[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 30, 2000
THOMAS K. KAHN
No. 99-14122 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 97-01197-CIV-ORL-19
MEREDITH T. RANEY, JR.,
Plaintiff-Appellant,
versus
AWARE WOMAN CENTER FOR CHOICE, INC.,
a Florida Corporation, EDWARD W. WINDLE, JR., and
PATRICIA B. WINDLE, et al.,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 30, 2000)
Before BIRCH, CARNES and BARKETT, Circuit Judges
PER CURIAM:
Meredith T. Raney, Jr. appeals from the grant of summary judgment to
Aware Woman Center for Choice, Inc. (the “Woman Center”), Edward W. Windle,
Jr. and Patricia Windle (collectively “Defendants”) on his claim brought pursuant
to the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248 (2000) (the
“FACE Act”), which guarantees freedom of access to the entrances of reproductive
health facilities. Raney also appeals from the denial of his two post-judgment
motions to alter or amend the judgment. We affirm.
On three occasions, police officers in the city of Melbourne physically
removed Raney from the entrance to the Woman Center and charged him with
having violated a state court injunction, upheld in Madsen v. Women’s Health
Center, Inc., 512 U.S. 753 (1994) (the “Madsen injunction”), that prohibits anti-
abortion protestors from entering a specified 36-foot buffer zone in front of the
Woman Center. In his complaint, Raney alleged that the police officers, as agents
of the Defendants, prevented him from providing counseling services to women
and men as they were entering and leaving the Woman Center and thus violated his
rights, protected under the FACE Act. The district court, finding that Raney could
establish no factual basis for his claim that the city police were agents of the
Defendants, dismissed the complaint. The district court also twice denied Raney’s
motions to alter or amend the judgment, through which he sought to introduce
additional deposition testimony in support of his agency claim.
We review de novo the district court’s order granting summary judgment,
2
viewing the record and all its inferences in favor of the nonmoving party. See
Arrington v. Cobb County, 139 F.3d 865, 871 (11th Cir. 1998). Summary
judgment is proper if there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Irby v. Bittick, 44 F.3d 949, 953
(11th Cir. 1995) (citing Fed. R. Civ. P. 56(c)). We review a district court’s denials
of motions to alter or amend a judgment for abuse of discretion. Mays v. U.S.
Postal Service, 122 F.3d 43, 46 (11th Cir. 1997).
On appeal, Raney first reasserts his claim that the city police, in enforcing
the Madsen injunction, acted as agents of the Defendants. We have reviewed the
record, and we agree with the district court that the affidavits that Raney has
produced do not support his agency claim. “Agency is the fiduciary relation which
results from the manifestation of consent by one person to another that the other
shall act on his behalf and subject to his control, and consent by the other so to
act.” Restatement (Second) of Agency § 1(1) (1958). The affidavits submitted in
support of Raney’s claim establish only that city police were deployed to enforce
the Madsen injunction on days when abortion procedures were performed at the
Woman Center. While the record indicates that the Defendants cooperated with
the police and notified them when the Woman Center’s clients and employees
would need protection, it does not suggest that the police were subject to the
3
Defendants’ control. Accordingly, we find that the district court did not err in
awarding the Defendants summary judgment on the ground that Raney could not
show that the police acted as the Defendants’ agents.
In addition, because Raney cannot state a cause of action under the FACE
Act, we also find that the district court did not abuse its discretion in denying
Raney’s post-judgment motions to amend the judgment. A FACE Act action may
be brought “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 . . . .” 18 U.S.C. § 248(c)(1)(A) (emphasis added). The statute
defines “facility” to include “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 “reproductive health
services” protected under the statute must be provided “in a hospital, clinic,
physician’s office, or other facility . . . .” 18 U.S.C. § 248(e)(5).
By requiring that the person bringing a FACE action be seeking or providing
reproductive health services in a facility, Congress recognized the difference
between trained professionals who work in credentialed facilities and unregulated
volunteer counselors who are not attached to recognized providers of reproductive
healthcare. On each of the three occasions when Raney was arrested for violating
4
the Madsen injunction, he was standing on a sidewalk outside of the Woman
Center clinic. He therefore can claim neither that he was in a facility nor that he
was offering the type of reproductive health services to which the FACE Act
protects access.1
Accordingly, the order of the district court is AFFIRMED.
1
Because we find that Raney cannot bring a cause of action under the FACE Act, we need
not determine whether he qualifies as a “counselor” under the FACE Act.
5