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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Anthony Golio, M.D.,

Plaintiff

 v.

Adena Health System, et al.

Defendants

:

:

:

:

:

:

Civil Action 2:11-cv-00757

Judge Smith

Magistrate Judge Abel

Order

This matter is before the Court on defendant Adena Health System’s November

1, 2011 motion to dismiss Counts I, II, III, IV, V, VII, and IX of the complaint (doc. 13)

and defendants Mark Shuter, Karen D. Bolton, Anthony C. Freeman, D.O., Derrick L.

Reedus, Sr., M.D., and Jeff Collins’ November 1, 2011 motion to dismiss the complaint

(doc. 14).

I. Allegations in the Complaint

Plaintiff Anthony Golio, M.D. was employed with Adena Health System for a

period of approximately eight weeks. Defendant Adena Health System offered plaintiff

a Physician Employment Agreement, which he accepted. Plaintiff was terminated on

August 19, 2010. Dr. Golio challenged his termination and demanded the return of his

personal property. 

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Dr. Golio asserts claims for wrongful termination in violation of Ohio Revised

Code § 2305.25, which requires a peer review process and 38 U.S.C. § 7462. The

complaint also asserts a claim for § 1983 age discrimination. The complaint alleges that

defendant Adena Health Systems breached the Physician Employment Agreement by

not complying with terms requiring written notice prior to termination. A breach of

contract claim is also based on defendant’s failure to abide by the Medical Staff Bylaws

by failing to provide his sufficient due process prior to termination. 

The complaint also alleges violations of the Health Care Quality Improvement

Act of 1986 and asserts claims for slander, tortious interference with prospective

business relationship, intentional infliction of emotional distress, conversion, and

violations of the Fourth Amendment of the United States Constitution. The complaint

asserts a Bivens action against defendant Mark Shuter. 

A. Defendant Adena Health System

Defendant argues that plaintiff’s allegation that Adena Health System terminated

his employment in violation of his statutory rights under 38 U.S.C. §§ 7462 and 7463

should be dismissed because the rights provided under those statutory provisions are

only available to employees of the United States Department of Veterans Affairs. As a

result, defendant maintains that procedural protections provided by these statutes are

irrelevant to plaintiff’s claims in this action. 

Defendant also argues that plaintiff’s allegation that Adena Health System

violated 42 U.S.C. § 1983 by discriminating against him on the basis of age should be

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The complaint contains two counts labeled as “Court III,” the first of which is

plaintiff’s claim for breach of the medical bylaws and the second is a Bivens claim,

which appears solely directed toward defendant Shuter. The complaint also contains

two counts labeled as “Count II.” Defendants move to dismiss the first Count II based

on Section 1983 age discrimination, but their motion to dismiss does not reference

plaintiff’s second Count II, which is based on a breach of the Physician Employment

Agreement. 

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dismissed because a claim for age discrimination is not actionable under § 1983.

According to defendant, the Age Discrimination in Employment Act (“ADEA”)

provides the exclusive federal remedy for age discrimination in employment.

Defendant further argues that plaintiff fails to set forth any facts or even allege that

defendant acted “under color of state law” and that Adena Health System is not a state

actor for purposes of attaching § 1983 liability. Defendant maintains that to the extent

that plaintiff is attempting to rely on the Equal Protection Clause as the basis for his §

1983 age discrimination claim, this also fails. The Supreme Court has held that age is not

a suspect classification under the Equal Protection Clause. 

Defendant argues that Count III of the complaint,1

 which asserts a breach of

contract claim based upon the medical bylaws, should be dismissed because the

complaint failed to include factual allegations to support the elements of a breach of

contract claim. The complaint does not allege that the medical bylaws created a binding

contract, nor does plaintiff identify the parties to the alleged contract, the required

elements for contract formation, or the terms. Defendant maintains that medical staff

bylaws do not automatically give rise to a binding legal contract. 

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Defendant argues that Count IV of the complaint, alleging a violation of the

Health Care Quality Improvement Act of 1986 (“HCQIA”) should be dismissed because

the act does not afford a physician a private right of action. 

Defendant also argues that plaintiff’s claim for slander should be dismissed

because the complaint fails to allege the essential elements of a claim of defamation. The

complaint fails to include any factual assertion about the content of any statement,

when the alleged statement was made, the identity of the speaker, or the identity of the

person to whom the statement was allegedly made. 

Defendant maintains that plaintiff’s claim for tortious interference with

prospective business relationship should be denied because plaintiff failed to identify

any of allegedly false and malicious statements that purportedly give rise to his claim.

Plaintiff fails to provide any facts that a prospective employer decided not to hire him

based on any action of Adena Health System. 

Defendant maintains that plaintiff’s claim for intentional infliction of emotional

distress should be dismissed because plaintiff failed to make any factual allegations that

demonstrate that defendant intentionally or recklessly caused severe emotional distress

based on its extreme and outrageous conduct. 

Defendant further argues that plaintiff’s claim for violations of his Fourth

Amendment right should be dismissed because the Fourth Amendment prohibition

applies to governmental searches and seizures, not those done by private citizens or

organizations who are not acting on behalf of the government. 

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B. Defendants Mark Shuter, Karen D. Bolton, Anthony C. Freeman,

Derrick L. Reedus, Sr., and Jeff Collins

Defendants Bolton, Freeman, Reedus and Collins maintain that plaintiff does not

assert any claims against them. With respect to defendant Shuter, the only claim

asserted against him is a Bivens action. A Bivens action is a judicially created damages

remedy designed to vindicate violations of constitutional rights by federal actors.

Defendants maintain that Shuter is not a federal actor. 

C. Plaintiff Anthony Golio, M.D.

Plaintiff argues that details were intentionally omitted from the complaint to

protect integrity of and public confidence in the healthcare system. Plaintiff maintains

that he and defendant Adena Heath System entered into a non-disclosure clause.

Plaintiff contends that once the litigation has moved past the initial responsive pleading

stage, plaintiff will seek a protective order to address significant issues of

confidentiality. Counsel for plaintiff attached an unsigned copy of an affidavit to

support his memorandum in opposition.

Plaintiff maintains that the contract at issue specifically prohibits him from

providing unnecessary details regarding his employment with Adena Health System

and that defendants’ argument that they lack sufficient details to defend themselves is

disingenuous to the healthcare community. With respect to his claim for age

discrimination, plaintiff argues that defendants simply object to the caption, “§ 1983",

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and they have notice of the proper standard for federally prohibited age discrimination

in the workplace. 

Plaintiff also argues that defendant attempt to confuse the Court by blurring the

line between the Physician Employment Agreement (“PEA”) and the Medical Staff

Bylaws. The PEA is the contract between the physician and the hospital, and the bylaws

govern the operation of the hospital. Plaintiff maintains that the PEA clearly

incorporates the bylaws. 

Plaintiff maintains that the HCQIA creates a rebuttable presumption of

immunity by a peer review committee. Plaintiff maintains that the actions of Adena

Health System failed to comply with the requirements of a qualifying professional

review action under section 11112(a) of title 42 of the United States Code. Plaintiff

maintains that the subsequent investigation was not reasonable and that had Adena

Health System exercised due diligence during the fact gathering process it would have

found credible and substantial evidence contradicting any report of improper conduct

in the operating room. Defendant failed to conduct any peer review prior to plaintiff’s

termination. Dr. Golio was not provided with notice of the allegations or the

opportunity to respond to those allegations. 

With regard to his claims for slander, tortious interference with prospective

business relationship, intentional infliction of emotional distress and conversion,

plaintiff argues that given the nature of employment in the healthcare industry, Dr.

Golio should not be required to articulate the details that constitute the acts giving rise

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to his claims. He further states that the specific facts pertaining to these torts are often

only ascertainable through discovery. 

Dr. Golio further argues that Adena Health System’s requirement for him to

submit to a urine test was unreasonable and constituted a seizure prohibited by the

Fourth Amendment. Plaintiff maintains that Adena Health System operations under

color of law because its activities are sufficiently close to and controlled by the state.

Adena Health System, as a nonprofit hospital incorporated in Ohio, is required to

comply with a myriad of Ohio health regulations, licensure and credentialing

requirements. Plaintiff maintains that the nature of the healthcare industry makes every

hospital quasi-governmental under the nexus test, and its agents can be held liable

under Bivens for their individual discriminatory conduct. 

III. Motion to Dismiss

When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure, a court must construe the complaint in the light most

favorable to the plaintiff and accept all well-pleaded material allegations in the

complaint as true. See Erickson v. Pardus, 127 S.Ct. 2197, 2200 (U.S. 2007) (citing Bell v.

Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007)); Miller v. Currie, 50 F.3d 373, 377 (6th

Cir. 1995); Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1982). 

Although the court must apply a liberal construction of the complaint in favor of the

party opposing the motion to dismiss, see Davis H. Elliot Co. v. Caribbean Utilities Co., 513

F.2d 1176, 1182 (6th Cir. 1975), a court will not accept conclusions of law or

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unwarranted inferences of fact cast in the form of factual allegations, see Mezibov v.

Allen, 411 F.3d 712, 716 (6th Cir. 2005); Blackburn v. Fisk Univ., 443 F.2d 121, 123-124 (6th

Cir. 1971). In reading a complaint, however, a court will indulge all reasonable

inferences that might be drawn from the pleading. See Fitzke v. Shappell, 468 F.2d 1072,

1076 n.6 (6th Cir. 1972). Because the motion under Rule 12(b)(6) is directed solely to the

complaint itself, see Roth Steel Prods., 705 F.2d at 155; Sims v. Mercy Hosp. of Monroe, 451

F.2d 171, 173 (6th Cir. 1983), the court must focus on whether the claimant is entitled to

offer evidence to support the claims, rather than whether the plaintiff will ultimately

prevail, see McDaniel v. Rhodes, 512 F. Supp. 117, 120 (S.D. Ohio 1981). A federal court

cannot consider extrinsic evidence in determining whether a complaint states a claim

upon which relief can be granted. See Roth Steel Prods., 705 F.2d at 155-56.

IV. Discussion

Generally, courts cannot consider matters outside the pleadings when ruling on a

motion to dismiss pursuant to Rule 12(b)(6). In ruling on a motion to dismiss, the Court

may only considered documents attached to, incorporated by, or referred to in the

pleadings. Here, plaintiff submitted an unsigned and unnotarized affidavit in support

of his memorandum in opposition to defendants’ motions to dismiss. If the Court were

to consider matters outside the pleadings, the motion must be treated as a motion for

summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See Fed. R.

Civ. P. 12(d). 

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I conclude that it would not be proper to convert defendants’ motions to dismiss

to motions for summary judgment. Plaintiff’s rationale for the need for the affidavit

was based on the fact that the alleged incidents surrounding the complaint involve the

provision of health care services and that this fact necessitates the need for omissions in

the complaint. I find plaintiff’s argument unpersuasive. Plaintiff fails to explain why it

was improper to include detailed allegations in the complaint, although he provides

further details in the attached unsigned affidavit. Although the Thanksgiving holiday

prevented counsel from obtaining his client’s signature, no signed affidavit

subsequently has been submitted. 

A. Wrongful Termination

The complaint asserts that defendant Adena Health System terminated his

employment in violation of 38 U.S.C. §§ 7462 and 7463. Plaintiff has failed to state a

claim for relief because the rights provided by this statute are only available to

employees of the United States Department of Veterans Affairs. 

B. Section 1983 Age Discrimination

Plaintiff’s claim that Adena Health System violated 42 U.S.C. § 1983 by

discriminating against him on the basis of his age fails to state a claim upon which relief

may be granted. Section 1983 provides a right of action for parties deprived of their

constitutional or federal statutory rights taken under color of state law. Here,

defendants cannot be said to be acting under color of state law. Furthermore, a plaintiff

may not rely upon Section 1983 to purse an age discrimination claim. The Age

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Discrimination in Employment Act (“ADEA”) provides the exclusive federal remedy

for age discrimination in employment. Janes v. Bardstown City Schools Bd. of Educ., No.

95-5531, 1996 WL 536794, at *4 (6th Cir. Sep. 20, 1996)(“[Plaintiff] may not bring her

ADEA claim under § 1983. The detailed statutory remedy created by the ADEA

constitutes the exclusive means for enforcement of the Act.”).

C. Breach of Contract Premised on Medical Staff Bylaws

The complaint alleges that Dr. Golio and Adena Health System were mutually

bound by the terms of the Medical Staff Bylaws and that defendant breached those

bylaws by failing to provide him sufficient due process prior to termination causing

plaintiff to suffer damages. Under Ohio law, the elements of a breach of contract claim

are: (1) existence of contract, (2) performance by the plaintiff, (3) breach by defendant,

and (4) damage or loss to plaintiff. Thomas v. Publishers Clearing House, Inc., 29 Fed.

Appx. 319, 2002 WL 193935 (6th Cir. 2002).

Defendant argues that plaintiff does not allege that the bylaws created a binding

contract or identify the parties to the alleged contract. Defendant also argues that

plaintiff failed to plead the required elements for contract formation or for terms or

allege that he performed his obligations under the contract purportedly created by the

medical staff bylaws. 

Plaintiff’s allegations that Dr. Golio and Adena Health System were mutually

bound by the terms and that defendant breached those terms by failing to adhere to

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procedural protections to which Dr. Golio was entitled are sufficient to state a claim for

breach of contract. 

D. Violation of the Health Care Quality Improvement Act

The Health Care Quality Improvement Act was enacted in order to provide

effective peer review and interstate monitoring of incompetent physicians. See 42 U.S.C.

§ 11101. Congress concluded that the threat of litigation discouraged physicians from

participating in effective peer review, and the HCQIA was enacted to protect physicians

from such liability. Section 11112 provides the standards for professional review actions

necessary in order to be entitled to the protections of the statute. 

Plaintiff’s claim under the HCQIA fails to state a claim upon which relief can be

granted. The HCQIA does not provide a private cause of action by a physician for

negligence in the peer review. See Badri v. Huron Hospital, 691 F. Supp. 2d 744, 769 (N.D.

Oh. 2010); Sinoff v. Ohio Permanente Med. Group, 146 Ohio App. 3d 732, 739 (Ohio Ct.

App. 8th Dist. 2002). Singh v. Blue Cross/Blue Shield of Mass., 308 F.3d 25, 45 n. 18 (1st Cir.

2002); Wayne v. Genesis Med. Ctr., 140 F.3d 1145, 1148 (8th Cir.1998); Bok v. Mut. Assur.,

119 F.3d 927, 928-29 (11th Cir. 1997).

E. Slander

The elements of a claim for defamation are: (1) the defendant made a false

statement; (2) the statement was defamatory in nature; (3) it was published to a third

party; (4) the unprivileged publication of the statement caused injury to the plaintiff;

and (5) the defendant acted with the requisite degree of fault. Badri, 691 F. Supp. 2d at

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769. The complaint alleges that Adena Health System “intentionally and knowingly

published false and malicious statements tarnishing the professional reputation of

Plaintiff, Dr. Golio.” Compl. at ¶ 51. The complaint asserts that as a result of

defendants’ slander, he has “suffered damages, including but not limited to, loss of

professional reputation, loss of income and employee benefits, emotional distress and

mental anxiety, and loss of professional reputation.” Id. at 52.

As pointed out by defendants, plaintiff fails to identify a single statement made

by defendants to a third party. The complaint also contains no factual assertions about

who made the alleged statement, to whom it was made, or when it was made. There are

simply no facts asserted that support his claim for slander. Rather than outlining the

facts that state a plausible claim for relief, plaintiff merely recites the elements of his

claim.

F. Tortious Interference with Prospective Business Relationship

Tortious interference with business relationships occurs “when a person, without

a privilege to do so, induces or otherwise purposely causes a third person not to enter

into or continue a business relation with another, or not to perform a contract with

another.” A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 

73 Ohio St. 3d 1, 14 (1995). The elements of the claim are: (1) the existence of a business

relationship; (2) the wrongdoer’s knowledge thereof; (3) the wrongdoer’s intentional

procurement of a breach of the business relationship; (4) lack of justification; and (5)

resulting damages. 

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Plaintiff fails to provide any factual basis to support that Adena Health System

made any alleged statements that result in an actual breach of a business relation or

termination of a prospective business relationship. The complaint gives little more than

a formulaic recitation of the elements of the causes of action. As a result, plaintiff fails to

state a claim upon which relief can be granted. 

G. Intentional Infliction of Emotional Distress

To state a cause of action for intentional infliction of emotional distress, a

plaintiff must demonstrate that the defendant by extreme and outrageous conduct

intentionally or recklessly caused severe emotional distress. Yeager v. Local Union 20,

Teamsters, 6 Ohio St. 3d 369 (1983). The complaint asserts that Adena Health System

“acted in such a manner as to persecute and destroy all avenues of professional

employment.” Compl. at ¶ 57. Plaintiff simply does not set forth “enough facts to state a

claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

570 (2007). Because plaintiff provides no factual support for his claim, the complaint

fails to state a claim for intentional infliction of emotion distress. 

H. Violation of the Fourth Amendment 

Plaintiff fails to state a claim against defendants for violation of his right under

the Fourth Amendment to be free from illegal search and seizure. The Fourth

Amendment applies to governmental searches and seizures. Plaintiff argues, however,

that Adena Health System acted under color of state law because its activities are

sufficiently close to and controlled by the state. 

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A private party may act under color of state law when its actions are “fairly

attributable to the state.” Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir.1992). The

Supreme Court has established three tests to determine whether an action is “fairly

attributable to the state”: (1) public function test; (2) state compulsion test; and (3)

symbiotic relationship or nexus test. Id. at 1335. Plaintiff relies on the nexus test to

establish that Adena Health System acted under color of state law. To show state action

under the symbiotic relationship or nexus test, there must be “a sufficiently close nexus

between the state and the challenged action of the regulated entity so that the action of

the latter may be fairly treated as that of the state itself.” Wolotsky, 960 F.2d at 1335. In

Lansing v. City of Memphis, the Sixth Circuit noted:

[It] is well-established that state regulation, even when extensive, is not

sufficient to justify a finding of a close nexus between the state and the

regulated entity. See, e.g., American Manufacturers, 526 U.S. 40, 119 S.Ct. 977

(holding that despite location in state's “regulatory web,” private insurer's

decision to withhold payment for disputed worker's compensation claim

not attributable to the state); Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct.

2764, 73 L.Ed.2d 418 (1982) (holding private school's personnel decisions

not attributable to the state, despite “extensive regulation of the school

generally”); Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534

(1982) (refusing to hold New York State responsible for nursing home's

patient transfer decisions, “although it is apparent that nursing homes in

New York are extensively regulated”); Jackson, 419 U.S. 345, 95 S.Ct. 449,

42 L.Ed.2d 477 (refusing to find state action in electric company's decision

to terminate service, notwithstanding that it was “a heavily regulated

utility with at least something of a governmentally protected monopoly”);

Adams v. Vandemark, 855 F.2d 312 (6th Cir.1988) (holding private

not-for-profit corporation was not a state actor, even though subject to

state and federal regulation); Crowder v. Conlan, 740 F.2d 447 (6th Cir.1984)

(holding state was not responsible for private hospital's personnel

decisions even if state regulation was “extensive and detailed”).

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Lansing v. City of Memphis, 202 F.3d 821, 830 (6th Cir. 2000). As a result, the Court

concludes that defendant did not act “under color of state law” and cannot be

recognized as a state actor under 42 U.S.C. § 1983. 

I. Bivens Action

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971), the Supreme Court recognized a claim to vindicate violations of constitutional

rights by federal actors. To state a Bivens claim, a plaintiff must allege facts sufficient to

show that a federal defendant violated his rights under the United States Constitution.

Here, none of the individual defendants can be considered a federal agent or actor. For

private actors to be held liable for damages in a Bivens action, their conduct must be “so

related to the federal government that they can be regarded federal agents or actors,

that is, that the private corporation acted under color of federal law.” Yeager v. GMC,

265 F.3d 389, 398 (6th Cir. 2001). Plaintiff maintains that the nature of the healthcare

industry makes virtually every hospital similar to Adena Health System quasigovernmental under the nexus test. Plaintiff has cited no legal authority supporting his

argument that a private hospital acts under color of federal law because it is subject to

federal regulation. Plaintiff’s claim fails to state a claim upon which relief may be

granted. 

V. Conclusion

Defendant Adena Health System’s November 1, 2011 motion to dismiss Counts I,

II, III, IV, V, VII, and IX of the complaint (doc. 13) is GRANTED in part and defendants

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Mark Shuter, Karen D. Bolton, Anthony C. Freeman, D.O., Derrick L. Reedus, Sr., M.D.,

and Jeff Collins’ November 1, 2011 motion to dismiss the complaint (doc. 14) is

GRANTED. This action continues with respect to plaintiff’s claims for breach of

contract and for conversion against defendant Adena Health System. The remaining

claims and defendants are DISMISSED. The Clerk of Court is DIRECTED to enter

JUDGMENT in favor of defendants Mark Shuter, Karen D. Bolton, Anthony C.

Freeman, D.O., Derrick L. Reedus, Sr., M.D., and Jeff Collins.

s/ Mark R. Abel 

United States Magistrate Judge 

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