Mahorner v. Florida

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

JAMES G. MAHORNER,

Plaintiff,

Case No. 3:08-cv-300-J-33TEM

v.
STATE OF FLORIDA and BILL McCOLLUM,
Attorney General of Florida,
Defendants.
_____________________________________/
ORDER
This matter comes before the Court pursuant to Defendants’
Motion to Dismiss or, Alternatively, Motion for Summary Judgment
(Doc. # 3), which was filed on April 21, 2008. Plaintiff filed a
Response in Opposition to Defendants’ dispositive motion on April
28, 2008. (Doc. # 6). Also on April 28, 2008, Plaintiff filed his
Motion for Summary Judgment (Doc. # 7), and Defendants filed their
Response in Opposition to Plaintiff’s Motion for Summary Judgment
on May 1, 2008. (Doc. # 9). On July 9, 2008, Plaintiff filed his
Motion for Accelerated Ruling (Doc. # 11). For the reasons that
follow, this Court grants Defendants’ motion to dismiss the
complaint in this case.
Plaintiff’s Complaint
I.
Pro se Plaintiff James G. Mahorner, a seventy-six-year-old
former practicing attorney, filed his complaint seeking injunctive
and declaratory relief on March 25, 2008. (Doc. # 1).
Specifically, Plaintiff “seeks a declaratory judgment of

unconstitutionality and an injunction barring enforcement of the
assisted suicide provision of Section 782.08, Florida Statute,
Assisting Self-Murder.” (Doc. # 1 at 1). Plaintiff asserts in his
complaint that a medical condition associated with “ischemic
occurrences created by stress” and “multiple mini-strokes” has
depleted Plaintiff’s mental capacity. (Doc. # 1 at ¶ 2.1).
Further, Plaintiff submits that he is “under constant threat of
substantial loss of competency and/or consciousness. Once such
occurs, Plaintiff will have no personal choice and, therefore, must
select his choice and now obtain judicial approval of his choice to
have a non-lingering, quick, medically-created death unrelated to
the pain of starvation.” (Doc. # 1 at ¶ 2.1). Plaintiff desires to
hire a physician to inject him with “a lethal pain-relieving” drug
to hasten his demise. (Doc. # 1 at ¶ 4.1).
However, Florida Statute Section 782.08, Florida’s Assisted-
Suicide Statute, clearly criminalizes assisted suicide: “Every
person deliberately assisting another in the commission of self-
murder shall be guilty of manslaughter, a felony of the second
degree, punishable as provided in Sections 775.082, 775.083, or
775.084.”
Plaintiff asserts a number of arguments in his challenge of
Florida’s Assisted-Suicide Statute, Section 782.08. Prominently,
Plaintiff asserts that Florida’s Assisted-Suicide Statute violates
the Equal Protection Clause as well as the Due Process Clause of

the Fourteenth Amendment. Notably, Plaintiff argues:
The statute -– by making assistance by physicians,
family, or others a felony –- prevents competent,
terminally ill adults from exercising the right to choose
or pre-choose, before the occurrence of illness, the
hastening of inevitable death by a medically assisted
quick procedure that avoids lingering, painful death by
starvation. The statute denies these individuals the
liberty and privacy to decide what to do with their own
bodies and lives and forces them to endure pain, anguish,
and loss of dignity through a tortuous death rather than
receiving a medically assisted non-tortuous, painless
death. The statute denies the equal protection given to
convicted murders who are guaranteed a quick, painless
death under a medical procedure. It denies the painless,
medically assisted death given to dogs and other animals
because a dog owner permits death by starvation rather
than the quick medically assisted death given by a
veterinarian, the owner is sentenced for the felony of
the aggravated animal abuse. The statute denies the
equal protection given to those quickly terminated by
removal from life supporting pulmonary machines. The
last four months of life in a medical situation are more
expensive than the treatment given during the preceding
adult lifetime. The tortuous lingering death required by
anti-assisted suicide statutes takes plaintiff’s property
without due process so that the transfer of plaintiff’s
funds to the hospital provides extensive taxes for
federal and other governments that impact plaintiff and
other[s] similarly situated.
(Doc. # 1 at 1-2).
Thus, Plaintiff contends that, under Florida’s Assisted-Suicide
Statute, he fares worse than criminals facing the death penalty and
dogs euthanized by veterinarians. In addition, Plaintiff contends
that the Florida Assisted-Suicide Statute “denies [him] the equal
protection given to those quickly terminated by removal from life
supporting pulmonary machines.” (Doc. # 1 at 2). Further,
Plaintiff asserts, “Women are given control of their bodies with

medically assisted abortion and the denial of such comparable right
to males who have highly limited control of their bodies at time of
death is as chauvinistic as the draft laws of the past.” (Doc. # 1
at 2).1
Plaintiff seeks a declaration from this Court that the
Florida Assisted-Suicide Statute is unconstitutional. In the
alternative, Plaintiff seeks an order from this Court allowing him
to hire a physician to hasten his death under certain conditions.
II. Defendants’ Motion to Dismiss or Motion for Summary Judgment
Defendants assert that Plaintiff’s complaint should be
dismissed for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, or, in the alternative, that this
Court should enter summary judgment in favor of Defendants because
the United States Supreme Court has squarely addressed this issue
and Plaintiff has no right to an assisted suicide. See Washington
v. Glucksberg, 521 U.S. 702 (1997). The Court will address these
issues in turn.
III. Legal Standard
Motion to Dismiss
A.

1 Plaintiff’s complaint also contains a number of unsupported
and inflammatory allegations which appear to be unrelated to
Plaintiff’s pending request. For example, Plaintiff asserts,
“Special children whose blood type brings thousands of dollars per
withdrawal are kidnapped and held in slavery for their
productivity.” (Doc. # 1 at 1). This Court’s present order has
attempted to separate the wheat from the chaff.
4

On a motion to dismiss, a district court must accept as true
all the allegations in the complaint and construe them in the light
most favorable to the plaintiff. Jackson v. Bellsouth Telecomms.,
372 F.3d 1250, 1262 (11th Cir. 2004). A court must favor the
plaintiff with all reasonable inferences from the allegations in
the complaint. Stephens v. Dep’t of Health & Human Servs., 901
F.2d 1571, 1573 (11th Cir. 1990) (“On a motion to dismiss, the
facts stated in [the] complaint and all reasonable inferences
therefrom are taken as true.”). The complaint may not be dismissed
if the factual allegations, taken as true, suffice to “raise a
right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 127 S. Ct. 1955, 1964–65 (2007) (concluding that complaint
need not state “detailed factual allegations” but must state
sufficient factual allegations to raise right to relief above
speculative level). Thus, a complaint may be dismissed only if all
the factual allegations, taken as true and construed in the light
most favorable to the plaintiff, fail to raise a right to relief
above the speculative level.
B.
Motion for Summary Judgment
Summary judgment is appropriate “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.” Fed.R.Civ.P. 56(c). A factual

dispute alone is not enough to defeat a properly pled motion for
summary judgment; only the existence of a genuine issue of material
fact will preclude a grant of summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party. Mize v.
Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.
1996)(citing Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913,
918 (11th Cir. 1993)). A fact is material if it may affect the
outcome of the suit under the governing law. Allen v. Tyson Foods,
Inc., 121 F.3d 642, 646 (11th Cir. 1997). The moving party bears
the initial burden of showing the court, by reference to materials
on file, that there are no genuine issues of material fact that
should be decided at trial. Hickson Corp. v. N. Crossarm Co.,
Inc., 357 F.3d 1256, 1260 (11th Cir. 2004)(citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). “When a moving party has
discharged its burden, the non-moving party must then ‘go beyond
the pleadings,’ and by its own affidavits, or by ‘depositions,
answers to interrogatories, and admissions on file,’ designate
specific facts showing that there is a genuine issue for trial.”
Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir.
1995)(citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations or
evidence, the non-moving party’s evidence is presumed to be true

and all reasonable inferences must be drawn in the non-moving
party’s favor. Shotz v. City of Plantation, Fla., 344 F.3d 1161,
1164 (11th Cir. 2003). If a reasonable fact finder evaluating the
evidence could draw more than one inference from the facts, and if
that inference introduces a genuine issue of material fact, the
court should not grant summary judgment. Samples ex rel. Samples
v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988)(citing
Augusta Iron & Steel Works, Inc. v. Employers Ins. of Wausau, 835
F.2d 855, 856 (11th Cir. 1988)). However, if non-movant’s response
consists of nothing “more than a repetition of his conclusional
allegations,” summary judgment is not only proper, but required.
Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir. 1981), cert. denied,
456 U.S. 1010 (1982).
IV. Analysis
This Court has had the opportunity to review case law from the
United States Supreme Court, as well as from the Florida Supreme
Court, which direct the dismissal of Plaintiff’s complaint. This
Court appreciates that Plaintiff may be facing difficult issues
which, subjectively, cause Plaintiff to question the value of his
own life; however, this Court cannot provide the relief that
Plaintiff seeks via his complaint.
This Court will begin its analysis with a discussion of
Washington v. Glucksberg, 521 U.S. 702 (1997), a case which is
squarely on point and decisive as to the primary issues presented

in this case. In Glucksberg, physicians, terminally ill patients,
and “Compassion in Dying” an advocacy group, petitioned the
district court for an order finding that Washington’s ban of
physician-assisted suicide was unconstitutional. Similar to the
arguments presented by Plaintiff in the present case, the
plaintiffs in Glucksberg asserted “the existence of a liberty
interest protected by the Fourteenth Amendment which extends to a
personal choice by a mentally competent, terminally ill adult to
commit physician-assisted suicide.” Id. at 708. The district court
agreed with the plaintiffs and entered an order declaring
Washington’s statute barring physician-assisted suicide to be
unconstitutional. Id. The district court found that the statute
in question “places an undue burden on the exercise of [that]
constitutionally protected liberty interest . . . [and] violated
the Equal Protection Clause’s requirement that all persons
similarly situated be treated alike.” Id. at 708 (internal
citations omitted).
The defendants in Glucksberg, the State of Washington and its
Attorney General, appealed the district court’s ruling to the Ninth
Circuit. Id. A panel of the Court of Appeals for the Ninth Circuit
reversed the district court’s order, noting, “in the two hundred
and five years of our existence no constitutional right to aid in
killing oneself has ever been asserted and upheld by a court of
final jurisdiction.” Id. at 708-709 (citing Compassion in Dying v.

Washington, 49 F.3d 586, 591 (1995). Thereafter, the Ninth Circuit
reheard the case en banc, reversed the panel’s decision, and
affirmed the district court. Glucksberg, 521 U.S. at 709 (citing
Compassion in Dying v. Washington, 79 F.3d 790 (1996). The Ninth
Circuit upheld the district court’s order finding the ban of
assisted suicide as unconstitutional, emphasizing “the Constitution
encompasses a due process liberty interest in controlling the time
and manner of one’s death –- that there is, in short, a
constitutionally-recognized right to die.” Glucksberg, 521 U.S. at
709 (citing Compassion in Dying v. Washington, 79 F.3d at 816. The
Ninth Circuit did not address the district court’s equal protection
holding.
The United States Supreme Court granted certiorari and
reversed. The Court delved into a lengthy Due Process analysis
“examining our Nation’s history, legal traditions, and practices,”
noting that “[i]n almost every State –- indeed, in almost every
western democracy -– it is a crime to assist suicide.” Glucksberg,
521 U.S. at 710. The Court continued, “The States’ assisted-
suicide bans are not innovations. Rather, they are longstanding
expressions of the States’ commitment to the protection and
preservation of all human life.” Id. The Court further noted,
“opposition to and condemnation of suicide -– and, therefore, of
assisting suicide -– are consistent and enduring themes of our
philosophical, legal, and cultural heritages.” Id. at 711.

The Court described the history of assisted-suicide law and
then opened the door to debate, noting, “[t]hough deeply rooted,
the States’ assisted-suicide bans have in recent years been
reexamined and, generally, reaffirmed.” Id. at 716. The Court
explained that, due to advances in medicine and technology
“Americans today are increasingly likely to die in institutions,
from chronic illness.” Id. Due to this shift, “public concern and
democratic action are sharply focused on how best to protect
dignity and independence at the end of life.” Id. Against this
backdrop, the Court determined:
The history of the law’s treatment of assisted suicide in
this country has been and continues to be one of the
rejection of nearly all efforts to permit it. That being
the case, our decisions lead us to conclude that the
asserted “right” to assistance in committing suicide is
not a fundamental liberty interest protected by the Due
Process Clause. The Constitution also requires, however,
that Washington’s assisted-suicide ban be rationally
related to legitimate government interests. . . . This
requirement is unquestionably met here.
Id. at 728.
In closing, the Court indicated that Washington’s assisted-
suicide statute does not violate the Fourteenth Amendment either on
its face or as applied to competent, terminally ill adults who wish
to hasten their death. Id. at 735.2 “The question presented in

2 The Court invited future discussion; however, noting:
“Throughout the Nation, Americans are engaged in an earnest and
profound debate about the morality, legality, and practicality of
physician-assisted suicide. Our holding permits this debate to
10

this case is whether Washington’s prohibition against ‘causing’ or
‘aiding’ a suicide offends the Fourteenth Amendment to the United
States Constitution. We hold that it does not.” Id. at 705-706.
In a concurring opinion, Justice Stevens provides further
illumination of the issue before this Court. Commenting on the
sanctity of life and the value that each human being inherently
possesses, Justice Stevens offered as follows:
History and tradition provide ample support for refusing
to recognize an open-ended constitutional right to commit
suicide. Much more than the State’s paternalistic
interest in protecting the individual from the
irrevocable consequences of an ill-advised decision
motivated by temporary concerns is at stake. There is
truth in John Donne’s observation that “No man is an
island.”3 The State has an interest in preserving and
fostering the benefits that every human being may provide
to the community — a community that thrives on the
exchange of ideas, expressions of affection, shared
memories and humorous incidents as well as on the
material contributions that its members create and
support. The value to others of a person’s life is far
too precious to allow the individual to claim a
constitutional entitlement to complete autonomy in making
a decision to end that life. Thus, I fully agree with
the Court that the “liberty” protected by the Due Process

continue, as it should in a democratic society.” Id. at 735.
3 “Who casts not up his eyes to the sun when it rises? but who
takes off his eye from a comet when that breaks out? Who bends not
his ear to any bell which upon any occasion rings? but who can
remove it from that bell which is passing a piece of himself out of
this world? No man is an island, entire of itself; every man is a
piece of the continent, a part of the main. If a clod be washed
away by the sea, Europe is the less, as well as if a promontory
were, as well as if a manor of thy friend’s or of thine own were;
any man’s death diminishes me, because I am involved in mankind;
and therefore, never send to know for whom the bell tolls; it tolls
for thee.” J. Donne, Meditation No. 17, Devotions Upon Emergent
Occasions 86, 87 (A. Raspa ed. 1987).
11

Clause does not include a categorical “right to commit
suicide which itself includes the right to assistance in
doing so.”
Id. at 740-741.
Justice Stevens’ enlightening comments concerning the
intrinsic value of each human life are juxtaposed with the
following admonition, which is particularly pertinent to the
present case: “A State, like Washington, that has authorized the
death penalty and thereby has concluded that the sanctity of human
life does not require that it always be preserved, must acknowledge
that there are situations in which an interest in hastening death
is legitimate. Indeed, not only is that interest sometimes
legitimate, I am also convinced that there are times when it is
entitled to constitutional protection.” Id. at 741.
Thus, Glucksberg established that a statutory ban of assisted-
suicide does not violate the Due Process Clause of the Fourteenth
Amendment. On the very same day that Glucksberg was decided, the
Court issued a companion decision in Vacco v. Quill, 521 U.S. 793
(1997). In Vacco, the Court upheld New York’s statutory ban of
assisted-suicide against an argument that it violated the Equal
Protection Clause of the Fourteenth Amendment. Specifically, the
plaintiffs in Vacco, physicians and terminally ill adults,
petitioned the district court for an order overturning New York’s
ban of assisted-suicide and argued “because New York permits a
competent person to refuse life-sustaining medical treatment, and

because refusal of such treatment is ‘essentially the same thing,’
as physician suicide, New York’s assisted-suicide ban violates the
Equal Protection clause. Id. at 798 (citing Quill v. Koppell, 870
F. Supp. 78, 84 (SDNY 1994)). The district court denied the
petitioners’ request and ruled, “It is hardly unreasonable or
irrational for the State to recognize a difference between allowing
nature to take its course, even in the most severe situations, and
intentionally using an artificial death-producing device.” Id. at
84-85. However, the Court of Appeals for the Second Circuit
reversed the district court and determined that “New York law does
not treat equally all competent persons who are in the final stages
of fatal illness and wish to hasten their deaths. . . . [t]hose in
the final stages of terminal illness who are on life-support
systems are allowed to hasten their deaths by directing the removal
of such systems; but those who are similarly situated, except for
the previous attachment of life-sustaining equipment, are not
allowed to hasten death by self-administering prescribed drugs.”
Id. at 727-729. The Second Circuit determined that “the ending of
life by [the withdrawal of life-support systems] is nothing more
nor less than assisted suicide.” Id. at 729. The Second Circuit
concluded, “to the extent that New York’s statutes prohibit a
physician from prescribing medications to be self-administered by
a mentally competent, terminally ill person in the final stages of
his terminal illness, they are not rationally related to any

legitimate state interest.” Id. at 731.
The Supreme Court reversed the Second Circuit and affirmed the
district court, finding that the following “legitimate state
interests” satisfy the constitutional requirement that a
legislative classification bear a rational relation to some
legitimate end: “prohibiting intentional killing and preserving
life; preventing suicide; maintaining physicians’ role as their
patients’ healers; protecting vulnerable people from indifference,
prejudice, and psychological and financial pressure to end their
lives; and avoiding the possible slide towards euthanasia.” Vacco,
521 U.S. at 808-809. The Court concluded: “Logic and contemporary
practice support New York’s judgment that the acts [withdrawal of
life-support systems versus physician-assisted suicide] are
different, and New York may, therefore, consistent with the
Constitution, treat them differently.” Id. at 808.
Similarly, the Florida Supreme Court in Krischer v. McIver,
697 So. 2d 97 (1997), upheld Florida’s Assisted-Suicide Statute
which is in question in the present case. The Florida Supreme
Court relied upon Glucksberg to determine that Florida’s ban of
assisted-suicide did not violate the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. 697 So. 2d
at 100. In addition, the Florida Supreme Court relied upon Vacco
to determine that Florida’s Assisted-Suicide Statute did not
violate the Equal Protection Clause of the Fourteenth Amendment to

the United States Constitution. Id. After exhaustive analysis, the
Florida Supreme Court in Krischer also determined that the
Assisted-Suicide Statute passed constitutional muster under
Florida’s State Constitution, particularly under Florida’s
guarantee of privacy contained in the Florida Constitution’s
declaration of rights, Article I, Section 23, Florida Constitution.
Id. at 104.
It is clear that this Court is on solid ground in determining
that Plaintiff’s complaint fails to state a cause of action under
Rule 12(b)(6) of the Federal Rules of Civil Procedure and, to the
extent it seeks relief under the Fourteenth Amendment, is subject
to dismissal under Glucksberg, Vacco, and Krischer. This Court
will now take the opportunity to emphasize its refusal to grant the
relief that Plaintiff seeks. Plaintiff requests, among other
things: “an order that provides for him to receive from a physician
a lethal pain-relieving injection of the nature given to those
being executed should a physician of plaintiff’s enter into
plaintiff’s medical record a statement that plaintiff has less than
a 30% chance within three months of obtaining a mental capacity of
75 I.Q. points or a statement that plaintiff has less than a 30%
chance within three months of improving his physical capacity to
30% of the norm for his age.” (Doc. # 1 at ¶ 4.5).
An opinion lifting the statutory ban of assisted-suicide in
this case due to Plaintiff’s diminished mental capacity and on the

loose standards that he enumerates would constitute a great
miscarriage of justice. In addition to authorizing the imprudent
extinguishment of Plaintiff’s own existence, such an order could
open the door to future arguments comparing the quality of one’s
life with one’s intellectual capabilities, as reflected on a
standardized IQ test.4 This is especially troubling as Plaintiff
requests an order allowing physician-assisted suicide upon his IQ
falling to 70 points -– the highest possible score that a person
can have while still qualifying as “mentally retarded” under
generally accepted standards. This Court’s independent research
reveals the following excerpt from Atkins v. Virginia, 536 U.S. 304
(2002):
The Wechsler Adult Intelligence Scales Test (WAIS-III)
[is] the standard instrument in the United States for
assessing intellectual functioning. . . . The test
measures an intelligence range from 45 to 155. The mean
score of the test is 100, which means that a person
receiving a score of 100 is considered to have an average
level of cognitive functioning. It is estimated that
between 1 and 3 percent of the population has an IQ
between 70 and 75 or lower, which is typically considered
the cutoff IQ score for the intellectual function prong
of the mental retardation definition.
Atkins, 536 U.S. at 309 n.5. (Internal citations omitted).
Plaintiff’s arguments regarding his diminished IQ are supported by
unquestionably inappropriate conclusions.

4 While Plaintiff generally mentions his physical capabilities,
it seems apparent to this Court that Plaintiff’s primary concern,
as a member of MENSA and former practicing attorney, is his
intellectual ability.

Furthermore, Plaintiff’s assertion that dogs scheduled for
euthanasia and convicted criminals awaiting execution are similarly
situated to Plaintiff for Equal Protection analysis is unworthy of
further analysis, as is Plaintiff’s comparison of abortion and
physician assisted-suicide. Plaintiff’s arguments are insufficient
to fell Florida’s Assisted-Suicide Statute, a version of which has
been in place since 1868.5 This Court will not declare Florida’s
Assisted-Suicide Statute unconstitutional. Furthermore, this Court
denies Plaintiff’s request for an order specifically allowing him
to hire a physician to terminate his own life when his IQ reaches
70 or upon any other circumstance. The vast shift in the well-
established legal landscape that Plaintiff requests in this case is
not substantiated by Plaintiff’s complaint. This Court thus grants
Defendant’s motion to dismiss the complaint.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1) Defendants’ Motion to Dismiss or, Alternatively, Motion for
Summary Judgment (Doc. # 3) is GRANTED.
(2) Plaintiff’s complaint (Doc. # 1) is dismissed.

5 See Krischer, 697 So. 2d at 100 (“Florida imposes criminal
responsibility on those who assist others in committing suicide.
Section 782.08, Florida Statutes (1995), which was first enacted in
1868, provides in pertinent part that every person deliberately
assisting another in the commission of self murder shall be guilty
of manslaughter. Thus, it is clear that the public policy of this
state as expressed by the legislature is opposed to assisted
suicide.”)(internal citations omitted).
17

(3) The Clerk is directed to terminate all pending motions,
enter judgment accordingly, and to close the case.
DONE and ORDERED in Chambers in Jacksonville, Florida, this
14th day of July, 2008.

Copies: All Parties of Record