United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM OPINION AND ORDER
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.
Dr. James Gekas lost his privileges to admit patients to
TriStar Centennial Medical Center (“TriStar”), he
filed a 55-page pro se Complaint against TriStar and
its owner/operator, HCA Health Services of Tennessee, Inc.
(“HCA”), asserting a number of federal and state
law causes of action. Properly characterizing the Complaint
as a “document that ranges freely over various
situations that occurred over the course of [Dr. Gekas's]
professional association with [Defendants]” (Doc. No.
27 at 2), the Magistrate Judge recommends that the federal
claims be dismissed, and that this Court not exercise
supplemental jurisdiction over the state law claims. Having
undertaken a de novo review of the record in
accordance with Rule 72(b) of the Federal Rules of Civil
Procedure, and notwithstanding the Objection (Doc. No. 28)
filed by Dr. Gekas, the Court will accept and adopt the
Magistrate Judge's Report and Recommendation (“R
& R”) (Doc. No. 27).
& R cites Logan v. HCA, Inc., No. 3:05-00006,
2005 WL 3240624 (M.D. Tenn. Nov. 30, 2005) and Carter v.
Bluecross Blueshield of Tenn., Inc., No. 1:05-cv-304,
2006 LEXIS 24899 (E.D. Tenn. April 24, 2006) for the
proposition that the Health Care Quality Improvement Act
(“HCQIA”), 42 U.S.C. § 11101, et
seq., does not create a private cause of action. Dr.
Gekas insists that the “HCQIA does in fact allow a
private cause of action” and points to the
“authoritative references” set forth in
“the brilliant book by Gregory Piche” that
“presents 10 cased [sic] that were filed in different
Federal and State courts” in which “the immunity
was denied by judges and juries and damages were
awarded.” (Doc. No. 28 at 3). He also asserts that the
HCQIA when originally presented to Congress provided absolute
immunity, but was changed prior to passage to allow only
qualified immunity. Dr. Gekas further relies on Clark v.
Columbia/HCA Info. Servs., Inc., 25 P.3d 215, 220 (Nev.
2001) for the proposition that courts will not idly stand by
when a peer review board acts arbitrarily or capriciously
under the HCQIA.
is a marked difference between a statute that grants absolute
or qualified immunity to suit, and a statute that allows for
a private cause of action. The former presupposes that there
exists a viable cause of action and provides a potential
defense to the suit. The latter permits maintenance of the
suit in the first instance.
as the court can tell, the circuit courts of appeal are
uniform in holding that the HCQIA does not provide for a
private cause of action. See Morris v. Emory Clinic,
Inc., 402 F.3d 1076, 1083 (11th Cir. 2005); Singh v.
Blue Cross/Blue Shield of Massachusetts, Inc., 308 F.3d
25, 45 (1st Cir. 2002); Wayne v. Genesis Med. Ctr.,
140 F.3d 1145, 1148 (8th Cir.1998); Hancock v. Blue
Cross-Blue Shield of Kan., Inc., 21 F.3d 373, 374-75
(10th Cir.1994). The district courts within the Sixth Circuit
that have decided the issue are in accord with this
prevailing, if not unanimous, view. See Brintley v. St.
Mary Mercy Hosp., 904 F.Supp.2d 699, 741 (E.D. Mich.
2012); Golio v. Adena Health Sys., No.
2:11-CV-00757, 2012 WL 1409535, at *5 (S.D. Ohio Apr. 23,
2012); Badri v. Huron Hosp., 691 F.Supp.2d 744, 769
(N.D. Ohio 2010); Carter, 2006 WL 1129390, at *4;
Logan,, 2005 WL 3240624; Azmat v. Shalala,
No. CIV.A. 3:99CV-487-S, 2000 WL 33975223, at *2 (W.D. Ky.
June 7, 2000).
on which Dr. Gekas relies, is not to the contrary. The
question there was whether the plaintiff-physician “had
alleged conduct that is actionable under our [Nevada] state
laws[, ]” 25 P.3d at 221, not whether there was a
federal cause of action under the HCQIA for a physician who
was challenging the decision of a hospital peer review
the recommended dismissal of his constitutional claims, Dr.
Gekas argues that HCA is subject to “the governmental
power of continuing oversite [sic]” in its provision of
healthcare and, as such, is “intertwined” with
the government so as to make it a state actor. (Doc. No. 28
at 5). He also contends that the Thirteenth Amendment does
not require that the defendant be a state actor because
“it imposes liability on private persons in a variety
of conduct criminally punishable and civilly
remediable.” (Id. at 3).
though “[t]he Thirteenth Amendment, unlike the
Fourteenth, in and of itself reaches purely private conduct,
” United States v. Nelson, 277 F.3d 164, 175
(2d Cir. 2002), the Thirteenth Amendment was enacted to
eliminate “the ‘badges and incidents' of
slavery, ” Campbell v. Robb, 162 F. App'x
460, 474 (6th Cir. 2006). In relevant part, it provides:
Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction.
U.S. Const. amend XIII, cl. 1.
terms, the Thirteenth Amendment provides individuals with the
right to be free from involuntary servitude and slavery. It
certainly does not encompass a doctor's claim that his
privileges were revoked after he was wrongfully accused of
harassment and other improper conduct. See Lagayan v.
Odeh, 199 F.Supp.3d 21, 31 (D.D.C. 2016) (observing that
a Thirteenth Amendment claim must be “motivated by some
class-based, invidiously discriminatory animus);
Stallworth v. New York, No. 16CV03059PAEBCM, 2017 WL
4355897, at *15 (S.D.N.Y. July 27, 2017) (noting that
“to state a claim under the Thirteenth Amendment, a
plaintiff must demonstrate he has been subjected to
‘compulsory labor akin to African slavery which in
practical operation would tend to produce like undesirable
results, '” and that such a claim will not lie
where an employee “is free to walk away from any job he
or she finds unsatisfactory”); Williams v. City of
Austin, No. 1:16-CV-1338-RP, 2017 WL 2963513, at *9
(W.D. Tex. July 11, 2017) (stating that the “Thirteenth
Amendment does not establish an independent cause of action
for employment discrimination”).
Gekas's argument that state action exists for purposes of
his other constitutional claims also fails. The fact that
TriStar and HCA are licensed and extensively regulated by the
state, and a large part of their revenues are derived from
government sources, including Medicare and Medicaid, is
insufficient to show state action. Sarin v. Samaritan
Health Ctr., 813 F.2d 755, 759 (6th Cir. 1987);
Crowder v. Conlan, 740 F.2d 447 (6th Cir. 1984);
Cottman v. Carespring, Inc., No. 1:17-CV-170, 2017
WL 4574830, at *2 (S.D. Ohio Oct. 13, 2017); Talwar v.
Catholic Healthcare Partners, No. 3:05 CV 7437, 2006 WL
3526792, at *2 (N.D. Ohio Dec. 6, 2006). Nor does the fact
that Defendants may rely on the immunity provided by the
HCQIA supply the necessary state action. Wong v.
Dep't of Health & Human Servs., No.
2:10-CV-00249-KJD, 2011 WL 769973, at *5 (D. Nev. Feb. 26,
2011); Logan, 2005 WL 3240624, at *4; Freilich
v. Bd. of Dir. of Upper Chesapeake Health, Inc., 142
F.Supp.2d 679, 691 (D. Md. 2001).
absence of a viable federal claim, the Magistrate Judge did
not err in recommending dismissal of Dr. Gekas's state
law claim pursuant to 28 U.S.C. § 1367(c)(3). While Dr.
Gekas argues that he did not forum shop and that he is
prepared to conduct depositions, there is a “strong
presumption in favor of declining to exercise jurisdiction
over supplemental state-law claims after dismissing federal
anchor claims[.]” Martinez v. City of
Cleveland, 700 F. App'x 521, 523 (6th Cir. 2017).
Retention of state law claims may be appropriate where the
case has been pending for a long time, discovery has been
completed, the record is voluminous, a court has spent
significant time on the litigation, and there are pending
motions for summary judgment, Harper v. AutoAlliance
Int'l, Inc., 392 F.3d 195, 211 (6th Cir. 2004), but
that is not the situation here. This case is relatively new,
discovery has been stayed pending a ruling on the Motion to
Dismiss, and the only real time the Court has invested in the
matter is in deciding whether to grant or deny that Motion.
Dr. Gekas complains that the recommended dismissal of this
case “violates virtually every fundamental right of
this democracy, ” particularly given that he is
“a citizen with a 55-page document of numerous false,
illegal, [and] unsupported acts against him[.]” (Doc.
No. 28 at 8). Dr. Gekas also asserts that he “clearly
ha[s] the right to ask for a new interpretation of any
previous legal ...