[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12311 ELEVENTH CIRCUIT
APRIL 29, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 03-00068-CV-WLS-1
MILAGROS S. KEH,
Plaintiff-Appellant,
versus
AMERICUS and SUMTER COUNTY HOSPITAL,
d.b.a. Sumter Regional Hospital Inc,
SOUTHWEST GEORGIA HEALTHCARE ASSOCIATION INC,
SOUTHWEST GEORGIA HEALTHCARE RESOURCES INC,
JERRY ADAMS,
Individually and in his official capacity as CEO
of Sumter Regional Hospital, Inc.; Southwest GA.
Healthcare Resources, Inc.,
M.D. ANDREW C. CARLSON,
Indiv. and in his official capacity as CEO,
Medical Director and Chairman of the Board of Directors of
Southwest Georgia Healthcare Association, Inc.,
et. al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(April 29, 2010)
Before EDMONDSON, BIRCH and KRAVITCH, Circuit Judges.
PER CURIAM:
Milagros Keh appeals the district court’s dismissal of her federal civil rights
and state-law defamation claims. We affirm.
I. Background
In 1992, Milagros Keh, a Filipina psychiatrist, joined the medical staff at
Sumter Regional Hospital, a non-profit medical-treatment corporation located in
Americus, Georgia. She also joined Southwest Georgia Healthcare Association
(SGHA), a non-profit corporation which acts as a contracting agent with managed-
care plans and insurers for many Sumter Regional physicians. SGHA requires
participating physicians to be in good standing at Sumter Regional and undergo a
credentialing process.
In 1999, Gwen Morgan, a psychiatrist and one of the defendants, lodged a
complaint with Sumter Regional, alleging that Keh had attempted to purchase
property from a mentally disabled patient. John Marshall, a black doctor on the
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Sumter Regional Executive Committee, opposed taking any action without first
conducting an investigation. The investigation later exonerated Keh. Marshall
later filed a civil rights action against Sumter Regional and identified Keh as a
potential witness. Keh’s motion to intervene in the case was denied and she never
testified in relation to Marshall’s case.
In January 2001, SGHA suspended Keh’s membership privileges for
“alleged failure to document patient care, as well as incomplete medical records.”
Ten months later, Sumter Regional summarily suspended Keh’s privileges to admit
patients because a review showed her medical care was “below the standard of care
required.”
On April 24, 2003, Keh sued SGHA and Sumter Regional along with
eighteen other defendants. She alleged, inter alia, that the defendants (1) violated
42 U.S.C. § 1981 by conspiring to terminate her ability to make and enter contracts
due to her national origin; (2) violated 42 U.S.C. § 1983 by retaliating against her
for her involvement in Marshall’s case; and (3) violated 42 U.S.C. § 1985(2) by
conspiring to deter her from participating in a judicial proceeding. She sought
money damages under 42 U.S.C. § 1985(3) and attorney’s fees under 42 U.S.C. §
1988 for these alleged federal violations. She also brought state-law defamation
claims against the defendants.
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In 2005, the district court granted the defendants’ motion to dismiss on
Keh’s § 1983 claim because she failed to sufficiently plead state action. In 2006,
the district court granted the defendants’ motion for a judgment on the pleadings
and dismissed Keh’s defamation claims for a failure to comply with Georgia’s one-
year statute of limitation. In 2008, the court granted defendants Michael
Cacciatore and Joseph King’s motion for partial summary judgment and dismissed
Keh’s §§ 1981, 1985(2), 1985(3), and 1988 claims against them. In 2009, the
court found that the remaining defendants were similarly situated to Cacciatore and
King and dismissed sua sponte Keh’s federal civil-rights claims against the
remaining defendants. The district court also denied Keh’s motion for leave to file
a second amended complaint and declined to exercise jurisdiction over Keh’s
remaining state claims.
Keh argues that the district court erred in dismissing both her federal civil-
rights claims and her state-law defamation claims. Keh also argues that the district
court erred in dismissing the case sua sponte, granting summary judgment for
Cacciatore and King without completing discovery, denying her motion for leave
to file a second amended complaint, and refusing to exercise jurisdiction over her
remaining state-law claims after dismissing the federal claims.
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II. Discussion
1. Section 1981 claim
Keh argues that the district court erred in dismissing her § 1981 claim for a
failure to plead it with sufficient particularity. A complaint must provide “ ‘a short
and plain statement of the claim’ that will give the defendant fair notice of . . . the .
. . claim . . . and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41,
47 (1957) (citing Fed. R. Civ. P. 8(a)). Allegations which fail to provide such
notice are appropriately subject to summary judgment. Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 514 (2002). In her complaint, Keh only mentioned a potential
§ 1981 claim once, including it with her other federal claims in a paragraph
describing the jurisdiction of the court. Furthermore, she did not allege any facts
in her complaint that the defendants intentionally discriminated against her due to
her national origin. Thus, the district court did not err in dismissing her § 1981
claim.
2. Section 1983 claim
Keh argues that the district court erred in dismissing her § 1983 claim for
failure to adequately establish state action. To obtain relief under § 1983, Keh
must show that she was deprived of a federal right by a person acting under color
of state law. See Willis v. Univ. Health Servs., Inc., 993 F.2d 837, 840 (11th Cir.
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1993). “[A] private hospital is subject to the provisions of 42 U.S.C. § 1983 and
the Fourteenth Amendment only if its activities are significantly affected with state
involvement.” Greco v. Orange Mem’l Hosp. Corp., 513 F.2d 873, 877 (5th Cir.
1975), cert. denied, 423 U.S. 1000 (1975).1
Keh argues that she alleged sufficient facts in her complaint to establish that
SGHA, Sumter Regional, and the other defendants were state actors. She relies on
Faucher v. Rodziewicz, 891 F.2d 864 (11th Cir. 1990), which she claims
establishes that a hospital and its physicians are state actors.
Faucher held that a hospital and its member doctors were state actors
because the hospital was established by Georgia law. Keh’s complaint does not
allege that either Sumter Regional or SGHA were public entities or otherwise
established by Georgia law. In fact, her complaint simply refers to both Sumter
Regional and SGHA as “non-profit corporations” incorporated in the state of
Georgia. Furthermore, nothing in her complaint suggests that any of the individual
doctors are state agents. Finally, Keh alleges no facts in her complaint suggesting
any state involvement with any of the defendants or their decisions. Thus, the
district court did not err in dismissing her § 1983 claim.
1
In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent in the Eleventh Circuit all decisions of the former Fifth Circuit announced
prior to October 1, 1981.
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3. Section 1985(2) claim
Keh argues that the district court improperly granted summary judgment on
her § 1985(2) claim. Section 1985(2) provides a right of action against persons
involved in a conspiracy to deter any party from attending or testifying in court or
to injure any such person on account of his having so testified. “Congress meant
Section 1985(2) to protect a party while attending or testifying in court.” Kimble v.
D.J. McDuffy, Inc., 648 F.2d 340, 348 (5th Cir. 1981).2
In her deposition, Keh admitted that she never attended court in connection
with the Marshall case, that no person ever prevented her from attending court in
the Marshall case, and that she was never prevented in any way from providing
testimony in the Marshall case. Thus, the defendants could not have conspired to
prevent her from attending or testifying in court, and the district court correctly
dismissed her § 1985(2) claim.
4. Section 1985(3) and 1988 claims
Keh argues that the district court improperly dismissed her §§ 1985(3) and
1988 claims. “Section 1985(3) provides no substantive rights itself; it merely
provides a remedy for violation of the rights it designates.” Great Am. Fed. Sav. &
2
The Fifth Circuit rendered the Kimble decision on June 18, 1981, so it is binding on the
Eleventh Circuit. See Bonner, 661 F.2d at 1209.
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Loan Ass’n v. Novotny, 442 U.S. 366 (1979). Section 1988 also does not afford the
plaintiff a substantive right; instead, it allows the plaintiff to recover attorney’s fees
if he or she successfully alleges the violation of a federal right. 42 U.S.C. §
1988(b).
Because the court properly dismissed Keh’s claims that the defendants
violated her federal rights, the district court correctly dismissed her §§ 1985(3) and
1988 claims.
5. Sua sponte dismissal
Keh contends that the district court erred because it dismissed her claims sua
sponte without affording her prior notice and an opportunity to be heard. We
review the district court’s sua sponte dismissal de novo. Farese v. Scherer, 342
F.3d 1223, 1230 (11th Cir. 2003).
“[D]istrict courts are widely acknowledged to possess the power to enter
summary judgments sua sponte, so long as the losing party was on notice that she
had to come forward with all of her evidence.” Celotex Corp. v. Catrett, 477 U.S.
317 (1986). But, “where a legal issue has been fully developed, and the
evidentiary record is complete, summary judgment is entirely appropriate even if
no formal notice has been provided.” Artistic Entm’t, Inc. v. City of Warner
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Robins, 331 F.3d 1196, 1201 (11th Cir. 2003).
Although the district court did not give Keh formal notice, Keh had adequate
opportunity to address the legal issues that the court resolved in issuing its sua
sponte dismissal. Keh’s response to Cacciatore and King’s motion for partial
summary judgment addressed all of the issues that were ultimately considered by
the district court in its sua sponte dismissal. Thus, both the legal and evidentiary
issues were fully developed and the district court correctly dismissed Keh’s
remaining federal claims.
6. Denial of leave to amend
Keh argues that the district court erred by refusing to grant her motion for
leave to file a second amended complaint under Federal Rule of Civil Procedure
15(a). We review the district court’s decision for an abuse of discretion. Bel-Bel
Int’l Corp. v. Cmty. Bank, 162 F.3d 1101, 1110 (11th Cir. 1998). “A district court
abuses its discretion if it applies an incorrect legal standard, follows improper
procedures in making the determination, or makes findings of fact that are clearly
erroneous.” Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332,
1336 (11th Cir. 2002).
“Although generally, the mere passage of time, without more, is an
insufficient reason to deny leave to amend a complaint, undue delay may clearly
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support such denial.” Hester v. Int’l Union of Operating Eng’rs, 941 F.2d 1574,
1578-79 (11th Cir. 1991). Keh filed her motion for leave to amend six years after
filing her first complaint. Thus, the district court did not abuse its discretion in
finding undue delay and denying Keh’s motion for leave to file a second amended
complaint.
7. State-law defamation claims
Keh argues that the court improperly dismissed her state-law defamation
claims for failing to comply with the statute of limitation. Georgia has a one-year
statute of limitation on actions for defamation, but Keh’s complaint states nowhere
that she suffered an injury to her reputation in the year before she filed her
complaint.
Keh argues that the district court improperly failed to consider two
documents that establish her compliance with the statute of limitation: (1) a
“declaration” that she attached to her response to the defendants’ motion to dismiss
and (2) a report filed with the Composite State Board of Medical Examiners. We
review the district court’s decision to grant a motion to dismiss de novo. S.E.C. v.
Mut. Benefits Corp., 408 F.3d 737, 741 (11th Cir. 2005).
As a general rule, “[t]he scope of the review [on a motion to dismiss] must
be limited to the four corners of the complaint.” St. George v. Pinellas County,
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285 F.3d 1334, 1337 (11th Cir. 2002); see also Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007). Keh argues that the district court should have considered the
declaration under the incorporation-by-reference doctrine. Horsley v. Feldt, 304
F.3d 1125, 1134 (11th Cir. 2002). This doctrine provides that “a document
attached to a motion to dismiss may be considered by the court . . . only if the
attached document is: (1) central to the plaintiff’s claim; and (2) undisputed.”
Harris v. Ivax Corp., 182 F.3d 799, 802 n. 2 (11th Cir. 1999). The defendants
here, however, contest the validity of the declaration. The declaration, therefore, is
not undisputed, and the district court did not improperly fail to consider it.
Keh also argues that the district court erred by failing to consider a report
filed with the Composite State Board of Medical Examiners. Keh cannot identify
this report, however, and never subpoenaed the Board to obtain it. Thus, the
district court did not err in failing to consider it.
8. Retaining jurisdiction over state-law claims
Keh argues that the district court abused its discretion by failing to exercise
its pendent jurisdiction over her state-law claims after it had dismissed her federal
claims.
We have held that a district court abuses its discretion in dismissing state
law claims if there is no adequate state forum for adjudicating the state-law claims.
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See L.A. Draper & Son v. Wheelabrator-Frye, Inc., 735 F.2d 414, 427-28 (11th
Cir. 1984). Otherwise, “pendent jurisdiction is a doctrine of discretion, not of
plaintiff’s right.” United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966).
Keh does not argue that she cannot adjudicate her claims in a state forum, so the
district court did not abuse its discretion in failing to exercise its pendent
jurisdiction over her state-law claims.
9. Summary judgment for Cacciatore and King
Keh argues that the district court improperly granted Cacciatore and King’s
motion for partial summary judgment because it denied her Rule 56(f) motion to
continue discovery and improperly interpreted Rule 33. “District judges are
accorded wide discretion in ruling upon discovery motions, and appellate review is
accordingly deferential.” Harris v. Chapman, 97 F.3d 499, 506 (11th Cir. 1996).
We review a denial of discovery under Rule 56(f) for abuse of discretion.
See Fla. Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1315 (11th
Cir. 1990). A Rule 56(f) motion must be supported by an affidavit which sets forth
with particularity the facts the moving party expects to discover and how those
facts would create a genuine issue of material fact precluding summary judgment.
See Fed. R. Civ. P. 56(f). Keh did not file an affidavit with her rule 56(f) motion.
Thus, the district court did not abuse its discretion in denying her Rule 56(f)
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motion.
Keh contends that the district court improperly denied her motion to compel
and motion for sanctions because the defendants’ responses to her interrogatories
did not comply with Rule 33. Interpreting the Federal Rules of Civil Procedure
presents a question of law subject to de novo review. McBride v. Sharpe, 25 F.3d
962, 967-68 (11th Cir. 1994). We review a district court’s factual findings for
clear error. Daewoo Motor Am., Inc. v. Gen. Motors Corp., 459 F.3d 1249, 1256
(11th Cir. 2006).
The district court, in finding that the defendants complied with Rule 33,
stated that “notwithstanding the suspect nature of many of Defendants’ responses,
Defendants did in fact comply with the Court’s requirements.” There is nothing in
the record suggesting that this finding is clearly erroneous and we conclude that the
district court properly granted Cacciatore and King’s motion for summary
judgment.
Accordingly, the district court’s dismissal of Keh’s claims is
AFFIRMED.
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