ABORTION INDUSTRY IN MELBOURNE, FLORIDA
RANEY V MELBOURNE
DOCKET / CHRONOLOGICAL FILE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
CASE NO. 6:99-CV-416-ORL-19B
MEREDITH T. RANEY, JR.,
CITY OF MELBOURNE, FLORIDA,
This case comes before the Court on the following matters:
1) Defendant the City of Melbourne, Florida's Motion to Dismiss and Memorandum of Law in Support of Motion to Dismiss (Doc. No. 5, filed May 3, 1999); Plaintiff Meredith T. Raney, Jr.'s Memorandum of Law in Opposition to Motion to Dismiss (Doc. No. 7, filed May 20, 1999);
2) Plaintiff Meredith T. Raney, Jr.'s Motion to Strike Insufficient Defenses and Other Matter and Memorandum of Law in Support (Doc. No. 7, filed May 20, 1999); and Defendant's Memorandum of Law in Opposition to Plaintiff's Motion to Strike (Doc. No. 18, filed September 7, 1999).
Plaintiff Meredith T. Raney, Jr. ("Raney") brings this suit under 18 U.S.C. § 248, Freedom of Access to Clinics Entrances Act of 1994 ("FACE"), against Defendant the City of Melbourne, Florida. Raney alleges that Defendant unlawfully interfered with, threatened, and physically prevented him from providing "reproductive health services" to men and women when they were entering and leaving a "facility" located at 1564 Dixie Way, Melbourne, Florida (the "Clinic"). (Doc. No. 1). Defendant moves to dismiss Raney's complaint for failure to state a claim, and Raney has moved to strike Defendant's motion to dismiss and memorandum. See (Doc. Nos. 5 & 7). Because it is clear from a reading of the complaint and the exhibits attached thereto that Raney is not a reproductive health services provider as defined by FACE, Defendant's motion to dismiss will be granted.
II. MOTION TO STRIKE
Initially, the Court will resolve Raney's motion to strike pursuant to Federal Rule of Civil Procedure 12(f) . See (Doc. No. 7). Federal Rule of Civil Procedure 12(f) provides that: "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent and scandalous matter." Fed. R. Civ. P. 12(f). Motions to strike are looked on with disfavor, and are rarely granted.
Citing no cases in support, Raney argues that Defendant's motion and memorandum must be stricken because it is "void of any sufficient defense or grounds for dismissal of the Plaintiff's Complaint . . . [and because the motion] mis-characterizes this action and related matters, including the decision of this District Court in Raney v. Aware Woman, 97-1197-CV-ORL-19B." Id. at ¶¶ 11 & 13. Defendant's Motion to Dismiss and Memorandum of Law in Support is not redundant, immaterial, impertinent or scandalous; thus, Raney's motion to strike is DENIED.
III. MOTION TO DISMISS
For purposes of a motion to dismiss, this Court must view the allegations of Raney's complaint in the light most favorable to him, consider the allegations of the complaint as true, and accept all reasonable inferences therefrom. Jackson v. Okaloosa County, Fla., 21 F.3d 1532, 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. P. 10(c)(emphasis added); 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). Conclusory allegations and unwarranted factual deductions are not accepted as true. Gersten v. Rundle, 833 F. Supp. 906, 910 (S.D. Fla. 1993) (citing Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974)) .
IV. FREEDOM OF ACCESS TO CLINICS ENTRANCES ACT
FACE provides in relevant part:
(a) Prohibited activities.--Whoever
(1) 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;
. . .
shall be subject to the penalties provided in subsection (b) and the civil remedies provided in subsection (c)
Subsection (c) provides in relevant part:
(A) In general.--Any person aggrieved by reason of the conduct prohibited by subsection (a) may commence a civil action . . ., except that such an action may be brought under subsection (a) (1) only by a person involved in providing or seeking to provide services in a facility that provides reproductive health services . . .
18 U.S.C. § 248(c)(1)(A)
FACE limits the class of prospective plaintiffs to persons "involved in providing or seeking to provide, or obtaining or seeking to obtain, services in a facility that provides reproductive health services . . ." 18 U.S.C. § 248(c)(1)(A) (emphasis added), see id. In identifying this class of potential plaintiffs, the statute utilizes two defined terms: "facility" and "reproductive health services." The term "reproductive health services" "includes medical, surgical, counseling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy" which are "provided in a hospital, clinic, physician's office, or other facility." See 18 U.S.C. § 248(e) (5) (emphasis added). 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. § 248(e)(1) .
The language of the statute which defines the provision of reproductive health services in the context of a "facility", expresses Congressional intent that the protections afforded by FACE extend only to those who are properly affiliated with a facility. The plain import of the statute is that a Plaintiff is not a "reproductive health provider" unless he or she provides such services "in a facility." See 18 U.S.C. § 248(c)(1)(A).
To provide reproductive health services "in a facility," one must, at the very least, be affiliated with the facility either as an employee or a volunteer. See United States v. Hill 893 F.Supp. 1034, 1039 (N.D. Fla. 1994) (finding that an abortion clinic escort was protected by FACE); United States v. DinWiddie, 76 F.3d 913, 926-27 (8th Cir.) (holding that a maintenance worker at an abortion clinic was protected by FACE), cert. denied, DinWiddie v. United States, 519 U.S. 1043 (1996); see also Greenhut v. Hand, 996 F.Supp. 372 (D.N.J. 1998) (finding that an "on- call" volunteer for a pro-life organization which provides "reproductive health services" is entitled to statutory damages under FACE).
The requirement that a plaintiff be affiliated with a clinic before such person may be considered a "reproductive health services provider" under FACE also follows from the statute's legislative history and from case law rejecting challenges to FACE under the Commerce Clause. The legislative history shows that FACE was enacted to regulate the provision of reproductive health services through clinics, and the protection' afforded individual "providers" under FACE was included so that the clinics that such providers work for would be better able to operate in interstate commerce. See S. Rep. No. 103-117, at 3 (1993) (stating that the obstructive activities of abortion protestors "is barring access to facilities that provide abortion services and endangering the lives and well-being of the health care providers who work there and the patients who seek their services) (emphasis added), quoted in Terry v. Reno, 101 F.3d 1412, 1416 (D.C. Cir. 1996) cert. denied 520 U.S. 1264 (1997); see also Hill, 893 F.Supp. at 1039 (explaining that Congress passed FACE due to concern about the safety of persons "who are essential to the provision of clinic services") (emphasis added).
Several circuit court decisions also support the notion that the protection afforded to reproductive health care "providers" under FACE is proper because the welfare of the provider has a direct impact on the facility for which he or she works. For instance, in Cheffer v. Reno, the Eleventh Circuit Court of Appeals specifically found that in protecting the commercial activities of reproductive health providers, [FACE] protects and regulates commercial enterprises operating in interstate commerce." 55 F.3d 1517, 1520 (11th Cir. 1995). Generally, these courts relied on the commercial nature of reproductive health facilities as justification for the legislature's exercise of its powers under the Commerce Clause. See e.g. Terry, 101 F.3d at 1413-16 (listing the various ways that clinics engage in interstate commerce set forth at S. Rep. No. 103-117, at 31 (1993)); United States v. Wilson 73 F.3D 675, 683 (7th Cir. 1995) (stating that the prohibitions provided in FACE are intended to benefit "reproductive health facilities" which have been "targeted" by disruptive protest activities), cert. denied, 519 U.S. 806 (1996); Cheffer, 55 F.3d at 1519-20.
It follows that an individual acting on his own to volunteer reproductive health services without affiliation to any facility would not meet the impact on interstate commerce that Congress relied on in enacting FACE and that courts relied on in upholding FACE. This construction of the statute that would extend a civil action under FACE to any self- proclaimed "reproductive health service" provider would almost surely exceed Congress' power under the Commerce Clause. Likewise, a reading of the FACE that would guarantee such persons access to a "facility" where they are not welcome would be contrary to the objective of FACE which is to ensure the stability of the national market for reproductive health services.
Defendant maintains that Raney is not a member of the class of persons protected by FACE, and moves to dismiss Raney's complaint for lack of standing. (Doc. No. 5). Raney contends that he has standing and protection under FACE because he "is a provider of reproductive health services as defined by F.A.C.E." (Doc. No. 1, at ¶ 9). Raney provides the following facts in support of his allegation that he is a "reproductive health services provider":
Some people who know elective abortion is wrong expressed their opinions by protest methods which did little to help the real victims of this brutal practice. Fortunately, there have been some caring people who reach out to the mothers and fathers of unborn children offering love and help rather than debate or condemnation. These are the individuals sometimes called 'sidewalk counselors', but who are actually providers of reproductive health services as defined and protected by F.A.C.E.
These pro-life providers of reproductive health services for many years have suffered abuse at the hands of over-zealous police officials. However, since May 26, 1994, the effective date of F.A.C.E., such abuse is prohibited by Federal law and no longer can municipalities intentionally attempt to intimidate pro-life providers of reproductive health services with impunity. For that reason, this civil rights action is brought against the Defendant City of Melbourne, Florida by Plaintiff Meredith T. Raney, Jr., one of these providers of reproductive health services protected by F.A.C.E.
* * *
At numerous times, . . . Plaintiff, Meredith T. Raney, Jr. sought to be inside the boundary of [the Clinic], providing or seeking to provide reproductive health services as defined by [FACE], such as counseling women 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 written referral information on other related care-givers, not only when said women and men were entering the facility but also upon their leaving.
* * *
Because [Plaintiff] was seeking to be so engaged in the [Clinic], Plaintiff Meredith T. Raney, Jr. was subjected to unlawful intentional attempted intimidation by the Defendant, City of Melbourne, Florida, that prevented him from providing reproductive health services as defined by FACE in the [Clinic].
(Doc. No. 1, at ¶¶ 6, 7, 11 & 12) (emphasis added).
The exhibits attached to the complaint include letters dated April 15, 1993 and April 19, 1993 from Raney to City Manager Sam Halter (the "April 15 Letter") and to City Attorney James Reinman (the "April 19 Letter"). (Doc. No. 1, at Exh. B & C). The April 15 Letter provides, in relevant part:
As a Melbourne taxpayer, I object to my taxes being spent by the Melbourne Police Department to enforce [Judge McGregor's civil injunction that creates a buffer zone around the [Clinic] . . .
* * *
By arresting suspected violators of the injunction when the Clinic has other avenues of enforcement . . ., the Melbourne Police Department has shown favoritism toward the Clinic side of the abortion issue at the taxpayers [sic] expense. . . .
See (Doc. No. 1, at Exh. B & C). Finally, Raney attached as Exhibit F, a letter dated August 4, 1993 from Patticia Baird Windle, President and C.E.O. of the Clinic to Chief Keith Chandler of the Melbourne Police Department (the "Baird-Windle Letter"). (Doc. No. 1, Exh. F) . The Baird-Windle Letter clearly expresses the clinic's disfavor of Raney providing in relevant part: "You are probably aware of the situation concerning the tracking of license plates by Meredith Raney and his conspiratorial thugs .... Raney and the other radicals are attempting end run maneuvers at every turn." See id.
These letters and the allegations of Raney' s complaint which expressly identifies Raney as a "sidewalk counselor" are entirely inconsistsnt with Raney's conclusory allegation that he "is a provider of reproductive health service as defined by F.A.C.E." (Doc. No. 1, at ¶ 9). The term "sidewalk counselor" is commonly understood to refer to activists who attempt to persuade actual and prospective abortion clinic clients to choose not to have an abortion. See e.g. Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 363 (1997); Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994); United States v. Scott, 187 F.3d 282 (2d Cir. 1999); Cook v. Reno, 74 F.3d 97 (5th Cir. 1996); New York State Nat'l Org. for Women v. Terry, 952 F.Supp. 1033, 1036 (S.D.N.Y. 1997), aff'd, 159 F.3d 86 (2nd Cir. 1998), cert. denied, Pearson v. Planned Parenthood Marqaret Clinic, 119 S.Ct. 2336 (1999); Operation Rescue-Nat'l v. Planned Parenthood of Houston and S.E. Tex., Inc., 975 S.W.2d 546, 550, 574-76 (Tex. 1997). This "counseling" occurs on the sidewalks and public areas near abortion clinics. See e.g. Schenck, 519 U.S. at 363. FACE does not ban "sidewalk counseling" outright, but neither does it protect "sidewalk counseling" as a "reproductive health service" because sidewalk counselors do not provide their services "in a facility" as defined by FACE.
Raney argues that his complaint should not be dismissed because FACE "is not a pro-abortion law but one which protects pro-life counselors equally well." See (Doc. No. 7, at ¶ 24). Raney's argument is misplaced because this Court does not dismiss Raney's complaint based on a finding that pro-life "counselors" are not entitled to the FACE's protective provisions. The law is clear that FACE applies equally to all providers of reproductive health services. See United States v. Soderna, 82 F.3d 1370 (7th Cir. 1996); Greenhut, 996 F.Supp. at 375. This equal treatment means that FACE guarantees no self-proclaimed "counselor", whether pro-choice or pro-life, access to a "facility" where he or she is not welcome. See supra Part IV; see also Cook v. Reno, 859 F.Supp. 1008, 1011 (W.D. La. 1994) (stating that the language of FACE is "complete and regular on its face and leads to no absurd consequences").
Here, even accepting the allegations in the complaint as true and construing those allegations in the light most favorable to plaintiff, it would be unreasonable to infer that Raney is or ever was an authorized volunteer or employee of the Clinic. He is, at best, a self-proclaimed "counselor" who "offer[s] love and help" to passers-by on the sidewalk outside a Clinic which he desires to enter, See (Doc. No. 1); (Doc. No. 1, Exh. F). Thus, Raney is not entitled to the protections provided by FACE which are properly reserved for the actual patients and personnel of reproductive health service facilities. See 18 U.S.C. § 248; e.g. Terry, 101 F.3d 1412 (D.C. Cir. 1996).
For the foregoing reasons, the Court RULES:
l) Defendant the City of Melbourne, Florida's Motion to Dismiss and Memorandum of Law in Support of Motion to Dismiss (Doc. No. 5) is GRANTED.
2) Plaintiff Meredith T. Raney, Jr.'s Motion to Strike Insufficient Defenses and Other Matter and Memorandum of Law in Support (Doc. No. 7) is DENIED.
3) Plaintiff's Complaint (Doc. No. 1) is DISMISSED.
DONE AND ORDERED at Orlando, Florida, this 8th day of March, 2000.
PATRIGIA C. FAWSETT (signed)
UNITED STATES DISTRICT JUDGE
All Counsel of Record
 Defendant attached four exhibits to its Motion to Dismiss: (a) Raney's Complaint filed against Defendant in the Circuit Court of the Eighteenth Judicial Circuit in and for Brevard County, Florida ; (b) A notice of Dismissal without Prejudice of Raney's state court complaint; (c) Defendant's answer to Raney's state court complaint; and (d) an order by this Court in Raney v. Aware Woman Center for Choice, Inc., Case Number 97-1197-CIV-ORL-19. The Court declines Defendant's invitation to consider the complaint and documents attached to Raney's Complaint in light of Raney's "multiple prior Complaints against the City and the Aware Women's Center Clinic in Melbourne, including [plaintiff's] sworn testimony therein." (Doc. No. 5, at 13).
 Both parties point to Greenhut v. Hand, 996 F.Supp. 372 (D.N.J. 1998), in support of their respective positions on the standing issue. See (Doc. No. 7, at 7); (Doc. No. 5, at 5)(suggesting that Greenhut is "neither dispositive nor compelling upon this court"). An issue before the Greenhut court was whether the plaintiff was a provider of "reproductive health services" under FACE Id. at 375. The Greenhut plaintiff was a volunteer at Birthright, a pro-life organization which "provides pregnant women with guidance, practical and emotional support during pregnancy and afterwards in some cases, referrals to doctors and other providers of medical services, referral services to community resources, limited financial support, maternity and baby clothes, free pregnancy tests and information relating to pregnancy, fetal development and alternatives to abortion." See id. at 373-74. The plaintiff brought suit against an individual who had left harassing and threatening phone calls on plaintiff's answering machine. See id. Defendant argued that plaintiff was not a provider of reproductive health services because she was untrained in the field of counseling or reproductive care, and "because the services provided are not medical in nature but consist of merely guidance, counseling and referral services." Id. The Greenhut court disagreed, noting that "nothing in the statute indicates that it covers [only] . . . doctors, nurses, or social workers." Id. at 376. Distinguishing the Greenhut plaintiff from a hypothetical person who might offer his or her pregnant neighbor a referral to a pediatrician, the Greenhut court reasoned that a layperson with minimal training may be considered a "reproductive health services provider" under FACE where that person provides such services through a facility such as Birthright. See id. at 375-76 (observing that courts "finding that [FACE] is content-neutral with respect to a First Amendment analysis . . . have noted that FACE also applies to "facilities offering pregnant women counseling about alternatives to abortion'") (quoting American Life League, Inc. v. Reno, 47 F.3d 642, 649 (4th Cir.), cert. denied. 516 U.S. 809 (1995)); see also Riely v. Reno, 860 F.SUpp. 693, 702 (D.Ariz. 1994). Thus, it is clear from the court's reasoning in Greenhut, that a person's status as a provider of "reproductive health services" under FACE turns on whether the person is affiliated with a "facility." see id.
 Immediately after FACE was enacted, it was subjected to a flurry of challenges on various constitutional grounds. The courts faced with these cases reviewed the legislative history and text of the statute in great detail and opined on FACE's purpose and scope. See e.g., United States v. Soderna, 82 F.3d 1370 (7th Cir.), cert. denied, Hatch v. United States, 519 U.S. 1006 (1996); United States v. Dinwiddie, 76 F.3d 913 (8th Cir.), cert. denied, 519 U.S. 1043 (1996); United States v. Wilson, 73 F.3d 675 (7th Cir. 1995) , cert denied, 519 U.S. 806 (1996); Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995); see also, United States v. Gregg, 32 F.Supp.2d 151 (D.N.J. 1998); United States v. Scott, 958 F.Supp. 761 (D.Conn. 1997); United States v. Hill, 893 F.Supp. 1034 (N.D. Fla. 1994).
 Defendant alleged five bases for the dismissal of Plaintiff's complaint: failure to state a claim; failure to pay costs in similar actions in state and federal court; absence of standing; and statute of limitations. See (Doc. No. 5, at 1-2). Because the Court finds that Plaintiff does not have standing to bring the suit, the Court does not address Defendant's remaining arguments.
 The Court need not accept this conclusory allegation as true, especially where, as here, a review of the Complaint and the attached exhibits shows that Raney's assertion that he is a reproductive health services provider is not warranted. See Gersten, 833 F.Supp. at 910.
 The term "sidewalk counselor" appears in well over one hundred federal and state cases. Search of WESTLAW, Allcases Library (March 6, 2000).
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