Shultz v. R. Brian Wells, D.C., et al

Filing 38

REPORT AND RECOMMENDATIONS that 10 Motion to Dismiss be GRANTED as to Plaintiff's right-to-counsel claim and 10 Motion for Summary Judgment be GRANTED as to Plaintiff's due process and freedom of speech claims and the Complaint be DISMISSED. Objections to R&R due by 3/17/2010. Signed by Honorable Wallace Capel, Jr. on 3/3/2010. (cb, ) Modified on 3/5/2010 to correct the name of the judge that entered the Order (cb, ).

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION M IR IA M CLARE SHULTZ, P l a in tif f , v. R . BRIAN WELLS, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:09cv646-WKW

R E P O R T AND RECOMMENDATIONS B e f o re the Court is Defendants' Motion to Dismiss or Alternatively for Summary J u d g m e n t (Doc. #10). Plaintiff filed her Complaint (Doc. #1) on July 10, 2009, and D e f e n d a n t s filed the instant Motion on August 7, 2009. The Court ordered Plaintiff to re sp o n d to the Motion on or before August 31, 2009. Briefing Order (Doc. #11). Plaintiff d id not file a timely response pursuant to the Court's Briefing Order. At some point in late 2 0 0 9 , Plaintiff's counsel, Robert H. Ford, advised the Court that he was surrendering his lic e n se to practice law and would not be continuing in his representation of Plaintiff. The C o u rt entered an Order (Doc. #24) directing Plaintiff to notify the Court, on or before J a n u a ry 8, 2010, of her intent to proceed pro se or have successor counsel notice his or her ap p ea ran ce on Plaintiff's behalf. On January 8, 2010, Plaintiff submitted a letter to the Court in which she noticed her intent to proceed pro se and requested an additional four months to re s p o n d to Defendant's Motion. Response to Order (Doc. #26). On January 12, 2010, the District Judge entered an Order (Doc. #28) denying

P lain tiff 's request for an extension and referring this matter to the undersigned Magistrate J u d g e "for all pretrial proceedings and entry of any orders or recommendations as may be a p p ro p ria te ." On January 14, 2010, the undersigned entered an Order (Doc. #29) directing P la in ti f f to file her response to the Motion to Dismiss on or before January 22, 2010. P la in tif f filed a Response (Doc. #30) to the Order, not Defendant's Motion, in which she la m e n te d her former attorney's abandonment of her case and her struggle to find successor c o u n s e l. Plaintiff again requested an additional four-month delay to find counsel. On J a n u a ry 28, 2010, the Court conducted a telephonic hearing with the parties, during which th e Court advised Plaintiff about her obligations when bringing suit in federal court and the re la tiv e burdens and obligations imposed on all concerned parties when suit is initiated. At th e hearing, the Court advised Plaintiff that she would be afforded until February 16, 2010, to file a response to Defendants' Motion. The Court subsequently entered an Order (Doc. # 3 3 ) confirming this deadline. On February 16, 2010, Plaintiff mailed her Response (Doc. # 3 6 ) to the Court and it was entered on the docket on February 18, 2010. Accordingly, D e f en d a n ts ' Motion to Dismiss and Plaintiff's Response are now ready for disposition. I. BACKGROUND P lain tiff is a chiropractor formerly licensed and practicing in Alabama. Defendants a re the members of the Alabama State Board of Chiropractic Examiners and the attorney who r e p re s e n te d the Board in administrative proceedings which involved Plaintiff. In May of 2 0 0 8 , the Board initiated disciplinary proceedings against Plaintiff, charging seven counts

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o f misconduct based, apparently, on Plaintiff's treatment of one of her patients and an alleged a lterc a tio n between Plaintiff and an emergency medical technician ("EMT") responding to a call for emergency medical assistance at a location at which Plaintiff was present. A d is c ip lin a ry hearing was held on November 21, 2008, at which testimony was heard and e x h ib its were received into evidence. Plaintiff was not represented by counsel at the d is c ip lin a ry hearing. After the hearing, the Board issued a Final Order, on December 2, 2008, in which the B o a r d adjudicated Plaintiff guilty of the seven counts of misconduct and imposed penalties, in c lu d in g the suspension of Plaintiff's license to practice. Pursuant to applicable state law, P lain tiff pursued an appeal of the Board's decision to the Montgomery County Circuit Court. O n July 13, 2009, the Circuit Court conducted a hearing on Plaintiff's appeal, at which P la in tif f was represented by counsel.1 Afterward, the Circuit Court entered an order

a f f irm in g the decision of the Board. It is unclear whether Plaintiff has availed herself of f u rth e r available appellate remedies in the state courts of Alabama. II. P L A IN T I F F 'S COMPLAINT AND DEFENDANT'S MOTION P lain tiff 's Complaint in this Court consists of three counts in which it is alleged that, th r o u g h their disciplinary actions, Defendants violated various of Plaintiff's constitutional rig h ts . Count One alleges a violation of Plaintiff's "Right to Counsel as guaranteed by the S ix th Amendment to the United States Constitution . . . ." Complaint (Doc. #1) at ¶ 14. As noted above, Plaintiff filed the instant action on July 10, 2009, apparently during the pendency of her appeal before the Montgomery County Circuit Court. 3
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Count Two alleges a "violation of the Plaintiff's right to due process under Amendments F iv e and Fourteen under the United States Constitution." Id. at ¶ 26. Count Three alleges a violation of "Plaintiff's freedom of speech under the First Amendment of the United States C o n s titu tio n . . . ." Id. at ¶ 35. Defendants' Motion to Dismiss or Alternatively for Summary Judgment seeks d ism iss a l or summary judgment on the following grounds: 1) that the Complaint fails to state a claim upon which relief can be granted; 2) that the Defendants are immune from suit; 3) th a t Plaintiff has failed to "allege any facts which support any violation of any rights secured to her" by the Constitution or federal law; 4) that this matter is barred by res judicata or c o lla te ra l estoppel; 5) that this matter should be dismissed because Plaintiff's allegations c o n c e r n "procedural due process claims and the state has available an adequate postd e p riv a tio n remedy which [Plaintiff] has initiated"; 6) that the Court should abstain from e x e rc is in g jurisdiction pursuant to various abstention doctrines; 7) to avoid pending parallel s ta te and federal actions; 8) that "[t]here are no genuine issues as to any material facts and th e defendants are entitled to judgment as a matter of law;" and 9) that Defendant Ward is d u e to be dismissed as a defendant because he "is an attorney in private practice, not e m p lo ye d by the state, [and] therefore not a state actor or acting under color of state law." D ef .'s Mot. To Dismiss (Doc. #10) at ¶ 17(a)-(k). P la in tif f 's Response (Doc. #36) to Defendant's Motion consists mostly of a recitation o f the perceived iniquities of her disciplinary proceedings and insufficiency of state court p ro c e ss available to her on appeal from the Board's actions. Plaintiff also describes her

p ra c tic e of sending unsolicited documents to witnesses and Board members prior to the h e a rin g which purport to require affirmative responses from the recipients and create debt a n d /o r liens against the recipient should they fail to respond. Plaintiff attached numerous of th e s e documents as exhibits to her Response. Finally, the Response includes a count-byc o u n t denial of each of the grounds for dismissal asserted by Defendants and summarized above. III. S T A N D A R D OF REVIEW D e f e n d a n ts contend that Plaintiff"s "Complaint and each and every Count thereof fail to state a claim . . . upon which relief may be granted." Def.'s Mot. (Doc. #10) at ¶ 17(a). T h u s , Defendants have moved the Court to dismiss the Complaint under Rule 12(b)(6) of the F e d e ra l Rules of Civil Procedure. "Under [Rule 12(b)(6)], whether a plaintiff failed to state a claim upon which relief can be granted must be ascertained from the face of the c o m p la in t." Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1266 n.11 (11th Cir. 1 9 9 7 ). Generally, "a complaint should not be dismissed for failure to state a claim unless it a p p e ars beyond doubt that the plaintiff can prove no set of facts in support of his claim which w o u ld entitle him to relief." In re Johannessen, 76 F.3d 347, 349 (11th Cir. 1996). In c o n s i d e r i n g a motion pursuant to Rule 12(b)(6), the Court must "accept the facts of the c o m p la in t as true and view them in the light most favorable to the nonmoving party." M a g lu ta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004). A lte rn a tiv e ly, Defendants move the Court to grant them summary judgment as to each

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o f the claims raised in the Complaint. Under Rule 56(c) of the Federal Rules of Civil P ro c e d u re , summary judgment is appropriate "if the pleadings, depositions, answers to interrog ato ries, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment a s a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "An issue of fact is `genuine' if the record as a whole could lead a reasonable trier of fact to find for the n o n m o v in g party. An issue is `material' if it might affect the outcome of the case under the g o v e rn in g law." Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th C ir.1 9 9 6 ) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). T h e party asking for summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a ct." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence s h o w in g there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate b u rd e n of proof. Id. at 322-23. O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to in t e rr o g a to r ie s , and admissions on file,' designate `specific facts showing that there is a

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g e n u in e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a cts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the o th e r hand, a court ruling on a motion for summary judgment must believe the evidence of th e non-movant and must draw all justifiable inferences from the evidence in the non-moving p a rty's favor. Anderson, 477 U.S. at 255. After the non-moving party has responded to the m o tio n for summary judgment, the court must grant summary judgment if there is no genuine is s u e of material fact and the moving party is entitled to judgment as a matter of law. See F e d . R. Civ. P. 56(c). IV. D IS C U S S IO N A p p lyin g the standards set forth above, the Court will now consider each of Plaintiff's c laim s for relief in the Complaint. A. P la in tiff's claim that she was denied her right to counsel.

P la in tif f claims that she was denied some purported right to counsel during the d is c ip lin a ry proceedings initiated against her by the Board. Specifically, she claims that the n o tice of hearing she received diminished "the importance of being represented by counsel" a t the hearing, and that such language was included "willfully, intentionally and knowingly a s an attempt to deemphasize [sic] the importance that the Plaintiff be represented by c o u n se l, thereby violating her Right to Counsel as guaranteed by the Sixth Amendment to th e United States Constitution . . . ." Complaint (Doc. #1) at ¶¶ 12-14.

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P la in tif f 's right-to-counsel claim fails to state a claim upon which relief can be g ra n te d because, under the Sixth Amendment, she was not entitled to an attorney during the ad m in is tr a tiv e disciplinary proceedings initiated by the Board. The Sixth Amendment clearly lim its the reach of the rights it confers to "criminal prosecutions." U.S. Const. amend. VI. S e e Austin v. United States, 509 U.S. 602, 608 (1993) ("The protections provided by the S ix th Amendment are explicitly confined to `criminal prosecutions.'"). Here, "the

u n d e rlyin g proceeding was administrative, rather than criminal, in nature, [as Plaintiff] was n o t charged with a felony, and no term of imprisonment was [or even could have been] im p o s e d ." Branch v. Franklin, 285 F. App'x 573, 576 (11th Cir. 2008). Because the Sixth A m endment is inapplicable to the administrative disciplinary proceedings involving Plaintiff, s h e was not endowed with a constitutional right to the assistance of counsel. Hence, P la in tif f 's allegations about the denial of such a right fail to state a claim upon which relief m a y be granted. B. P la i n t if f' s claim that she was denied due process.

P lain tiff contends that her right to due process was violated because "the Defendant's [ sic ] Notice fails to inform the Plaintiff that she might be deprived of the right to her real p ro p e rty or otherwise might be restricted in its use." Complaint (Doc. #1) at ¶ 22. Plaintiff c la im s that the statute authorizing the imposition of disciplinary penalties by the Board "does n o t give the Defendants legislative authority to place any restrictions or prohibitions on the P la in tif f 's use of her real property outside of restricting or limiting her right to practice

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c h iro p ra c tic medicine upon the premises." Id. at ¶ 23 (emphasis in original). Plaintiff further c o n te n d s that Ala. Code § 34-24-166(c)(2)(d) "is vague, ambiguous and overreaching," and th a t the Notice of Hearing she received from the Board failed to inform her that: 1) the d is c ip lin a ry "hearing would be the only opportunity for her to offer all evidence and w itn e s s e s on her behalf;" 2) the "hearing would be the only opportunity for her to crosse x a m in e witnesses;" and 3) the "transcript of the proceedings would be the only Record on w h ic h any appellate tribunal would base its decision." Id. at ¶¶ 24-25. P la in tif f fails to state explicitly whether each allegation she raises relates to a p u rp o rte d violation of Plaintiff's substantive or procedural due process rights, or both. "The F o u rte e n th Amendment's Due Process Clause protects an individual's substantive and p roc ed u ral rights. A violation of substantive due process rights occurs where an individual's f u n d a m e n ta l rights, those `implicit in the concept of ordered liberty,' are infringed. P r o c e d u r a l due process rules, on the other hand, protect an individual from the unjustified d e p riv a tio n of life, liberty, or property." Walker v. Sun Trust Bank of Thomasville, Georgia, 2 0 1 0 WL 165131 at *6 (11th Cir. Jan. 19, 2010) (internal citations omitted). The substantive d u e process clause is rarely implicated by governmental action. "Officials acting under the c o lo r of state law violate the substantive component of the Due Process Clause only when t h e i r conduct `can properly be characterized as arbitrary, or conscience shocking, in a c o n stitu tio n a l sense.'" Peterson v. Baker, 504 F.3d 1331, 1336 (11th Cir. 2007) (quoting C o u n ty of Sacramento v. Lewis, 523 U.S. 833 (1998)).

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T h e test for procedural due process claims under 42 U.S.C. § 1983 requires that the p lain tiff show: "(1) a deprivation of a constitutionally-protected liberty or property interest; (2 ) state action; and (3) constitutionally-inadequate process." Grayden v. Rhodes, 345 F.3d 1 2 2 5 , 1232 (11th Cir. 2003). The question of what process is constitutionally adequate is re so lv e d by application of the test articulated by the Supreme Court of the United States in M a t h ew s v. Eldridge, 424 U.S. 319, 335 (1976). See Grayden, 345 F.3d at 1232-33. The M a th e w s test requires consideration of three distinct factors: First, the private interest that w ill be affected by the official action; second, the risk of an erroneous d e p riv a tio n of such interest through the procedures used, and the probable v a lu e , if any, of additional or substitute procedural safeguards; and finally, the G o v e rn m e n t's interest, including the function involved and the fiscal and a d m i n is tra tiv e burdens that the additional or substitute procedural requirement w o u ld entail. M a th e w s, 424 U.S. at 335. Given Plaintiff's claim that the Board was without "legislative authority to place any re stric tio n s or prohibitions on the Plaintiff's use of her real property outside of restricting or lim itin g her right to practice chiropractic medicine upon the premises," it appears that P la in tif f is attempting to raise a substantive due process claim concerning the Board's alleged arb itrary actions. However, to the extent such a claim was intended, it is without merit. It s h o u ld first be noted, again, that Plaintiff appears to concede that the Board was empowered to limit her use of her real property to the extent necessary to "restrict[] or limit[] her right to practice chiropractic medicine upon the premises." Complaint (Doc. #1) at ¶ 23. This

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c o n c es s io n is necessary, as the Board's oversight authority as a licensing agency would be e v isc e ra ted if Plaintiff were able to continue operations out of her chiropractic office despite the suspension of her license. However, Plaintiff's claim that, pursuant to the Board's O rd e r, she is "prohibited from using in any way the premises that once housed her c h iro p ra c tic office," id. at ¶ 19.(d), is misleading and inaccurate. The provision of the Order w h i c h is the subject of this aspect of Plaintiff's due process claim reads as follows: D r. Shultz should not benefit in any way from her chiropractic practice o r from the use of her chiropractic office or premises or from any contract, a g re e m e n t, or arrangement of any kind whatsoever concerning or involving her c h iro p ra c tic practice or from the use of her chiropractic office or premises nor s h a ll she received [sic] any fees, rentals, income, payments of any kind or type o f remuneration whatsoever from her chiropractic practice or from the use of h e r chiropractic office or premises or from any contract, arrangement or a g re e m e n t concerning or involving her chiropractic practice or the use of her c h iro p ra c tic office or premises. Further, Dr. Shultz shall not receive any m o n ie s, income, fees, payments, rentals or any other kind or type of re m u n e r a tio n which was generated or earned during her period of suspension. Final Order at ¶ 5, ex. B to Complaint (Doc. #1). While the provision is perhaps less than a model of clarity, no reasonable construction permits the conclusion that it serves as the total s e iz u re of property asserted by Plaintiff. It is clear that the Board merely sought to announce t e r m s necessary to effectuate its Order that Plaintiff be suspended from practicing c h iro p ra c tic for six months. The Order does not state that she is precluded from making "any a n d all" non-chiropractic uses of the facilities which once housed her chiropractic practice. T h e Order speaks repeatedly, and exclusively, of Plaintiff's "chiropractic office or premises." T h e Board could not permit Plaintiff to continue conducting activities out of her chiropractic

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o f f ice - even if her activities were not strictly the practice of chiropractic as that term is d e f i n e d in Ala. Code § 34-24-120(a) - as long as she was able to hold herself out as a c h iro p ra c to r or the condition of the office otherwise conveyed that she is a practitioner in g o o d standing.2 To the extent Plaintiff might have removed all the trappings of a chiropractic o f f ic e , including the legally required identification of her profession from a prominent p o s itio n in the office, and simply made some unrelated use of the premises - thereby re n d e rin g the facility not a "chiropractic office or premises" - the Order can not reasonably b e said to prohibit such action. Hence, Defendants contend that the subject provision does not infringe on Plaintiff's d u e process rights and that Defendants are entitled to summary judgment. In contesting a m o tio n for summary judgment as to this issue, Plaintiff bears the burden of producing e v id e n c e, beyond her mere pleadings, that the provision at issue somehow violates her due p ro c e ss rights. Plaintiff has produced no such evidence. Instead, Plaintiff again cites to the p ro v is io n and, consistent with her Complaint, makes the conclusory assertion that the p ro v is io n amounts to a seizure of her real property. See Pl.'s Resp. (Doc. #36) at 6. Given th e language of the provision, the limited authority granted the Board, Plaintiff's concession that the Board may limit her use of her office to the extent necessary to enforce its licensure s u s p e n sio n , and Plaintiff's failure to produce any evidence corroborating her position, the

It is noteworthy that Alabama law requires that a chiropractor "conspicuous[ly]" display his or her profession "at the entrance of his or her office or place in which he or she practices." Ala. Code § 34-24-161(f). 12

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C o u rt finds that any "doubt" that exists about the scope of the provision, and hence its effect o n Plaintiff's substantive due process rights, is "metaphysical," 3 at most, or, more probably, a tortured effort to divine a federal constitutional claim for the simple expedient of litigating th is matter anew in federal court. Accordingly, the Board's decision to restrict the use of P la in tif f 's "chiropractic office or premises" as a means of enforcing its suspension of her lic e n se to practice is not arbitrary or conscience-shocking within the meaning of the F o u rte e n th Amendment. The Board's restriction of Plaintiff's ability to use her chiropractic o f f ic e or premises did not deprive Plaintiff of any substantive due process rights. T o the extent Plaintiff's claim about the restriction on her ability to use her " c h i ro p r a c tic office or premises" can be construed as a procedural due process claim, it is, n e v e rth e le ss , without merit. Even assuming that Plaintiff has been deprived of a protected p ro p e rty interest - presumably, the right to continue utilizing her chiropractic office in some c a p a c ity inconsistent with the Board's Order - she has failed to demonstrate that the process p re c ip itatin g that denial was inadequate. Consideration of the relevant Mathews factors m a k e s this clear. Foremost among the factors relevant to the Court's analysis is the minimal " ris k of an erroneous deprivation of such interest through the procedures used, and the p ro b a b le value, if any, of additional or substitute procedural safeguards." Mathews, 424 U.S. a t 335. The statutes which govern the disciplinary proceedings before the Board, and the su b se q u e n t appeals throughout the state court system, erect a comprehensive scheme in

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Matsushita Elec. Indus. Co., 475 U.S. at 586. 13

w h ic h chiropractors targeted for disciplinary proceedings are entitled to present evidence, c ro s s -e x a m in e all witnesses, and raise concerns about alleged violations of state and federal rig h ts . See Ala. Code. §§ 34-24-166 through 175. Plaintiff has made no showing that the p ro c e ss provided by the State is insufficient, or that any alleged erroneous deprivation of a p ro p e rty interest by the Board can not be remedied on appeal to the State courts. Indeed, P lain tiff filed suit in this Court during the pendency of her appeal before the state Circuit C o u rt. Plaintiff has suffered no procedural due process violation "unless and until the state r e f u s e s to provide due process." McKinney v. Pate, 20 F.3d 1550, 1562 (11th Cir. 1994) (q u o tatio n omitted). Plaintiff cannot complain of a procedural due process violation until A la b a m a has "refuse[d] to make available a means to remedy the deprivation." Id. See also C o tto n v. Jackson, 216 F.3d 1328, 1330-31 (11th Cir. 2000) ("This rule . . . recognizes that th e state must have the opportunity to remedy the procedural failings of its subdivisions and a g e n cie s in the appropriate fora-agencies, review boards, and state courts before being s u b je c te d to a claim alleging a procedural due process violation."). Given that, at the time sh e filed suit in this Court, Plaintiff was still prosecuting her appeal in the various channels p ro v id e d by the state, any claim that she suffered a procedural due process violation based o n the deprivation of her purported property interest is without merit. P lain tiff 's conclusory claim that Ala. Code § 34-24-166(c)(2)(d) is unconstitutionally " v a g u e, ambiguous, and overreaching," Complaint (Doc. #1) at ¶ 24, also fails. "The voidf o r-v a g u e n es s doctrine typically applies where a statute prohibits conduct without clearly

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d e f in in g that conduct." American Iron and Steel Inst. v. Occupational Safety and Health A d m in ., 182 F.3d 1261, 1277 (11th Cir. 1999) (emphasis in original). Here, § 34-24-

1 6 6 (c )(2 )(d ) simply provides that, when the Board adjudicates a licensee guilty of one of the p ro v is io n s outlined in § 34-24-166(b), the Board may "[i]ssue an order fixing a period and te rm s of probation best adapted to protect the public health and safety and to rehabilitate the lic e n se e ." This statutory provision does not "prohibit" any conduct on the part of Plaintiff, o r any other citizen, and Plaintiff fails to provide any further evidence or argument about h o w the statute is otherwise impermissibly "vague, ambiguous, and overreaching." A c c o rd in g ly, Defendant is entitled to summary judgment as to this claim. F in a lly, under the auspices of her due process claim, Plaintiff raises a number of p u rp o rte d deficiencies of the Notice provided to her in advance of the disciplinary hearing, in c lu d in g that it failed to inform her that the hearing would be the "only opportunity for her to offer all evidence and witnesses on her behalf," that the "hearing would be the only o p p o rtu n ity for her to cross-examine witnesses," and that a "transcript of the proceedings w o u ld be the only Record on which any appellate tribunal would base its decision." C o m p la in t (Doc. #1) at ¶ 25. It appears, therefore, that Plaintiff is attempting to raise a p roc ed u ral due process claim related to the purported inadequacy of the Notice provided her, ra th e r than the disciplinary proceedings as a whole. The Notice sent to Plaintiff first advised Plaintiff that, pursuant to the authority c o n ta in e d in Ala. Code §§ 34-24-167 & 41-22-12(a) and (b), a hearing regarding the

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a lle g a tio n s contained therein was scheduled for a certain time and location. Elsewhere, the N o t ic e sent to Plaintiff reads as follows: A T THE AFORESAID TIME AND PLACE AND FROM TIME TO T I M E THEREAFTER AS MAY BE DIRECTED BY THE BOARD YOU M A Y BE REPRESENTED BY AN ATTORNEY (IF YOU SO DESIRE), C R O S S - EXAMINE ALL WITNESSES WHO TESTIFY AGAINST YOU A N D PRESENT SUCH EVIDENCE IN YOUR OWN BEHALF IN R E S P O N S E TO THESE CHARGES AS YOU CONSIDER NECESSARY A N D APPROPRIATE. N O T IC E IF [sic] FURTHER GIVEN THAT THE HEARING IN THIS C A U S E WILL BE CONDUCTED PURSUANT TO THE PROVISIONS OF C O D E OF ALABAMA (1975) § 41-22-12 AND § 41-22-13 AND BOARD R U L E 190-X-4.05. Notice, ex. A to Complaint (Doc. #1). The Notice contains all of the elements required by A la . Code § 34-24-167(b) and expressly cites to the Alabama statutes, Ala. Code §§ 41-22-12 a n d 13, which govern the admission of evidence in proceedings like that involving Plaintiff. T h e limitations on fact-finding during appellate review of the Board's disciplinary p ro c e ed in g s with which Plaintiff is aggrieved are clearly set forth in Ala. Code §§ 41-22-20 a n d 41-22-21, and these provisions are expressly alluded to in Ala. Code § 34-24-175, which d e sc rib e s how a chiropractor whose license is revoked or suspended may undertake appeal o f the Board's decision. Plaintiff enjoyed at least constructive notice of these provisions g iv e n their inclusion in the code governing the licensure of her profession and the conduct o f her disciplinary proceedings. P la in t if f cites to no law requiring that the Notice provided her by the Board must also a p p riz e her of the limits on fact-finding and record development which inhere during appeals

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f ro m the Board to the Alabama state courts. This Circuit has previously held that, with r e s p e c t to a pending administrative hearing affecting important rights, "notice must be `re a so n a b ly calculated under all the circumstances, to apprise interested parties of the p e n d e n cy of the action and afford them an opportunity to present their objections." Grayden, 3 4 5 F.3d at 1242 (citations omitted). In other words, "[w]here the notice given to the re sp o n d in g party is not misleading and apprises the party of the issues in controversy, the re q u ire m e n ts of the law are met." Intercontinental Industries, Inc., v. American Stock E x c h a n g e , 452 F.2d 935, 941 (5th Cir. 1971).4 Here, the Notice clearly identifies the a u th o rity under which the proceedings are to be conducted, lists and describes each d is c ip lin a ry count at issue, and informs Plaintiff of her right to have counsel appear on her b e h a lf , examine witnesses, and present evidence. Moreover, the fact that the limitations on ap p ea l, which were not outlined in the Notice, are clearly set forth in Alabama's statutory c o d e defeats any contention that the Notice is inadequate for failing to alert Plaintiff to such m a tte rs . See Reams v. Irvin, 561 F.3d 1258, 1265 (11th Cir. 2009) ("where remedial p ro c e d u re s are established by published, generally available state statutes and case law, law e n f o rc e m e n t officials need not take additional steps to inform a property owner of her re m e d ie s." ) (quotations omitted). Accordingly, the Notice provided Plaintiff was

co n stitutio n ally adequate and Defendants are entitled to summary judgment on Plaintiff's

Decisions of the United States Court of Appeals for the Fifth Circuit rendered prior to September 30, 1981, are binding precedent in the Eleventh Circuit. Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981). 17

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c la im that she was denied due process because of the purportedly deficient Notice. C. P la in tiff's claim that she was denied freedom of speech.

P la in tif f claims that, because two of the counts of misconduct for which she was f o u n d guilty pertain, purportedly, only to "words allegedly uttered by the Plaintiff," which w e re not "incitement" and occurred in "the context of a doctor-patient relationship," " D e f en d a n ts violated the Plaintiff's freedom of speech under the First Amendment . . . in that th e Defendants functionally suppressed the Plaintiff's right to speak freely and openly." C o m p la in t (Doc. #1) at ¶¶ 31-33, 35. Plaintiff further claims that "The First Amendment p ro te c ts physician speech in the context of the doctor-patient relationship." Id. at ¶ 37. Count I of the disciplinary Notice lodged against Plaintiff charged her with " [ u ]n la w f u l invasion of the field of practice of any other health practitioner," without p o s s e ss in g licensure in that field, stemming from the allegation that Plaintiff advised one of h e r patients to cease taking certain medications prescribed by her physicians. Notice at 1, e x . A to Complaint (Doc. #1) It was further alleged that Plaintiff sold this patient "various h e rb s , powders, etc. to take in place of her prescribed medications." Id. Count II alleged that P la in tif f engaged in unprofessional conduct by making a number of provocative, c o n tro v e rs ia l, and potentially dangerous statements to this same patient during the course of their relationship. Id. at 2.5 After the hearing before the Board, Plaintiff was adjudicated

The statements include: 1) "Medications prescribed to you by your physicians are bad and you should quit taking them;" 2) "Your OBG-GYN is no good;" 3) "You are not wanting to get better or you would grow up and just get over your condition;" 4) "You must enjoy your problems or would not have them;" 5) "You do not need anything else (referring to 18

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g u ilty of the two charges. T h e Court first notes that Plaintiff's claim appears to confuse the concept of ev iden tiary privileges and constitutionally protected speech. While certain evidentiary p riv ile g e s apply, in limited circumstances, to limit the admissibility into evidence of sta tem e n ts made during the course of some doctor-patient relationships,6 that concept is e n tire ly irrelevant to Plaintiff's claim. Rather, Plaintiff's claim presents only the narrow is s u e of whether or not the Board's decision to impose discipline for Plaintiff's alleged s ta te m e n ts violates her First Amendment rights. Given that Plaintiff appears to be claiming th a t her license was suspended, in part, because of "words allegedly uttered by the Plaintiff," C o m p la in t (Doc. #1) at ¶ 31, it appears that Plaintiff is alleging a First Amendment r e ta lia tio n claim. "To state a retaliation claim [for purposes of § 1983], . . . a plaintiff must e sta b lis h first, that his speech or act was constitutionally protected; second, that the d ef en d an t's retaliatory conduct adversely affected the protected speech; and third, that there is a causal connection between the retaliatory actions and the adverse effect on speech." her medications) except what I say to take;" 6) "Physicians are only trying to make money off you and are not taking care of you;" 7) "Your medications are killing you;" 8) "Stop filling doctors [sic] pockets who are not doing anything but killing you;" and 9) "You have one month to get off your medications or else." Notice at 2, ex. A to Complaint (Doc. #1). It bears noting that, under Alabama law, there is no recognized chiropractorpatient privilege. The Alabama Rules of Evidence recognize, inter alia, the following privileges: attorney-client (Rule 502), psychotherapist-patient (Rule 503), counselor-client (Rule 503A), husband-wife (Rule 504), and communications to clergy (Rule 505). A "psychotherapist" within the meaning of Rule 503 must be "licensed to practice medicine" and "regularly engaged in the diagnosis or treatment of mental or emotional conditions," or "licensed as a psychologist." Given this criteria, it does not appear Rule 503 would apply in the context of a chiropractorpatient relationship. 19
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B e n n e tt v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). The Court must first determine whether Plaintiff's speech at issue was "protected" w ith in meaning of the First Amendment. While some courts have held that "physician s p e e ch is entitled to First Amendment protection," Conant v. Walters, 309 F.3d 629, 636 (9th C ir. 2002), such protection is not absolute, as physician speech, even in the course of the tre a tm e n t relationship, remains subject to "reasonable licensing and regulation by the State." P la n n e d Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 884 (1992); see a ls o Nat. Ass'n for Advancement of Psychoanalysis v. California Bd. Of Psychology, 228 F .3 d 1043, 1053-55 (9th Cir. 2000) ("The communication that occurs during psychoanalysis is entitled to constitutional protection, but it is not immune from regulation."). The notion th a t the State may reasonably license and regulate speech in the context of the doctor-patient re la tio n s h ip applies with even greater force considering the circumstances in this case. To th e extent Ala. Code §§ 34-24-166(b)(3) & (7) have been applied to "functionally suppress" P la in tif f 's speech, such application was necessary given the character of Plaintiff's speech. P la in tif f was adjudicated guilty of making numerous statements about the efficacy of her p a tie n t's prescribed medications and impugning the motives of the physician(s) who p re sc rib e d such medications. Ultimately, the Board found, Plaintiff directed her patient to c e as e taking her prescribed medications in favor of "various herbs, powders, etc." sold to the p a tie n t by Plaintiff. As the Board found, Plaintiff's speech constituted an "unlawful invasion o f the field of practice" of another health practitioner, in this case the actual treating

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p h ys ic ia n (s ) of Plaintiff's former patient, where Plaintiff is not licensed to practice medicine. C le a rly the state may reasonably regulate speech in the doctor-patient relationship which u n p ro f e ss io n a lly, and perhaps illegally, falls outside the scope of the practitioner's licensed field of practice, and more egregiously, may be motivated by a commercial, pecuniary m o tiv e .7 To hold otherwise would completely eviscerate the important role professional m a lp ra c tic e plays in regulating various licensed professions to ensure quality professional s e rv ic e s and the health and safety of the public. A la b a m a law defines the practice of chiropractic as "the science and art of locating a n d removing without the use of drugs or surgery any interference with the transmission of n e rv e energy in the human body by any means or methods as taught in schools or colleges o f chiropractic . . . ." Ala. Code § 34-24-120(a). Chiropractors are expressly forbidden from " p r e s c rib [ i n g ] or administer[ing] medicine to patients." Ala. Code § 34-24-122. It follows, th e re f o re , that chiropractors are not permitted, by virtue of their license, to interfere with the a d m i n i s tr a tio n or prescription of medicine by licensed medical practitioners or otherwise in te rf e re with the relationship between the patient and such medical practitioner. To the e x te n t a chiropractor's speech impermissibly invades the province of a licensed medical

See, e.g., Shea v. Bd. of Medical Examiners, 81 Cal. App.3d 564, 577 (Cal. Ct. App. 1978) ("The state's obligation and power to protect its citizens by regulation of the professional conduct of its health practitioners is well settled. Assuming[,] although we are loathe to do so[,] an incidental restriction of Dr. Shea's freedom of speech, the First Amendment is not an umbrella shielding the type of verbal conduct in which the doctor engaged. It does not insulate the verbal charlatan from responsibility for his conduct; nor does it impede the State in the proper exercise of its regulatory functions.") (citations omitted). 21

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p ra c titio n e r, the State's interest in regulating such speech is manifest. S i m i la r l y, to the extent Plaintiff's speech may have been "unlawful" in a criminal s e n se it is not entitled to First Amendment protection. The First Amendment does not in s u la te "speech or writing used as an integral part of conduct in violation of a valid criminal s ta tu te ." Giboney v. Empire Storage & Ice, Co., 336 U.S. 490, 498 (1949). See also United S ta te s v. Gagliardi, 506 F.3d 140, 148 (2d Cir. 2007). Alabama law defines the "practice of m e d ic in e or osteopathy" as "[t]o diagnose, treat, correct, advise or prescribe for any human d is e a se , ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real o r imaginary, by any means or instrumentality." Ala. Code § 34-24-50(1). To practice m e d ic in e , the practitioner must be a "doctor"or "physician" licensed by the State Board of M e d ica l Examiners. Ala. Code §§ 34-24-50 through 53; 34-24-70. A chiropractor is guilty o f the crime of "Practicing medicine or osteopathy without license," a Class C felony in A la b a m a , when such chiropractor undertakes activities subsumed within the "practice of m e d ic in e " but which are beyond the scope of the chiropractor's license to practice c h iro p ra c tic . Ala. Code § 34-24-51. While it does not appear that Plaintiff has been charged w ith a criminal offense by State authorities, to the extent her speech constitutes such u n la w f u l conduct, it is not entitled to the protection afforded by the First Amendment. Pursuant to these principles, Plaintiff has failed to demonstrate that her speech is p ro te c te d within the meaning of the First Amendment. While Plaintiff is free to express her v ie w s about the efficacy of prescription medications, her expression of such views in the

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c o n tex t of a doctor-patient relationship she conducts pursuant to a license issued by the State s u b je c ts such expression to the State's reasonable regulation as the licensing authority. G iv e n that the licensing authority determined that Plaintiff's speech was outside the scope o f her license, and hence "unlawful," such speech is not protected by the First Amendment. W ith o u t demonstrating that her speech is so protected, Plaintiff can not prevail upon any First A m e n d m e n t retaliation claim intended to be raised in her Complaint. The State's regulation o f Plaintiff's speech, if any, via §§ 34-24-166(b)(3) & (7) is reasonable and necessary given th e circumstances in this case and the State's interest in regulating its licensed professions an d ensuring the health and safety of its citizens. The Board's imposition of disciplinary p e n a ltie s on the basis of Plaintiff's speech comports with the First Amendment and D e f e n d a n ts are entitled to summary judgment as to this claim. IV . CONCLUSION F o r the reasons specified above, the Magistrate Judge RECOMMENDS that D e f en d a n ts ' Motion to Dismiss (Doc. #10) be GRANTED as to Plaintiff's right-to-counsel c la im and Motion for Summary Judgment (Doc. #10) be GRANTED as to Plaintiff's due p ro c e ss and freedom of speech claims and the Complaint be DISMISSED. It is further O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n by March 17, 2010. Any objections filed must specifically identify the f in d in g s in the Magistrate Judge's Recommendation objected to. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that

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th is Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th C ir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11th C ir. 1981) (en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981.

Done this 3rd day of March, 2010.

/s/ Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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