Mitchell v. McGovern et al

Filing 7

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/20/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00374-GPG
PAUL A . MITCHELL,
Plaintiff,
v.
KAREN McGOVERN, (In Individual Capacity as Current Program Director of the
Colorado Medical Board), and
CHERYL HARA (In Individual Capacity as Former Program Director of the Colorado
Medical Board),
Defendants.

ORDER OF DISMISSAL

Plaintiff, Paul A. Mitchell, has filed pro se a Verified Complaint (ECF No. 1)
asserting claims pursuant to 42 U.S.C. §§ 1981, 1983, and 1985(3). Mr. Mitchell is
challenging the summary suspension of his Colorado medical license in 2007 and the
failure to reinstate his medical license in 2014. As relief he asks the Court to “[i]ssue
injunctive relief commanding the Colorado Medical Board, on behalf of Defendants, [to]
reverse the summary suspension against Plaintiff and expunge all records of
suspension from plaintiff’s records.” (ECF No. 1 at 48.)
Mr. Mitchell has been granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. Therefore, the Court must dismiss the action if Mr. Mitchell’s claims are
frivolous or malicious. See 28 U.S.C. § 1915(e)(2)(B)(i). A legally frivolous claim is one
in which the plaintiff asserts the violation of a legal interest that clearly does not exist or
asserts facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S.

319, 327-28 (1989). For the reasons stated below, the Court will dismiss the action
pursuant to § 1915(e)(2)(B)(i).
The Court must construe the complaint liberally because Mr. Mitchell is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the complaint reasonably can be read
“to state a valid claim on which the plaintiff could prevail, [the Court] should do so
despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.” Hall, 935 F.2d at 1110. However, the Court should not be an advocate
for a pro se litigant. See id.
Mr. Mitchell alleges that the Colorado Medical Board summarily suspended his
medical license in 2007. He specifically alleges that the summary suspension resulted
from a complaint filed against him by the Colorado Physician Health Program (“CPHP”)
on June 5, 2007, stating he “had (1) behavior problems with staff and patients, (2)
professional boundaries issues with staff, (3) a mood disorder, (4) failed to continue
treatment with psychiatrist, (5) failed to attend formal professional boundary course,
[and] (6) failed to maintain contact with CPHP.” (ECF No. 1 at 6-7.) Mr. Mitchell further
alleges that Defendant Cheryl Hara, the former Program Director for the Colorado
Medical Board, signed and issued an order on June 5, 2007, stating there was probable
cause to believe Mr. Mitchell had failed to notify the medical board about a physical or
mental illness that impacts his ability to practice medicine with reasonable skill and
safety and directing him to contact and cooperate with CPHP; wrote a letter on June 6,
2007, directing Mr. Mitchell to contact CPHP by June 19, 2007; signed and issued an
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order on June 28, 2007, suspending Mr. Mitchell’s Colorado medical license until he
complied with the order to cooperate with CPHP; filed a report with the National
Practitioner Data Bank (“NPDB”) on June 28, 2007, stating Mr. Mitchell’s Colorado
medical license was suspended; and issued a second order on December 14, 2007,
directing Mr. Mitchell to undergo an evaluation by CPHP. Mr. Mitchell also contends
that on January 10, 2008, a second suspension order was issued and reported to the
NPDB and, on January 25, 2008, Program Director Hara “reported that the suspension
was based on Plaintiff’s professional competence or conduct which adversely affected,
or could have adversely affected the health or welfare of the patient.” (ECF No. 1 at 9.)
Mr. Mitchell has filed two prior federal lawsuits in the District of Colorado against
Program Director Hara and others asserting state and federal claims challenging the
suspension of his Colorado medical license. See Mitchell v. Hara, No. 07-cv-2637-ZLW
(D. Colo. Mar. 4, 2008); Mitchell v. Hara, No. 08-cv-1388-ZLW (D. Colo. July 24, 2008).
The claims against Program Director Hara in both cases were dismissed on the grounds
of absolute immunity. Although Mr. Mitchell contends the prior cases were dismissed
improperly, he did not appeal the dismissal in either case.
Mr. Mitchell concedes that he also filed a state court action in July 2009 against
Program Director Hara and the CPHP “alleging constitutional violations pursuant to §
1983 and advancing various other state claims based on events prior, during, and after
the suspension of his medical license.” (ECF No. 1 at 10.) According to Mr. Mitchell,
the state courts determined his federal claims were barred by res judicata because he
had an opportunity to fully litigate those claims in federal court. (See id.)
Mr. Mitchell’s claims against Defendant Karen McGovern, the current Program
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Director for the Colorado Medical Board, stem from her communications with Mr.
Mitchell in 2014 regarding the suspension of his Colorado medical license. Mr. Mitchell
alleges that Program Director McGovern sent an e-mail on September 4, 2014, stating
the medical board will not lift the suspension of his medical license until he complies
with the medical board’s December 14, 2007 order; intercepted his petition for
reconsideration of the summary suspension that he sent to the medical board and, on
September 8, 2014, sent an e-mail instructing Mr. Mitchell to direct all future
correspondence with the medical board or staff to her; and signed a letter on October 9,
2014, stating his petition for reconsideration of the summary suspension was denied by
a panel of the medical board.
The facts Mr. Mitchell alleges in the Verified Complaint do not support an
arguable claim for relief against either Defendant. In particular, Mr. Mitchell fails to
allege facts that demonstrate Defendants are members of the Colorado Medical Board,
are responsible for the decisions of the Colorado Medical Board regarding suspension
of his Colorado medical license, or are capable of providing the relief he seeks in this
action. As noted above, the specific relief Mr. Mitchell requests is an injunction directing
the Colorado Medical Board to reverse the summary suspension of his medical license.
As a result, Mr. Mitchell’s claims against Defendants are legally frivolous and must be
dismissed.
Mr. Mitchell’s claims against Program Director Hara also will be dismissed for
additional reasons. First, the claims against Program Director Hara are repetitive of the
claims Mr. Mitchell asserted against Program Director Hara in his prior federal lawsuits.
“Repetitious litigation of virtually identical causes of action may be dismissed under §
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1915 as frivolous or malicious.” McWilliams v. Colorado, 121 F.3d 573, 574 (10th Cir.
1997) (quotation marks and alteration omitted). To determine whether a pleading
repeats pending or previously litigated claims, the Court may consult its own records.
See Duhart v. Carlson, 469 F.2d 471, 473 (10th Cir. 1972). The Court has consulted its
records and finds that Mr. Mitchell’s claims against Program Director Hara in this action
are repetitive of the claims he pursued against Program Director Hara in his prior
federal cases.
Mr. Mitchell’s claims against Program Director Hara also are untimely. Although
the statute of limitations is an affirmative defense, see Fed. R. Civ. P. 8(c)(1), the Court
may dismiss a claim sua sponte on the basis of an affirmative defense if the defense is
“obvious from the face of the complaint” and “[n]o further factual record [is] required to
be developed in order for the court to assess the [plaintiff’s] chances of success.”
Yellen v. Cooper, 828 F.2d 1471, 1476 (10th Cir. 1987); see also Fratus v. DeLand, 49
F.3d 673, 676 (10th Cir. 1995) (stating that dismissal under § 1915 on the basis of an
affirmative defense is permitted “when the claim’s factual backdrop clearly beckons the
defense”). It is obvious on the face of the Verified Complaint that Mr. Mitchell’s claims
against Program Director Hara, which are premised on actions that occurred in 2007
and 2008, accrued when those actions took place. Mr. Mitchell obviously was aware of
his claims at that time because he filed two prior lawsuits in the District of Colorado
raising the same or substantially similar federal claims against Program Director Hara in
2007 and 2008. Because Mr. Mitchell did not file the instant action until February 2015,
it also is obvious on the face of the Verified Complaint that the claims against Program
Director Hara are time-barred because the statutes of limitations that apply to Mr.
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Mitchell’s claims are either two years or four years. See Cross v. The Home Depot, 390
F.3d 1283, 1288-89 (10th Cir. 2004) (statute of limitations for § 1981 claims in Colorado
is either two years or four years, depending on the nature of the § 1981 claim); Blake v.
Dickason, 997 F.2d 749, 750-51 (10th Cir. 1993) (two-year statute of limitations applies
to § 1983 claims in Colorado); Lyons v. Kyner, 367 F. App’x 878, 881-82 (10th Cir. 2010)
(§ 1985(3) claims subject to same statute of limitations as § 1983 claims).
For these reasons, the Verified Complaint will be dismissed as legally frivolous
and malicious. The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith and therefore in forma pauperis
status will be denied for the purpose of appeal. See Coppedge v. United States, 369
U.S. 438 (1962). If Plaintiff files a notice of appeal he also must pay the full $505
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24. Accordingly, it is
ORDERED that the Verified Complaint and the action are dismissed as legally
frivolous and malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this

20th

day of

March

, 2015.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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