Wyttenbach v. State of Florida et al

Filing 5

OPINION AND ORDER denying 2 Plaintiff's Motion for Temporary Restraining Order. The Complaint is dismissed without prejudice to filing an Amended Complaint within 14 days of this Opinion and Order. See Opinion and Order for details. Signed by Judge John E. Steele on 6/4/2015. (MAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WILLIAM H. WYTTENBACH,
Plaintiff,
v.

Case No: 2:15-cv-318-FtM-29DNF

STATE OF FLORIDA, FLORIDA
DEPARTMENT OF HEALTH, STATE
OF
TENNESSEE,
TENNESSEE
DEPARTMENT OF HEALTH, MOLLY
GASS,
ESQ.,
STATE
OF
COLORADO,
and
COLORADO
DEPARTMENT OF HEALTH,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion for
Temporary Restraining Order (Doc. #2) filed on May 28, 2015.

The

Florida Department of Health filed a Response in Opposition (Doc.
#4) on June 1, 2015.

For the reasons set forth below, the motion

is denied and plaintiff’s Complaint is dismissed without prejudice
to filing an Amended Complaint within fourteen days of this Opinion
and Order.
I.
Plaintiff

William

H.

Wyttenbach,

M.D.

seeks

a

temporary

restraining order staying the disciplinary proceedings against his
medical license in Colorado, Florida, and Tennessee.

(Doc. #2.)

Plaintiff claims that defendants deprived him of his right to
procedural due process by failing to provide him with notice of
the disciplinary proceedings against him or an opportunity to be

heard.

Plaintiff further asserts that he has been libeled by the

disciplinary actions taken by the State of Florida, the Florida
Department

of

Health,

the

State

of

Tennessee,

the

Tennessee

Department of Health, Molly Gass, the State of Colorado, and the
Colorado Department of Health.

(Doc. #1.)

A court is authorized to enter a temporary restraining order
(TRO) in limited circumstances.
Rule 4.05.

See Fed. R. Civ. P. 65(b); Local

“Such orders will be entered only in emergency cases

to maintain the status quo until the requisite notice may be given
and an opportunity is afforded to opposing parties to respond to
the

application

4.05(a).

The

for
party

a

preliminary

seeking

relief

injunction.”
must

Local

demonstrate:

Rule
(1)

a

substantial likelihood of success on the merits; (2) irreparable
injury “so imminent that notice and a hearing on the application
for preliminary injunction is impractical if not impossible”; (3)
that the balance of equities favors the movant; and (4) that the
TRO, if issued, will not be adverse to the public interest.
Rule

4.05(b)(2)-(4).

See

also

Schiavo

ex

rel.

Local

Schindler

v.

Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005).
After reviewing the allegations in the Complaint and the
Motion for Temporary Restraining Order, the Court finds that
plaintiff has failed to show a substantial likelihood of success
on the merits.

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A.

Procedural Due Process
Plaintiff first asserts that all disciplinary proceedings

should be stayed because he was deprived of his right to procedural
due process.

To state a claim under 42 U.S.C. § 1983, a plaintiff

must allege (1) that the defendant deprived the plaintiff of a
right secured under the United States Constitution or federal law
and (2) that such deprivation occurred under color of state law.”
Arrington v. Cobb Cnty., 139 F.3d 865, 872 (11th Cir. 1998).
Plaintiff must also allege a causal connection between defendants’
conduct and the deprivation of his constitutional right.

Swint

v. City of Wadley, Ala., 51 F.2d 988, 999 (11th Cir. 1995).

To

state a § 1983 claim for the denial of procedural due process, a
plaintiff must allege (1) a deprivation of a constitutionally
protected property or liberty interest; (2) state action; (3) and
constitutionally inadequate process.

J.R. v. Hansen, 736 F.3d

959, 965 (11th Cir. 2013); Miccosukee Tribe of Indians v. United
States, 716 F.3d 535, 559 (11th Cir. 2013).
As a general matter, due process requires notice and an
opportunity
property.

to

be

heard

before

a

person

may

be

deprived

of

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542

(1985); Gilbert v. Homar, 520 U.S. 924, 929 (1997).

However, “an

unauthorized

by

employee

intentional

does

not

deprivation

constitute

a

of

property

violation

of

the

a

state

procedural

requirements of the Due Process Clause of the Fourteenth Amendment
if a meaningful postdeprivation remedy for the loss is available.”

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Hudson v. Palmer, 468 U.S. 517, 533 (1984)).

The state’s action

is not complete “until and unless it provides or refuses to provide
a suitable postdeprivation remedy.”

Hudson, 468 U.S. at 533.

Thus, a claim for denial of procedural due process is actionable
under § 1983 “only when the state refuses to provide a process
sufficient to remedy the procedural deprivation.”
Pate, 20 F.3d 1550, 1557 (11th Cir.1994) (en banc).

McKinney v.
“It is the

state’s failure to provide adequate procedures to remedy the
otherwise procedurally flawed deprivation of a protected interest
that gives rise to a federal procedural due process claim.”
v.

Jackson,

omitted).

216

F.3d

1328,

1331

(11th

Cir.

2000)

Cotton

(citations

“[P]rocedural due process violations do not even exist

unless no adequate state remedies are available.”

Cotton, 216

F.3d at 1331 n.2. 1

1The

Eleventh Circuit has repeatedly held that a procedural
due process claim can exist only if no adequate state remedies are
available. See Reams v. Irvin, 561 F.3d 1258, 1266–67 (11th Cir.
2009) (“Because we conclude that available state remedies were
adequate to cure any erroneous deprivation of [the plaintiff's]
protected interest in her equines, [the plaintiff] has failed to
establish that her procedural due process rights were violated”);
Foxy Lady, Inc. v. City of Atlanta, 347 F.3d 1232, 1238 (11th Cir.
2003) (“[E]ven if a procedural deprivation exists . . . such a
claim will not be cognizable under § 1983 if the state provides a
means by which to remedy the alleged deprivation”); Horton v. Bd.
of Cnty. Comm'rs of Flagler Cnty., 202 F.3d 1297, 1300 (11th Cir.
2000) (no federal procedural due process violation if state courts
“generally would provide an adequate remedy for the procedural
deprivation the federal court plaintiff claims to have suffered”);
Bell v. City of Demopolis, 86 F.3d 191, 192 (11th Cir. 1996)
(affirming district court's dismissal of procedural due process in
employment discrimination context because “Alabama has available
a satisfactory means by which [the plaintiff] can seek redress for
any procedural due process deprivation”).
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Here, plaintiff asserts that the Tennessee Department of
Health held a hearing and issued an order revoking plaintiff’s
medical license without providing plaintiff with notice or an
opportunity to be heard. 2
or

otherwise

available.

establish
Indeed,

Plaintiff, however, has failed to allege
that

no

plaintiff

adequate
alleges

state

that

he

remedies
is

were

currently

appealing the order issued by the Tennessee Department of Health.
Because plaintiff has failed to allege that defendants refused to
provide a process sufficient to remedy the alleged procedural
deprivation, he has failed to show a substantial likelihood of
success on the merits of his claim for deprivation of procedural
due process.
B.

Defamation
Plaintiff also asserts that the disciplinary action taken by

defendants amounts to defamation because it was baseless.

In

Florida, defamation encompasses both libel and slander and has
been defined as “the unprivileged publication of false statements
which naturally and proximately result in injury to another.”
Byrd v. Hustler Magazine, Inc., 433 So. 2d 593, 595 (Fla. 4th DCA
1983).
that

In order to recover for defamation, “a plaintiff must show

the

concerning

defendant
him,

published

without

false

reasonable

2Plaintiff

and
care

defamatory
as

to

statements

whether

those

does not plausibly allege that any of the remaining
defendants deprived him of a constitutionally protected property
interest.
- 5 -

statements were true or false, which resulted in actual damage to
the plaintiff.”

American Airlines, Inc. v. Geddes, 960 So. 2d

830, 833 (Fla. 3d DCA 2007) (citing Byrd, 433 So. 2d at 595).
In this matter, plaintiff has failed to allege or otherwise
establish that any of the defendants made a false or defamatory
statement or that such a statement was published.

Plaintiff has

therefore failed to show a substantial likelihood of success on
his claim for defamation.

Accordingly, plaintiff’s request for a

TRO is denied.
II.
For the reasons set forth above, the Court also finds that
plaintiff has failed to state a claim upon which relief may be
granted.

Dismissal is therefore warranted.

If plaintiff choses

to amend his complaint, he may file an Amended Complaint more
clearly setting forth his claim(s) and requested relief.
The

Amended

Complaint

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).

This obligation “requires more

than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (citation omitted).

To survive

dismissal, the factual allegations must be “plausible” and “must
be enough to raise a right to relief above the speculative level.”
Id. at 555.

See also Edwards v. Prime Inc., 602 F.3d 1276, 1291

(11th Cir. 2010).

This requires “more than an unadorned, the-

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defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citations omitted).

To satisfy these

requirements, plaintiff must clearly describe how each defendant
is involved in the alleged claims and provide factual support for
the

alleged

violations.

To

that

end,

the

Court

encourages

plaintiff to review the “Proceeding Without a Lawyer” section of
this

Court’s

website

at

www.flmd.uscourts.gov.

The

website

includes tips, frequently asked questions, sample forms, and a
“Guide for Proceeding Without a Lawyer.”
Accordingly, it is hereby
ORDERED:
1.

Plaintiff's Motion for Temporary Restraining Order (Doc.

#2) is DENIED.
2.

The Complaint is DISMISSED without prejudice to filing

an Amended Complaint within fourteen (14) days of this Opinion and
Order.
DONE and ORDERED at Fort Myers, Florida, this
June, 2015.

Copies:
Plaintiff
Counsel of Record

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4th

day of