Wyttenbach v. State of Florida et al

Filing 9

OPINION AND ORDER denying 7 Plaintiff's Second Motion for Emergency Hearing and Temporary Restraining Order. Signed by Judge John E. Steele on 6/30/2015. (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 Second
Motion for Emergency Hearing and Temporary Restraining Order (Doc.
#7) filed on June 12, 2015.
Plaintiff William H. Wyttenbach, M.D. initiated this action
on May 26, 2015, by filing a Complaint against 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.)

On

May 28, 2015, plaintiff filed an Emergency Motion for Temporary
Restraining Order seeking a stay of the disciplinary proceedings
against his medical license in Colorado, Florida, and Tennessee.
(Doc. #2.)

The Court denied plaintiff’s motion on June 4, 2015,

and dismissed the Complaint without prejudice for failure to state
a claim upon which relief may be granted.

(Doc. #5.)

On June 5, 2015, plaintiff attended an “illegal” disciplinary
hearing

before

revocation

of

the
his

Florida
medical

Board
license

of
in

Medicine

regarding

Tennessee.

After

the
the

hearing, the Florida Board of Medicine entered an Order suspending
plaintiff’s medical license in Florida.

Plaintiff contends that

the hearing deprived him of his right to procedural due process
and now seeks a temporary restraining order (TRO) voiding the
Florida Board of Medicine’s Order.
The

applicable

legal

standards

for

obtaining

a

TRO

and

establishing a claim for the denial procedural due process are set
forth in the Court’s Opinion and Order denying plaintiff’s first
motion for a TRO, and are incorporated herein.

(Doc. #5, pp. 2-

4.)
Plaintiff asserts that the he was deprived of his right to
procedural due process because the Florida Board of Medicine failed
to provide him with a fair and impartial hearing.

Plaintiff,

however, has failed to allege or otherwise establish that no
adequate state remedies were available to remedy the alleged
deprivation.
Cir. 2000).

See Cotton v. Jackson, 216 F.3d 1328, 1331 (11th
As such, the Court finds that plaintiff has failed

to show a substantial likelihood of success on the merits of his

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claim for deprivation of procedural due process.

Plaintiff’s

request for a TRO is therefore denied.
Accordingly, it is hereby
ORDERED:
Plaintiff’s

Motion

for

Emergency

Hearing

and

Temporary

Restraining Order (Doc. #7) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of June, 2015.

Copies:
Plaintiff
Counsel of Record

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30th

day