United States District Court, N.D. Alabama, Southern Division
JOHN T. CARPENTER, JR., Plaintiff,
UNIVERSITY OF ALABAMA HEALTH SERVICES FOUNDATION, P.C., Defendant.
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.
case is before the court on the Motion for Summary Judgment
filed by Defendant University of Alabama Health Services
Foundation, P.C. (“Defendant” or
“UAHSF”), the sole remaining Defendant in this
case. (Doc. # 40). The parties have fully briefed this Motion
(Docs. # 41, 44, 48), and it is under submission. In this
suit, Plaintiff seeks a declaration that his departure from
the staff of UAHSF, as well as the faculty of the University
of Alabama at Birmingham's (“UAB”) School of
Medicine, violated his procedural due process rights under
federal law and Alabama state law. (Complaint at ¶
He also seeks an order directing a “hearing in
accordance with requirements of law and UAB's own
internal procedures for termination of tenured faculty,
” reinstatement pending such a hearing, restoration of
clinical privileges, and back pay. (See id.).
Defendant argues that any claim against it is moot, that
Plaintiff waived his procedural due process rights by
resigning, and that it is not a state actor who must comply
with procedural due process requirements. After careful
review, and for the reasons explained below, the court
concludes that Defendant is entitled to summary judgment on
the federal procedural due process count raised against it,
and that Plaintiff cannot succeed on any federal procedural
due process claim because the undisputed evidence shows he
voluntarily resigned from his faculty and staff positions.
August 1973, the UAB School of Medicine hired Plaintiff as a
professor. (Carpenter Deposition at 24). Plaintiff
obtained tenure at UAB in 1977. (Id.). In 1974,
Plaintiff signed an employment agreement with Defendant.
(Doc. # 40-7). That employment agreement stated that
Plaintiff was “a regular member of the Faculty of the
School of Medicine of the University of Alabama in
Birmingham.” (Id. at 2). Ultimately, Plaintiff
worked at UAB's School of Medicine for forty years.
(Carpenter Deposition at 24). Plaintiff practiced
“oncology with a specialty in breast cancer.”
(Id. at 15).
September 2013, Dr. Boris Pasche, who worked as the deputy
director of the cancer center at UAB's School of
Medicine, received a call from Dr. Jennifer De Los Santos.
(Pasche Deposition at 5, 31). De Los Santos informed Pasche
that she had reported Plaintiff to a risk management
committee because Plaintiff had utilized hormone therapy for
a long period of time on a patient whose breast cancer was
progressing. (Id. at 31). Plaintiff has recounted
that he kept the patient on hormone therapy because she
suffered from severe depression for several months before
agreeing to undergo chemotherapy. (Carpenter Deposition at
61-62). Pasche instructed Dr. Lisle Nabell to review
Plaintiff's patient records to determine whether the
reported issue was an isolated incident. (Pasche Deposition
at 34). Pasche also contacted Dr. Robert Bourge, who served
as the vice chair of clinical affairs in UAB's Department
of Medicine, to inform him about the faculty issue.
(Id. at 31-32). According to Pasche, Bourge
discussed the matter with the risk management department and
Dr. Seth Landefeld, the chair of UAB's Department of
Medicine, and asked Pasche to set up a meeting with
Plaintiff. (Id. at 32).
has testified that, on September 10, 2013, Pasche's
secretary contacted him around 4:00 P.M. and asked him to
attend a meeting at Pasche's office after Plaintiff
finished his clinical assignments. (Carpenter Deposition at
57). Plaintiff received no advance warning about the purpose
of the meeting. (Id. at 59). Plaintiff entered the
meeting and observed Pasche, Bourge, and other administrators
from Landefeld's office. (Id. at 57-58). Pasche
informed Plaintiff of De Los Santos's complaint that
Plaintiff had continued preoperative treatment of a cancer
patient for an unusually long period. (Id. at
60-61). According to Plaintiff, Pasche offered him no
opportunity to respond to the complaint. (Id. at
66). Pasche also explained to Plaintiff that he had discussed
the matter with the risk management committee and that
“he had told the committee that he thought [Plaintiff]
had no clinical judgment, and that if anybody came to see me
on a given day, that . . . there was absolutely no way to
predict what advice [Plaintiff] might give them.”
(Id. at 62-63). Pasche related to Plaintiff that the
risk management committee had concluded that such a doctor
could not practice at UAB. (Id. at 63). Pasche told
Plaintiff that he “would have to resign.”
Pasche discussed the incident that led to the meeting, Bourge
told Plaintiff “in a rather leering voice” that
Plaintiff's “other alternative [was] to go to a
hearing, the reports of which [would] be reported to the
National Practitioner Database.” (Id. at
63). Bourge boasted that he had never lost such a hearing.
(Id. at 63-64). Bourge did not describe how such a
hearing would be conducted. (Id. at 164-65).
Plaintiff was permitted to complete his patient notes but
told that his patients would be reassigned to other doctors.
(Id. at 64). Pasche and Bourge did not ask Plaintiff
to decide whether to resign during the meeting. (Id.
at 67). They did not give him a specific period of time in
which to decide whether to resign or contest the
charges. (Id.). After the meeting
adjourned, Pasche told Plaintiff “that he felt that it
would not be possible to get the [risk management] committee
to reconsider its decision, and that he also thought that it
would not be possible for [Plaintiff] to practice there given
the information he had told them about [Plaintiff].”
(Id. at 75-76). Pasche explained that Plaintiff
might be able to continue teaching and research in a
voluntary, unpaid faculty position. (Id. at 76).
has testified that the September 10 meeting intimidated him
because he had received no advance warning that he would be
asked to resign. (Id. at 64). He felt that the
complaint “distorted” the clinical care he had
provided. (Id. at 159). He understood that Pasche
and Bourge had presented him a choice to either resign or
contest the charges against him in a formal proceeding.
(Id. at 66-67). But, Plaintiff believed that he
would not be reinstated because he had been told that the
risk committee's decision was final and Pasche had
asserted that he “would never recommend [Plaintiff] for
practice again.” (Id. at 159-60). And, if the
termination was reported to the National Practitioner
Database, Plaintiff believed that he would have to explain
the reasons for the termination to another prospective
employer. (Id. at 160-61).
returned to his office on September 10, Plaintiff told his
nurse that he was “going to have to resign.”
(Id. at 80-82). Plaintiff briefly described the
meeting to his wife and “told her that I was going to
be forced to resign because of the things that had been said
about me.” (Id. at 83-84). Plaintiff did not
speak with an attorney after the meeting and did not speak to
anyone else at UAB on September 11, 2013. (Id. at
85). He discussed the meeting with one or two friends, but he
cannot recall what he discussed during those conversations.
(Id.). On September 11, 2013, Plaintiff
“mostly thought about what had happened and tried to
put some perspective on it and to think about realistic
likelihoods of pursuing one way or another.”
(Id.). He drafted some notes for the patients he had
seen on September 10. (Id. at 86). He did not attend
a meeting of UAB's institutional review board on
September 11. (Id. at 104-05). On September 11,
a UAB employee drafted a resignation letter for Plaintiff, in
which he would resign from his positions at UAB and UAHSF.
(See Doc. # 40-5 at 85).
September 12, 2013, Plaintiff met with Pasche again for
twenty to thirty minutes. (Carpenter Deposition at 89-90).
During that meeting, Pasche reiterated that “he thought
there was no possibility of reconsideration or reversal of
the committee's decision and that he thought there was
zero chance that [Plaintiff] could ever practice again at UAB
no matter what.” (Id. at 89). Pasche presented
Plaintiff with a pre-written resignation letter.
(Id. at 90). The letter states that Plaintiff
voluntarily resigned from his professorship at UAB and his
staff position at UAHSF, effective September 30, 2013. (Doc.
# 40-4 at 60). It also states that Plaintiff would
“provide a written plan for ongoing research and
academic activities” that he wished to continue
pursuing. (Id.). Plaintiff signed the resignation
letter during the meeting. (Carpenter Deposition at 90-91).
When he signed the letter, he believed that he was choosing
to resign and foregoing a termination hearing. (Id.
at 35, 92-93). Thereafter, on September 12, Pasche sent an
email to the oncology faculty and staff at UAB informing them
of Plaintiff's retirement. (Doc. # 40-4 at 61).
submitting the resignation letter, Plaintiff had second
thoughts and decided that he did not want to resign from UAB.
(Carpenter Deposition at 35). In late September 2013,
Plaintiff met with Landefeld and asked him for permission to
withdraw the resignation. (Id. at 35-36, 99-100).
Plaintiff brought medical articles to support his
preoperative treatment of a patient, but Landefeld explained
that he could not evaluate the matter. (Id. at
100-01). Landefeld told Plaintiff that he could only regain
clinical privileges if Pasche and Nabell agreed to reinstate
them. (Id. at 101). In late September or early
October 2013, Landefeld met with Plaintiff and Dr. Kirby
Bland in another meeting. (Id. at 101-02).
Thereafter, Plaintiff discussed a possible reinstatement with
Nabell and asked if she would support his reinstatement.
(Id. at 108-09). In an October 16, 2013 email to
Landefeld, Bourge confirmed that Nabell and he did not
support Plaintiff's reinstatement. (Doc. # 40-5 at 90).
(See also Id. at 94-95) (emails by Nabell and Pasche
discussing their opposition to Plaintiff's
reinstatement). On November 20, 2013, a senior associate dean
at UAB told Plaintiff that (1) UAB and UAHSF had accepted his
resignation, (2) no mechanism existed for rescinding an
accepted resignation, and (3) the resignations were final.
(Id. at 68-69).
Standard of Review
Federal Rule of Civil Procedure 56, summary judgment is
proper “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
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party asking for
summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and
identifying those portions of the pleadings or filings which
it believes demonstrate the absence of a genuine issue of
material fact. Id. at 323. Once the moving party has
met its burden, Rule 56 requires the non-moving party to go
beyond the pleadings and -- by pointing to affidavits, or
depositions, answers to interrogatories, and/or admissions on
file -- designate specific facts showing that there is a
genuine issue for trial. Id. at 324.
substantive law will identify which facts are material and
which are irrelevant. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)
(“Anderson”). All reasonable doubts
about the facts and all justifiable inferences are resolved
in favor of the non-movant. See Allen v. Bd. of Pub.
Educ. for Bibb Cty., 495 F.3d 1306, 1314 (11th Cir.
2007); Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1115 (11th Cir. 1993). A dispute is genuine “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving ...