Full opinion text
MEMORANDUM DECISION & ORDER JENKINS, Senior District Judge. THE FINAL PRETRIAL CONFERENCE (Fed.R.Civ.P. 16(c)).1112 Fed.R.CivJP. 16(c)(1).1112 THE PART I PLAINTIFFS .1114 Dr. Steven MacArthui’, M.D.1114 Ms. Michele Lyman, P.A.1115 Ms. Helen Yaldez .1118 THE PART I PLAINTIFFS’ ALLEGATIONS AGAINST THE INDIVIDUAL DEFENDANTS.1119 The County Commissioners.1120 County Attorney Craig Halls.1120 SJHSD Board Members: Atcitty, Lewis, Housekeeper, Adams, Shumway & Holliday.1121 The SJHSD Administrators: Wood, Bailey & Bradford.1122 Laurie Schafer (a/k/a Laurie Shafer).1123 Marilee Bailey, R.N.1124 Ora Lee Black.1124 Carla Grimshaw .1124 Gloria Yanito.1125 Julie Bronson. 1126 Lori Wallace, R.N. a/k/a Laurie Walker.1126 Dr. Lloyd Yal Jones, M.D.1126 Dr. Manfred Nelson, M.D.1128 Dr. James Redd, M.D.1128 THE PART I PLAINTIFFS’ THEORIES OF LIABILITY.1129 (1) Plaintiffs’ Civil RICO Claims (18 U.S.C. §§ 1961 et seq.) .1130 Predicate Acts of “Racketeering Activity” (18 U.S.C. § 1961(1)).1130 (a) 18 U.S.C. § 1341—Mail Fraud.1131 (b) 18 U.S.C. § 1512—Witness Tampering .1133 (c) 18 U.S.C. § 1951—Interference with Commerce by Threats .1134 (2) Freedom of Access to Clinic Entrances Act of 1994 (18 U.S.C. § 248)-1137 (3) Health Care Quality Improvement Act, 42 U.S.C. § 11112 (2000).1138 (4) Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd (2000).1139 (5) “Medicare Patient Bill of Rights” (42 U.S.C. § 1395a) .1141 (6) 42 U.S.C. § 1981 .1142 (7) 42 U.S.C. § 1985(3).1144 (8) 42 U.S.C. § 1983 . 1145 § 1983 Conspiracy.1146 Liability of the SJHSD & San Juan County.1147 Plaintiffs’ § 1983 Claims Against the County Commissioners & SJHSD Board Members.1149 Vicarious Liability, Respondeat Superior & § 1983.1149 The SJHSD Board & the SJHSD Medical Staffs “Policy” re: Physician Assistants.1151 Qualified Immunity & Plaintiffs’ § 1983 Claims.1152 Dr. MacArthur’s § 1983 Claim.1154 Dr. MacArthur’s “Right” to Practice at SJHSD Facilities .1154 Dr. MacArthur’s Request for Privileges & Procedural Due Process.1157 Ms. Lyman’s § 1983 Claim.1160 Substantive Due Process.1160 Misogyny & “Hostile Environment” under § 1983.1163 Qualified Immunity & Ms. Lyman’s § 1983 Claim.1166 Ms. Helen Valdez’ § 1983 Claim.1166 (9) Federal Antitrust Laws (15 U.S.C. §§ 1 et seq.).1169 The Local Government Antitrust Act (15 U.S.C. §§ 34-36).1172 Dr. MacArthur’s Federal Antitrust Law Claim.1173 Ms. Lyman’s Federal Antitrust Law Claim.1174 (10) Utah Constitution, art. I, §§ 1, 7, 25, 26, 27 .1176 (11) Utah Unfair Practices Act (Utah Code Ann. §§ 13-5-1 et seq. (2001))... .1179 (12) Utah Civil Rights Act (Utah Code Ann. §§ 13-7-1 et seq. (2001)).1181 (13) Interference with Contract and with Prospective Business Relations... .1182 (14) “state common law defamation (also a U.S. Constitutional right to reputation as guaranteed by the Ninth Amendment)”.1183 (a) Utah Law of Defamation.1183 (b) Defamation & the Ninth Amendment.1184 (15) “Federal common law and Utah contract common law and statutory provisions that prohibit contracts of adhesion, bad faith, and lack of fair dealing. Utah Code Ann. 78-12-25(1) (1996),” including the Implied Covenant of Good Faith and Fair Dealing .1187 (a) Contracts of Adhesion.1187 (b) Implied Covenant of Good Faith and Fair Dealing.1187 (16) “privacy rights and statutory entitlements to have their credential files and patient files accurately kept by the district under Medicaid and Utah Health Department statutes and regulations”.1190 (17) Negligent and Intentional Infliction of Emotional Distress .1193 (a) Intentional Infliction of Emotional Distress.1193 (b) Negligent Infliction of Emotional Distress.1194 (c) The Part I Plaintiffs’ Emotional Distress Claims.1195 (18) Fraud.1195 Summary re: the Part I Plaintiffs’ Causes of Action.1198 PRETRIAL DETERMINATION OF THE PART I PLAINTIFFS’ CLAIMS.. .1200 Claims Against San Juan County and the SJHSD.1201 Claims Against the Individual Defendants.1201 Dr. MacArthur’s State Law Tort Claims.1202 Ms. Lyman’s State Law Tort Claims .1202 Summary re: the Final Pretrial Conference.1204 PLAINTIFFS’ MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT.... 1205 THE PART I PLAINTIFFS’ MOTIONS FOR RECONSIDERATION.1206 CONCLUSION.1208 This case involves a potpourri of individual claims with individual histories and individual times and contexts, held together, if at all, by a common defendant, or common defendants. It has an erratic procedural history, complicated by prolix pleadings and appendices, evolving arguments, and motions to reconsider matters already decided. In an effort to deal with this matter as completely as we can— extended though it may be—the court in the context of pretrial has considered in detail each of the plaintiffs’ legal theories, and the factual allegations advanced as the basis for those theories, all in an effort to identify any genuine issues that would require a trial. The original complaint filed in this action asserted claims by fifteen individual plaintiffs against San Juan County, the San Juan Health Services District, and various individual defendants. Some of those claims were decided upon motion, and some have been resolved by agreement; several of the original plaintiffs and defendants are no longer parties to this case. {See Order on Motions Heard on July 2, 2002, filed August 22, 2002 (dkt. no. 417); Order on Motion of Defendant San Juan Foundation to Dismiss, filed June 5, 2002 (dkt. no. 366); Order of Dismissal with Prejudice, filed March 28, 2002 (dkt. no. 309); Order of Dismissal with Prejudice, filed March 25, 2002 (dkt. no. 306); Order of Dismissal with Prejudice, filed March 11, 2002 (dkt. no. 298); Order, filed February 12, 2002 (dkt. no. 272); Order, filed November 29, 2001 (dkt. no. 234); see also Order, filed February 15, 2002 (dkt. no. 279).) Some of the questions decided by the district judge initially assigned this case became the subject of an interlocutory appeal, and are now back before this court on remand. See MacArthur v. San Juan County, 309 F.3d 1216 (10th Cir.2002). By the time of the Final Pretrial Conference on November 14-15, 2002, there remained six named plaintiffs, whose claims fall into two discrete groups: plaintiffs Donna Singer, Fred Riggs and A1 Dickson, who seek enforcement of three orders against several of the defendants previously obtained in Navajo Tribal Court—the matter now before this court on remand from the court of appeals—and plaintiffs Dr. Steven MacArthur, Michelle Lyman and Helen Valdez, who assert individual claims against the defendants arising from various events and alleged acts of one or more of the defendants. The claims of these six remaining plaintiffs were detailed in a proposed Amended Complaint submitted by counsel a few days before the Final Pretrial Conference. {See “Amended Complaint to Conform to the Evidence & the 10th Cir. Court 10-7-02 Opinion,” annexed to “Plaintiffs’ Rule 15 Motion to Amend and Supplement Complaint to Con: form to the Evidence & the 10th Cir. Court 10-7-02 Opinion,” and “Memorandum of Fact and Law in Support,” filed November 6, 2002 (dkt. no. 438) (hereinafter “Proposed Amended Complaint”).) “Part I” of the Proposed Amended Complaint sets forth the claims of MacArthur, Lyman and Valdez {id. at 2-98 ¶¶ 1-254); “Part II” of the same pleading spells out the relief sought by Singer, Riggs and Dickson. {Id. at 98-120.) The claims and defenses involving the “Part I Plaintiffs,” MacArthur, Lyman and Valdez, were also delineated in an agreed form of proposed Pretrial Order submitted six days later as contemplated by the court’s local rules, see DUCivR 16—1(e), and by the schedule previously established by the court in this case. (See Proposed Pretrial Order, received November 12, 2002.) On the eve of pretrial, the San Juan Health District defendants filed motions to dismiss those plaintiffs’ RICO, Health Care Quality Improvement Act and EMTALA claims (dkt. nos. 443, 445, 447), followed the next day by motions to dismiss those plaintiffs’ claims of interference with commerce by threats, mail fraud, witness tampering and federal antitrust law violations (dkt. nos. 450, 452, 456, 454). THE FINAL PRETRIAL CONFERENCE (Fed.R.Civ.P. 16(c)) At the Final Pretrial Conference, court and counsel explored in some detail the factual footing and legal theories underlying the claims of the Part I plaintiffs, engaging in an extended colloquy that sought to identify, formulate and simplify the issues, and to pinpoint any genuine issues of material fact—issues requiring a trial. Fed.R.Civ.P. 16(c)(1) At a pretrial conference, “consideration may be given, and the court may take appropriate action, with respect to (1) the formulation and simplification of the issues, including the elimination of frivolous claims or defenses; .... ” Fed.R.Civ.P. 16(c)(1). The reference in Rule 16(c)(1) to “formulation” is intended to clarify and confirm the court’s power to identify the litigable issues. It has been added in the hope of promoting efficiency and conserving judicial resources by identifying the real issues prior to trial, thereby saving time and expense for everyone. ... The notion is emphasized by expressly authorizing the elimination of frivolous claims or defenses at a pretrial conference. There is no reason to require that this await a formal motion for summary judgment. Nor is there any reason- for the court to wait for the parties to initiate the process called for in Rule 16(c)(1). Fed.R.Civ.P. 16 advisory committee note to 1983 amendment (citation omitted). “The court thus is directed to define the issues, facts, and theories actually in contention, which means that extraneous issues should be weeded out .... ” 6A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1525, at 242 (2d ed.1990) (footnotes omitted). As the court of appeals explained some years ago: “The salutary, indeed the desirable and efficacious, purpose of a pretrial conference is to sift the discovered and discoverable facts to determine the triable issues, both factual and legal, and to chart the course of the lawsuit accordingly.” Lynch v. Call, 261 F.2d 130, 132 (10th Cir.1958). It follows that “[a]s a case takes shape and the court struggles to narrow and pinpoint the issues, the parties have an unflagging obligation to spell out squarely and distinctly those claims they desire to advance at the trial proper. Good-faith compliance with Civil Rule 16 plays an important role in this process.” Veranda Beach Club Limited Partnership v. Western Surety Co., 936 F.2d 1364, 1371 (1st Cir.1991) (citation omitted). Rule 16(c)(1) places upon counsel “a substantial responsibility for assisting the court in identifying the factual issues worthy of trial.” Fed.R.Civ.P. 16 advisory committee note to 1983 amendment; cf. Erff v. MarkHon Industries, Inc., 781 F.2d 613, 617 (7th Cir.1986) (“Attorneys at a pretrial conference must make a full and fair disclosure of their views as to what the real issues of the trial will be.”); see also DUCivR 7-l(d). Rule 16(c) has confirmed the court’s power to identify the litigable issues, and to eliminate frivolous claims or defenses without awaiting the making of a summary judgment or other motion by the parties. But at the same time, counsel bear a substantial, responsibility in formulating the triable issues in that they must identify these issues for the court or they waive the right to have them tried. 3 James W. Moore, et al., Moore’s Federal Practice ¶ 16.11, at 16^19 (2d ed. Rev. 1994) (footnotes omitted). Both the Proposed Amended Complaint (Part I) and the Proposed Pretrial Order recite an extended litany of grievances against San Juan County, the San Juan Health Services District (“SJHSD”) and various individual defendants, ranging from allegations of nepotism in the administration of the SJHSD and San Juan County government to an individual physician’s ill-tempered use of derogatory language in referring to medical support staff and patients and his unavailability for specific patient emergencies. {See Proposed Amended Complaint at 35 ¶ 58, 35 ¶¶ 50-52, 60 ¶ 146, 63 ¶¶ 156-58, 64 ¶ 159, 66-67 ¶¶ 163-164, 67-68 ¶¶ 165-166; Proposed Pretrial Order at 1220 ¶ 58, 1220 ¶¶ 51-52, 1231 ¶ 146, 1232 ¶¶ 156-59, 1233 ¶¶ 163-164, 1233 ¶¶ 165-166.) Even so, the Proposed Amended Complaint represented a significant narrowing of the scope of plaintiffs’ claims from that of the original complaint—a pleading that alleged a wide range of grievances involving the operation of San Juan County government and the SJHSD, and sought the entry of sweeping declaratory judgments and writs of mandamus requiring, inter alia, a GAO audit of federal funds expended in the county in the previous ten years, an IRS audit of payroll tax withholding, the convening of a federal grand jury investigation, and the immediate seizure or sequestration of the defendant entities’ financial records by the U.S. Marshal pending that investigation and the GAO and IRS audits. (See Complaint, filed July 25, 2000 (dkt. no. 1), at 156 ¶¶ 3, 5 (Prayer for.Relief).) A grievance involving a governmental unit is still a grievance, but a grievance may or may not be “a claim upon which relief can be granted” in a judicial proceeding. Fed.R.Civ.P. 12(b)(6). In attempting to identify and define genuine issues for trial, court and counsel at pretrial undertook to parse the Part I Plaintiffs’ allegations in search of viable legal claims. (See Transcript of Hearing, dated November 14, 2002 (“Tr. 11/14/02”), passim; Transcript of Hearing, dated November 15, 2002 (“Tr. 11/15/02”), passim.) THE PART I PLAINTIFFS Dr. Steven MacArthur, M.D. Dr. Steven MacArthur, M.D. is a licensed physician specializing in obstetrics and gynecology. By 1999, he had been in practice in his specialty for about eighteen years (though not in active practice for at least the prior year). On or about December 9, 1999, Dr. MacArthur requested full provisional one-year privileges to practice medicine at health care facilities operated by the SJHSD, including the Blanding Urgent Care Center, Blanding Birthing Center, Monument Valley Clinic, Monticello Clinic and San Juan Hospital, the only hospital facility located in San Juan County. The SJHSD did not grant Dr. MacArthur full provisional one-year privileges within thirty days after his request, as contemplated by the SJHSD medical staff bylaws. Nor did it deny them. Instead, SJHSD administrators (defendants Bradford and Dr. James Redd) granted him two-week “temporary” practice privileges allowing him to treat at least a limited number of patients at SJHSD facilities, and these “temporary” privileges were extended twice, through February 2, 2000. Dr. MacArthur exercised his “temporary” privileges in providing care to several patients at SJHSD facilities; he also participated with another physician in a delivery by cesarian section in November or December of 1999. In doing so, Dr. MacArthur alleges that he encountered problems involving the availability, quality and sterility of medical instruments and equipment, and some resistance—even antagonism—on the part of SJHSD nurses and support staff in treating his patients. He was further troubled by rumors that cast doubt upon his background, professional integrity and expertise, and a local newspaper report that his privileges had been “lifted” by the SJHSD, when in fact no formal determination of his request had yet been made. On or about February 2, 2000, the SJHSD did not further extend his “temporary” privileges, and had not yet acted on his requests for full provisional privileges. At that point, the delay as to full provisional privileges was explained on the basis that required documentation was missing from his application packet (viz., a copy of his medical license and DEA dispensing license), documentation which he believed had been furnished and in any event was readily available and easily verified. By February of 2000, Dr. MacArthur had become apprehensive that his request for full provisional privileges may ultimately be denied, albeit for questionable, perhaps even pretextual reasons, and that his “temporary” privileges would soon expire and might not be further extended. He did not press the privileges issue with the SJHSD on or after February 2, 2000. Dr. MacArthur decided to move his medical practice to Ely, Nevada, and did not further pursue his request for full provisional practice privileges at the SJHSD facilities. (See Proposed Pretrial Order at 1228 ¶ 199.) Dr. MacArthur now contends that his requests for full provisional one-year privileges were deferred in violation of his constitutional right as a licensed physician to pursue his profession through use of publicly-sponsored medical facilities, and for pretextual reasons (viz., “missing” documents), the real reasons being (1) discriminatory intent based upon his age (over 40), his associations with Ms. Lyman (gender), and Jewish and Mexican-American physicians (Drs. Penn and Mena), and his reporting of remarks concerning Dr. Penn; and (2) the intent to limit his competition with other SJHSD medical staff and contract physicians, none of whom are OB/ GYN specialists, in serving the needs of women patients in San Juan County. He seeks an award of “damages in excess of $8.5 million dollars and attorney fees” to compensate him for the loss of income anticipated from an estimated ten years’ practice in the San Juan County market, resulting from the failure of the SJHSD defendants to grant him ■ full provisional privileges as he requested, and the conduct of those individuals who propagated rumors spreading defamatory falsehoods concerning his background, integrity or professionalism. (Proposed Amended Complaint at 94-95.) Ms. Michele Lyman, P.A. Plaintiff Michele Lyman resides in Blanding, Utah, and has been practicing as a licensed Physician’s Assistant since 1996. She initially worked for the SJHSD at Montezuma Creek in 1995, completing her preceptorship under the supervision of Dr. Lloyd Val Jones, M.D. in 1996. She then became employed by and practiced under the supervision of Dr. James Redd, M.D., who was in private practice in Blanding; she continued to be supervised by Dr. Jones as a “back-up” as well. While working for Dr. Redd, Ms. Lyman was regularly covering Dr. Redd’s clinic, and providing some coverage for the Blanding nursing home, the Blanding Birthing Center, the San Juan Hospital emergency room, and the Blanding Urgent Care Center, a SJHSD facility where she alleges she enjoyed full SJHSD medical staff privileges, and was paid by the District for her “on-call” services. (See Proposed Pretrial Order at 1224 ¶ 132; Tr. 11/15/02, at 3:4-5:13 (Ms. Rose).) Ms. Lyman ceased working under Dr. Redd’s supervision on or about October 7,. 1998, but continued providing coverage for the SJHSD through November, 1998. She alleges that she was effectively denied her staff privileges at the Blanding Urgent Care Center within three days after leaving Dr. Redd, and thereafter experienced considerable difficulty in exercising her privileges at SJHSD facilities, even though she was working in Monticello under the supervision of-two other Monticello physicians having SJHSD staff privileges, viz., Dr. Nathaniel Penn, M.D., from November 1998 until July 1999 (when Dr. Penn had moved his practice to Moab), and Dr. Robert Mena, M.D., from July to November 1999 (when Dr. Mena’s SJHSD privileges expired). In early 1999, Ms. Lyman and Dr. Penn opened a Blanding Family Practice clinic; Ms. Lyman eventually purchased that clinic from Dr. Penn and operated as a “state-approved off-site independent rural clinic” for three years, until she in turn sold her practice. (Proposed Amended Complaint at 14, 96.) In December 1999, Ms. Lyman requested a renewal of her SJHSD staff privileges (to be exercised under supervision by Dr. MacArthur), which request was delayed, .purportedly because of “missing” documentation in her personnel file, e.g., CPR certification cards, that Ms. Lyman is certain had been properly issued and were current through at least December of 1999. She furnished copies of the missing cards, but alleges that the dates on those cards had been altered. By the end of March, 2000, formal administrative action on her request for privileges was still being deferred by the SJHSD until the CPR certification card issue was resolved. According to the pleadings, from November 1999 until sometime in 2001, Ms. Lyman may not have had a supervising physician practicing in San Juan County who had staff privileges with the SJHSD, except for the brief period between December 23, 1999 and February 2, 2000, when Dr. MacArthur exercised “temporary” SJHSD privileges. At the time of pretrial, she was again being supervised by Dr. Jones. (See Tr. 11/15/02, at 24:9-25, 26:7-11 (Ms. Rose).) According to the plaintiffs, The District employees as a pattern sought to restrain competition, there was inadequate impartiality in ‘peer review' or in issuing privileges since the people issuing the privileges are usually in economic competition with those they are giving privileges. Privileges for Mrs. Lyman were de facto denied by nursing personnel and medical staff without any action by the District governance board. (Proposed Pretrial Order at 1217.) As Ms. Lyman’s counsel explained at pretrial,.. She’s complaining that she could not get the privileges at the hospital when she was working under physicians that had privileges. Her patients she would send over to the clinic, they, would not get shots. At one point she was told she couldn’t order labs or x-rays. At one point she was told she couldn’t set foot in the facility. (Tr. 11/15/02, at 14-19 (Ms. Rose).) In addition to the alleged interference with her practice privileges at SJHSD facilities after October 1998, Ms. Lyman alleges harassment and intimidation of, and denial of health care services to her patients by Dr. Redd and other SJHSD support staff, which she contends was intended to inhibit competition by her with the SJHSD medical staff and contract providers. She also alleges a deliberate campaign of harassment conducted against her by Dr. Redd since she ceased working for him in October of 1998, intended to hinder and frustrate her professional practice, and cause her severe emotional distress. She contends that Dr. Redd created a misogynistic “hostile environment” in his own medical office in Blanding during the time that she worked under his supervision, and that her personal and professional reputation has suffered as a consequence of defamatory rumors, insinuations and accusations published to her patients and others by one or more of the defendants. Ms. Lyman seeks an award of “damages in excess of Six (6) Million Dollars” as compensation for “unfair practices” interfering with the exercise of her practice privileges and he relationship with her patients, the harassment and intimidation of her patients, “the terrorism of her children, and herself, and the spreading of rumors that equate to nothing less than criminal defamation for both Michele Lyman and Dr. MacArthur.” (Proposed Amended Complaint at 96-98.) She also seeks injunctive relief “to protect patients of Mrs. Lyman and her supervising physician, and give Mrs. Lyman’s patients uniform and considerate care with District staff, sensitive to the unique needs of the patient,” and allowing Ms. Lyman “to minimally go into any facility to at least speak and associate with her patient, regardless of whether she has privileges at the District.” According to plaintiff, “ordering the [SJHSD] governance board to make physicians and chiefs of staff accountable for patient complaints and treat all medical providers and physician’s equally and uniformly is not contradictory to good public policy.” (Id. at 93-94.) Ms. Helen Valdez The claims of plaintiff Helen Valdez arise out of a single event that took'place on April 14, 1999. On that date, Ms. Valdez, accompanied by her sister-in-law, Charlene Gonzales, went to the San Juan Hospital emergency room at about 8:08 a.m. At that time, she was suffering from what was subsequently diagnosed as acute diverticulitis; she was experiencing symptoms including vomiting, cramping, diarrhea and pain, and felt very weak and tired. Ms. Valdez told the emergency room personnel “that she’d been sick, [and] needed to see a doctor.” She assisted in filling out a typed patient admittance form, furnishing identification and health insurance information to an emergency room clerk named Judy Kascheai-veaz. She signed the form, as did the clerk. At that point, Ms. Valdez had not described her symptoms to the clerk. Ms. Valdez became ill and went to the lavatory, and when she returned, she observed a nurse in the emergency room, Lori Wallace, R.N., tell the clerk that “she could set both her patients up in the emergency room for the physician,” referring to Ms. Valdez and Michael Bailey, another individual who had come to the emergency room with an injured foot. While Ms. Valdez went to the lavatory a second time, her sister-in-law, Ms. Gonzales, says that she overheard the nurse, Ms. Wallace, tell the clerk to “tell Helen [Ms. Valdez] to go to the doctor’s office. Dr. Penn’s office would open at 9:00.” Ms. Gonzales did not hear Ms. Wallace say anything else, and did not converse directly with Ms. Wallace about what she had overheard. Ms. Gonzalez related the overheard conversation to Ms. Valdez upon her return from the lavatory, and without any further conversation with Ms. Wallace, Ms. Kas-cheaiveaz, or other emergency room employees, Ms. Valdez left the emergency room, again accompanied by Ms. Gonzales. Instead of going to see her doctor at his office, Ms. Valdez went home. At the time she left the emergency room, Ms. Valdez had not discussed' her symptoms with Ms. Wallace or Ms. Kascheaiveaz, whom she had seen in the emergency room, and had not yet seen or been examined by a physician. Her symptoms subsided for a day but then intensified, and three days later, Ms. Valdez went to the Blanding Urgent Care Clinic, where she was examined by Dr. James Redd, M.D. Dr. Redd diagnosed her condition as acute diverticulitis, for which he prescribed oral antibiotics and a strict liquid diet. Ms. Valdez’ condition did not improve significantly, and two days later she went to Cortez, Colorado, where she was hospitalized and placed on IV fluids and antibiotics. After receiving treatment in the Cortez hospital for several days, Ms. Valdez returned home. Within a .few days, she became ill again, and this time was admitted to the University of Utah Hospital, where she was diagnosed as having an obstruction requiring immediate surgery. She underwent surgery, which apparently was successful. To compensate for “the badge of inferiority she was made to wear as she left the facility she had sought help from, not being able to see the provider of her choice, [and] not being able to feel as though she could return to a facility in Monticello for fear of Laurie Wallace,” Ms. Valdez seeks an award of “damages of $350,000 and attorneys fees.” (Proposed Amended Complaint at 92-93.) THE PART I PLAINTIFFS’ ALLEGATIONS AGAINST THE INDIVIDUAL DEFENDANTS Besides the SJHSD and its parent entity, San Juan County, the Part I Plaintiffs have named several individual defendants, originally and in the Proposed Amended Complaint: Commissioner Tyron Lewis, Commissioner Bill Redd, Craig Halls, Reid Wood, Cleal Bradford, Roger AtCitty, John Lewis, John Housekeeper, Karen Adams, Patsy Shumway, Dr. James Redd, Dr. Lloyd Val Jones, Dr. Manfred Nelson, Richard Bailey, Marilee Bailey, Ora Lee Black, Gary Holliday, Laurie Schafer a/k/a “Laurie Shafer,” Lori Wallace a/k/a “Laurie Walker,” Carla Grimshaw, Gloria Yanito, and Julie Bronson. The County Commissioners By the time of pretrial, two San Juan County Commissioners remained as defendants in this action in their individual capacities: Bill Redd and Ty Lewis. Both apparently were also named as defendants for their conduct as SJHSD Board members. Plaintiffs allege very few specific facts concerning Commissioners Redd or Lewis individually; instead, their allegations are pleaded against the Commission or the County: 106. The County Commission and District Board, by not policing and supervising the medical staff and leaving carte blanch[e] decisions on who gets on staff and does not get on staff, contributes directly to the private use of the staffs use of the governmental processes. * * * * * * 110. The lack of the District Board or County Commission in taking action to supercede medical staff and head of medical staff privilege-granting decisions, and deliberate indifference to investigating complaints, holding hearings, and exercising their government authority to foster economic competition as mandated by statutes, falls outside any ‘political’ action, and directly is intended to control the business processes of competitors of District employee physicians and P.A.s and those medical staff physi-dans directly contracting with the District. (Proposed Amended Complaint at 42-43 ¶¶ 106, 110; Proposed Pretrial Order at 1226, 1226 ¶¶ 146, 150 (same). See Proposed Amended Complaint at 34 ¶ 52 (“The County and District had a de facto policy of deliberate indifference to those who complained of suffering from Dr. Redd and other District staff members.”).) County Attorney Craig Halls As to San Juan County Attorney Craig Halls, the Part I Plaintiffs note that he “is the brother in law of Rick Bailey, District CEO and County Commission administrator.” (Proposed Pretrial Order at 1220 § 51.) With respect to certain administrative problems at the San Juan Hospital identified by the Utah Department of Health at or about the time of the event complained of by Ms. Valdez, plaintiffs state that “[t]he Health District and County Commissioners were informed of these problems in a Board meeting, with an executive session attended by Commissioner Bill Redd . and County Attorney Craig Halls.” (Id. at 60 ¶ 236; Proposed Amended Complaint at 87 ¶236 (same).) More generally, the Part I Plaintiffs allege that the County Commissioners, County Administrator and County Attorney “behaved in a deliberately indifferent manner, failed to adequately investigate the problems Mrs. Lyman and Dr. MacArthur identified in the District, did not hold hearings on the matters, did not enforce, or take any actions to rectify the situations identified by Mrs. Lyman and Dr. MacArthur.” (Proposed Amended Complaint at 16-17.) “A pattern of deliberated indifference as a policy was exhibited by the County Commission, County Attorney, Health District board, administrators and medical staff.” (Id. at 17.) SJHSD Board Members: Atcitty, Lewis, Housekeeper, Adams, Shumway & Holliday Defendants Roger Atcitty, John Lewis, John Housekeeper, Karen Adams, Patsy Shumway and Gary Holliday are or at relevant times were members of the Board of Trustees of the San Juan Health Services District. (Proposed Pretrial Order at 1243 ¶ 3.) Defendant Cleal Bradford was also a member of the SJHSD Board from approximately February 1999 until June 1999, and from approximately June 22, 1999 until April 2001, Bradford served as executive director of the SJHSD. (Id.) In the Proposed Amended Complaint, the Part I Plaintiffs plead very few factual allegations involving specific SJHSD Board members. The Proposed Amended Complaint alleges nothing regarding intentionally discriminatory acts or other culpable individual conduct of defendants Atcitty, Shumway, Housekeeper, John Lewis, and Adams. Other than noting his status as a SJHSD Board member, the Proposed Amended Complaint says nothing at all about defendant Gary Holliday. Rather than addressing alleged conduct of individual Board members, the Plaintiffs appear to be complaining of alleged inaction by the Board as a Board: “The governance board displayed a pattern of not holding doctors or others accountable for interfering in doctor /patient relations. The County was aware of the problems and did nothing to investigate, hold hearings, or resolve the provider and patients’ and public’s concerns as evidenced in petitions with hundreds of signatures.” (Proposed Pretrial Order at 1217; see id. at 1226 ¶ 149 (“District Board members and CEOs stated they entrusted medical staff privileging to the medical staff or head of medical staff.”).) In plaintiffs’ view: The District has illegally operated the district by having County Commissioners as board members, by not holding doctors accountable for violations of the law, by not following their own medical by-laws, by not applying policies equally across the board to all persons, by not overriding letters or memos of doctors that set policy, without board approval, while stifling economic competition in the area. (Id. at 1247.) The SJHSD Administrators: Wood, Bailey & Bradford Like their allegations against the SJHSD Board members, plaintiffs’ claims against SJHSD administrators Wood, Bailey and Bradford are largely footed upon allegations of inaction in response to plaintiffs’ grievances: 109. Reid Wood and Rick Bailey did nothing to assist Mrs. Lyman in exercising privileges with the District that the District Board never officially and formally terminated. 110. Reid Wood, Cleal Bradford, and Rick Bailey as CEOs never held the medical Staff chiefs accountable for policies effecting services of P.A.s, whether written or de facto. 111. Reid Wood, Cleal Bradford, and Rick Bailey as CEOs never contradicted the medical Staff chiefs for policies effecting services of Michele . Lyman, whether written or de facto. 112. b. The Defendant community leaders Rick Bailey, Ty Lewis, John Lewis, Karen Adams, Cleal Bradford, with the power and authority over the entire district, did nothing to investigate, find and hold accountable the responsible parties, and carried out a state identified de facto policy that diminished the standard of care for the patients. * * * * * * 126. CEO’s Cleal Bradford, Reid Wood, and Rick Bailey did nothing to help these doctors [MacArthur, Penn & Mena] have improved working conditions within the district, or renew their licenses or privileges. All three doctors were not employees of the District when supervising Mrs. Lyman. * * * * * * 188. Reid Wood and all other CEO’S in this complaint, ignored Mrs. Lyman’s attempts to rectify her situation, or exacerbated it. # * # * * X 190. December 10,1998—-Mrs. Lyman called SJHSD administrator Reid Wood twice to see if she could resolve some of the issues she was having with the nurses at the hospital since joining Dr. Penn and to resolve some of the problems with the clinic. Reid Wood did not return her calls. The third Mrs. Lyman called she was told by Carla Grimshaw that he was out of the office. (Proposed Pretrial Order at 1223 ¶¶ 109-111, 112(b), 126; id. at 1234 ¶ 188, 1235 ¶ 190; see Proposed Amended Complaint at 71-72 ¶¶ 188,190 (same).) As for Mr. Bradford, the plaintiffs describe the process by which he granted temporary practice privileges to Dr. MacArthur, (Proposed Pretrial Order at 1222, 1223 ¶¶ 98-101, 104-105), and then assert that “CEO Cleal Bradford made the determination in granting Dr. MacArthur limited temporary privileges that it was best for the District if referrals to the District facilities came from District doctors. Dr. MacArthur was not employed by the District.” (Id. at 1224 ¶ 134.) Finally, plaintiffs assert: 151. Cleal Bradford and James Redd had access to District board members and County Commissioners and the County Attorney as relatives and close friends, in a highly rural and isolated area. 152. Dr. MacArthur and Michele Lyman did not have this familial and close friend relationship with Commissioners and District Board members. 153. Cleal Bradford who signed off on privileges as the District CEO lobbied the Board and County Commission, and medical staff, in meetings with a plurality of the decision-making body, without Mrs. Lyman or Dr. MacArthur being present. (Id. at 1226 ¶¶ 151-153; see Proposed Amended Complaint at 44 ¶¶ 111-113 (same).) What conceivable cause of action the latter allegations would pertain to is not readily apparent. The balance of the allegations against Wood, Bailey and Bradford assert a failure to take affirmative steps to investigate and remedy plaintiffs’ grievances involving members of the SJHSD medical and support staff, similar to plaintiffs’ claim against the individual SJHSD Board members. Laurie Schafer (a/k/a Laurie Shafer) Laurie Schafer served at relevant times as Patient Care Director for the SJHSD. Plaintiffs allege: (1) that “Dr. MacArthur had an incident report allegedly filed against him by Marilee Bailey, Julie Bronson, Laurie Shafer, Cleal Bradford that was never discussed with him or placed in his District file, and is a report that he considers to be untrue.” (Proposed Pretrial Order at 1222 ¶ 96); (2) that “Mrs. Shafer noticed the dates [on Ms. Lyman’s CPR cards] were in error in medical staff meeting,” that “[t]he Medical staff and Cleal Bradford and Laurie Shafer discussed Mrs. Lyman’s CPR card problems of wrong dates without Mrs. Lyman being present,” that “Mrs. Lyman’s CPR cards were reviewed and found to be appropriate on more than one occasion by Carla Grim-shaw and Laurie Shafer,” and that “[t]he medical staff and Cleal Bradford and Laurie Shafer unanimously decided to publish the altered cards to the American Heart Association by vote of the medical staff, who was considering privileges for Mrs. Lyman, without Mrs. Lyman being present.” (Id. at 1226 ¶ 164-165, 1227 ¶ 174); (3) “The medical staff, Cleal Bradford, Laurie Shafer, Carla Grimshaw failed to notify Dr. MacArthur of any missing documents in his application packet.” (Id. at 1227 ¶ 182); (4) “After Dr. MacArthur missed this February 2000 meeting, Cleal Bradford, Laurie Shafer, Dr. Redd met with San Juan Record editor Bill Boyle and discussed Dr. MacArthur’s privileges with Mr. Boyle. Dr. MacArthur’s privileges was private information.” (Id. at 1228 ¶ 195); (5) “Mrs. Lyman was told that her friendship with Laurie Shafer would be over as she knew it if Mrs. Lyman associated herself with Dr. Penn.” (Id. at 1234 ¶ 137); and (5) on one recent occasion when Ms. Lyman was treating a patient at the Blanding Birthing Center under Dr. Jones’ supervision, Ms. Shafer allegedly told “Mrs. Lyman and another nurse of Dr. Jones that they would have to leave. Mrs. Lyman and the nurse finished caring for the patient.” (Id. at 1241 ¶ 254). Further, they allege that on December 16, 1998, Ms. Lyman was told she did not have SJHSD privileges and that SJHSD staff were not to take orders from her. “Ms. Lyman asked Ms. Yanito who gave her this order and she stated that Laurie Schafer and Dr. Redd,” (id. at 1234 ¶ 170), and that “Laurie Schafer called later in the day and stated that Ms. Lyman could use the lab and xray only during Dr. Penn’s office hours, otherwise Ms. Lyman did not have privileges.” (Id. at 1234 ¶ 186 (emphasis in original). See Proposed Amended Complaint at 39 ¶ 88; 46-49 ¶¶ 132-133, 138, 142, 150; 51 ¶ 163; 59 ¶ 137; 69-71 ¶¶ 170,186; 91-92 ¶ 254 (same).) Marilee Bailey, R.N. At relevant times, defendant Marilee Bailey, R.N., worked as a nurse on the SJHSD support staff. Plaintiffs allege that Ms. Bailey is the wife of defendant Richard Bailey, and that like Laurie Schafer, “Dr. MaeArthur had an incident report allegedly filed against him by Marilee Bailey, Julie Bronson, Laurie Shafer, Cleal Bradford that was never discussed with him or placed in his District file, and is a report that he considers to be untrue.” (Proposed Pretrial Order at 1222 ¶ 96; see Proposed Amended Complaint at 39 ¶ 88 (same).) Ora Lee Black Plaintiffs allege that “Ora Lee Black, as manager of Blanding clinic and birthing center, posted a paper on the walls within site of the patients stating that Mrs. Lyman had no privileges at SJHSD. Later the limited privileges of lab and exray [sic] were extended to her for her patients as required by State law,” and that SJHSD “Staff had previously voted for her privileges and then the County, Board, and medical staff did nothing while District staff Ora Lee Black, Dr. Redd, Gloria Yan-ito denied her the same. Some privileges as to labs and exrays [sic] were eventually restored.” (Proposed Pretrial Order at 1234 ¶ 187, 1237 ¶ 209; see Proposed Amended Complaint at 71 ¶ 187 (same).) Further, September 16, 1999—Etta (Ms. Lyman’s secretary) was told by Ora Lee Black that Ms. Lyman would not be allowed to order labs until Ms. Lyman sent a letter to Dr. Redd stating who her supervising physician was. ( Ms. Lyman had already sent a letter to administration stating that the State DOPL had approved Dr. Penn in Moab as her supervising physician and Dr. Robert Dr. Mena in Monticello as her back up supervising physician as he was closer that Dr. Penn and could back up any emergencies for admits for Ms. Lyman at the San Juan Hospital). By then, Dr. Mena had quit the San Juan Health Care Services as an employee and had started a private practice, (cmplt.# 149). (Id. at 1237 ¶ 213; see Proposed Amended Complaint at 79-80 ¶ 213 (same).) Carla Grimshaw Carla Grimshaw is a SJHSD employee. Plaintiffs allege that “[l]ess than 24 hours prior to the February 2, 2000 medical staff meeting, Carla Grimshaw called Mrs. Lyman’s office to invite Mrs. Lyman and Dr. MacArthur to that meeting”; that “Carla Grimshaw delivered copies of Mrs. Lyman’s file to her,” and that “Mrs. Lyman and Carla Grimshaw, custodian for the records, acknowledge the CPR cards were missing from Mrs. Lyman’s credentialing files while in the District’s custody”; that “Mrs. Lyman’s CPR cards were reviewed and found to be appropriate on more than one occasion by Carla Grimshaw and Laurie Shafer”; that “Carla Grimshaw, records custodian, stated' that [Dr. MacArthur’s] medical license and DEA license was missing,” and “allegedly wrote a note to Mr. Bradford saying Dr. MacArthur was missing only his DEA license and State of Utah Medical License,” but that “[t]he medical staff, Cleal Bradford, Laurie Shafer, Carla Grimshaw failed to notify Dr. MacArthur of any missing documents in his application packet.” (Proposed Pretrial Order at 1222-23 ¶ 102, 1226 ¶ 156, 1226 ¶ 161, 1227. ¶ 170, 1227 ¶ 182, 184, 1227 ¶ 191; see also Proposed Amended Complaint at 44r-50 ¶¶ 114-159 (“Credentialing Document Problems”).) Plaintiffs also recount that on May 5,1999, Andrea Bianchini (Ms. Lyman’s secretary) faxe[d] Ms. Lyman’s ACLS, PALS and BLS heart resuscitation American Heart Association certification cards to Judy at the hospital at the administration’s request. Dr. Penn and Ms. Lyman have been requesting her privileges be restored through Reid Wood. Andrea also called Carla Grimshaw to make sure that the certifications have reached her. Grimshaw state[d] that the faxed cards have arrived and that Medical staff reviewed the certifications, found them in order, and the packet has been placed in her personnel file. (Id. at 1236 ¶ 207; see Proposed Amended Complaint at 77 ¶ 207.) Gloria Yanito Plaintiffs allege that on December 16, 1998—On this day, Ms. Lyman attempted to send a patient to the E.R. in Blanding for treatment. As soon as the patient got to Blanding, Christine Singer (who began working for Dr. Penn in December 1998) took a call from Gloria Yanito, RN at the Blanding Urgent Care. Ms. Yanito stated that Ms. Lyman did not have privileges and that Ms. Lyman “can not give orders of any kind or use any of the county facilities”. Ms. Singer then told Ms. Lyman, .with several witnesses sitting in the office. Ms. Lyman immediately called Ms. Yanito back and asked Yanito to repeat the Message. Yanito repeated, “you do not have privileges. We are not supposed to take any orders from you and you are not allowed to set foot in any of the county facilities”. Ms. Lyman asked Ms. Yanito who gave her this order and she stated that Laurie Schafer and Dr. Redd. Ms. Lyman then attempted to call Laurie Schafer and was told she was not in. Ms. Lyman spoke with Carla Grimshaw and told her she wanted this order in writing, Grim-shaw stated that she would let Laurie know. Ms. Lyman also attempted to call Reid Wood, he was not in.(Cmplt.# 130) (Proposed Pretrial Order at 1227 ¶ 184; Proposed Amended Complaint at 69-70 ¶ 170 (same).) They further allege that Ms. Lyman had been granted SJHSD privileges, but “then the County,' Board, and medical staff did nothing while District staff Ora Lee Black, Dr. Redd, Gloria Yanito denied her the same,” (id. at 1237 ¶ 209), apparently referring to the December 16, 1998 conversation with respect to Ms. Yanito. Julie Bronson Plaintiffs allege that Julie Bronson, a nurse employed by the SJHSD, circulated a false rumor that Dr. MacArthur, inter alia, had previously lost practice privileges due to a felony conviction: January 31, 2000-Louisa Lyman, of the Utah State Public Health system calls Ms. Lyman’s office and states that nurse Julie Bronson has said that Dr. MacArthur lost his privileges to perform epidurals due to a felony conviction, that during a delivery the nurse came to Dr. MacArthur in the Dr’s lounge and told him that the OB was ready to push and he purportedly said, “I’m going to have an orgasm”, and that Dr. MacArthur spent time in prison for tax evasionAll of which is totally untrue and without any foundation whatsoever. Louisa called her office and first spoke to Christine. Ms. Lyman called back and Louisa Lyman repeated this story. Ms. Lyman stated the story was untrue. (Proposed Amended Complaint at 84-85 ¶ 228; see Proposed Pretrial Order at 1239 ¶ 228 (same).) They also allege, as noted above, that “Dr. MacArthur had an incident report allegedly filed against him by Marilee Bailey, Julie Bronson, Laurie Shafer, Cleal Bradford that was never discussed with him or placed in his District file, and is a report that he considers to be untrue.” (Id. at 39 ¶ 88; see Proposed Pretrial Order at 1222 ¶ 96 (same).) Lori Wallace, R.N. a/k/a Laurie Walker As summarized above, Plaintiffs allege that on April 14, 1999, plaintiff Helen Valdez (accompanied by her sister-in-law, Charleen Gonzales) came to the San Juan Hospital emergency room, seeking medical care for an illness later diagnosed as acute diverticulitis. At that time, SJHSD employee Lori Wallace, R.N., was working in the emergency room. While Ms. Valdez was in the hospital lavatory, she alleges that Ms. Gonzales overheard Lori Wallace tell the emergency room clerk “to go to Dr. Penn’s clinic.” (Proposed Amended Complaint at 23; Proposed Pretrial Order at 1216-17; id. at 1221 ¶ 81 (“Mrs. Valdez was told by Mrs. Gonzales that Nurse Wallace had told the receptionist that Dr. Penn’s clinic was open and Mrs. Valdez should go to the clinic.”).) Without any direct conversation with Lori Wallace, Ms. Valdez decided to leave the emergency room, again accompanied by Ms. Gonzales, and return home. Plaintiffs allege that Ms. Valdez “was turned away, when accompanied by her Mexiean-American appearing sister-in-law, by nurse Laurie Wallace”; at the same time, plaintiffs allege that “[t]he white young male with no insurance in the ER waiting area was seen by Dr. Penn almost immediately after Mrs. Valdez left.” (Proposed Amended Complaint at 86 ¶ 232-233; see Proposed Pretrial Order at 1221 ¶ 66 (“Mrs. Valdez’ neighbor who was a white young male and had not insurance was seen immediately.”).) Plaintiffs pleaded no other factual allegations against Ms. Wallace. Dr. Lloyd Val Jones, M.D. Dr. Lloyd Val Jones, M.D., is a licensed physician practicing in Blanding, Utah, who at relevant times has provided services under contract with the SJHSD. Plaintiffs allege that “For Mrs. Lyman’s claims, at times the [SJHSD] medical staff consisted of Dr. Penn, Dr. Mena, Dr. Jones, Dr. Nelson, Dr. Cook, Dr. Redd.” (Proposed Amended Complaint at 30-31 ¶ 28; see Proposed Pretrial Order at 1219 ¶ 28 (same).) According to plaintiffs, 32. Dr. Redd and Dr. Jones and Dr. Cook and Dr. Nelson did not approve Mrs. Lyman having privileges unless her doctor was a medical staff member and then only if the physician was in the same town as she. 33. ' While the policy for P.A.s appears neutral, it effected only Michele Lyman in how it was applied, monitored, and carried out. 34. Mrs. Lyman had no other place to apply for hospital privileges. 35: Mrs. Lyman’s patients at times stopped going to her as they needed to use the District emergency facilities for ailments and were told they could not. (Id. at 31 ¶¶ 32-35.) Plaintiff Lyman alleged that her privileges were “severely limited by Dr. Redd and Dr. Jones with no action by the board of directors,” recounting. a single conversation in mid-1999: 209. Dr. Penn and Ms. Lyman attended the Medical staff Meeting for June, 1999. Dr. Penn and Ms. Lyman requested full privileges be restored and Dr. Redd and Jones both stated that only if Dr. Penn was willing to sit in Blanding with Ms. Lyman while Ms. Lyman took ER call and they would not supervise me. Mr. Bryant as a P.A. working under Dr. Jones while Dr. Jones was not in Blanding, had no such restraints. Mrs. Lyman pointed out that she covered the ER (Blanding urgent care clinic) in Blanding by herself on many occasions. There was no response. (Cmplt. 137-145) Staff had previously voted for her privileges and. then the County, Board, and medical staff did nothing while District staff Ora Lee Black, Dr. Redd, Gloria Yanito denied her the same. Some privileges as to labs and exrays [sic] were eventually restored. 2Í0. Dr. Penn then suggested to medical staff that the only reason that Dr. Redd was against Ms. Lyman’s privileges was because Dr. Redd was mad at Ms. Lyman for quitting Dr. Redd and Dr. Redd couldn’t take it. To this Dr. Redd responded, “So what”! Dr. Jones 'then made the comment that Ms. Lyman had a rather large following of patients and that when he was taking ER call he didn’t want Ms. Lyman' to be able to see her patients at will and thus “dip into his ER money”. They left with the staffs edict that Ms. Lyman could call into the ER (Blanding Urgent Care) for shots. However, Ms. Lyman tried on several occasions to call in injections to the ER (Blanding Urgent Care Clinic) and was denied every time. Ms. Lyman always had to call Dr. Penn’s office and have him call the order in. (Cmplt. 146)' (Id. at 78-79 -¶¶ 209-210; . see Proposed Pretrial Order ¶¶ 209-210 (same).) Circumstances- change, and by the time of-pretrial,-Ms. Lyman was working for Utah Navajo Health Systems, once again under Dr. Jones’ supervision, (see Tr. 11/15/02, at 24:9-25 (Ms. Rose)); she points to two recent -incidents involving patients in Dr. Jones’ and her care: 253. Within the last 14 or so days, a patient of Dr. Jones and Michele Lyman’s was told, whep she called the Birthing Center in .labor, that the Birthing Center was shut and she would just have to travel to.Monticello. Dr. Jones’ staff verified that indeed the BCC was .claiming they were SHUT. The patient presented at Blanding Family Clinic, now owned by Utah Navajo Health Systems, and was found to be too far progressed to travel anywhere. Time was of the essence. Mrs. Lyman’s supervising physician was denied patient care by the District he has full privileges with. The lady delivered in the Blanding Family Clinic and was then transported to Monticello for observation. The Bland-ing Family Clinic is taxpayer supported. There is no record of this type of patient of a Dr. Redd being told the Birthing Center was shut. 254. In another instance, a woman in labor was bleeding to death and she and the baby were in a very dangerous situation. Dr. Jones and Mrs. Lyman transported the woman to the Birthing Center and did an immediate e section on the unconcious or nearly unconcious mother. Both mom and baby were saved. As Dr. Jones was cleaning up, Dr. Fisher and Laurie Shafer were telling Mrs. Lyman and another nurse of Dr. Jones that they would have to leave. Mrs. Lyman and the nurse finished caring for the patient. This 'incident occurred prior to the Clinic being ‘shut’ when Michele’s next patient was in labor and delivered in a clinic. (Proposed Amended Complaint at 91-92 ¶¶ 253-254; see Proposed Pretrial Order at 1241 ¶¶ 253-254 (same).) Dr. Manfred Nelson, M.D. Dr. Manfred Nelson, M.D., is a licensed physician practicing in San Juan County and at relevant times was a member of the SJHSD medical staff. Plaintiffs’ allegations against Dr. Nelson—few as they are—essentially parallel those pleaded against Dr. Jones concerning restriction of Ms. Lyman’s privileges in mid-1999, with the addition of the 'assertion that “Dr. Nelson sent a letter severely criticizing Mrs. Lyman and he is on Medical Staff and has never met her, spoken to her, or worked with her. His writings are the best evidence of the types of rumors he was being told, and the damages the medical staff were seeking to inflict upon Mrs. Lyman.” (Proposed Pretrial Order at 1240-41 ¶ 248.) Dr. James Redd, M.D. As noted above, Dr. James Redd, M.D., a Blanding, Utah physician, maintained a private medical practice in Blanding until he became a SJHSD employee in early 1999; at relevant times thereafter, Dr. Redd served as District medical staff director. Early in her career, plaintiff Lyman worked as a Physician Assistant under Dr. Redd’s and Dr. Jones’ supervision. She ended that arrangement in October 1998, and sought supervision by other physicians practicing in the area. From a review of plaintiff Lyman’s allegations at the time of pretrial, it becomes plainly apparent that Dr. Redd is the primary focus of those allegations. Plaintiffs plead a litany of factual allegations against Dr. Redd, recounting a series of incidents involving the making of derogatory remarks or infliction of other verbal abuse, interference with Ms. Lyman’s exercise of SJHSD staff privileges from and after the time she left his supervision in October 1998, and harassment and intimidation of patients who had some relationship with Ms. Lyman and/or her supervising physicians (Drs. Penn, Mena, MacArthur and now, Jones). (See Proposed Pretrial Order at 1230, 1231, 1232 ¶¶ 133(D)-(F), 138, 144-150, 153, 156-159; id. at 1232-33 ¶¶ 162-163, 165-166; id. at 1234, 1235 ¶¶ 167-186, 193; id. at 1241 ¶¶ 253-254 (quoted supra); see also Proposed Amended Complaint at 58-76 ¶¶ 133(D)-(F), 138, 143-150, 153, 156-195, 199-205; id. at 77-78 ¶¶ 208 (emergency room patient “was told by Dr. Redd that she must choose between Ms. Lyman/Dr. Penn and Dr. Redd as a health care provider,” and that “if the patient chose Ms. Lyman, the patient could never use the E.R. again.”).) Plaintiffs assert that “[t]he District medical staff director, Dr. Redd has a long standing policy of animus toward women both as employees and as patients,” (id. at 1220 ¶ 51), borne out in the incidents recounted in their pleadings, and that Dr. Redd demeaned and disparaged the other physicians with whom Ms. Lyman had associated. (Id. at 1237-38 ¶¶ 215-216.) They also allege a pattern of personal harassment and annoyance directed against Ms. Lyman by Dr. Redd: 196. Dr. Redd was witnessed by others as driving by Mrs. Lyman’s home, frequently honking. 197. Mrs. Lyman reports that Dr. Redd followed Mrs. Lyman’s about 10 year old daughter in his car for a period of time, frightening the daughter. 198. Mrs. Lyman and her nurse Christine Singer, experienced numerous flat tires over a two week or so period, with no foreign items found in the tires. These flat tires occurred at the office and at their homes. (Id. at 1235 ¶¶ 196-198; see Proposed Amended Complaint at 73-74 ¶¶ 196-198 (same).) THE PART I PLAINTIFFS’ THEORIES OF LIABILITY As summarized in the Proposed Pretrial Order, Part I of the Proposed Amended Complaint asserts an array of causes of action arising under federal and Utah state law, including: (1) Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. (2000); (2) Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. § 248 (2000); (3) Health Care Quality Improvement Act, 42 U.S.C. § 11112 (2000); (4) Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd (2000); (5) “Medicare Patient Bill of Rights,” 42 U.S.C. § 1395a (2000); (6) 42 U.S.C. § 1981 (2000); (7) 42 U.S.C. § 1985(3) (2000); (8) 42 U.S.C. § 1983 (2000); (9) § 4 of the Clayton Act, 15 U.S.C. § 15 (2000) and § 1 of the Sherman Anti-Trust Act, 15 U.S.C. § 1 (2000); (10) Utah Constitution, art. I, §§ 1, 7, 25, 26, 27; (11) Utah Unfair Practices Act, Utah Code Ann. §§ 13-5-1 et seq. (2001); (12) Utah Civil Rights Act, Utah Code Ann. §§ 13-7-1 et seq. (2001); (13) interference with contract and with prospective business relations; (14) “state common law defamation (also a U.S. Constitutional right to reputation as guaranteed by the Ninth Amendment)”; (15) “Federal common law and Utah contract common law and statutory provisions that prohibit contracts of adhesion, bad faith, and lack of fair dealing. Utah Code Ann. 78-12-25(1) (1996),” in-eluding the implied covenant of good faith and fair dealing; (16) “privacy rights and statutory entitlements to have their credential files and patient files accurately kept by the district under Medicaid and Utah Health Department statutes and regulations”; (17) negligent and intentional infliction of emotional distress; and (18) fraud. {See Proposed Pretrial Order at 1212-13.) Generally, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Accordingly, a pleading must ‘give[ ] fair notice and state[] the elements of the claim plainly and succinctly.’ ” Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir.1984) (quoting 2A J. Moore & J. Lucas, Moore’s Federal Practice ¶ 8.13 at 8-111 (2d ed.1983)). To give such notice, a pleading must set forth specific facts as the basis for the plaintiffs’ claims, not merely legal conclusions. Without specific facts, “claims are little more than eoncluso-ry allegations, which are insufficient to state a claim for relief.” Swoboda v. Dubach, 992 F.2d 286, 289-290 (10th Cir.1993) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991)). The parties may test the legal sufficiency of claims by motion under Fed.R.Civ.P. 12(b)(6) or 56, and as explained above, “Rule 16 empowers district courts to weed out frivolous claims.” Smith v. Gulf Oil Co., 995 F.2d 638, 644 (6th Cir.1993). “There is no reason to require that [the elimination of frivolous claims] await a formal motion for summary judgment,” Fed. R.Civ.P. 16(c)(1), advisory committee note to 1983 amendment, and it certainly “‘is not inconsistent with the general purpose of Rule 16’ to use this rule ‘to determine whether there are any issues remaining in the case that justify proceeding to a full trial on the merits.’ ” Chavez v. Illinois State Police, 251 F.3d 612, 654 (7th Cir.2001) (quoting 6A Charles A. Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice & Procedure § 1529, at 301 (2d ed.1990)). In evaluating whether the plaintiffs’ claims are maintainable or are frivolous, court and counsel must examine them within the framework of their various legal theories; the facts alleged as the basis for these claims must be considered in terms of the essential elements of each cause of action. Plaintiffs’ Civil RICO Claims (18 U.S.C. §§ 1961 et seq.) In order to state a civil RICO claim, a plaintiff must allege that he or she suffered (1) an injury to his or her business or property because the defendant(s), (2) while involved in one or more enumerated relationships with an “enterprise,” (3) engaged in a pattern of racketeering activity or collected an unlawful debt. See 18 U.S.C. §§ 1961-1968 (2000). Predicate Acts of “Racketeering Activity” (18 U.S.C. § 1961(1)) Among the esse