The opinion of the court was delivered by: McAVOY, District Judge.
MEMORANDUM — DECISION & ORDER
In a prior Decision & Order, familiarity with which is
assumed, the Court set forth
the factual and procedural background of this action. See
Sharpe v. Conole, 99-CV-971, March 31, 2000, Dkt. No.
70.*fn1 Presently before the Court is Defendants Conole,
Leader, Rigor, Kumar, and Scheussler's motion pursuant to
FED.R.CIv.P. 12(c) to dismiss the remaining causes of action
under the Freedom of Access to Clinic Entrances Act of 1994,
18 U.S.C. § 248 ("FACE") for the following reasons: (1) the
Complaint fails to state a cause of action under FACE because it
does not allege the requisite intent; (2) Defendants'
participation in state mandated quality assurance programs
provides them with immunity from the present claims; (3) the
present action is barred by Plaintiffs written release; and (4)
Plaintiffs claims should be barred by a one-year statute of
Pursuant to FED.R.CIV.P. 12(b)(6), the Court cannot consider
the affidavits and exhibits submitted by both parties in support
of or in opposition to the instant motion without converting the
motion to a motion for summary judgment. See, e.g., Fonte v.
Board of Managers of Continental Towers, 848 F.2d 24 (2d Cir.
1988). On October 23, 2000, this Court issued an Order notifying
the parties that it would convert the motion to dismiss to one
for summary judgment. The Court further allowed the parties to
submit additional materials in support or opposition to summary
judgment within fourteen calendar days. The Court issued a
second Order dated November 11, 2000, to ensure that Plaintiff
understood the potential ramifications of a summary judgment
motion. Plaintiff submitted additional opposition papers in
response to both orders. See Dkt. Nos. 100, 102, 103.
Accordingly, the Court will consider the instant motion as a
motion for summary judgment. In addressing the motion, the Court
will apply the well-settled standard for summary judgment, which
need not be restated here. See Roman v. Cornell Univ.,
53 F. Supp.2d 223, 232-33 (N.D.N.Y. 1999); Phipps v. New York State
Dep't of Labor, 53 F. Supp.2d 551 (N.D.N.Y. 1999); Riley v.
Town of Bethlehem, 44 F. Supp.2d 451, 458 (N.D.N.Y. 1999).
Defendants first argue that the claims against them should be
dismissed because Plaintiff does not allege the intent necessary
to set forth a prima facie case. To state a claim under
18 U.S.C. § 248(a)(1), Plaintiff must allege three elements: (1)
use or threat of force or physical obstruction of a reproductive
health facility; (2) that the obstruction intentionally injure,
intimidate or interfere with or attempt to injure, intimidate or
interfere with persons; and (3) that the defendant's actions be
taken because the interfered-with person is or has been
obtaining or providing reproductive health services, or in order
to intimidate such person or any other person or class of
persons from obtaining or providing reproductive health
services. See United States v. Balint, 201 F.3d 928, 932 (7th
Cir. 2000); 18 U.S.C. § 248.
Defendants argue that, although Plaintiff alleges that they
acted with a variety of unsavory motives (including improper
financial gain, professional rivalry,
personal animosity, the desire to find evidence for medical
malpractice actions against Plaintiff, and intoxication, see
Def.Mem. of Law at 5; see also, Amended Complaint at pp. 2-3,
§§ 5-8; pp. 9-11, §§ 5-10, 13; pp. 17-18, §§ 2-7; p. 30, §§ 3-7;
pp. 10-11, §§ 10, 13; pp. 4-6, §§ 20, 29), Plaintiffs Amended
Complaint does not allege that they were motivated by Dr.
Sharpe's status as a provider of reproductive care or a desire
to deter people from receiving reproductive medical care.
Without alleging this type of motivation, Defendants contend,
Plaintiff has failed to state a claim.
Plaintiff responds that to prove intent under FACE, he only
needs to allege that a defendant intended to obstruct and
interfere with the obtaining and provision of reproductive
health services, see U.S. v. Weslin, 156 F.3d 292, 298 (2d
Cir. 1998), and that the Amended Complaint alleges such action.
See Pl.Mem. of Law at 2.
In Weslin, the Second Circuit upheld a criminal conviction
under FACE based on a sit-down protest that blocked entrances to
a clinic providing abortions services. Defendants appealed their
conviction, arguing, inter alia, that they did not have the
requisite mens rea because their motivation was to save the
lives of unborn children rather than interfere with reproductive
services. See Weslin, 156 F.3d at 298. The court recognized
that the defendants "meant to block the entrance to the Planned
Parenthood clinic . . . and they did so because they wished to
prevent the clinic from performing abortions." Id. The court,
therefore, found that the actual motivation behind the
Defendants' actions was irrelevant so long as they "intended to
obstruct and interfere with obtaining and providing reproductive
health services." Id.; see also United States v. McDaniel,
175 F.3d 1009, 1999 WL 177275, at *1 (2nd Cir. Mar. 26, 1999)
(Table) ("[The Weslin holding] follows from the statute
itself, which proscribes interfering with a person's access to
reproductive services `because that person is or has been . . .
obtaining or providing reproductive services.'") (internal
The cases relied on by Plaintiff are factually inapposite,
they involve attempts to physically bar clinic entrances because
those clinics provided reproductive services, the type of
conduct FACE was enacted to address. See, e.g., United States
v. Hart, 212 F.3d 1067 (8th Cir. 2000) (parking Ryder trucks in
front of abortion clinic in attempt to save unborn babies);
McDaniel, 175 F.3d 1009, 1999 WL 177275, at *1 (blockading
clinic in order to prevent people from receiving and providing
abortions); U.S. v. Operation Rescue Nat'l, 111 F. Supp.2d 948,
958 (S.D.Oh. 1999) (physically obstructed entrance to clinic);
United States v. Wilson, 2 F. Supp.2d 1170, 1171 (E.D.Wi.)
(same), aff'd, 154 F.3d 658 (7th Cir. 1998), cert. denied,
525 U.S. 1081, 119 S.Ct. 824, 142 L.Ed.2d 681 (1999).
Moreover, Plaintiffs interpretation of Weslin to mean that
he has to show only that Defendants actually interfered with or
obstructed his provision of reproductive services rather than
that they acted in this way because he provided such services,
is incorrect. See 18 U.S.C. § 248(a)(1); see also McDaniel,
175 F.3d 1009, 1999 WL 177275, at *1 ("Defendants stipulated
that their purpose in blockading the clinic was `in order to
prevent people from receiving and [the clinic] staff from
providing, abortions.' Defendants' actions, therefore, fall
squarely within the ambit of the statute."); U.S. v. Lynch,
162 F.3d 732 (2d Cir. 1998); Operation Rescue Nat'l,
111 F. Supp.2d at 958 ("Finally, the legislative history and courts
have noted that the phrase `because that person is or has been . . .
providing reproductive health services,' requires that the
[plaintiff] prove that the defendant's actions were motivated by
the fact that a person is or has been obtaining or providing
such services.") (citations omitted); Wilson, 2 F. Supp.2d at
1171 (finding that motivation of protecting unborn babies falls
within definition of "reproductive
services" for purpose of FACE's intent element).
Plaintiffs interpretation of FACE's mens rea standard (such
that one only need show obstruction to prove intent) could lead
to ridiculous results. For example, if a building housing
medical offices providing reproductive services was condemned
for public safety reasons such that access to the building was
"obstructed," under Plaintiffs reading of the intent
requirement, the individuals responsible for condemning the
building as well as those responsible for preventing individuals
from entering the unsafe building could be found liable under
FACE because they intended to keep medical providers and
patients out of the building and, in doing so, interfered with
immediate reproductive services. Similarly, if a bomb threat
required immediate evacuation of a reproductive clinic,
individuals escorting patients and medical service providers out
of the facility and/or preventing individuals from entering the
facility could be liable under FACE. Contrary to Plaintiffs
assertions, in these circumstances, the fact that an individual
physically obstructed or literally interfered with provision of
reproductive services would not suffice to establish a violation
of FACE as the obstruction or interference was because of a
threat to patients and providers safety rather than because the
patients were receiving and the providers providing reproductive
In this case, Plaintiff has not alleged that Defendants
obstructed or interfered with the provision of reproductive
services because Plaintiff provided such services (in fact,
Plaintiff alleges in part that his patients were unlawfully
referred to other obstetricians or to providers in Syracuse, New
York whom he considered inept), but rather, the facts indicate
that Plaintiff was prevented from providing certain services due
to hospital policy (amniocentesis procedures were done in
Syracuse) and/or as part of a quality assurance program mandated
by New York Law.*fn3 See N.Y .Educ.Law § 6527;
N.Y.Pub.Health Law §§ 2805 j-m, 2807-i; N.Y.Mental Hyg.Law §
29.29; 10 N.Y.Code Rules and Reg. §§ 405.6, 407.6. In these
circumstances, a reasonable fact finder could not find that
Defendants' actions satisfy the intent requirement of FACE.
The legislative history of FACE supports this decision, as
well as the Court's interpretation of Weslin, 156 F.3d at 298,
regarding FACE's intent requirement. The legislative history is
peppered with references to violence and examples illustrating
that the purpose of the act is to "prevent the growing violence
accompanying the debate over the continued legality and
availability of abortion and other reproductive services."
H.R.Rep. No. 306, 103d Cong.2d Sess. 6-7 (1994), reprinted in
1994 U.S.C.A.N. 699. The report states, "[i]n order to narrowly
tailor this legislation to those activities found by the
Committee to warrant new federal remedies, the act requires that
the offender be motivated by the involvement of the victim or
others in obtaining or providing reproductive health services."
Id. at 709. The legislative history clearly indicates that
FACE was not enacted to address the prohibition of certain
services by a medical provider pursuant to internal hospital
regulations and/or quality assurance programs.