - Violation of Fourteenth Amendment
Right to Equal Protection of the Law
For the same reasons
relief under Count I was not appropriate, the relief sought in Count III via the
equal protection clause is without merit. Plaintiff has not established a
substantial likelihood of success on the merits of the claims set forth in Count
III. See Cruzan v. Missouri Dept. of
Health, 497 U.S. 261, 287 n.12, 111 L. Ed. 2d 224 (1990) ("The
differences between the choice made by a competent person to refuse [*20] medical treatment, and
the choice made for an
incompetent person by someone else to refuse medical treatment, are so obviously
different that the State is warranted in establishing rigorous procedures for
the latter class of cases which do not apply to the former class.") (emphasis in
original).
D. Counts IV and V -
Violation of
Plaintiffs bring Counts IV and V alleging that Theresa
Schiavo's right to exercise her religion has been
burdened by the state court's order to remove the feeding tube. With respect to
Count IV of the Complaint, Plaintiffs allege a claim under the Religious Land
Use and Institutionalized Persons Act (42 U.S.C. § 2000cc-1), claiming that her rights to free
exercise of her religion have been burdened by the state court's order
authorizing removal of her feeding tube in that removal of the feeding tube
"imposes a substantial burden on Terry's religious free exercise." That statute
expressly requires, however, that "no government shall impose a substantial
burden on the religious exercise of [*21] a person . . ." 42 U.S.C. § 2000cc(a) (emphasis added).
In Count V,
Plaintiffs make a similar contention under the 42 U.S.C. § 1983 and the free exercise clause, alleging that
"Terry's religious beliefs are burdened" by execution of order "in that Terry is
being forced to engage in an activity contrary to the tenets of her Roman
Catholic faith . . . ." Plaintiffs allege that Defendants have a constitutional
duty to accommodate "Terry's sincerely-held religious
beliefs."
Undoubtedly, Terry Schiavo enjoys, by
virtue of 42 U.S.C. § 2000-cc(a), a statutorily protected right not to
have substantial burdens placed on her religious exercise by the government. The
plain language of the statute prohibits government from imposing a substantial
burden on the religious exercise of an individual such as Theresa Schiavo. Similarly, the Free Exercise Clause contained in the
First Amendment of the Constitution expressly protects the exercise of religion.
In their Complaint, Plaintiffs allege that the state court's order imposes a
substantial burden on Theresa Schiavo's free exercise of
religion. (Complaint, P 67).
In order [*22] to succeed on either claim, however,
Plaintiffs must establish that the Defendants were state actors. Plaintiffs'
claims fail because neither Defendant Schiavo nor
Defendant Hospice are state actors. Moreover, the fact that the claims were
adjudicated by a state court judge does not provide the requisite state action
for purposes of the statute or the Fourteenth Amendment. See Harvey v. Harvey,
949 F.2d 1127, 1133-34 (11th Cir. 1992)("Use of the courts by private
parties does not constitute an act under color of state law."); Torres v. First State Bank of
Sierra County, 588 F.2d 1322, 1326-27 (10th Cir. 1978)("We do not
think that the 'color of law' reference in § 1983 was intended to encompass a
case such as this one, where the only infirmities are the excesses of the court
order itself, . . . subject to the normal processes of appeal."); see also Dahl v. Akin, 630
F.2d 277, 281 (5th Cir. 1980).
This court appreciates the gravity of
the consequences of denying injunctive relief. Even under these difficult and
time strained circumstances, however, and notwithstanding Congress' expressed
interest in the welfare of Theresa Schiavo, [*23] this court is
constrained to apply the law to the issues before it. As Plaintiffs have not
established a substantial likelihood of success on the merits, Plaintiffs'
Motion for Temporary Restraining Order (Dkt. 2) must be DENIED.
DONE AND ORDERED in chambers this 22nd day
of March, 2005.
JAMES D.
WHITTEMORE
United States
District Judge