III. Qualified Immunity
Individual defendants rely on the doctrine of qualified immunity in support of their motion for summary judgment. "Qualified immunity is an affirmative defense that the defendants have the burden of raising in their answer and establishing at trial or on a motion for summary judgment." In re State Police Litig., 88 F.3d 111, 123 (2d Cir. 1996). This doctrine applies only to claims "arising out of their performance of discretionary official functions," Doe v. Phillips, 81 F.3d 1204, 1211 (2d Cir. 1996), and "protects government officials from suits against them in their individual capacity for money damages where 'their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,'" State Police Litig., 88 F.3d at 122-23 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)).
Thus, defendants claiming qualified immunity must show either: (1) that the right "was [not] clearly established at the time of the alleged violation," or (2) that "reasonable persons in their position would not have understood that their conduct was within the scope of the established prohibition." State Police Litig., 88 F.3d at 123; accord Komlosi, 64 F.3d at 815; see Ryder v. United States, U.S. , , 132 L. Ed. 2d 136, 115 S. Ct. 2031, 2037 (1995) ("Qualified immunity specifically protects public officials from the specter of damages liability for judgment calls made in a legally uncertain environment."); Mitchell v. Forsyth, 472 U.S. 511, 535, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985) (holding that a defendant was entitled to qualified immunity where "the legality of the warrantless domestic security wiretap . . . was, at that time, an open question").
"In order to be clearly established, the 'contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Doe, 81 F.3d at 1211 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987)). Further, prior case law must indicate the existence of the right with "reasonable specificity." State Police Litig., 88 F.3d at 123; accord Doe, 81 F.3d at 1211; see Mitchell, 472 U.S. at 528 (defining the issue as "whether the law clearly proscribed the actions the defendant claims he took"). Therefore, a court must consider "'whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question.'" Doe, 81 F.3d at 1211 (quoting Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993)). However, "though officials are not required to anticipate subsequent legal developments . . ., a right may have been clearly defined even if the defendants' specific action had not previously been held unlawful if, in the light of pre-existing law, the unlawfulness [of the action was] . . . apparent." State Police Litig., 88 F.3d at 123 (citations and internal quotation marks omitted). Finally, "under the Harlow standard . . ., an allegation of malice is not sufficient to defeat immunity if the defendant acted in an objectively reasonable manner." Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986).
Greenwood contends that individual defendants deprived him, without due process of law, of his property right in his clinical privileges and his liberty interest in his chosen occupation under the "stigma plus" theory of Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). However, Greenwood "has not cited any case demonstrating that [defendants'] conduct constituted a deprivation of a clearly established right." Komlosi, 64 F.3d at 816.
A. No Clearly Established Property Right in Clinical Privileges
As for his alleged property interest in his clinical privileges, the only cases cited by Greenwood which existed at the time of individual defendants' denial of his clinical privileges are Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972) and Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972). Based on these cases, Greenwood argues that "the procedural protections provided in the officially-promulgated MPC Medical Staff By-Laws and MPC Credentials Manual created an implied contract between the hospital administration and the members of the Medical Staff at MPC." (Opp. Memo. at 18.) Regardless of whether such an implied contract may be found under current law, I find that its existence was not clearly established as of January 19, 1982, the date Koz denied Greenwood's appeal of the revocation of his clinical privileges.
In Roth, the Supreme Court addressed a claim by a non-tenured teacher at a state university that he had a property right in continued employment. Roth, 408 U.S. at 566. Whereas state statutory law required that "a tenured teacher cannot be 'discharged except for cause upon written charges' and pursuant to certain procedures, . . . Rules promulgated by the Board of Regents . . . provide no real protection for a nontenured teacher who simply is not re-employed for the next year." Id. at 567. The teacher in Roth was informed that he would not be rehired for the next year, although he was not given any reason for the decision or any opportunity to challenge the decision at a hearing. Id. at 568.
The Court held that "the [teacher did not have] a constitutional right to a statement of reasons and a hearing on the University's decision not to rehire him for another year." Id. at 569. After noting that protected property interests may extend "beyond actual ownership or real estate, chattels, or money," the Court recognized that procedural due process protections do "observe certain boundaries." Id. at 572. In this context, the Court framed the oft-quoted standard for defining due process property interests: "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id. at 577. This legitimate claim of entitlement does not arise from the Constitution, but from "existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. In declining to find a legitimate claim of entitlement by the teacher, the Court noted that "the important fact in this case is that" the terms of the teacher's appointment "did not provide for contract renewal absent 'sufficient cause,'" nor did they make any "provision for renewal whatsoever." Id. at 578.
The Court in Perry addressed whether even in the absence of formal contractual or tenure security in continued employment at a state college, a teacher nevertheless may show a property interest in continued employment entitled to due process protection. Perry, 408 U.S. at 599. The teacher argued that a de facto tenure system existed, citing the college's official Faculty Guide and guidelines promulgated by the Coordinating Board of the Texas College and University System. Id. at 600. The Faculty Guide provided that although the college "has no tenure system," each faculty member should "feel that he has permanent tenure as long as his teaching services are satisfactory and as long as he displays a cooperative attitude toward his co-workers and his superiors." Id. The guidelines provided that a teacher employed for seven years "may expect to continue in his academic position unless adequate cause for dismissal is demonstrated in a fair hearing, following established procedures of due process." Id. at 600 n.6.
The Court held that the teacher "alleged the existence of rules and understandings, promulgated and fostered by state officials, that may justify his legitimate claim of entitlement to continued employment absent 'sufficient cause.'" Id. at 602-03. Accordingly, the Court affirmed the Court of Appeals' judgment remanding the case back to the District Court, so the teacher could "be given an opportunity to prove the legitimacy of his claim of such entitlement in light of 'the policies and practices of the institution.'" Id. at 603.
I do not find that Roth or Perry clearly establishes Greenwood's property interest in his clinical privileges. This is not to say that these cases lend no support to the existence of such a property interest, but merely that a "legally uncertain environment," Ryder, 115 S. Ct. at 2037, or "open question," Mitchell, 472 U.S. at 535, existed as to this issue. First, both Roth and Perry addressed claims of property interests by public school teachers with respect to their continued employment. Thus, one must leap from the context of property rights in continued employment to the context of property rights in privileges ancillary to one's continued employment, such as the clinical privileges herein. See Hannah v. Larche, 363 U.S. 420, 442, 4 L. Ed. 2d 1307, 80 S. Ct. 1502 (1960) ("'Due process' is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts.").
Second, at the time of individual defendants' conduct, the Court of Appeals had not rendered any decision on whether clinical privileges could constitute protected property interests. Instead, Court of Appeals decisions interpreting Roth and Perry either shed no light on the issue or reinforced the murky nature of this area of law. In Baden, for example, the Court held that New York City's Chief Medical Examiner was not entitled to a hearing prior to his removal from this position. Baden v. Koch, 638 F.2d 486, 488 (2d Cir. 1980). After interpreting Roth and Perry as requiring that a protected property right "come from either state law or, in its absence, from mutual understandings of the parties," id. at 489, the Court held that the state statutory law at issue did not require a pretermination hearing and, therefore, that any mutual understandings contrary to the express provisions of regulations and statutes were of no avail to the Chief Medical Examiner. Id. at 492.
In Quinn, the Court of Appeals affirmed the District Court's conclusion that the Rehabilitation Director of the Syracuse Model Neighborhood Corporation, which was organized as an instrument of urban redevelopment in Syracuse, had "no cognizable property interest in his employment." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 447 (2d Cir. 1980). In rendering its decision, the Court recognized the uncertainties which remained after Roth and Perry. It stated that
"property" protected by the Fourteenth Amendment is, like liberty, potentially all-embracing. . . . Although the long line of cases under Section 1983 attempting to pour content into this concept is confusing at best, there appears to be general agreement that a property interest arises only when an individual possesses "a legitimate claim of entitlement" to continued job tenure. . . . The requisite origin of this "entitlement" is unsettled, but it apparently must arise from "existing rules or understandings that stem from an independent source such as state law." . . . The Supreme Court has suggested, on occasion, that state law is the sole vehicle for the creation of property rights, . . ., but it has, more recently, instructed that "federal constitutional law determines whether [an] interest rises to the level of a 'legitimate claim of entitlement' protected by the Due Process Clause."
Quinn, 613 F.2d at 447; see Simard v. Board of Educ. of the Town of Groton, 473 F.2d 988, 992 (2d Cir. 1973) (describing the property and liberty interests protected by the Due Process Clause as "elusive concepts").
In addition to expressing the lack of clarity of the standards governing due process property interests, the Court's decision in Quinn may be read, in the context of public employment, as suggesting that these property interests are confined to rights in continued employment, rather than in ancillary privileges such as those at issue in the instant case. See id. ("There appears to be general agreement that a property interest arises only when an individual possesses 'a legitimate claim of entitlement' to continued job tenure.") (emphasis added); see also Huntley v. Community Sch. Bd. of Brooklyn, 543 F.2d 979, 984 (2d Cir. 1976) (declining to find a property interest in an acting school principal's continued employment), cert. denied, 430 U.S. 929, 51 L. Ed. 2d 773, 97 S. Ct. 1547 (1977); Teachers United for Fair Treatment v. Anker, 445 F. Supp. 469, 472-73 (E.D.N.Y. 1977) ("Simply put, absent termination of that employment, an 'interest' in employment does not rise to the level of a property or liberty right constitutionally protected by procedural due process.").
Third, decisions which specifically address physician's due process property rights, whether from within the Second Circuit or from other Circuits, reach mixed results on the existence of these property rights. In Edwards, a California state court, while addressing a statute of limitations issue, stated that "if the right to practice medicine is a property right, it necessarily follows that the right of a qualified doctor to use hospital facilities to practice surgery and gynecology also involves a property right." Edwards v. Fresno Community Hosp., 38 Cal. App. 3d 702, 113 Cal. Rptr. 579, 581 (Cal. Ct. App. 1974). Similarly, in Ong, the Court of Appeals for the Ninth Circuit determined that a physician had a "sufficient property interest in a surgical residency that entitles [the physician] to due process and a hearing." Ong v. Tovey, 552 F.2d 305, 307 (9th Cir. 1977). The Court of Appeals for the Fourth Circuit, while resolving a claim of unconstitutional bias on the part of a member of an administrative agency, stated that "in the case of a withdrawal or denial of hospital privileges, procedural due process entitles a physician to a full, evidentiary administrative hearing, before such privileges may be permanently or finally terminated." Duffield v. Charleston Area Medical Ctr., Inc., 503 F.2d 512, 515 (4th Cir. 1974), overruled by Modaber v. Culpeper Memorial Hosp., Inc., 674 F.2d 1023, 1025 (4th Cir. 1982) (overruling the finding of state action based on the receipt of federal assistance under the Hill-Burton Act).
Other cases, however, undermine the assertion that the existence of a property right in clinical privileges was clearly established. In Schlein, then District Judge Newman addressed a physician's Section 1983 claim against a hospital for rejecting the physician's application for staff privileges at the hospital. Schlein v. Milford Hosp., 423 F. Supp. 541, 542 (D. Conn. 1976), aff'd, 561 F.2d 427 (2d Cir. 1977). Although Judge Newman found that the physician received sufficient procedural due process, id. at 544, Judge Newman rendered no holding on whether a property interest existed in the staff privileges. Instead, he assumed its existence only for the purposes of the defendant's motion for summary judgment. Id. at 543 n.1. Further, he expressed doubt as to whether the physician indeed had such a property right. Id. In Adler, the Pennsylvania Supreme Court held that a private physician on the active medical staff of a public teaching hospital had no property interest, whether under the hospital's by-laws or otherwise, in his continued ability to use certain hospital facilities and equipment to treat his patients. Adler v. Montefiore Hosp. Assoc. of W. Pa., 453 Pa. 60, 311 A.2d 634, 645 (Pa. 1973), cert. denied, 414 U.S. 1131, 38 L. Ed. 2d 755, 94 S. Ct. 870 (1974). Similarly, the District Court for the Eastern District of Louisiana concluded that a physician who applied for medical staff privileges at a state hospital had no property interest in those privileges and, therefore, was not entitled to a hearing prior to the rejection of his application. Hyde v. Jefferson Parish Hosp. Dist. No. 2, 513 F. Supp. 532, 545 (E.D. La. 1981), rev'd on other grounds, 686 F.2d 286 (5th Cir. 1982), rev'd and remanded on other grounds, 466 U.S. 2, 80 L. Ed. 2d 2, 104 S. Ct. 1551 (1984).
Accordingly, based on the state of the law as of January 19, 1982, including the absence of any Supreme Court or Court of Appeals decision on the instant issue, I find that Greenwood did not have a clearly established property right in his clinical privileges. Therefore, individual defendants are entitled to qualified immunity, and this claim is dismissed with prejudice.
B. No Clearly Established "Stigma Plus" Liberty Interest
Greenwood also alleges that the individual defendants deprived him of his protected liberty interest in his chosen occupation by making "false and stigmatizing charges against plaintiff in conjunction with their revocation of his clinical privileges at MPC." (Opp. Memo. at 30.) As with Greenwood's other due process claim, however, I find that this right was not clearly established as of January 19, 1982.
In Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976), the Supreme Court addressed whether a charge of defamation by government officials, "standing alone and apart from any other governmental action with respect to [the plaintiff], stated a claim for relief under 42 U.S.C. § 1983 and the Fourteenth Amendment." Id. at 694. The plaintiff appeared on a flyer prepared and circulated by the defendant police departments in their effort to alert local merchants of possible shoplifters. Id. at 694-95. Although at the time of circulation of the flyers the plaintiff had been charged with shoplifting, the charge was dismissed shortly after the circulation. Id. at 696. Despite assuming that the flyer "would inhibit [plaintiff] from entering business establishments for fear of being suspected of shoplifting and possibly apprehended, and would seriously impair [plaintiff's] future employment opportunities," id. at 697, the Court held that the plaintiff failed to state a claim under Section 1983, id. at 694.
The Court concluded that "defamation, standing alone," was not sufficient to constitute a denial of "any 'liberty' protected by the procedural guarantees of the Fourteenth Amendment." Id. at 709. In support of its decision, the Court interpreted its discussion of this issue in Roth :
While Roth recognized that governmental action defaming an individual in the course of declining to rehire him could entitle the person to notice and an opportunity to be heard as to the defamation, its language is quite inconsistent with any notion that a defamation perpetrated by a governmental official but unconnected with any refusal to rehire would be actionable under the Fourteenth Amendment.
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