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GREENHUT v. HAND

February 24, 1998

JANET GREENHUT, Plaintiff,
v.
ALICE HAND, Defendant.



The opinion of the court was delivered by: BARRY

 BARRY, District Judge,

 Plaintiff Janet Greenhut has filed a motion for summary judgment as to Counts One and Two of her complaint against defendant Alice Hand electing, if successful, to recover statutory damages of $ 5,000 per violation in lieu of actual compensatory damages with the question of punitive damages left to a future proof hearing. This court will grant plaintiff's motion and award statutory damages.

 I.

 The facts are brief and undisputed. Plaintiff was a volunteer for a pro-life organization called "Birthright." Greenhut Deposition, Exh. D at 5, annexed to Hand Certification. According to Kathy Semsey, the director of the Maywood, New Jersey chapter, Birthright

 Semsey Certification, at P 4. After business hours, the message on the organization's answering machine would identify Birthright and its services, as well as give names and telephone numbers of volunteers that could be called for immediate assistance. Id. at PP 10-11. These "on-call" volunteers were equipped with the Birthright Resource Guide so that they could provide counseling, referrals or other aid from their homes. Plaintiff's name and home number were given on Birthright's answering machine's message. Id. at P 12.

 On the night of January 13 and the early morning hours of January 14, 1995, defendant made four telephone calls to plaintiff's residence, located at 138 Kipp Avenue, Hasbrouck Heights, New Jersey. *fn1" NYNEX Records, Exh. F annexed to Passamano Certification. Plaintiff was not home at the time the phone calls were made but defendant's messages were recorded on plaintiff's answering machine with time and date stamp. See Greenhut Deposition, Exh. D. at 8, annexed to Hand Certification. The first message, left at 11:39PM, stated, "Hello Janet. Get your murderers away from abortion clinics now or you will be killed." See Transcript of Answering Machine Message, Exh. E annexed to Passamano Certification. Then, at 12:57AM, defendant left the message, "Janet, get your pro-lifers away from our clinics or we will kill you." Id.

 Criminal charges were brought against defendant and on December 11, 1995, she pled guilty in the Superior Court of New Jersey, Passaic County, to one count of making terroristic threats in violation of N.J.S.A. 2C:12-3b. Transcript of Plea, Exh. H annexed to Passamano Certification. On November 19, 1996, plaintiff filed this action against defendant and various John and Jane Does and Roes. Counts One and Two, the subject of the instant motion, seek relief against defendant under the Freedom of Access to Clinic Entrances Act ("FACE"), 28 U.S.C. § 248, which prohibits, in relevant part, threats of force which intimidate or interfere with a person because that person provides reproductive health services. Counts Three and Four allege that defendants John and Jane Does 1-10 and John and Jane Roes 1-10 "induced and/or conspired with defendant Alice Hand" in the conduct described in Counts One and Two, and will be dismissed by the court on its own motion. *fn2" Count Five alleges that defendant Hand "intentionally or recklessly" engaged in "extreme and outrageous conduct," causing plaintiff "severe emotional distress."

 II.

 Summary judgment may be granted if, after consideration of such items as depositions, affidavits or certifications, and after viewing the facts in the light most favorable to the non-moving party, "there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Davis v. Portline Transportes Maritime Internacional, 16 F.3d 532, 536 n.3 (3d Cir. 1994).

 In relevant part, FACE imposes civil penalties on anyone who uses threats of force to, or attempt to, intentionally injure, intimidate or interfere with any person because that person is or has been providing reproductive health services. See 18 U.S.C. § 248(a)(1). *fn3" The statute was enacted in 1994 in response to increased incidents of violence and obstruction at abortion clinics. See Cheffer v. Reno, 55 F.3d 1517, 1519, n.2 (11th Cir. 1995) (citing to S.Rep. No. 117, 103 Cong. 1st Sess. 3 (1993), where it was noted that from 1977 to 1993, there were over 1,000 reported acts of violence against providers of abortion services, including bombings, arson, death threats, assaults, kidnappings and murder); United States v. Soderna, 82 F.3d 1370 (7th Cir.), cert. denied, 136 L. Ed. 2d 398, 117 S. Ct. 507 (1996).

 Now, for the first time, FACE is being invoked to penalize threats directed against a pro-life volunteer. Neither party questions the applicability of this statute to pro-life reproductive health service providers, see Def. Br. at 5, and the court finds no reason to do so. Defendant, instead, contends that plaintiff has not satisfied two elements under FACE; namely, plaintiff was not providing "reproductive health services" and defendant did not act with the requisite intent.

 As to the former, defendant argues that Birthright, and hence plaintiff, does not provide "reproductive health services" because the services provided are not medical in nature but consist of merely guidance, counseling and referral ...


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