Mbadiwe v. Union Mem’l Reg’l Med. Ctr., Inc.

Case 3:05-cv-00049 Document 19 Filed 11/28/2005 Page 1 of 9(cid:10)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:05CV49-MU

Plaintiff,

vs.

CHUKWUEMEKA F. MBADIWE, M.D.,

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UNION MEMORIAL REGIONAL MEDICAL
CENTER, INC., CAROLINA HEALTHCARE
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SYSTEM, INC., JOHN W. ROBERTS, ROBERT )
AUSTIN, M.D., EDWARD BOWER, M.D., and
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ROBIN CONNELLEY, in their individual and
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official capacities,
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Defendants.
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__________________________________________)

ORDER

This matter is before the court upon the Defendants’ Motion to Dismiss Plaintiff’s

Second Amended Complaint.1

The Plaintiff, a surgeon of Nigerian ancestry, alleges claims that arise out of medical staff

review proceedings occurring between April and July 2004 in which the hospital’s Medical

Executive Committee (“MEC”) restricted Plaintiff’s clinical privileges after he perforated a

patient’s colon during a colonoscopy. Plaintiff alleges that Defendants acted in a racially

discriminatory manner in violation of 42 U.S.C. §§ 1981 and 1985(3) and are guilty of

intentional infliction of emotional distress and defamation. Defendants have moved to dismiss

all Plaintiff’s claims pursuant to Rule 12(b)(6) except for his claim under 42 U.S.C. § 1981

against Defendants Union Memorial Regional Medical Center, Inc. and Roberts.

Plaintiff’s Second Amended Complaint removes Carolina Healthcare System, Inc. as a
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Defendant and abandons a previously alleged Claim for Relief under 42 U.S.C. § 1983.

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Plaintiff Mbadiwe became a member of the medical staff at Union Memorial Regional

Medical Center, Inc. (“UMRMC “) in May of 2003. In March of 2004, while performing a

colonoscopy, Mbadiwe perforated a patient’s colon. Mbadiwe notified the Chairman of the

UMRMC Credentials Committee of the mishap and agreed to schedule future colonoscopies with

Dr. Bower, the Chief of Surgery at UMRMC. Plaintiff alleges that Defendant Roberts

“summarily suspended” his privilege to perform endoscopic procedures, but that when Plaintiff

challenged the suspension, a subcommittee of the UMRMC MEC lifted it. The decision to lift

the suspension was then affirmed by the MEC on April 21, 2004.

Mbadiwe claims that on June 21, 2004, operating room staff refused to schedule a surgery

for him pursuant to a memorandum from Defendant Roberts, which Plaintiff had not seen. On

July 22, 2004, Plaintiff alleges severe restrictions were placed on his surgical privileges “by the

actions of” Roberts, Austin and Bower. (Compl. ¶ 14). He claims that UMRMC based its

decision to restrict his privileges on notes regarding his surgical skills and performance made by

operating room staff members at the direction of Dr. Austin. Mbadiwe contends that white

surgeons have experienced similar mishaps but have not had their privileges restricted.

In considering a motion to dismiss, the court must view the Complaint in the light most

favorable to the Plaintiff, and accept as true all well-pleaded allegations. Randall v. United

States, 30 F.3d 518, 522 (4 Cir. 1994). Dismissal is proper only if it appears “beyond a doubt
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that the plaintiff can prove no set of facts in support of his claim which would entitle him to

relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

A. Section 1981 Claim:

Plaintiff alleges that the actions of the Defendants in restricting his surgical privileges

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were racially motivated and had the effect of denying him the right to make and enforce a

contract, in violation of 42 U.S.C. § 1981. Defendant Connelley, a nurse, argues that she is

entitled to a dismissal of this claim as against her because she had no supervisory authority over

Plaintiff, a surgeon, nor could she participate in the deliberations or decision of the MEC to

restrict Mbadiwe’s surgical privileges.

Section 1981 does not does not create grounds for a cognizable claim against a co-

worker. Hodges v. Washington Tennis Serv. Int’l, 870 F. Supp. 386, 387 (D.D.C. 1994).

However, individuals may be liable under section 1981 when they “authorize, direct, or

participate in” a discriminatory act. Manuel v. International Harvester Co., 502 F. Supp. 45, 50

(N.D.Ill. 1980). One must have “played some active role” in order to trigger liability. Carter v.

O’Hare Hotel Investors, 1990 WL 36833, *6-7 (N.D.Ill. 1990). In Carter, for example, the court

allowed a plaintiff to maintain a section 1981 claim against one manager who participated in the

decision to fire her but granted summary judgment to a second manager where there was only

“indirect evidence of [his] involvement.” Id.

Plaintiff does not allege herein that Connelley, a nurse, played any role in the decision to

restrict his privileges or that she had the authority to participate in that decision. At most,

Plaintiff alleges that Connelley is a co-worker who provided information to a decision-making

body. This is insufficient to state a claim against her under section 1981.

Individual defendants Austin and Bower also claim that they are entitled to a dismissal of

Plaintiff’s §1981 claim against them because, as members of the MEC and participants in the

medical review process, they are immune from suit under North Carolina’s Hospital Licensure

Act, N.C.Gen.Stat. § 131E-75 et seq. Under this statute, “[a] member of a duly appointed

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medical review committee who acts without malice or fraud shall not be subject to liability for

damages in any civil action on account of any act, statement or proceeding undertaken, made or

performed within the scope of the functions of the committee.” N.C.Gen.Stat. §131E-95(a)

(emphasis added). Plaintiff’s Second Amended Complaint alleges that “[d]efendants’ actions

denying Plaintiff the right to make or enforce a contract were willful and malicious . . .” (Compl.

¶ 21). Thus, the Plaintiff has stated a claim against these Defendants.

B. Section 1985(3) Claim:

Section 1985(3) provides a cause of action where two or more persons conspire to

interfere with an individual’s civil rights. To prevail on such a claim, a plaintiff must prove: (1) a

conspiracy of two or more persons, (2) who were motivated by a specific class-based, invidiously

discriminatory animus, to (3) deprive the plaintiff of the equal enjoyment of rights secured by the

law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act

committed by the defendants in connection with the conspiracy. Buschi v. Kirven, 775 F.2d

1240, 1257 (4 Cir. 1985).
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Defendants argue that Plaintiff’s §1985(3) should be dismissed because (1) he has failed

to allege any concrete facts to support his conclusory allegation that a conspiracy existed between

the Defendants, and (2) under the intracorporate conspiracy doctrine, Plaintiff has failed to allege

a conspiracy of two or more persons.

The Fourth Circuit applies a “relatively stringent standard for establishing section 1985

conspiracies.” Simmons v. Poe, 47 F.3d 1370, 1377 (4 Cir. 1995). Under that strict standard,
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the Fourth Circuit “has rarely, if ever found that a plaintiff has set forth sufficient facts to

establish a section 1985 conspiracy.” Id. Moreover, the Fourth Circuit has “specifically rejected

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section 1985 claims whenever the purported conspiracy is alleged in a merely conclusory

manner, in the absence of concrete supporting facts.” Id.

Upon review of Plaintiff’s Complaint, it appears to the court that Plaintiff has fallen far

short of the Fourth Circuit’s heightened pleading standard for § 1985 conspiracy claims.

Plaintiff alleges no concrete facts in support of his conclusory allegations of a conspiracy among

the Defendants.

In addition, even if Plaintiff had met the Fourth’s Circuit’s stringent pleading standard,

his § 1985 conspiracy claim would still fail because of the intracorporate conspiracy doctrine.

Under this doctrine, “it is the general rule that the acts of the agent are the acts of the

corporation.” Buschi, 775 F.2d at 1251. Accordingly, “[s]ince a conspiracy requires two
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entities, logic dictates that it is impossible for a corporation to conspire with itself.” Turner v.

Randolph County, 912 F. Supp. 182, 186 (M.D.N.C. 1995). As the individual Defendants are all

agents of UMRMC, the intracorporate conspiracy doctrine clearly applies. The only two

exceptions to this doctrine are (1) where corporate agents had personal financial stakes in the

alleged objective of the conspiracy, Id., and (2) where the corporate agents are alleged to have

been acting outside the normal course of their corporate duties. Buschi, 775 F.2d at 1252-53.

Plaintiff attempts to place his claim within these exceptions. He argues that Defendant

Connelley acted outside the scope of her employment by observing and taking notes on

Plaintiff’s behavior, and that Defendant Bower stood to benefit personally from restriction of

Plaintiff’s privileges. However, Plaintiff’s allegations in the Complaint itself contradict his

Application of the intracorporate conspiracy doctrine is not barred by the fact that the
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corporate agents are also being sued in their individual capacities. Buschi, 775 F.2d at 1252.

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argument that Connelley was acting outside the scope of her employment. In paragraph 15 of the

Complaint, Plaintiff alleges that Connelley and other members of the operating room staff acted

in accordance with specific instructions from UMRMC and Defendant Austin. Specifically,

Plaintiff alleges that Connelley recorded his conduct at the direction of her employer and the

President of the Medical Staff. Thus, the conclusory statement that Connelley was acting outside

the scope of her employment fails to establish this particular exception to the intracorporate

conspiracy doctrine.

Plaintiff’s allegation that Bower had a personal stake in the restriction of Plaintiff’s

privileges likewise fails to bring his claims outside the intracorporate conspiracy doctrine.

Specifically, Plaintiff alleges that Bower stood to benefit from the restriction of Plaintiff’s

surgical privileges. In Oksanen v. Page Memorial Hosp., 945 F.2d 696 (4 Cir. 1991), the Fourth
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Circuit refused to apply the “personal stake” exception under very similar circumstances. In that

case, a physician sued the hospital and various staff members after his privileges were revoked.

The defendants raised the intracorporate conspiracy doctrine as a defense. One of the defendant

physicians competed directly with the plaintiff but did not materially participate in the decision to

restrict the plaintiff’s privileges. He did, however, consult with the peer review committee that

restricted the plaintiff’s privileges. The Fourth Circuit held that the competing physician had

insufficient control over the peer review process to trigger the “personal stake” exception, stating

that when “decision-making authority . . .[is] dispersed among a number of individuals, the

personal stake exception [to the intracorporate conspiracy doctrine] is inapplicable.” Id. at 705-

06.

The allegations in Plaintiff’s Complaint again defeat his argument. He alleges only that

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Bower wrote a letter to the MEC and consulted with the MEC. (Compl. ¶¶ 13, 21, 24, 30)

Moreover, Plaintiff does not allege that Bower actually took part in the decision to restrict his

privileges, but that Bower was on vacation when the decision was made and Bower merely

consulted with Austin by telephone. (Compl. ¶ 30). Pursuant to Oksanen, the court finds that the

“personal stake” exception to the intracorporate conspiracy doctrine is inapplicable here.

Plaintiff’s § 1985 claim is therefore barred.

C. Intentional Infliction of Emotional Distress:

The court finds that Plaintiff’s allegations in paragraphs 30 through 32 of the Second

Amended Complaint fall far short of alleging the type of “extreme and outrageous conduct”

required to state a claim under North Carolina law. Thus, this claim will be dismissed as against

all Defendants.

D. Defamation:

A claim for defamation requires that a plaintiff allege and prove that the defendant “made

false, defamatory statements of or concerning the plaintiff, which were published to a third

person, causing injury to the plaintiff’s reputation.” Smith-Price v. Charter Behavioral Health

Sys., 164 N.C. App. 349, 355, 595 S.E.2d 778, 784 (2004). In a defamation suit, “[t]he words

attributed to defendant [must] be alleged ‘substantially’ in haec verba, or with sufficient

particularity to enable the court to determine whether the statement was defamatory.” Stutts v.

Duke Power Co., 47 N.C.App. 76, 83, 266 S.E.2d 861, 866 (1980). Moreover, it is essential a

plaintiff allege when and where the allegedly defamatory statements were made. Id. In

Plaintiff’s Complaint, he alleges merely that “[d]efendants stated both orally and in writing and

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in complaints to Medical Executive Committee and other Committees and individuals that

plaintiff was engaged in dishonesty tantamount to defrauding patients.” (Compl. ¶ 38). This

allegation is wholly inadequate to state a claim for defamation.

Plaintiff also alleges in his Second Amended Complaint that Defendant Connelley wrote

a letter on June 25, 2004 that stated in part: “[Mbadiwe’s] patients do not understand that another

physician is actually providing the care. My staff and I feel that this is dishonest. Patients are

referred to him by their medical doctor and have no idea that he has restricted privileges.”

(Emphasis added) (Compl. ¶ 36). This statement cannot as a matter of law provide the basis for a

defamation claim. The statement is not actionable because it is one of opinion and is not

“provable as false.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990).

IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss Plaintiff’s Third,

Fourth, and Fifth Claims for Relief is hereby GRANTED; Defendant Connelly’s Motion to

Dismiss Plaintiff’s First Claim for Relief against her is hereby GRANTED; and Defendants

Austin and Bower’s Motion to Dismiss Plaintiff’s First Claim for Relief against them is hereby

DENIED. Thus, the only remaining claim is Plaintiff’s First Claim for Relief as against

Defendants UMRMC, Roberts, Austin, and Bowers.

Case 3:05-cv-00049 Document 19 Filed 11/28/2005 Page 9 of 9(cid:10)

Signed: November 28, 2005