The opinion of the court was delivered by: HOWARD, JR.
GEORGE HOWARD, JR., UNITED STATES DISTRICT JUDGE
On February 14, 1985, this Court found that plaintiff's medical staff privileges at the Cleburne County Hospital were revoked because plaintiff publicly criticized the patient care afforded patrons at the hospital; that the criticism was protected conduct under the First and Fourteenth Amendments to the United States Constitution; and that defendants had failed to demonstrate that plaintiff's staff privileges would have been revoked even in the absence of the exercise of the protected conduct. The parties were afforded an opportunity to agree on the relief to be afforded plaintiff, but were unable to do so. Accordingly, in March, 1986, the Court conducted a hearing regarding the relief to be afforded.
The parties have submitted briefs, proposed findings of fact and conclusions of law in support of their respective positions. After carefully considering the evidence and argument of counsel, the Court now makes the following rulings:
THE FEBRUARY 14, 1985 OPINION AND ORDER ARE AMENDED
Defendants have argued, in their briefs, that this Court did not address the affirmative defense of qualified immunity, asserted by defendants, in its Opinion and Order of February 14, 1985. On the other hand, plaintiff argues that while the Court did not make a specific finding that defendants had forfeited their qualified immunity, it is clear that such a finding was "expressly implicit in its findings that defendants were liable to Dr. Smith." In any event, the Court, in an effort to alleviate any uncertainty or to put the matter to rest, holds that defendants, as hereinafter identified, knew or should have reasonably known that the action they took on February 22, 1977, and subsequently thereto, resulting in the termination of plaintiff's medical staff privileges at the Cleburne County Hospital, because of plaintiff's public criticism of the standard of patient care at the hospital, would violate rights clearly secured under the First and Fourteenth Amendments to the United States Constitution. See, Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968).
Surely, as plaintiff's counsel argues, the principle enunciated by the Supreme Court in Pickering had been "well cystalized" by February 22, 1977. See also: Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972) where the Supreme Court observed: "For at least a quarter-century, this Court has made it clear that even though a person has no 'right' to a valuable governmental benefit and even though the government may deny him benefit for any number of reasons . . . it may not deny a benefit . . . on a basis that infringes his constitutional protected interests -- especially, his interest in freedom of speech."; Wilderman v. Nelson, 467 F.2d 1173 (8th Cir. 1972) (". . . The existence of a tenure 'right' is immaterial to a claim of dismissal in retaliation for a state employee's exercise of his constitutionally protected right of free speech . . ."); Gieringer v. Center School District No. 58, 477 F.2d 1164 (8th Cir. 1973), cert. denied, 414 U.S. 832, 94 S. Ct. 165, 38 L. Ed. 2d 66 (1973) (a teacher's report to teacher's association which did not appear to be a deliberate attempt to deceive or frustrate the district's operations was "constitutionally protected activity and dismissal was impermissible"); Birdwell v. Hazelwood School District, 491 F.2d 490 (8th Cir. 1974) (teacher retains right as a citizen to comment on matters of public concern and to the degree that such comment is substantially accurate, it provides no basis for dismissal).
This Court is also persuaded that the evidence supports a finding that defendants lacked good faith in pursuing the course of conduct resulting in the revocation of Dr. Smith's medical staff privileges. See, Clark v. Beville, 730 F.2d 739 (11th Cir. 1984).
B. ADDITIONAL DEFENDANTS:
The following designated individuals were inadvertently omitted as defendants in this Court's Memorandum Opinion and Order of February 14, 1985, and, therefore, are designated now: Sam B. Rector, individually and as the Administrator of the Cleburne County Hospital; Rodney A. Peterson, Don Verser, Charles Evans, Elaine Ellibee, Millard Fletcher, Loreen Houston, Wincle Forest, Roger Morin and Vernon H. Wold, as members of Cleburne County Hospital Board of Governors. However pursuant to court order, this action has been dismissed as to defendants Dr. William H. Nevins, Delaine Wright, Don Verser, J. M. Stuart and Glenwood B. Achorn.
In addition, it is conceded that the following defendants are not liable for any alleged damages sustained by plaintiff, but are party defendants for any equitable relief that plaintiff may be entitled to: Rodney A. Peterson, Charles Evans, Wincle Forest and Roger Morin. The Court grants plaintiff's motion to substitute Jessie Faye Scruggs as executrix of the estate of Dr. Joe B. Scruggs as a party defendant. There is no opposition to the requested action.
C. JOINTLY AND SEVERALLY LIABLE:
Defendants further contend that the Court did not specifically find in its February 14, 1985, Opinion and Order that defendants were jointly and severally liable to plaintiff and, therefore, if damages are awarded, such damages must be apportioned as to each defendant held liable in damages. On the other hand, plaintiff asserts that it is implicit in the findings of fact and conclusions of law that defendants are jointly and severally liable to plaintiff.
Again, in an effort to alleviate any uncertainty and place this issue at rest, the Court holds that defendants are jointly and severally liable to Dr. Smith for compensatory damages inasmuch as defendants, from February 22, 1977, to and including November 13, 1981, acted in concert to revoke the medical staff privileges of Dr. Smith in retaliation against him for engaging in ...