United States District Court, D. Kansas
JULIE GORENC, KARA WINKLER, and MIDWIFE PARTNERS IN WOMEN'S WELLNESS, LLC, Plaintiffs,
JOANN KLAASSEN, RN, MN, JD, in her official capacity as the President of THE KANSAS STATE BOARD OF NURSING, et al., Defendants.
MEMORANDUM & ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE
the court is defendants Adventist Health Mid-America, Inc.
(“Adventist”) and Susan Dahlin, Kathy Gaumer,
Laura McMurray, and Lisa Pazdernik's (collectively the
“Laborists”) Motion to Dismiss (Doc. 15). The
court concludes plaintiffs cannot advance a 42 U.S.C. §
1983 claim because the Laborists and Adventist are not state
actors. And, the court exercises its discretion to decline
supplemental jurisdiction over plaintiffs' state law
claims against the Laborists and Adventist. The court thus
grants the Motion to Dismiss (Doc. 15).
court derives the following factual allegations from
plaintiffs' Complaint (Doc. 1). Plaintiffs are midwives
and hold active advanced practice registered nurse
(“APRN”) licenses issued by the Kansas State
Board of Nursing (“KSBN”). Doc. 1 at 3 (Compl.
¶¶ 7-8). Under Kansas law, the KSBN is tasked with
adopting standards, regulations, and professional
requirements for APRNs. Kan. Stat. Ann. § 65-1130. Under
regulations adopted by the KSBN, APRNs must collaborate with
a medical provider to treat patients. Doc. 1 at 7 (Compl.
¶ 36) (citing Kan. Admin. Regs. §
is a Kansas corporation who owns and operates Shawnee Mission
Medical Center Health (“SMMCH”). Id. at
4 (Compl. ¶ 12). Sometime in 2016, plaintiffs entered
into a Collaborative Practice Agreement (“CPA”)
with Dr. Janetta Proverbs, permitting plaintiffs delivery
privileges at SMMCH. Id. at 5 (Compl. ¶¶
21-25). In late 2017 or early 2018, Dr. Proverbs informed
plaintiffs that she would terminate the CPA, effective
February 2018. Id. (Compl. ¶¶ 23-25).
a CPA with a physician employed or holding privileges at
SMMCH, plaintiffs could not attend the deliveries of their
clients at SMMCH. Plaintiffs sought a CPA with each of the
Laborists, all of whom were Obstetrician/Gynecologists
employed by SMMCH. Id. at 4-5 (Compl. ¶¶
13-16, 26). The chief medical officer at SMMCH informed
plaintiffs that each of the Laborists had refused to enter
into a CPA with plaintiffs. Id. at 6 (Compl.
¶¶ 29-30). Plaintiffs suggest the Laborists would
not enter a CPA because (1) entering into a CPA would
conflict with the Laborists “financial self-interest,
” given that plaintiffs and the Laborists serve the
same, or at least similar, clientele; and (2) a CPA would
have placed “time and energy” burdens on the
Laborists. Id. at 9 (Compl. ¶¶ 51-53).
allege Adventist adopted policies making it “burdensome
on physicians” to enter into CPAs with APRNs such as
plaintiffs. Id. at 6 (Compl. ¶ 31).
Plaintiffs' Complaint accuses Adventist of
“creat[ing] policies harming nurse-midwives” and
“refus[ing] to create a policy or directive encouraging
or mandating the Laborists-or any other physicians-grant a
CPA.” Id. (Compl. ¶ 32). Plaintiffs
contend the policies enacted by Adventist, as well as the
Laborists' refusal to enter into a CPA, deprived
plaintiffs of “Constitutionally protected liberty and
property interests” and caused them to miss 25
deliveries at SMMCH. Id. at 15-16 (Compl.
Complaint includes two claims against Adventist and three
claims against the Laborists. Count III alleges a 42 U.S.C.
§ 1983 claim against both the Laborists and Adventist.
In this claim, plaintiffs contend the Laborists
“willfully and maliciously deprived Plaintiffs of their
liberty and property interests in practicing their chosen
profession and in their freedom of contract.”
Id. at 23 (Compl. ¶ 130). And, plaintiffs
contend, Adventist “exercise[ed] control and
influence” over the Laborists' decisions to not
enter into a CPA with plaintiffs. Id. at 24 (Compl.
¶ 131). Count IV advances a state law claim for tortious
interference with a contract against the Laborists based on
plaintiffs' inability to perform contracts with their
clients after they lost delivery privileges at SMMCH.
Id. at 25-27 (Compl. ¶¶ 143-53). Count V
makes a state law claim for tortious interference with a
business expectancy against the Laborists and Adventist
because these defendants, when they refused to enter into a
CPA with plaintiffs, allegedly restricted the growth of
plaintiffs' midwifery practice. Id. at 27-28
(Compl. ¶¶ 154-65).
Laborists and Adventist moved under Federal Rule of Civil
Procedure 12(b)(6) to dismiss plaintiffs' claims. Doc.
15; Doc. 16 at 4-5. On the § 1983 claim, the Laborists
and Adventist argue that (1) the Complaint fails to identify
a federally protected right because none of their actions
deprived plaintiffs of the opportunity to practice midwifery
at hospitals other than SMMCH; (2) they are not state actors;
and (3) if they are state actors, they are entitled to
qualified immunity. Doc. 16 at 5-18. The Laborists and
Adventist also argue that if the court dismisses the §
1983 claim, it could decline supplemental jurisdiction over
the state law claims asserted in Counts IV and V.
Id. at 18-19. But, if the court were to reach the
merits of the state law claims, they argue plaintiffs'
Complaint fails to allege facts capable of supporting a
reasonable finding that the Laborists and Adventist acted
maliciously or unjustifiably by refusing to enter into a CPA
Response primarily contends that it is unfair to allow a
group of physicians- here, Obstetricians and Gynecologists-to
exercise power to preclude midwives from practicing at a
hospital of the midwives' choice. See Doc. 24 at
3-4 (“If no CPA is formed under the current rules,
Adventist saves money and hassle, but Plaintiffs lose their
legal rights and privileges. This is not equitable, fair or
voluntary for Plaintiffs.”), 9 (“However, each
[Laborist] has their own state-issued license, and Adventist
objects to the possibility that Adventist could be compelled
to act based on Plaintiffs' financial interests. Clearly,
Adventist understands the importance of prohibiting States
from compelling one person to act based purely on the
financial interests of another. Adventist should have
realized that it would be wrong for them to do to others what
they do not want done to them.” (footnote omitted)).
Plaintiffs contend this is so because physicians, such as the
Laborists, can treat pregnant women without entering into a
CPA. Plaintiffs also argue the Laborists and Adventist, by
restricting plaintiffs' ability to use their APRN
licenses-have taken on the role of Kansas legislators.
Standard of Review
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court must assume that the factual
allegations in the complaint are true. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). But this requirement
does not extend to every assertion made in a complaint. The
court is “‘not bound to accept as true a legal
conclusion couched as a factual allegation.'”
Id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice” to state a claim for
relief. Bixler v. Foster, 596 F.3d 751, 756 (10th
Cir. 2010) (quoting Iqbal, 556 U.S. at 678). Also,
the complaint's “[f]actual allegations must be
enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555 (citations
survive a motion to dismiss under Rule 12(b)(6), a complaint
“must contain sufficient factual matter, accepted as
true, to ‘state a claim for relief that is plausible on
its face.'” Iqbal, 556 U.S. at 679
(quoting Twombly, 550 U.S. at 570). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. at 678 (citing Twombly,
550 U.S. at 556). “The plausibility standard is not
akin to a ‘probability requirement,' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556).
court also will grant a motion to dismiss if an issue of law
is dispositive. Neitzke v. Williams, 490 U.S. 319,
326 (1989). And “if as a matter of law ‘it is
clear that no relief could be granted under any set of facts
that could be proved consistent with the allegations,' a
claim must be dismissed, without regard to whether it is
based on an outlandish legal theory or on a close but