
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2047                               JAMES BENJAMIN, JR., M.D.,                                Plaintiff, Appellant,                                          v.                     THE AROOSTOOK MEDICAL CENTER, INC., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            James Benjamin, Jr., M.D. on brief pro se.            _________________________            Christopher  D.   Nyhan,  Penny  Littell,   and  Preti,  Flaherty,            _______________________   ______________         _________________        Beliveau & Pachios, LLC on brief for appellees.        _______________________                                 ____________________                                     May 9, 1997                                 ____________________                      Per Curiam.   Appellant James  Benjamin, Jr.,  M.D.                      __________            appeals  from the  decision  of the  district court  granting            summary judgment  to appellees, The  Aroostook Medical Center            ("TAMC") and various physicians  associated with TAMC.  After            carefully reviewing  the record  and the parties'  briefs, we            affirm  the district  court's  judgment  for essentially  the            reasons stated in its  published opinion reported at Benjamin                                                                 ________            v. Aroostook Med. Ctr., 937 F.Supp. 957 (D.Me. 1996).  We add               ___________________            the following comments.                      1.  Appellant's claim that the individual appellees            conspired to restrain trade in violation  of 15 U.S.C.   1 is            analyzed under the "rule of reason."  See Flegel v. Christian                                                  ___ ______    _________            Hosp., Northeast-Northwest,  4 F.3d 682, 686  (8th Cir. 1993)            __________________________            (the  courts   of  appeals  usually  review   the  denial  or            revocation  of  hospital   privileges,  especially  in  cases            involving  individual  determinations of  incompetence, under            the  rule of  reason)  (citing cases).    We agree  that  the            appellant did  not make any  showing of harm  to competition,            either directly  or by  reasonable inference.   Thus, summary            judgment  was appropriate.   See  Rebel  Oil Co.  v. Atlantic                                         ___  ______________     ________            Richfield Co., 51  F.3d 1421, 1435 (9th  Cir.), cert. denied,            _____________                                   ____________            116 S.Ct. 515 (1995).                      2. Because the facts upon which appellant bases his            claim  of discrimination  concerning  his contract  with TAMC            occurred after 1991,  the claim is cognizable under 42 U.S.C.                                         -2-               1981.   See    1981(b).   After  reviewing the  record and                       ___            appellant's  arguments  on  appeal,  however,  we  find  that            appellant  has   failed  to  show   that  TAMC  intentionally            discriminated against  him based  on  his race.   See  Ayala-                                                              ___  ______            Gerena  v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir.            ______     ________________________            1996).                       3.  Appellant's claim of malicious abuse of process            is barred by the  doctrine of res judicata.  Under Maine law,            res judicata  bars the relitigation  of issues that  were, or            could  have been, decided in a prior  case if:  "(1) the same            parties  or their privies are involved in both actions; (2) a            valid final judgment was entered in the prior action; and (3)            the matters  present for  decision  now were,  or might  have            been,  litigated in the prior  action."  Currier  v. Cyr, 570                                                     _______     ___            A.2d 1205, 1208 (Me. 1990).                      In  1996,  the  Maine  Supreme  Judicial Court,  on            appeal from  a lower  court's decision adverse  to appellant,            held  that TAMC  was immune  from appellant's state  law tort            claims  concerning  the peer  review  process.   Benjamin  v.                                                             ________            Aroostook  Medical  Ctr.,  Law  Docket  No.  Aro-95-569  (Me.            ________________________            November 14, 1996).   In so holding, the court  relied on the            federal  Health Care  Quality Improvement  Act, 42  U.S.C.               11101-11152, and  the state Health Security  Act, 24 M.R.S.A.                2501-2511.    Appellant's  claim  in  the  case at  hand,            although not precisely articulated,  also centers on the peer                                         -3-            review process -- i.e., the filing by TAMC of allegedly false            reports  with the  National  Practitioner Data  Bank and  the            Maine State Medical Board.                      Res judicata  applies to  the case at  hand because            the parties to  both the  state and federal  actions are  the            same and  the Supreme Judicial  Court's decision  is a  valid            final judgment.   Further, there is  no reason why  appellant            could not have litigated in the state action the claim he now            presents.  The  fact that  the state action  was premised  on            state  tort law  while  the federal  case  was based  on  the            Constitution does not matter.  Currier, 570 A.2d at 1205.                                           _______                      For  the  foregoing  reasons, the  judgment  of the            district court is affirmed.                              ________                                         -4-
