* Pursuant to 5th Cir. R. 47.5, th e Court has determ ined th at this opinio n should not be published and is not precedent except under th e limit ed circumstances set fo rth in 5th Cir. R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED February 6, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
No. 06-40775 Summary Calendar

DAVID H. TAYLOR, Pl aint iff-Appellant,

versus CHRISTUS ST. JOSEPH HEALTH SYSTEMS, individually, doing business as Christus St. Joseph’s Medical Center; MONTY MCLAURIN; M.D. W. DARYL DICKEY; DR. DAVID L. STEWART; DIGESTIVE DISEASE CENTER, a Texas Partnership, Defendants-Appellees. Appeal from the United States District Court fo r the Eastern District of Texas (No. 5:04-CV-153)

Before DeMOSS, STEWART, and PRADO, Circuit Judges. PER CURIAM: *2

David Taylo r appeals from th e district court’s Rule 12(b)(6) dismissal of his claim under th e Sherman Act. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND Tay lo r, a gastroenterologi st, j oined the staff at Christus St. Joseph’s Medical Center (St. Joseph’s) in Pari s, Texas, as well as th e private practice of Drs. Daryl Dickey and David Stewart in 1998. Taylo r claims that St. Joseph’s recruited him in order to maintain its competitiveness against another lo cal hospital, McCuistion Regional Medica l Center (McCui sti on), in t he area of gastroenterology . St. Joseph’s acquired McCuistion some time in 1999. Taylor alleges that after the acquisition, St. Joseph’s “no longer had any need to support [his] practice” and accordingly began conspiring wit h Dickey and Stewart to drive him out of th e market in Pari s, Texas. During this time, Taylo r was the object of two malpractice suits, and St. Joseph’s accordingly began a review of his charts, discovering during th e review th at Taylo r had been rejected as an “approved physician” by a federally funded health insurer. Based on this discovery, St. Joseph’s disqualified Taylor from its staff and removed his privileges to admit patients to th e hospital. Taylo r also alleges that during this time, Dickey and Stewart made comments that he was a “bad doctor” and a “problem doctor.” On June 6, 2004, Taylo r filed suit against th e Appellees alleging vio lat io ns of th e Sherman Act
as well as state law claims of fraud, d e famat io n, and int erference wit h contract and prospective advantage. The Sherman Act allegation was based on Taylor’s belief that his removal from th e St. Joseph’s staff “meant th at consumers of medic al care in t he Paris area now had a substantially reduced choice of gastroenterologi sts.” Based on a motion by the defendants under Fed. R. Civ. P. 12(b)(6), th e com

plaint was dis missed for failure to state a claim under the Sherman Act because Taylo r did not allege harm to com peti tion. Taylo r filed an Amended Complaint on March 31, 2005,3

which was dismissed by th e district court on March 28, 2006, again based on th e lack of an adequate allegation of harm to com

peti tion. The Sherman Act allegations were dismissed with prejudice, while t he state law allegations were dismissed without prejudice. It is from this dismissal that Taylor appeals. II. DISCUSSION We review th e district court’s dismissal under Fed. R. Civ. P. 12(b)(6) de novo. A pani Sw ., Inc. v. Coca-Cola Enters., Inc ., 300 F.3d 620, 624 (5th Cir. 2002). We accept all t he plaintiff’s factual allegations as true to determ ine if relief could be granted under any set of facts th at could be proven consistent with the allegations. Id. In his Amended Com plaint , Taylo r alleges th at he was removed from practice at St. Joseph’s as a result of a conspiracy among the Appellees. He then alleges th at this removal “ was [an] inj ury to th e com peti tive market in that it reduced the public’s choice of providers who could effectively treat th em.” However, the onlyf act actually pled by Taylo r is th at he was removed from practice at St. Joseph’s. This fact only shows harm to Taylo r, not to
com peti tion as required to allege a Sherman Act claim. In order to plead a Sherman Act claim, Taylo r must have alleged that there was a ri se in th e price of gastr oenterology services above a competitive level, a decrease in the supply of gastroenterologi sts in th e relevant market, or a decrease in the quality of gastroenterology service provided. M iller v. Indiana Hosp
. , 814 F. Supp. 1254, 1265 (W.D. Penn. 1992). Taylo r did not allege any o f t hese injuries. He claimed only that he was ejected from working at St. Joseph’s, not th at he was som

ehow prevented from serving patients in th e Pari s, Texas area. He alleged only that his ejection might have “ allowed th e remaining doctors
. . .to engage in mo nopol y pricing.” He also stated th at “t he remaining market providers could now ea sily reduce services.” None of these4

amo unts to a factual allegation sufficient to with stand a 12(b)(6) motion. Therefore, we affirm the district court’s dismissal of this case. We also find that the district court did not abuse its discretion in dismissing th e case wit h prejudice, see Duchardt v. Ew ing , 571 F.2d 869, 871 (5th Cir. 1978), especially aft er giving Taylor an opportunity to file an amended complaint. III. CONCLUSION For the foregoing reasons, we affirm the judgment of the district court.