ORDER, 12/03/97

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
ORDER, 12/3/97

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MEREDITH T. RANEY, JR.,
Plaintiff,
v.
AWARE WOMAN CENTER
FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR., and
PATRICIA B. WINDLE
Defendants.

CASE NO.: 97-1197-CV-ORL-19

ORDER

This cause came before the Court on Defendants' Motion To Dismiss (Doc. No. 7, filed October 22, 1997), Defendants' Memorandum of Law in Support of Motion To Dismiss (Doc. No. 8, filed October 22, 1997), and Plaintiff's Memorandum in opposition to Defendants' Motion To Dismiss (Doc. No. 11, filed November 3, 1997).

BACKGROUND

Plaintiff Meredith T. Raney, Jr., brings this suit against Defendants Aware Woman Center For Choice, Inc. ("Aware Woman Center"), Edward W. Windle, Jr., and Patricia B. Windle for violation of the Freedom of Access to Clinic Entrances Act of 1994 ("FACE"), 18 U.S. C. Ї 248. Plaintiff asserts that he was unlawfully interfered with, threatened, and physically prevented from providing reproductive health services at a facility performing such services by the Melbourne City Police, who were allegedly acting as Defendants' agents. On three separate occasions, Plaintiff contends that he was physically removed from the reproductive health services facility after having been threatened and intimidated by Melbourne City Police.

LEGAL ANALYSIS

For purposes of a motion to dismiss, this Court must view the allegations of the complaint in the light most favorable to the plaintiff, consider the allegations of the complaint as true, and accept all reasonable inferences therefrom. Jackson v. Okaloosa County, Florida 21 F.3d 1531, 1534 (11th Cir. 1994); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Furthermore, this Court must limit its consideration to the pleadings and written instruments attached as exhibits thereto. See Fed. R. Civ. Pro . 10(c); GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th cir. 1994).

Defendants have moved to dismiss Plaintiff's Complaint for lack of standing; Defendants maintain that Plaintiff is not a member of the class of persons protected by FACE. Furthermore, Defendants contend that this Court should deny Plaintiff standing to assert this action because Plaintiff's suit will frustrate the objectives of FACE. In addition to dismissal, Defendants seek an award of attorneys' fees and costs expended in defense of this action pursuant to section 57.105, Florida Statutes.

In his response to Defendants' motion to dismiss, Plaintiff asserts that FACE protects "pro-life" counselors just as it protects "pro-abortion" counselors. Plaintiff maintains that the term "Facility," as used in the statute, includes the area surrounding the building as well as the building. Finally, he asserts that he has served as a reproductive health services counselor "at the present location" for many years.

Plaintiff alleges that he provided reproductive health services to men and women when they were entering and leaving a facility within the meaning of the statute and that he was unlawfully interfered with, threatened, and physically prevented from providing such services by the Melbourne Police acting as agents of Defendants. (Doc. No. 1, ЖЖ 12-15). (Footnote 1)

FACE authorizes criminal penalties and civil remedies against anyone who "by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services . . . ." 18 U.S.C. Ї 248(a)(1). A private civil right of action may be brought under the foregoing provision "only by a person involved in providing or seeking to provide, or obtaining or seeking to obtain, services in a facility that provides reproductive health services . . . ." l8 U.S.C. Ї 248 (c) (1) (A) . FACE defines the terms "facility" and "reproductive health services." "The term 'facility' includes a hospital, clinic, physician's office, or other facility that provides reproductive health services, and includes the building or structure in which the facility is located." 18 U.S.C. Ї 248(e)(1). The term 'reproductive health services' means reproductive health services provided in a hospital, clinic, physician's office, or other facility, and includes medical, surgical, counselling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy." 18 U.S.C. Ї 248(e)(5). While there is a legal issue as to whether provision of reproductive health services outside of or at the entrance or exit of a facility constitutes provision of "services in a facility that provides reproductive health services," Defendants have not cited authority enabling the Court to determine this issue. 18 U.S.C. Ї 248(c)(1)(A) (emphasis added). The Court's independent research has not revealed any cases within the Eleventh Circuit or any other circuit addressing this issue. Accordingly, failure of Plaintiff to allege that he was providing reproductive health services, such as counseling, inside a reproductive health services facility is not fatal to his claim at this stage. (Footnote 2)

Defendants' assertions relating to standing are based upon allegations contained in Defendant Patricia B. Windle's affidavit stating that Plaintiff is an anti-abortion activist who participates in anti-abortion activities at and around the premises of Aware Woman and that Plaintiff is not an employee of Aware Woman. (Doc. No. 9). Such assertions raise factual issues not appropriately considered on the record before the Court. If appropriate, Defendants should reassert their arguments in a motion for summary judgment.

CONCLUSION

Based on the foregoing, Defendants' Motion To Dismiss (Doc. No. 7) is DENIED.

DONE AND ORDERED at Orlando, Florida this 3rd day of December, 1997.

PATRICIA C. FAWSETT <signed>
UNITED STATES DISTRICT JUDGE
copies to:
All Counsel of Record

(Footnote 1) Plaintiff's Complaint provides in pertinent part:
12. Defendant Aware Woman Center for Choice, Inc., and Hope Adoption Agency, Inc., a Florida corporation not-for-profit, are both located at 1564 Dixie Way, Melbourne, Florida and were so located at all times specified in the following Counts, performing reproductive health services, and jointly constituting a facility according to 18 U.S.C. Ї 248(e)(1).
13. Said facility includes the 36 foot buffer zone described in Madsen v. Women's Health Center, Inc., 114 S. Ct. 2516 (1994).
14. At all times specified in the following three Counts, Plaintiff, Meredith T. Raney, Jr., was inside the boundary of said facility, involved in providing or seeking to provide reproductive health services such as: counseling of woman [sic] and men as to the spiritual, moral, medical, physical and psychological health aspects of adoption, pregnancy termination, fetal development, and prenatal care; and offering financial assistance. and referrals to other related caregivers, not only when said women and men were entering the facility but also upon their leaving.
15. Because he was so engaged in the facility, Plaintiff, Meredith T. Raney, Jr., was unlawfully interfered with, threatened, and physically prevented from providing reproductive health services by the Melbourne Police who, as agents of and taking direction from the Defendants, threatened Plaintiff with physical removal from the facility and then physically took Plaintiff away from the facility. (Doc. No. 1).

(Footnote 2) The Court notes that the Complaint is unclear as to Plaintiff's exact location when allegedly providing reproductive health services. (Doc. No. 1, ЖЖ 13-14).