Text of Schiavo court ruling

C.    Count Three - Violation of Fourteenth Amendment Right to Equal Protection of the Law

For the same reasons relief under Count I was not appropriate, the relief sought in Count ni via the equal protection clause is without merit. Plaintiff has not established a substantial likelihood of success on the merits of the claims set forth in Count in. See Cruzan v. Missouri Dept. of Health, 497 U.S. 261, 287 n.l2 (1990) ('The differences between the choice made by a competent person to refuse medical treatment, and the choice made for an incompetent person by someone else to refuse medical treatment, are so obviously different that the State is warranted in establishing rigorous procedures for the latter class of cases which do not apply to the former class.") (emphasis in original).

D.    Counts IV and V - Violation of Religious Land Use and Institutionalized Persons Act (RLUIPA) and Violation of First Amendment Free Exercise of Religion Clause

Plaintiffs bring Counts IV and V alleging that Theresa Schiavo's right to exercise her religion has been burdened by the state court's order to remove the feeding tube. With respect to Count IV of the Complaint, Plaintiffs allege a claim under the Religious Land Use and Institutionalized Persons Act (42 U.S.C. § 2000cc-l), claiming that her rights to free exercise of her religion have been burdened by the state court's order authorizing removal other feeding tube in that removal of the feeding tube "imposes a substantial burden on Terry's religious free exercise." That statute expressly requires, however, that "[n]o government shall impose a substantial burden on the religious exercise of a person . . ."42 U.S.C. § 2000cc(a) (emphasis added).

In Count V, Plaintiffs make a similar contention under the 42 U.S.C. § 1983 and the free exercise clause, alleging that "Terry's religious beliefs are burdened" by execution of order "in that Terry is being forced to engage in an activity contrary to the tenets of her Roman Catholic faith ... ." Plaintiffs allege that Defendants have a constitutional duty to accommodate "Terry's sincerely-held religious beliefs."

Undoubtedly, Terry Schiavo enjoys, by virtue of 42 U.S.C. § 2000-cc(a), a statutorily protected right not to have substantial burdens placed on her religious exercise by the government. The plain language of the statute prohibits government from imposing a substantial burden on the religious exercise of an individual such as Theresa Schiavo. Similarly, the Free Exercise Clause contained in the First Amendment of the Constitution expressly protects the exercise of religion. In their Complaint, Plaintiffs allege that the state court's order imposes a substantial burden on Theresa Schiavo's free exercise of religion. (Complaint, P 67).

In order to succeed on either claim, however, Plaintiffs must establish that the Defendants were state actors. Plaintiffs' claims fail because neither Defendant Schiavo nor Defendant Hospice are state actors. Moreover, the fact that the claims were adjudicated by a state court judge does not provide the requisite state action for purposes of the statute or the Fourteenth Amendment. See Harvey v. Harvey, 949 F.2d 1127, 1133-34 (11th Cir. 1992) ("Use of the courts by private parties does not constitute an act under color of state law."); Torres v. First State Bank of Sierra County, 588 F.2d 1322, 1326-27 (10th Cir. 1978) ("We do not think that the 'color of law' reference in § 1983 was intended to encompass a case such as this one, where the only infirmities are the excesses of the court order itself,. . . subject to the normal processes of appeal."); see also Dahl v. Akin, 630 F.2d 277, 281 (5th Cir. 1980).

This court appreciates the gravity of the consequences of denying injunctive relief. Even under these difficult and time strained circumstances, however, and notwithstanding Congress' expressed interest in the welfare of Theresa Schiavo, this court is constrained to apply the law to 12 the issues before it. As Plaintiffs have not established a substantial likelihood of success on the merits, Plaintiffs' Motion for Temporary Restraining Order (Dkt. 2) must be DENIED.

DONE AND ORDERED in chambers this 22nd day of March, 2005.

                                 JAMES D. WHITTEMORE
                                 UNITED STATES DISTRICT JUDGE

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