Sanders v. University of Louisville Peace Hospital et al
Filing
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MEMORANDUM OPINION AND ORDER by Senior Judge Charles R. Simpson, III on 03/27/2024. Sanders' Motion to Notice Public Documents (DN 18 ) is GRANTED. Sanders also moved the Court for leave to exceed the page limit for response briefs set by LR 7 .1(d). The Court has considered the entirety of Sanders' Response briefs. Accordingly, her Motion for Leave to Exceed Page Limits (DN 19 ) is GRANTED. For the reasons stated herein, Defendants' Motions to Dismiss (DN 6 , DN 7 , and [D N] 8) are GRANTED in part. Sanders' § 1983 claims are hereby DISMISSED pursuant to FED. R. CIV. P. 12(b(6), and this matter is hereby REMANDED to Division Eight (8) of the Jefferson Circuit Court, Louisville, Jefferson County, Kentucky to address Sanders' state law claims. cc: Counsel (HMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:23-cv-00128-CRS
KENDRAH SANDERS
PLAINTIFF
v.
UofL HEALTH-LOUISVILLE, INC., et al
DEFENDANTS
MEMORANDUM OPINION AND ORDER
Plaintiff, Kendrah Sanders, brings this action for compensatory and punitive damages
pursuant to 42 U.S.C. § 1983. Sanders alleges that her former employer, defendant UofL HealthLouisville, Inc., fired her because she publicly criticized “UofL” in a Facebook post. She contends
that her firing was unlawful retaliation. Sanders has also alleged several state-law claims. This
matter is before the Court on Defendants’ Motions to Dismiss. Those Motions require the Court
to answer this determinative question: Has Sanders sufficiently pleaded a viable § 1983 claim?
The answer to that question is “No.” Accordingly, the Court will dismiss the §1983 claims, decline
to reach Sanders’ state-law claims and remand this action to state court.
BACKGROUND
In April 2022, Sanders filed a complaint in Jefferson Circuit Court, asserting claims of race
discrimination and retaliation. Sanders was still employed with UofL Health-Louisville, Inc. (d/b/a
Peace Hospital) at that time. About 8 months later, in December 2022, Sanders was fired. On
February 6, 2023, Sanders filed an Amended Complaint, adding her § 1983 claim. As a result, on
March 15, 2023, Defendants removed this action to this Court.
Shortly thereafter, Defendants moved to dismiss pursuant to FED. R. CIV. P. 12(b)(6). See
DN 6, 7, and 8. With respect to Sanders’ § 1983 claim, former employer Peace Hospital moves to
dismiss on the ground that is a private company, and, thus, is not amenable to suit under § 1983.
Mem. in Supp. of Partial Mot. to Dismiss, DN 7-1 at 6-10. Defendants UofL Health, Inc.; Jessica
Dawn Campbell; Amanda Florence Whitlow; Alicia Acles Long; and Martha Strickland Mather
(together the “Non-University Defendants”) seek dismissal of the § 1983 claims on the same
ground, Id.; Mot. to Dismiss, DN 6 at 7-9. The University of Louisville (the “University”) seeks
dismissal based on sovereign immunity. Mot. to Dismiss, DN 8 at 4-6.
STANDARD OF REVIEW
Review under Rule 12(b)(6) requires the Court to “construe the complaint in the light most
favorable to the plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605,
608 (6th Cir. 2012). Further, “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546
(2007) (cleaned up) (internal citations omitted). A complaint is insufficient “if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 55 U.S. at 557).
Together, Iqbal and Twombly require a plaintiff to “plead facts sufficient to show that her
claim has substantive plausibility.” Johnson v. City of Shelby, 574 U.S. 10, 12 (2014). “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.” Iqbal, 556 U.S. at
663.
Finally, with respect to § 1983 claims for damages, the plaintiff “must allege, with
particularity, facts that demonstrate what each defendant did to violate the asserted constitutional
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right.” Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008) (citing Terrance v Northville Reg’l
Psychiatric Hosp., 286 F.3d 834, 842 (6th Cir. 2002)). Stated another way, only state actors “with
direct responsibility for the challenged action may be subject to § 1983 liability.” Wilson v.
Morgan, 477 F.3d 326, 337 (6th Cir. 2007). Thus, “‘conclusory allegations of officers’ collective
responsibility’” do not pass muster. Gordon v. Louisville/Jefferson Cnty. Metro Gv’t, 486 Fed.
Appx. 534, 539 (6th Cir. 2012) (quoting Hessel v. O’Hearn, 977 F.2d 299, 305 (7th Cir. 1992)).
ANALYSIS
A. Sanders’ § 1983 Claim
On December 28, 2022, defendant Long, Peace Hospital’s then Interim Human Resources
Director, sent a termination of employment notice to Sanders. Amd. Complaint, DN 1-1, at ¶ 87,
88. Sanders alleges that the sole ground given for her termination was a Facebook post about
“‘white supremacy’” at “the institution.” Id. at ¶¶ 89-90. Sanders alleges that her post was
protected by the First Amendment. Thus, she contends, her termination was unlawful retaliation
under § 1983. Id. at ¶¶ 140-155.
“Section 1983 provides a cause of action against any person who deprives an individual of
federally guaranteed rights ‘under color’ of state law. Anyone whose conduct is ‘fairly attributable
to the state can be sued as a state actor under § 1983.” United Pet Supply, Inc. v. City of
Chattanooga, 768 F.3d 464, 478 (6th Cir. 2014) (quoting Filarsky v. Delia, 566 U.S. 377, 383
(2012)). Accordingly, private actors are not subject to § 1983 claims. Thus, if Sanders has not
pleaded facts which plausibly suggest state action by the non-University Defendants, her § 1983
claims against them must be dismissed. Amer. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50
(1999) (§ 1983 excludes “merely private conduct, however discriminatory or wrongful.”).
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1. The Non-University Defendants
The Non-University Defendants are two private corporations and four private individuals:
Peace Hospital; UofL Health, Inc. (“UofL Health”); Campbell; Long; Mather; and Whitlow.1 They
each seek dismissal on the ground that they were private, and not state, actors. In response, Sanders
contends that because Peace Hospital and UofL Health are closely affiliated with the University,
those separate entities and their employees are effectively University employees: “Here, Plaintiff’s
Amended Complaint deals with an employing entity that exists solely to carry out the goals of the
University of Louisville and maintains too close of a relationship with the University to be seen as
completely independent . . . .” Responses, DN 20 at 13 & DN 21 at 17. Thus, according to Sanders,
Peace Hospital, UofL Health, and their employees are ipso facto state actors. Sanders also argues
that the University, Peace Hospital and UofL Health were her “joint employers,” providing a
second ground on which to deem the private entities and their employees state actors. Id. at 2.
“‘[N]o one fact can function as a necessary condition across the board for finding state
action; nor is any set of circumstances absolutely sufficient.’” Ciraci v. J.M. Smucker Co., 62 F.4th
278, 281 (6th Cir. 2023) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531
U.S. 288, 295 (2001)). “Still, we often gauge state actor status by asking three questions: does a
private company's conduct concern traditionally exclusive governmental functions, reflect
entwinement, a nexus, or joint action with state officials, or involve compulsion by the
government?” Id. (citation omitted). Here, the ultimate question is whether Sanders has pleaded
sufficient facts such that the answer to at least one of these questions is “yes.” Sanders contends
1
Peace Hospital is a Kentucky non-profit corporation. Amd. Compl, DN 1-1, at ¶ 2. UofL Health is the sole member
of Peace Hospital. Id. at ¶ 4. Defendant Martha Mather (“Mather”) was the Chief Operating Officer of Peace Hospital.
Id. at ¶ 58. Defendants Jessica Dawn Campbell (“Campbell”), Alicia Acles Long (“Long”), and Amanda Florence
Whitlow (“Whitlow”) were also Peace Hospital employees. Id. at ¶¶ 24, 35, 50, 52, 55-57, 59, 60, 63-65; see also
Response to Motion to Dismiss, DN 21 at 20.
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that coupled with the Articles of Incorporation for UofL Health and Peace Hospital, 2 she has
sufficiently pleaded under all four queries. While Sanders has given it a college-try, the Court
disagrees.
Question #1: Does the service at issue here involve a traditional government function? It
does not. “To qualify ‘as a traditional, exclusive public function,’ the government ‘must have
traditionally and exclusively performed the function.’” Id. at 282 (emphasis in original) (citation
omitted). Peace Hospital provides healthcare within the Commonwealth of Kentucky.3 Healthcare
is not a function that has been traditionally and exclusively performed by the government.
Wolotsky v. Huhn, 960 F.2d 1331 (6th Cir. 1992) (“providing mental health services has not been
a power which has traditionally been exclusively reserved to the state”); White v. Universal Fid.,
LP, 2018 WL 5116494, at *3 (E.D. Ky. Oct. 19, 2018), aff'd, 793 Fed. Appx. 389 (6th Cir. 2019)
(provision of medical services occurs “frequently among private parties”). The fact that Peace
Hospital’s and UofL Health’s Articles of Incorporation charge them with carrying out the
charitable and educational purposes of the University does not change this result. The “inquiry
focuses on the entity’s underlying service,” not on any governmental mandate. Ciraci, 62 F.4th at
282; Marie v. Am. Red Cross, 771 F.3d 344, 362 (6th Cir. 2014) (public function test not satisfied
by governmental mandate to provide disaster relief). For this reason, Sanders’ reliance on that
corporate purpose4 does not help her.
2
Sanders moved the Court to take judicial notice of those Articles of Incorporation and treat their contents as facts
which support a finding of state action. Motion, DN 18. The Court notes that it may properly take such notice in
reviewing a motion to dismiss. Wyser—Pratte Mgmt. Co. v. Telxon Corp., 413 F.3d 553, 560 (6th Cir. 2005) (on a
motion to dismiss court may consider public records).
3
See Amd. Complaint at ¶ 3 (Peace Hospital and UofL Health “carry out” medical/clinical activities in the
community”); Peace Hospital’s Articles of Incorporation, Art. II, § 1(c) (among other things, corporation was
organized to “[o]perate such healthcare facilities, services and programs as are deemed appropriate for the care of
persons suffering from illness or disability.”). DN 18-3 at 3.
4
See Response, DN 21 at 19 (“The Charitable and Educational Purposes Clause of the Articles of Incorporation
relative to the UofL entities are carried out by the subsidiaries taking actions.”).
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Question #2: Have the actions of the University, Peace Hospital and UofL Health “become
so entwined as to amount to a form of collective state action?”5 Under this test, “a nominally
private entity may be a state actor when it is entwined in its management and control.” Brentwood
Acad., 531 U.S. at 296. There are no allegations in Sanders’ complaint which plausibly suggest
that such is the case here. Again, Sanders leans heavily on the corporate purpose of carrying out
the University’s charitable and educational purposes: “UofL Health is bound to the purposes of a
Kentucky state agency, the University,” as shown by its Articles. Id. However, “‘mere cooperation
simply does not rise to the level of merger required for a finding of state action.’” Marie v. Am.
Red Cross, 771 F.3d 344, 364 (6th Cir. 2014) (quoting Lansing v. City of Memphis, 202 F.3d 821,
831 (6th Cir. 2000)).
Further, Sanders contends that given their purposes to carry out the University’s charitable
and educational purposes, it “necessarily follows” that the University manages UofL Health’s and
Peace Hospital’s operations. Response, DN 21 at 25-26. In support of this assertion, Sanders points
to the fact that the initial Boards for these entities were comprised of University employees. But
that fact is not dispositive given that the entities were incorporated in 2019, that Sanders was fired
in 2022 and the Boards of Directors changed between 2019 and 2022.6 Even so, dual employment
between the University and the private companies is not determinative of who controlled Peace
Hospital’s personnel decisions Austin v. Diaz, 194 F.3d 1311 (6th Cir. 1999) (unpublished table
decision) (“dual positions” in the University and affiliated hospital “to establish state action is
unavailing”); accord Schwartz, Schwartz v. Univ. of Cin. College of Medicine, 436 F. Supp. 3d
1030, 1039 (S.D. Ohio 2020); see also Borrell v. Bloomsburg Univ., 870 F.2d 154 (3rd Cir. 2017)
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6
Ciraci, 62 F.4th at 282.
Reply, DN 25 at 5 (providing links to 2020 Annual Reports filed by UofL Health and Peace Hospital).
6
(director of joint nursing program was not state actor where affiliated university did not participate
in termination decision).
Question #3: Did Peace Hospital fire Sanders because the University “‘compelled it to do
so,’ or offered it such significant encouragements . . . that [its] choice must in law be deemed to
be that of the State’”? Ciraci, 62 F.4th at 283 (citation omitted). Under this query, courts assess
the connection between the challenged conduct and the state, rather than simply examining the
relationship between the state and the private entity. Marie, 771 F.3d at 363; Wilcher v. City of
Akron, 498 F.3d 516, 520 (6th Cir. 2007) (“plaintiff must allege . . . that state officials coerced or
participated in the company's decision-making to the extent required to trigger state actor status.”).
pertinent here, a general directive, such as carrying out the University’s charitable and educational
purposes clauses, does not convert private action into state action. Id. at 283 (“State’s general
directive to provide appropriate care did not compel any particular . . . decision,” so transfer
decision was not state action) (citing Blum v. Yaretsky, 457 U.S. 991, 1008 (1982)). Thus, Sanders’
continued reliance on that corporate purpose to satisfy the third query is unavailing.
Moreover, Sanders has not pleaded sufficient facts to suggest that the University
participated at all in the decision to fire her from Peace Hospital. Sanders has pleaded that Long,
a Peace Hospital employee, sent the termination notice, that she signed it “in her official capacity
as interim Human Resources Director,” and that the notice stated that “Sanders “was being
terminated for a post on social media (Facebook)” which “expressed an opinion about ‘white
supremacy’ at the institution.” Amd. Complaint, DN 1, at ¶ 87-89. In fact, all of the individual
Defendants in this action were Peace Hospital employees – something which Sanders
acknowledges. Response to Motion to Dismiss, DN 21 at 20. There are no allegations of
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participation by the University in Peace Hospital’s termination decision, much less that the
University coerced this decision.
Instead, Sanders attempts to satisfy the third test by pleading collectively. In her complaint,
Sanders uses “UofL” to refer to Peace Hospital, UofL Health and the University and then pleads
wrongdoing by “UofL.” Such collective pleading fails to state a claim under § 1983. Only state
actors “with direct responsibility for the challenged action may be subject to § 1983 liability.”
Wilson, 477 F.3d at 337. Thus, conclusory allegations of ‘collective responsibility’” do not pass
muster. Gordon, 486 Fed. Appx. at 539.
Finally, there is Sanders’ argument that she was jointly employed by the University, UofL
Health and Peace Hospital which means that she was a public employee. To support this
contention, Sanders relies on her conclusory allegation Peace Hospital and UofL Health “are
divisions or departments of Defendant University of Louisville, and they act in conjunction with
each other for a common purpose.” Response, DN 20, at 2 (citing Amd. Compl. at ¶ 24). This
conclusory statement is not, however, supported by further factual enhancement and the Court
declines to accept it as true. Twombly, 550 U.S. at 546; Papasan v. Allain 478 U.S. 265, 286 (1986)
(on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a
factual allegation”). The only additional “facts” Sanders offers are, again, statements in the private
companies’ Articles of Incorporation. Id.; see also Response, DN 21 at 2; Response, DN 22 at 2.
However, those documents do not establish that either Peace Hospital or UofL Health is a division
or department of the University. Nor do they establish that these entities are “wholly-owned
subsidiaries” of the University.
In sum, Sanders claims against the non-University Defendants do not state a valid § 1983
under any of the four tests for state action. This is true even when the Court takes judicial notice
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of the Articles of Incorporation for UofL Health and Peace Hospital. Because Sanders has failed
to sufficiently plead that the non-University Defendants acted under color of state law, the § 1983
claims against them must be dismissed.
2. The University
The parties agree that the University of Louisville (the “University”) is an arm of the state.
The result is that Sanders’ § 1983 claim against the University must also be dismissed. A suit
against an arm of the state is “no different from a suit against the State itself.” Will v. Mich. Dept.
of State Police, 491 U.S. 58, 71 (1989). States are not “persons” subject to suit under § 1983. Id.
at 64. In addition to not being subject to suit, claims for money damages against the State are
barred by the Eleventh Amendment. Johnson v. Univ. of Cincinnati, 215 F.3d 561, 571 (6th Cir.
2000) (“University, as an arm of the State, is immune from suit under the Eleventh Amendment.”);
accord McKenna v. Bowling Green State Univ., 568 Fed. Appx. 450, 457 (6th Cir. 2014). Thus,
Sanders has failed to state a § 1983 claim against the University.7
B. State Law Claims
Having dismissed Sanders’ federal claims, the Court declines to exercise its supplemental
jurisdiction over Sanders’ state-law claims. See 28 U.S.C. § 1367(c)(3) (“The district courts may
decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed
all claims over which it has original jurisdiction.”); United Mine Workers v. Gibbs, 383 U.S. 715,
726 (1966); Burnett v. Griffith, 33 F.4th 907, 915 (6th Cir. 2022) (“[A] federal court that has
dismissed a plaintiff’s federal-law claims should not ordinarily reach the plaintiff’s state-law
claims.”) (quoting Rouster v. Cnty. of Saginaw, 749 F.3d 437, 454 (6th Cir. 2014)).
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Sanders contends that she did not plead a § 1983 claim against the University. Response, DN 22, at 8-9. The Court
disagrees. Sanders pleaded claims against the individual defendants in their “official capacities,” Amd. Compl. at ¶
17, and argues that she pleaded joint-employer liability. Also, Sanders collectively pleaded her § 1983 claim against
the “Defendants” without identifying which Defendants were being implicated. See Amd. Compl. at ¶¶ 150-155.
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CONCLUSION
As noted above, Sanders moved the Court to take judicial notice of the Articles of
Incorporation for UofL Health, Inc. and UofL Health-Louisville, Inc. (d/b/a Peace Hospital). The
Court has taken judicial notice of those Articles. Accordingly, Sanders’ Motion to Notice Public
Documents (DN 18) is GRANTED. Sanders also moved the Court for leave to exceed the page
limit for response briefs set by LR 7.1(d). The Court has considered the entirety of Sanders’
Response briefs. Accordingly, her Motion for Leave to Exceed Page Limits (DN 19) is
GRANTED. For the reasons stated herein, Defendants’ Motions to Dismiss (DN 6, DN, 7 and
DN 8) are GRANTED in part. Sanders’ § 1983 claims are hereby DISMISSED pursuant to FED.
R. CIV. P. 12(b(6), and this matter is hereby REMANDED to Division Eight (8) of the Jefferson
Circuit Court, Louisville, Jefferson County, Kentucky to address Sanders’ state law claims.
IT IS SO ORDERED.
March 27, 2024
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