                                                               [PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT



                                                                    FILED
                               No. 05-11628                U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                         D. C. Docket No. CV-05-00530            March 25, 2005
                                                              THOMAS K. KAHN
                                                                  CLERK
THERESA MARIE SCHINDLER SCHIAVO,
incapacitated ex rel, Robert Schindler and
Mary Schindler, her parents and next friends,


                                                             Plaintiffs-Appellants,

                                     versus

MICHAEL SCHIAVO,
as guardian of the person of
Theresa Marie Schindler Schiavo, incapacitated,
JUDGE GEORGE W. GREER,
THE HOSPICE OF THE FLORIDA SUNCOAST, INC.,

                                                            Defendants-Appellees.


                             --------------------------
               Appeal from the United States District Court for the
                          Middle District of Florida
                             --------------------------
                              (March 25, 2005)


Before CARNES, HULL, and WILSON, Circuit Judges.
PER CURIAM:

         Our previous decision in this case affirmed the district court’s March 22,

2005 denial of the plaintiffs’ motion for a temporary restraining order as to the

claims raised in the five counts of the initial complaint filed in this case. Schiavo

ex rel. Schindler v. Schiavo ex rel. Schiavo, ___ F.3d ___, 2005 WL 648897 (11th

Cir. Mar. 23, 2005) (Schiavo I), stay denied, ___ S. Ct. ___, 2005 WL 672685

(Mar. 24, 2005). After that appeal was taken, the plaintiffs filed an amended

complaint on March 22, 2005, adding four more counts, and a second amended

complaint on March 24, 2005, adding a fifth count.

         On the basis of the claims contained in those new counts, plaintiffs also filed

a second motion for a temporary restraining order. Like their first motion for a

temporary restraining order, this one sought an injunction to require the defendants

to transport Theresa Marie Schindler Schiavo to a hospital for restoration of

nutrition and hydration and for medical treatment. On the evening of March 24,

2005, the district court held a hearing on the motion and, after working through the

night, issued an order earlier today denying the motion. A copy of that order is

attached as an Appendix to this opinion. We now have before us the plaintiffs’

appeal from the order denying that second motion for a temporary restraining

order.



                                             2
      Our prior decision in this case brings into play the law of the case doctrine

insofar as issues we addressed in our March 23, 2005 opinion are concerned.

“Under the law-of-the-case doctrine, [the resolution of] an issue decided at one

stage of a case is binding at later stages of the same case.” Toole v. Baxter

Healthcare Corp., 235 F.3d 1307, 1313 (11th Cir. 2000). The doctrine operates to

preclude courts from revisiting issues that were decided explicitly or by necessary

implication in a prior appeal. Luckey v. Miller, 929 F.2d 618, 621 (11th Cir.

1991); see also Burger King Corp. v. Pilgrim’s Pride Corp., 15 F.3d 166, 169 (11th

Cir. 1994) (“[T]he law of the case encompasses all things decided by necessary

implication as well as those decided explicitly.” (internal marks and citations

omitted)).

      Law of the case binds not only the trial court but this court as well. See, e.g.,

Burger King Corp., 15 F.3d at 169 (“As we have repeatedly recognized, findings of

fact and conclusions of law by an appellate court are generally binding in all

subsequent proceedings in the same case in the trial or on a later appeal.” (internal

marks and citations omitted)); Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506,

1510 (11th Cir. 1987) (en banc) (“The doctrine is based on the premise that an

appellate decision is binding in all subsequent proceedings in the same case . . . .”);

Wheeler v. City of Pleasant Grove, 746 F.2d 1437, 1440 (11th Cir. 1984) (per



                                           3
curiam) (“Under the law of the case doctrine, both the district court and the court

of appeals generally are bound by findings of fact and conclusions of law made by

the court of appeals in a prior appeal of the same case . . . .” (internal marks and

citations omitted)); Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir. 1984) (“The

doctrine generally operates to preclude a reexamination of issues decided upon

appeal, either by the district court on remand or by the appellate court itself upon a

subsequent appeal.” (internal marks and citations omitted)). As this Court sitting

en banc has explained, “Failure to honor [the] commands [of the law of the case

doctrine] can only result in chaos.” Litman, 825 F.2d at 1511.

      There are a few discrete exceptions to the law of the case doctrine. It “does

not limit the court’s power to revisit previously decided issues when (1) new and

substantially different evidence emerges at a subsequent trial; (2) controlling

authority has been rendered that is contrary to the previous decision; or (3) the

earlier ruling was clearly erroneous and would work a manifest injustice if

implemented.” Klay v. All Defendants, 389 F.3d 1191, 1197–98 (11th Cir. 2004)

(internal marks and citation omitted); see also Wheeler, 746 F.2d at 1440. None of

those exceptions apply here.

      Because our previous decision was published, the prior panel precedent rule

also applies to any holdings reached in the earlier appeal. “Under the



                                           4
well-established prior panel precedent rule of this Circuit, the holding of the first

panel to address an issue is the law of this Circuit, thereby binding all subsequent

panels unless and until the first panel’s holding is overruled by the Court sitting en

banc or by the Supreme Court.” Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8

(11th Cir. 2001); see also United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.

1993); Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997).

      When read against the law of the case doctrine and the prior panel precedent

rule, our March 23, 2005 decision establishes the following propositions that we

take as given in this appeal: Pub. L. No. 109-3 does not supplant the law

applicable to temporary restraining orders or preliminary injunctions, Schiavo I,

2005 WL 648897, at *2; we have appellate jurisdiction over the denial of a

temporary restraining order in these circumstances and treat it as the denial of a

preliminary injunction or a final judgment, id. at *1; because the other three

preliminary injunctive relief factors are present, the merits-related factor is whether

the plaintiffs have shown “a substantial case on the merits,” id. at *1–2; our review

of the district court’s denial of preliminary relief is only for abuse of discretion, id.

at *2; the district court did not abuse its discretion in denying preliminary relief on

the claims raised in the first five counts of the complaint, id.; and injunctive relief

under the All Writs Act, 28 U.S.C. § 1651(a), is not appropriate here because it is a



                                            5
situation that falls within the scope of Fed.R.Civ.P. 65 governing temporary

restraining orders and preliminary injunctions, Schiavo I, 2005 WL 648897, at

*4–5.

        We turn now to the claims that were not decided in our prior opinion.

Count Six of the amended complaint claims that the defendants’ actions violate the

Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. We agree with

the district court that Defendant Michael Schiavo, as court appointed guardian for

Theresa Schiavo, is neither a public entity, pursuant to 42 U.S.C. § 12131(1), nor a

public accommodation, pursuant to 42 U.S.C. 12181(7).1 Our prior decision in this


        1
         Section 12131(1) defines “public entity” as:
       (A) any State or local government;
       (B) any department, agency, special purpose district, or other instrumentality of a State or
       States or local government; and
       (C) the National Railroad Passenger Corporation, and any commuter authority (as defined
       in section 24102(4) of Title 49).
42 U.S.C. § 12131(1).

        Section 12181(7) provides that:
        The following private entities are considered public accommodations for purposes of this
        subchapter, if the operations of such entities affect commerce—
        (A) an inn, hotel, motel, or other place of lodging, except for an establishment located within
        a building that contains not more than five rooms for rent or hire and that is actually
        occupied by the proprietor of such establishment as the residence of such proprietor;
        (B) a restaurant, bar, or other establishment serving food or drink;
        (C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or
        entertainment;
        (D) an auditorium, convention center, lecture hall, or other place of public gathering;
        (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales
        or rental establishment;
        (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair
        service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance
        office, professional office of a health care provider, hospital, or other service establishment;

                                                   6
case establishes, as the district court concluded, that Michael Schiavo is not acting

under color of state law in these circumstances either. Schiavo I, 2005 WL

648897, at *2 (“For the reasons explained in the district court’s opinion, we agree

that the plaintiffs have failed to demonstrate a substantial case on the merits of any

of their claims.”); see also Schiavo ex rel. Schindler v. Schiavo, ___ F. Supp. 2d

___, 2005 WL 648897, App. at *13 (M.D. Fla. Mar. 22, 2005) (finding that the

defendants were not acting under color of state law). Under the law of the case

doctrine and the prior panel precedent rule, that settles the state action issue.2


       (G) a terminal, depot, or other station used for specified public transportation;
       (H) a museum, library, gallery, or other place of public display or collection;
       (I) a park, zoo, amusement park, or other place of recreation;
       (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other
       place of education;
       (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency,
       or other social service center establishment; and
       (L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or
       recreation.
42 U.S.C. § 12181(7).
       2
          Nonetheless, we take this opportunity to expound on the reasoning behind our first
decision’s conclusion that the three defendants against whom injunctive relief is sought are not state
actors.
        Plaintiffs’ argument that Michael Schiavo is a state actor is that he is one because he used
the state courts to deprive his wife of her rights. To the contrary, “one who has obtained a state
court order or judgment is not engaged in state action merely because [he] used the state court legal
process.” Cobb v. Ga. Power Co., 757 F.2d 1248, 1251 (11th Cir. 1985); see also Harvey v. Harvey,
949 F.2d 1127 (11th Cir. 1992) (no state action where husband used courts to have his wife
committed to a state mental hospital, because “[u]se of courts by private parties does not constitute
an act under color of state law”); Dahl v. Akin, 630 F.2d 277, 281 (5th Cir. 1980).
        Plaintiffs argue that Judge Greer is a state actor simply because he is a state judge. That does
not follow. See Paisey v. Vitale, 807 F.2d 889, 893–94 (11th Cir. 1986) (“Obviously the mere fact
that Judge Vitale is named as a defendant does not create the requisite state involvement,” because
“[p]roviding a neutral forum for adjudication is an essentially neutral act.”).

                                                   7
       The district court is also correct that Defendant Hospice of Florida Suncoast,

Inc. is not a “public entity” within the meaning of the ADA. See 42 U.S.C. §§

12131(1)(A)–(C). Assuming it is a place of “public accommodation,” the plaintiffs

still have not made a substantial showing on this claim. The Hospice did not

remove nutrition and hydration and withhold medication from Theresa Schiavo

“on the basis of [her] disability.” Instead, the Hospice took these actions pursuant

to a valid court order. The ADA was never intended to provide an avenue for

challenging court orders in termination of care cases. See Bryant v. Madigan, 84

F.3d 246, 249 (7th Cir. 1996) (concluding that the ADA “would not be violated by

a prison’s simply failing to attend to the medical needs of its disabled prisoners”

and that the statute “does not create a remedy for medical malpractice”); see also

Cash v. Smith, 231 F.3d 1301, 1305 n.2 (11th Cir. 2000) (“Cases decided under the

Rehabilitation Act are precedent for cases under the ADA, and vice-versa.”).

       Count Seven asserts a claim against the Defendant Hospice under § 504 of

the Rehabilitation Act of 1973, as amended, 29 U.S. § 794. As the district court

explained, Theresa Schiavo is not “otherwise qualified” within the meaning of this



        Finally, plaintiffs contend that the Hospice is a state actor because it receives Medicare and
Medicaid money. The Supreme Court has repeatedly held, however, that federal money does not
transform private persons or entities into state actors. See, e.g., S.F. Arts & Athletics, Inc. v. U.S.
Olympic Comm., 483 U.S. 522, 544, 107 S. Ct. 2971, 2985 (1987); Blum v. Yaretsky, 457 U.S. 991,
1011, 102 S. Ct. 2777, 2789 (1982); Rendell-Baker v. Kohn, 477 U.S. 830, 840, 102 S. Ct. 2764,
2770 (1982).

                                                  8
Act “because she would not have had any need for a feeding tube to deliver

nutrition and hydration but for her medical condition.” Schiavo ex rel. Schindler v.

Schiavo, ___ F. Supp. 2d ___, 2005 WL 677224, at *3 (M.D. Fla. Mar. 25, 2005);

see Grzan v. Charter Hosp. of Northwest Indiana, 104 F.3d 116, 121 (7th Cir.

1997) (“Grzan is not ‘otherwise qualified’ because, absent her handicap, she would

not have been eligible for treatment in the first place.”). The Rehabilitation Act,

like the ADA, was never intended to apply to decisions involving the termination

of life support or medical treatment. See United States v. Univ. Hosp., State Univ.

of N.Y., 729 F.2d 144, 156 (2d Cir. 1984) (“If [C]ongress intended section 504 to

apply in this manner, it chose strange language indeed.”); id. at 157 (“The

legislative history, moreover, indicates that [C]ongress never contemplated that

section 504 would apply to treatment decisions of this nature.”); Johnson v.

Thompson, 971 F.2d 1487, 1493–94 (10th Cir. 1992) (agreeing with University

Hospital and stating that “[o]rdinarily, however, if a person were not so

handicapped, he or she would not need the medical treatment and thus would not

‘otherwise qualify’ for the treatment”).

      Count Eight is a procedural due process claim asserting that under Cruzan v.

Mo. Dep’t of Health, 497 U.S. 261, 110 S. Ct. 2841 (1990), the Due Process

Clause requires that decisions to remove hydration and nutrition from an



                                           9
incapacitated person must be supported by clear and convincing evidence that she

would have made the same decision, and that there was not enough evidence in this

case to meet that standard. The plaintiffs assured the district court that this was a

procedural due process claim. Schiavo ex rel. Schindler v. Schiavo, ___ F. Supp.

2d ___, 2005 WL 677224, at *4 (M.D. Fla. Mar. 25, 2005) (district court order

denying plaintiffs’ second motion for a temporary restraining order); Tr. pt. I at 16,

pt. II at 15 (Mar. 24, 2005 oral arg. before the district court). The plaintiffs have no

substantial case on the merits as to this claim for at least two independently

adequate reasons.

       First, Cruzan did not establish that the Constitution requires application of a

clear and convincing evidence standard before termination of care. The Supreme

Court held in Cruzan only that a state could, if it wished, require that evidence of

the incompetent’s wishes be proven by clear and convincing evidence. Id. at 280,

110 S. Ct. at 2852 (“The question, then, is whether the United States Constitution

forbids the establishment of this procedural requirement by the State. We hold that

it does not.”); id. at 284 (“In sum, we conclude that a State may apply a clear and

convincing evidence standard in proceedings where a guardian seeks to discontinue

nutrition and hydration of a person diagnosed to be in a persistent vegetative

state.”).



                                           10
      Of course, holding that states may permissibly impose a requirement says

nothing about whether states must impose it. One need look no further than the

Cruzan opinion itself for that truism. Referring to a previous decision upholding a

state’s favored treatment of family relationships in termination of care situations,

the Court explained, “such a holding may not be turned around into a constitutional

requirement that a state must recognize the primacy of those relationships in a

situation like this.” Id. at 286, 110 S. Ct. at 2855. In case we missed the point, the

Court reiterated it when discussing another decision: “Here again petitioners

would seek to turn a decision which allowed a State to rely on family

decisionmaking into a constitutional requirement that the State recognize such

decisionmaking. But constitutional law does not work that way.” Id.

      Second, even if constitutional law did work the way the plaintiffs want,

contrary to the explicit teaching of the Supreme Court in the Cruzan opinion itself,

they would still not have a substantial case on this claim. Plaintiffs would not,

because Florida has adopted the very requirement that they say the Constitution

mandates, a clear and convincing evidence standard, In re Guardianship of

Browning, 568 So. 2d 4, 15 (Fla. 1990), and it was applied by the state courts in

this case, In re Guardianship of Schiavo, 780 So. 2d 176, 179 (Fla. 2d DCA 2001).

The plaintiffs argue that the state courts should have concluded that the clear and



                                          11
convincing evidence standard was not met in this case, but a quarrel with the result

of a proceeding does not state a claim that due process was not afforded. Stated

differently, procedural due process does not guarantee a particular result.

      The claim in Count Nine, that the defendants’ actions violate the Eighth

Amendment’s prohibition against cruel and unusual punishment, is plainly without

merit. That constitutional provision applies only to punishments inflicted after

conviction for crimes, not to life support or medical treatment decisions. See

Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 262–63,

109 S. Ct. 2909, 2913 (1989) (“The eighth amendment is addressed to courts of the

United States exercising criminal jurisdiction . . . .” (quoting Ex parte Watkins, 32

U.S. (7 Pet.) 568, 573–74 (1833)); Ingraham v. Wright, 525 F.2d 909, 912–913

(5th Cir. 1976) (en banc), aff’d, 430 U.S. 651, 97 S. Ct. 1401 (1977) (“Not only the

connotation of the words ‘bail,’ and ‘fine,’ but the legislative history concerning

enactment of the bill of rights supports an argument that the Eighth Amendment

was intended to be applied only to punishment invoked as a sanction for criminal

conduct.” (footnote omitted)).

      Count Ten claims that the Fourteenth Amendment Due Process Clause is

violated when any person is deprived of nutrition and hydration against her wishes.

To support this proposition, plaintiffs again rely on Cruzan, the narrow holding of



                                          12
which we have already discussed at length. To the extent they claim a right to

procedural due process—and the supplemental motion in support of this count that

they filed in the district court indicates that is their specific claim—it has been

afforded in abundance. As Florida’s Second District Court of Appeal observed,

“Not only has Mrs. Schiavo’s case been given due process, but few, if any, similar

cases have ever been afforded this heightened level of process.” In re

Guardianship of Schiavo, ___ So. 2d ___, 2005 WL 600377, at *3 (Fla. 2d DCA

Mar. 16, 2005); id. at *5 n.1 (listing twenty-one different proceedings in the case).

      To the extent plaintiffs claim a substantive due process right, there is no

authority to support their position. We are mindful that the Supreme Court has

described itself as having “always been reluctant to expand the concept of

substantive due process because guideposts for responsible decisionmaking in this

unchartered area are scarce and open-ended.” Collins v. City of Harker Heights,

Texas, 503 U.S. 115, 125, 112 S. Ct. 1061, 1069 (1992). As a result, “[t]he

doctrine of judicial self-restraint requires us to exercise the utmost care whenever

we are asked to break new ground in this field.” Id. The Court has specifically

held that the substantive due process component of the Due Process Clause does

not require a state to protect its citizens against injury by non-state actors.

DeShaney v. Winnebago County Dep’t of Social Serv., 489 U.S. 189, 195, 109 S.



                                            13
Ct. 998, 1003 (1989) (“[N]othing in the language of the Due Process Clause itself

requires the State to protect the life, liberty, and property of its citizens against

invasion by private actors.”); accord Lovins v. Lee, 53 F.3d 1208, 1209 (11th Cir.

1995) (no general substantive due process right to be protected against criminals

even when they were wrongfully released). As we have already explained, the

defendants are not state actors for present purposes.3

       The district court’s denial of the temporary restraining order is

AFFIRMED.4




       3
          Making decisions and drafting and revising opinions to explain those decisions under the
time pressures that these type of emergency matters impose is a difficult process and one in which
error can occur. In the process of researching the new issues and writing this opinion, we discovered
that the final version of the majority opinion we issued in the prior appeal three nights ago
inadvertently failed to attribute two sentences that we used from a prior Florida state appellate court
opinion. Compare Schiavo I, 2005 WL 648897, at *5, with In re Guardianship of Schiavo, 2005 WL
600377, at *4. We are thankful that we discovered that omission in time to properly acknowledge
the source of the words in this opinion. Our former opinion will be promptly corrected to add the
appropriate citation.
       4
          As we said three nights ago: A petition for rehearing or suggestion for rehearing en banc
is not, of course, required before a petition for certiorari may be filed in the United States Supreme
Court. If, however, a petition for rehearing or rehearing en banc is to be filed, it must be filed by
8:00 a.m. ET, March 26, 2005. See Fed.R.App.P. 35(c) & Fed.R.App.P. 40(a)(1).

                                                  14
WILSON, Circuit Judge, concurring:

      I concur in the result for the reason that the plaintiffs have been unable to

come forward in their second amended complaint with any new claims palpably

alleging the denial of a right secured by the Constitution or laws of the United

States.




                                          15
                                                                                                                     Page 16
                               APPENDIX TO THE COURT’S OPINION




                     THERESA M ARIE SCHINDLER SCHIAVO, Incapacitated ex rel., ROBERT

                SCHINDLER and M ARY SCHINDLER, her Parents and Next Friends, Plaintiffs,

                 vs. M ICHAEL SCHIAVO, as Guardian of the Person of Theresa M arie Schindler

                     Schiavo, Incapacitated, JUDGE GEORGE W. GREER and THE HOSPICE OF

                                      THE FLORIDA SUNCOAST, INC., Defendants.




                                             Case No. 8:05-CV-530-T-27TBM




                      UNITED STATES DISTRICT COURT FOR THE M IDDLE DISTRICT OF

                                              FLORIDA, TAM PA DIVISION




                                                   2005 U.S. Dist. LEXIS 4609




                                                  M arch 25, 2005, Decided




COUNSEL: [*1] For Theresa Marie Schindler Schiavo,                   W ashington, DC.

incapacitated   ex    rel,   Robert   Schindler   and   M ary

Schindler, her parents and next friends, Plaintiff: David            For Michael Schiavo, as guardian of the person of

G. Gibbs, III, Gibbs Law Firm, Seminole, FL; George R.               Theresa   M arie   Schindler   Schiavo,   incapacitated,

Tragos, Law Office of George E. Tragos, Clearwater,                  Defendant: George J. Felos, Felos & Felos, P.A.,

FL; Robert A. Destro, Columbus School of Law,                        Dunedin, FL; Iris Bennett, Jenner & Block LLC,


                                                                16
                                                                                                                            Page 17
                             APPENDIX TO THE COURT’S OPINION
W ashington, DC; Randall C. Marshall, American Civil                 Addison Martin, Jr., Macfarlane Ferguson & McM ullen,

Liberties Union Foundation of Florida, Inc., Miami, FL;              Clearwater,     FL;    Jeffrey   W.    Gibson,     MacFarlane

Rebecca H. Steele, ACLU Foundation of Florida, Inc.,                 Ferguson & McMullen, Clearwater, FL.

W est Central Florida Office, T ampa, FL; Robert M .

Portman, Jenner & Block LLC, W ashington, DC;                        For Gordon W ayne W atts, Interested Party: Gordon

Thomas J. Perrelli, Jenner & Block, W ashington, DC.                 W ayne W atts, Lakeland, FL.




For Judge George W . Greer, Defendant: Barry A. Cohen,               For State of Florida, Department of Children and

Cohen, Jayson & Foster, P.A., Tampa, FL.                             Families, Interested Party: Jennifer Stacie Lima-Smith,

                                                                     Florida Department of Children & Families, Tampa, FL.

For    The   Hospice   of   the   Florida   Suncoast,   Inc.,

Defendant: Gail Golman Holtzman, Constangy, Brooks                   JUDGES: JAM ES D. W HITTEMORE, United States

&     Smith, LLC, Tampa, FL; John W . Campbell,                      District Judge.

Constangy, Brooks & Smith, LLC, Tampa, FL; Robin G.

Midulla, Robin Greiwe Midulla, P.A., Tampa, FL.                      OPINIONBY: JAMES D. W HITTEM ORE




For Liberty Counsel, Inc., Amicus:          [*2]   Erik W .          OPINION:

Stanley, Liberty Counsel, Longwood, FL.
                                                                          ORDER


                                                                          BEFORE          THE      COURT    is   Plaintiffs'   (First
For United States, Interested Party: Paul I. Perez, U.S.
                                                                     Amended) Motion for Temporary Restraining Order
Attorney's Office, Middle District of Florida, Orlando,
                                                                     (Dkt. 34) n1 and Memorandum in Support (Dkt. 39). n2
FL; W arren A. Zimmerman, U.S. Attorney's Office,
                                                                     After notice to the parties, the Court conducted a hearing
Middle District of Florida, Tampa, FL.
                                                                     on   March     24,    2005.   Upon    careful    consideration,

                                                                     Plaintiffs' motion (Dkt. 34) is DENIED.
For Morton Plant Hospital Association, Inc., Victor E.

Gambone, M .D., M orton Plant Mease Primary Care, Inc.,

Stanton P. Tripodis, M.D., Interested Parties: James                               n1 As to Defendant Judge George W . Greer,




                                                                17
                                                                                                                     Page 18
                             APPENDIX TO THE COURT’S OPINION
       Plaintiffs' counsel confirmed at oral argument that
                                                                       Once again the critical issue is whether Plaintiffs
       Plaintiffs were not seeking injunctive relief as to
                                                                   have established a substantial likelihood of success on
       Judge Greer in his official capacity. [*3]
                                                                   the merits on any one of Counts Six through T en. n3 A

                                                                   substantial [*4]   likelihood of success on the merits

                                                                   requires a showing of only likely or probable, rather than

                                                                   certain success. Home Oil Company, Inc. v. Sam's East,
              n2 Plaintiffs acknowledge that this Court's
                                                                   Inc., 199 F. Supp. 2d 1236, 1249 (M.D. Ala. 2002)
       decision on the Emergency Motion Temporary
                                                                   (emphasis in original). W here, as here, the "balance of
       Restraining Order which was affirmed by the
                                                                   the equities weighs heavily in favor of granting the
       Eleventh Circuit, resolved all issues with respect
                                                                   [injunction]" the Plaintiffs need only show a "substantial
       to Counts One through Five. Accordingly, the
                                                                   case on the merits." Garcia-Mir v. Meese, 781 F.2d
       only issue before the Court is the propriety of the
                                                                   1450, 1453 (11th Cir. 1986). On careful consideration of
       injunctive relief requested in Counts Six through
                                                                   each count, the Court concludes that Plaintiffs have not
       Ten.
                                                                   shown a substantial case on the merits.


    Applicable Standards

                                                                               n3 The Act does not address the traditional
    A temporary restraining order protects against
                                                                          requirements for temporary injunctive relief.
irreparable harm and preserves the status quo until a
                                                                          Accordingly, these standards control whether
meaningful decision on the merits can be made. Canal
                                                                          temporary     injunctive   relief   is   warranted,
Auth. of State of Florida v. Callaway, 489 F.2d 567, 572
                                                                          notwithstanding Congress's intent that the federal
(5th Cir. 1974). This Court has previously determined
                                                                          courts determine de novo the merits of Theresa
and reaffirms that Plaintiffs have established that an
                                                                          Schiavo's claimed     constitutional deprivations.
irreparable harm will be suffered unless the injunction
                                                                          Schiavo v. Schiavo, No. 05-11556 at 5 (11th Cir.
issues, the threatened injury outweighs any damage the
                                                                          March 23, 2005).
proposed injunction could cause the opposing party and

that an injunction would not be adverse to the interests of

the public.                                                            Discussion [*5]




                                                              18
                                                                                                                         Page 19
                              APPENDIX TO THE COURT’S OPINION
                                                                    (Dkt. 36, P83).
    Pursuant to Pub. L. No. 109-3 this court has

jurisdiction "to hear, determine and render judgment" on                 In pertinent part, the ADA provides that "no

the claims brought by Plaintiffs on behalf of Theresa               qualified individual with a disability shall, by reason of

Schiavo "for the alleged violation of any right of Theresa          such disability, be excluded from participation in or be

Marie Schiavo under the Constitution or laws of the                 denied the benefits of the services, programs, or activities

United States related to the withholding or withdrawal of           of a public entity, or be subject to discrimination by any

food, fluids or medical treatment necessary to sustain her          such entity." 42 U.S.C. § 12132. T o state a claim under

life." This Court is to determine de novo Plaintiffs'               Title II of the ADA, a plaintiff must allege: (1) that she is

asserted claims as set forth in Counts Six through Ten.             a "qualified individual with a disability;" (2) that she was

                                                                    "excluded from participation in or . . . denied the benefits
    The court must determine whether Plaintiffs have
                                                                    of the services, programs, or activities of a public entity"
shown a substantial case on the merits of any claim for
                                                                    or otherwise "discriminated [against] by such entity;" (3)
purposes of temporary injunctive relief. Absent a
                                                                    "by reason of such disability." Shotz v. Cates, 256 F.3d
showing of a deprivation of a constitutional right or
                                                                    1077, 1079 (11th Cir. 2001). Assuming arguendo that
violation of a federal law, the sine qua non of this Court's
                                                                    Theresa Schiavo is a "qualified individual with a
jurisdiction under Pub. L. No. 109-3, Plaintiffs cannot
                                                                    disability," Plaintiffs must show that Defendants Michael
establish a substantial likelihood of success on the merits
                                                                    Schiavo       and   Hospice   are   "public   entities"   that
or even a substantial case on the merits.
                                                                    discriminated against her "by reason [*7]            of" her
    -Count Six-
                                                                    disability.
    The Am ericans with Disabilities Act
                                                                         Contrary to Plaintiffs' argument, Michael Schiavo, as

    In Count Six, Plaintiffs allege that the failure and
                                                                    court appointed guardian for Theresa Schiavo, was not

refusal of D efendant Michael Schiavo to furnish Theresa
                                                                    acting under color of state law. See Harvey v. Harvey,

Schiavo   with    necessary   and    appropriate   therapy,
                                                                    949 F.2d 1127, 1132-33 (11th Cir. 1992); Kirtley v.

rehabilitation services and essential [*6]         medical
                                                                    Rainey, 326 F.3d 1088, 1092-96 (9th Cir. 2003).

services and his demand that she be deprived of food and
                                                                    M oreover, Michael Schiavo cannot be a "public entity"

water violate her rights under the Americans with
                                                                    under the ADA by virtue of the plain language of the

Disabilities Act ("ADA"), 42 U.S.C. §       12101 et. seq.
                                                                    statutory definition, which defines "public entity" as "any


                                                               19
                                                                                                                              Page 20
                                 APPENDIX TO THE COURT’S OPINION
State or local government" or "any department, agency,                    defendant is a place of public accommodation; and (3)

special purpose district, or other instrumentality of a                   that defendant denied her full and equal enjoyment of the

State or States or local government." 42 U.S.C. § 12131.                  goods, services, facilities or privileges offered by

Accordingly,      Plaintiffs   cannot    show     a    substantial        defendant (4) on the basis of her disability. Larsen v.

likelihood of success on the merits against M ichael                      Carnival Corp., Inc., 242 F. Supp. 2d 1333, 1342 (S.D.

Schiavo under the ADA.                                                    Fla. 2003).


    As to Defendant Hospice, Plaintiffs contend that it is                    Plaintiffs have not shown that Hospice's compliance

a "public entity" under the ADA because it accepts                        with the state judge's order to withhold nutrition and

federal funding. Plaintiffs offer no authority, however,                  hydration constituted discrimination "on the basis of a

for their contention. Again, the term "public entity"                     disability. [*9]    " For example, it is undisputed that

means ". . . any state or local government." Simply put,                  Hospice, when directed by the state court, cooperated in

Plaintiffs have not shown that the Hospice is a "public                   not only the removal of Theresa Schiavo's feeding tube

entity" under the ADA, an essential element of a Title II                 but also its reinsertion. n4 Hospice's conduct therefore,

claim. [*8]                                                               must necessarily have been motivated by the Court's

                                                                          order, not any discriminatory animus toward Theresa
    Plaintiffs contend in the alternative that Hospice is a
                                                                          Schiavo. For all of these reasons, Plaintiffs cannot
"public accommodation" under the ADA. However, the
                                                                          establish a substantial likelihood of success on the merits
definition "public accommodation" in the statute, 42
                                                                          or even a substantial case on the merits.
U.S.C. § 12181(7), does not include a facility such as

Hospice. Moreover, even if it is assumed arguendo that

Hospice   falls     within     the   definition       of   "public
                                                                                        n4 Plaintiffs reliance on the regulation at 28
accommodation," Plaintiffs cannot show a substantial
                                                                                 C.F.R. §      35.130 is misplaced. That provision
case on the merits against Hospice under the ADA
                                                                                 merely "clarifies that neither the ADA nor the
because   they     have    not   shown    that    any      alleged
                                                                                 regulation alters current Federal law ensuring the
discrimination against Theresa Schiavo was by reason of
                                                                                 rights of incompetent individuals with disabilities
a disability. In order to prevail under Title III of the
                                                                                 to receive food, water, and medical treatment."
ADA, a plaintiff generally has the burden of proving: (1)
                                                                                 Dept. Of Justice, Section-by-Section Analysis, 56
that she is an individual with a disability; (2) that
                                                                                 FR 35694 (July 26, 1991).


                                                                     20
                                                                                                                            Page 21
                             APPENDIX TO THE COURT’S OPINION
                                                                     receives federal funds.


                                                                         The second element requires that T heresa Schiavo

                                                                     be "otherwise qualified," which means that absent her

                                                                     disability, she would qualify for [*11] the treatment she

    -Count Seven-                                                    is being denied. Id. at 120. The Rehabilitation Act is

                                                                     intended to ensure that handicapped individuals are not
    The Rehabilitation Act of 1973
                                                                     denied access to programs provided to non-handicapped
    In Count Seven, Plaintiffs allege that Hospice of
                                                                     persons. Id. at 121. Because of this intended statutory
Florida Sun Coast, Inc. violated Theresa Schiavo's right
                                                                     purpose, courts hold that "'the otherwise qualified criteria
to [*10] rehabilitation under the Rehabilitation Act of
                                                                     . . . cannot be meaningfully applied to a medical
1973, § 504, as amended, 29 U.S.C. § 794. (Dkt. 36, PP
                                                                     treatment decision.'" Id. (quoting U nited States v. Univ.
85-87).
                                                                     Hosp. of State Univ. of New York at Stony Brook, 729

    The Rehabilitation Act of 1973 provides that "no
                                                                     F.2d 144, 156 (2d Cir. 1984)). Theresa Schiavo is not

otherwise qualified individual with a disability . . . shall,
                                                                     "otherwise qualified" because she would not have any

solely by reason of his or her disability . . . be subjected
                                                                     need for a feeding tube to deliver nutrition and hydration

to discrimination under any program or activity receiving
                                                                     but for her medical condition.

Federal financial assistance . . . ." 29 U.S.C. § 794(a)
                                                                         Plaintiffs also cannot establish the third element.
(emphasis added). The elements of a claim under the
                                                                     Hospice is not withholding nutrition and hydration
Rehabilitation Act are: "(1) that [she] is a 'handicapped
                                                                     "solely   by   reason     of"   Theresa   Schiavo's    medical
individual' under the Act, (2) that [she] is 'otherwise
                                                                     condition, but rather because it is complying with a court
qualified' for the [benefit] sought, (3) that [she] was
                                                                     order and the instructions of her guardian.
[discriminated   against]   solely   by   reason   of   [her]
                                                                         Finally, Plaintiffs' attempt to bring an action on
handicap, and (4) that the program or activity in question
                                                                     Theresa Schiavo's behalf under the Rehabilitation Act for
receives federal financial assistance." Grzan v. Charter
                                                                     withholding    nutrition    and    hydration   fails   as   the
Hosp. of Northwest Indiana, 104 F.3d 116, 119 (7th Cir.
                                                                     Rehabilitation Act does not mandate the provision of
1997). T he first and fourth elements are met as Theresa
                                                                     services. See Olmstead v. L.C. ex rel. Zimring, 527 U.S.
Schiavo is a handicapped individual and Hospice
                                                                     581, 603 n. 14, 144 L. Ed. 2d 540 (1999) [*12] ("W e do


                                                                21
                                                                                                                                        Page 22
                                 APPENDIX TO THE COURT’S OPINION
not in this opinion hold that the ADA imposes on the                    Dep't of Health, 497 U.S. 261, 111 L. Ed. 2d 224 (1990),

States a standard of care for whatever medical services                 that    "the   Due       Process    Clause      of     the    Fourteenth

they render, or that the ADA requires States to provide a               Amendment requires that decisions to remove hydration

certain level of benefits to individuals with disabilities.").          and nutrition from an incapacitated person must be

                                                                        supported by clear and convincing evidence that the
    Plaintiffs     accordingly    have   not   established     a
                                                                        incapacitated       person    would     have         made     the   same
substantial likelihood of success on the merits or a
                                                                        decision." (Dkt. 36, p 89) (emphasis added). Contrary to
substantial case on the merits under the Rehabilitation
                                                                        Plaintiffs' contention, the Supreme Court in Cruzan did
Act of 1973.
                                                                        not mandate application of the heightened clear and
    -Count Eight-
                                                                        convincing evidence standard. The question before the

    Violation of Fourteenth Am endm ent Due Process
                                                                        Cruzan court was whether the state's application of the

Right to Substituted Judgment Decision Based on a
                                                                        heightened      evidentiary        standard         overburdened     the

Clear and Convincing Evidence Standard
                                                                        patient's right to refuse medical treatment, not whether it

    Count      Eight    alleges   that   T heresa   Schiavo's           adequately protected the patient's right to life.

Fourteenth Amendment due process rights were violated
                                                                               Given the holding in Cruzan, Plaintiffs cannot

in that the state court's order of February 11, 2000,
                                                                        complain       of   a     deprivation     of        Theresa    Schiavo's

authorizing      the   discontinuation   of    hydration     and
                                                                        Fourteenth Amendment procedural due process rights.

nutrition, "was not supported by clear and convincing
                                                                        The state court judge applied the heightened clear and

evidence that Terri would have made the same decision."
                                                                        convincing      evidence       standard        in    determining     her
(Dkt. 36, P 90). Plaintiffs contend that the state trial
                                                                        intentions, as permitted by Cruzan and in accordance

judge made a number of evidentiary errors in concluding
                                                                        with Fla. Stat. § 765.401(3). n5 To [*14] the extent

that Theresa's intentions were established by clear and
                                                                        Plaintiffs complain that the quantum of evidence did not

convincing evidence. Plaintiffs' counsel acknowledged
                                                                        rise to the level of clear and convincing, these claimed

during oral argument that Count Eight presents a
                                                                        evidentiary errors are a matter of state law, not federal

procedural due process claim under the [*13] Fourteenth
                                                                        constitutional law.

Amendment.


    Plaintiffs contend, relying on Cruzan v. Missouri
                                                                                       n5       Fla. Stat. §    765.401(3) provides, in


                                                                   22
                                                                                                                       Page 23
                              APPENDIX TO THE COURT’S OPINION
        pertinent part:                                              through   the   Fourteenth   Amendment,    prohibits   the

                                                                     infliction of cruel and unusual punishment. Hamm v.

                                                                     Dekalb Cty., 774 F.2d 1567, 1571 (11th Cir. 1985). The

                Before        exercising          the                Eighth Amendment's prohibition against cruel and

                incapacitated patient's rights to                    unusual punishment only applies "subsequent to and as a

                select or decline healthcare, . . . a                consequence of a person's lawful conviction of a crime."

                proxy's decision to withhold or                      Id. at 1572.

                withdraw        life-prolonging
                                                                         The Eighth Amendment is inapplicable to Theresa
                procedures must be supported by
                                                                     Schiavo because the state has not "obtained a formal
                clear and convincing evidence that
                                                                     adjudication of guilt." Id. at 1572 (quoting Ingraham v.
                the decision would have been the
                                                                     Wright, 430 U.S. 651, 671-72, n. 40, 51 L. Ed. 2d 711
                one the patient would have chosen
                                                                     (1977)). Despite Plaintiffs' contentions, Theresa Schiavo
                had the patient been competent.
                                                                     is not being "detained" by the state at the Hospice.

                                                                     Finally, as the court has previously noted, Michael

    -Count Nine-                                                     Schiavo and Judge Greer are not state actors. See Kirtley,

                                                                     326 F.3d at 1092-96; Harvey, 949 F.2d at 133-34;
    Violation    of   Eighth     Amendm ent       Prohibition
                                                                     Torres v. First State Bank of Sierra Cty., 588 F.2d 1322,
Against Cruel and Unusual Punishment
                                                                     1326-27 (10th Cir. 1978). For these reasons, Plaintiffs
    Count Nine of the Plaintiffs' Second Amended
                                                                     cannot [*16] establish a substantial likelihood of success
Complaint alleges that Defendants violated the Eighth
                                                                     on the merits or a substantial case on the merits on their
Amendment's prohibition against cruel and unusual
                                                                     Eighth Amendment claim.
punishment. Plaintiffs' assert that "Judge Greer and
                                                                         -Count Ten-
Michael Schiavo, as state actors, have vioated [sic] Terri

Schiavo's Eighth Amendment rights by demonstrating a                     Violation of Fourteenth Am endm ent Right to Life

[*15] deliberate indifference to a know [sic], substantial
                                                                         In Count Ten, Plaintiffs allege that "depriving
risk of serious harm . . . ." (Dkt. 36, P 101).
                                                                     Plaintiff of nutrition and hydration contrary to her wish

    The Eighth Amendment, as applied to the states                   to live is a violation of her Fourteenth Amendment right




                                                                23
                                                                                                                              Page 24
                             APPENDIX TO THE COURT’S OPINION
to life." (Dkt. 36, P 104). As in Count Eight, Plaintiffs          state to protect the life, liberty, and property of its

rely on the Fourteenth Amendment to the United States              citizens against invasion by private actors"). For the

Constitution which provides that no state shall "deprive           same reasons that Plaintiffs could not establish state

any person of life, liberty or property, without due               action    in   their   other   claims,   Plaintiffs   have     not

process of law." During oral argument, Plaintiffs' counsel         established state action in Count Ten.

confirmed that Plaintiffs assert a substantive due process
                                                                       Substantive due process rights are those rights
claim in Count Ten. The issue presented in Count Ten for
                                                                   "created by the Constitution," of which "no amount of
purposes of temporary injunctive relief, is whether,
                                                                   process can justify [their] infringement." Vinyard v.
consistent with the jurisdictional grant in Pub. L. No.
                                                                   Wilson, 311 F.3d 1340, 1356 (11th Cir. 2002). The plain
109-3, Plaintiffs have established a substantial likelihood
                                                                   language of the Fourteenth Amendment contemplates
of success on the merits of their contention.
                                                                   that a person [*18] can be deprived of life so long as

    "A finding that a right merits substantive due                 due process of law is provided. XIV Amend., U.S. Const.

process protection means that the right is protected               ("no State shall. . . deprive any person of life. . . without

against certain government actions regardless of the               due process of law"). The "right to life" is accordingly

fairness of the procedures used to implement them."                protected by Fourteenth Amendment procedural due

M cKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994)             process. Cf. Cruzan, 497 U.S. at 293 (J. Scalia,

[*17] (citing Collins v. City of Harker Heights, 503 U.S.          concurring)("The text of the Due Process Clause does not

115, 117 L. Ed. 2d 261 (1992)) (internal quotations and            protect    individuals    against   deprivations      of    liberty

citations omitted); see also Zinermon v. Burch, 494 U.S.           simpliciter. It protects them against deprivations of

113, 125, 108 L. Ed. 2d 100 (1990)("the Due Process                liberty 'without due process of law'"). All of Plaintiffs'

Clause contains a substantive component that bars certain          procedural due process claims have now been addressed

arbitrary, wrongful government actions 'regardless of the          and rejected by this court.

fairness of the procedures used to implement them'").
                                                                       Accordingly, Plaintiffs cannot establish a substantial

    As an initial matter, a substantive due process                likelihood of success on the merits or a substantial case

violation requires state action. DeShaney v. Winnebago             on the merits on their Fourteenth Amendment substantive

Cty. DSS, 489 U.S. 189, 195 (1989)("nothing in the                 due process claim.

language of the Due Process Clause itself requires the
                                                                       All Writs Act, 28 U.S.C. § 1651


                                                              24
                                                                                                                     Page 25
                            APPENDIX TO THE COURT’S OPINION
                                                                   heartbreak the parties have endured throughout this
    The Eleventh Circuit stated that "our decisions make
                                                                   lengthy process. The civility with which this delicate
clear that where the relief sought is in essence a
                                                                   matter has been presented by counsel is a credit to their
preliminary injunction, the All W rits Act is not available
                                                                   professionalism and dedication to their respective clients,
because other, adequate remedies at law exist." Schiavo
                                                                   and Terri.
v. Schiavo, No. CV-05-00530-T at 9 (11th Cir. March 23,

2005). Accordingly, the [*19] All W rits Act cannot be                 DONE AND ORDERED in chambers this 25th day

used here to "evade the requirements for preliminary               of March, 2005.

injunctions." Id.
                                                                       JAM ES D. W HITTEM ORE

    Plaintiffs (First Amended) Motion for Temporary
                                                                       United States District Judge
Restraining Order (Dkt. 34) is DENIED.


    Finally, the court would be remiss if it did not once

again convey its appreciation for the difficulties and




                                                              25
