LUNDEEN v. KELLY

Filing 21

ORDER denying 8 Plaintiff's Motion for Preliminary Injunction and also denying 9 Plaintiff's Motion for Temporary Restraining Order. Signed by Judge Sarah Evans Barker on 9/6/2012. (PGS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JAMES E. LUNDEEN, SR.,
Plaintiff,
vs.
FRANCES L. KELLY official capacity,
Defendant.

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No. 1:12-cv-00696-SEB-DKL

ENTRY DENYING REQUESTS FOR INJUNCTIVE RELIEF
Plaintiff James E. Lundeen Sr. (“Lundeen”) filed this civil action challenging
the decision of the Medical Licensing Board of Indiana (“Board”) to place Lundeen’s
medical license on indefinite suspension. He has named Frances L. Kelly, the
Executive Director of the Indiana Professional Licensing Agency (the “Director”), in
her official capacity as the sole defendant pursuant to 42 U.S.C. § 1983. Lundeen
seeks prospective injunctive relief. Specifically, he seeks to enjoin the Director from
enforcing two orders of the Board and an order mandating that the Director change
Lundeen’s medical license status to “active unrestricted status.”
For the reasons explained below, Lundeen’s request for a temporary
restraining order and preliminary injunction must be denied.
Factual Background
Lundeen has challenged the suspension and subsequent permanent
revocation of his medical license in Ohio in both state a federal court. Each of his
challenges has been unsuccessful.1 The court takes judicial notice of the voluminous
administrative and court records related to this action (including those attached to
the complaint and those available publically). See Wigod v. Wells Fargo Bank,673
F.3d 547, 556 (7th Cir. 2012) (collecting cases); In re Salem, 465 F.3d 767, 771 (7th
See Lundeen v. The State Medical Board of Ohio, 2:11-cv-1128, 2012 WL 2930836 (S.D. Ohio July
18, 2012); Lundeen v. State Medical Bd. Of Ohio, No. 2:11-cv-1054, 2011 WL 6258445 (S.D. Ohio,
Dec. 15, 2011); Lundeen v. Talmadge, 2011 WL 5835139, 1 (S.D. Ohio, November 21, 2011) (citing
Lundeen v. Buehrer, Case No. 2:11–CV–363 (S.D. Ohio); Lundeen v. Ridge, Case No. 2:11–CV–430
(S.D. Ohio); State ex rel. Lundeen v. Whitehouse, No. 2011–907, 951 N.E.2d 1041 (Ohio Aug. 24,
2011) (dismissing plaintiff's request for a writ of mandamus); Lundeen v. Ohio Bur. of Workers'
Compensation, Case No. 11–CV–4590 (Ohio Ct. App. Franklin County) (terminated July 21, 2011)).
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Cir. 2006) (citing cases). These records directly contradict Lundeen’s claim that his
Ohio medical license was summarily suspended by the Ohio Board “based on false,
misleading, and fraudulent statements and in retaliation for suing Ohio Bureau of
Workers’ Compensation in a mandamus action.” Dkt. 10 at p. 4. Similarly,
disregarded is Lundeen’s claim that the Ohio Board did not have the subject matter
jurisdiction necessary to permanently revoke his license. See dkt. 15 at p. 4. Such a
claim is not consistent with the record (although the court acknowledges Lundeen’s
continued efforts in the Ohio State courts pursuing this issue). The facts relevant to
the pending motion (and supported by the record) are the following:
Lundeen is a physician holding Indiana license number 01070276A.
On or about December 14, 2011, the State Medical Board of Ohio (“Ohio
Board”) determined that Lundeen’s “continued practice presents a danger of
immediate and serious harm to the public” and issued an Entry of Order (“Ohio
Order”) permanently revoking Lundeen’s license to practice medicine and surgery in
the State of Ohio. The Ohio Order is based on certain findings of the Ohio Board’s
hearing examiner, which included the following:
a.
Lundeen provided care and treatment to twenty-six patients identified
in a confidential patient key;
b.
Lundeen inappropriately treated, and/or failed to appropriately treat,
and/or failed to appropriately document his treatment of these patients,
including:
i.

failing to conduct appropriate physical examinations,

ii.

excessively and inappropriately prescribing narcotic analgesics
and other drugs of abuse despite indications of possible addition,
drug abuse, or diversion in some patients, and, in some cases,
failing to refer the patient to an addictionologist.

iii.

prescribing increasing dosages of narcotics that were not
supported by an objective change in the medical status of the
patients, and/or failing to document that there was any objective
change in the clinical status, and

iv.

applying medical management and/or treatment that was not
appropriate to patients’ diagnoses and/or their clinical
situations, such as prescribing medications that were not
appropriate for the diagnosis that Lundeen stated was being
treated with the medication.

c.
Lundeen made certain statements to investigators for the Ohio Board
during an interview on March 16, 2011, which indicated that Lundeen sees
himself as an astute diagnostician who does not need “expensive tests” in
order to diagnose a patient and that Lundeen wants to see mainly chronic
care patients in his practice;
d.
Lundeen saw two patients at the same time for approximately eight
minutes or less, and only asked one of the patients what his pain level was
and to turn his head a certain way prior to printing prescriptions for both
patients;
e.
Lundeen operated approximately twelve (12) different office locations
throughout Ohio including his busiest office in Portsmouth, Ohio;
f.
Lundeen visited the Portsmouth office, which did not have any
employees or staff, one day every two weeks and treated approximately
ninety (90) patients during that day;
g.
Lundeen stated that “a high percentage” of his patients received
controlled substances; and
h.
Lundeen indicated that it was not unusual to have thirty to forty
people waiting at one time to be seen.
Lundeen appealed the December 14, 2011, Order of the Ohio Board
permanently revoking his certificate to practice medicine and surgery in Ohio. See
Lundeen v. State Medical Board of Ohio, Case No. 11cv-16295 (Franklin County
Ohio Clerk of Courts of the Common Pleas, June 28, 2012). That state court
affirmed the Ohio Board’s December 14, 2011, Order, finding it supported by
reliable, probative and substantial evidence and in accordance with the law.
On February 10, 2012, after notice and a pre-deprivation hearing was
conducted, Ms. Kelly as Executive Director of the Medical Licensing Board of
Indiana ordered the emergency summary suspension of Lundeen’s medical license
in Cause No. 2012 MLB 0005, pursuant to Ind. Code § 25-1-9-10. Indiana Code § 251-9-10 allows the board to “summarily suspend a practitioner's license for ninety
(90) days before a final adjudication or during the appeals process if the board finds
that a practitioner represents a clear and immediate danger to the public health
and safety if the practitioner is allowed to continue to practice[.]” The Board found
that Lundeen represented a clear and immediate danger to the public health and
safety if allowed to practice medicine in the State of Indiana.
On April 26, 2012, the Medical Licensing Board of Indiana (“Board”) held an
administrative hearing concerning the amended complaint filed against James

Edgar Lundeen, Sr., M.D. by the Indiana Attorney General. Lundeen appeared in
person. The amended complaint alleged that Lundeen’s conduct in Ohio constituted
a violation of Indiana Code § 25-1-9-4(a).2 Under Indiana Code § 25-1-9-4(a), a
practitioner “is subject to the exercise of the disciplinary sanctions under section 9
of this chapter if, after a hearing, the board finds. . . (7) a practitioner has had
disciplinary action taken against the practitioner or the practitioner's license to
practice in any state or jurisdiction on grounds similar to those under this
chapter[.]” A practitioner is defined as "an individual who holds: (1) an unlimited
license, certificate, or registration; (2) a limited or probationary license, certificate,
or registration; (3) a temporary license, certificate, registration, or permit; (4) an
intern permit; or (5) a provisional license; issued by the board. Ind. Code § 25-1-9-2.
On May 2, 2012, the Board placed Lundeen’s medical license on indefinite
suspension pursuant to Ind. Code § 25-1-9-9(a)(2).3 Lundeen was ordered not to
petition for reinstatement of his Indiana medical license until he submitted proof to
the Board that he holds an active license to practice medicine in the State of Ohio.
Lundeen was required to pay a five dollar fee and a five hundred dollar fine.
Lundeen has “not been able to secure a medical license elsewhere.” Dkt. 10 at
p. 6. Nor has he been able to secure gainful employment. Id. at 7.
Pursuant to Indiana Code § 4-21.5-5-1, a petition for judicial review is the
exclusive means for challenging a final order of any agency. A petition for judicial
review must be filed within 30 days of the date that notice of the agency action was
served, see Indiana Code § 4-21.5-5 et seq. No petition for judicial review was filed
as to Cause No. 2012 MLB 005.
Standard of Review
Injunctive relief is “an extraordinary remedy that should not be granted
unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek
v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original); see also Goodman v.
Ill. Dep't of Financial & Professional Reg., 430 F.3d 432, 437 (7th Cir. 2005) (same).
The standards for a temporary restraining order and injunctive relief are identical.
To justify a preliminary injunction, the plaintiff must show that he is “likely to
Under Indiana Code § 25-1-9-4(a), a practitioner "is subject to the exercise of the
disciplinary sanctions under section 9 of this chapter if, after a hearing, the board finds. . . (7) a
practitioner has had disciplinary action taken against the practitioner or the practitioner's license to
practice in any state or jurisdiction on grounds similar to those under this chapter[.]" A practitioner
is defined as "an individual who holds: (1) an unlimited license, certificate, or registration; (2) a
limited or probationary license, certificate, or registration; (3) a temporary license, certificate,
registration, or permit; (4) an intern permit; or (5) a provisional license; issued by the board. Ind.
Code § 25-1-9-2.
3 Under Indiana Code § 25-1-9-9, the board may take disciplinary action if it finds that the
practitioner is subject to disciplinary sanctions under § 25-1-9-4. See Ind. Code § 25-1-9-9(a).
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succeed on the merits” of his claims, that he is likely to suffer irreparable harm
without an injunction, that the harm he would suffer without the injunction is
greater than the harm that preliminary relief would inflict on the defendants, and
that the injunction is in the public interest. Michigan v. U.S. Army Corps of
Engineers, 667 F.3d 765, 769 (7th Cir. 2011) (citing Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008)). If the moving party meets its initial burden,
then the court must consider the irreparable harm that the nonmoving party will
suffer if preliminary relief is granted, balancing such harm against the irreparable
harm the moving party will suffer if relief is denied. Storck USA, L.P. v. Farley
Candy Co., 14 F.3d 311, 314 (7th Cir. 1994). The court also considers the public
interest served by granting or denying the relief, including the effects of the relief
on non-parties. Id.; see also Winter, 129 S.Ct. at 376–77 (“courts of equity should
pay particular regard for the public consequences in employing the extraordinary
remedy of injunction”).
Discussion
Likelihood of Success on the Merits.
Lundeen argues that the Director mis-applied Indiana code because the
Director was informed of the disciplinary action pending in Ohio when she issued
Lundeen his Indiana medical license. He argues that “laches prevents her from
divesting Lundeen of his Indiana medical license for Ohio’s allegations and action
which pre-date issuance of the Indiana medical license.” Dkt. 10 at p. 7. Further, he
contends that the “Director has failed to allege any misconduct associated with
Lundeen’s Indiana medical license.” Dkt 10 a p. 8. Lundeen argues that the status
change in Lundeen’s Ohio license from immediate summary suspension to
permanent revocation is not misconduct or a result of Lundeen’s actions.
This argument is not likely to succeed on the merits. On or about December
14, 2011, the Ohio Board determined that Lundeen’s “continued practice presents a
danger of immediate and serious harm to the public” and issued the Ohio Order
permanently revoking Lundeen’s license to practice medicine and surgery in the
State of Ohio. This Ohio Order was sufficient to give the Board authority pursuant
to Indiana Code § 25-1-9-9, to place Lundeen’s medical license on indefinite
suspension.
Irreparable Harm
There is no evidence that Lundeen will suffer irreparable harm if his Indiana
medical license is not restored. Specifically, there is no evidence that restoring
Lundeen’s medical license in Indiana will put him in a position to secure
employment given his credibility, expertise and employment history and the fact
that Lundeen cannot legally dispense, prescribe or administer a controlled

substance because his Drug Enforcement Agency registration has expired. See Dkt.
1-14.
Adequate Remedy at Law
Lundeen argues that he does not have an adequate remedy at law
because money damages would be difficult to assess and if he seeks money damages
he will not be able to practice medicine in Indiana because of his constant fear of
retaliation. This argument is speculative and of very little weight.
The Director argues that Lundeen could have sought review of the agency's
decision, and subsequently a stay of the order suspending his license by filing a
petition for judicial review. See Ind. Code § 4-21.5-5-9. Lundeen may raise
constitutional questions on judicial review, and thus Lundeen had a remedy in
which he could have sought all the relief requested in this action. See, e.g. Majors v.
Engelbrecht, 149 F.3d 709, 713 (7th Cir. 1998) (Indiana law provides for review of
constitutional claims by way of a petition to the state court). The court agrees that
Lundeen could have pursued the relief he seeks in another forum and thus Lundeen
had an adequate remedy at law.
Harm to Director in Official Capacity and Public Interest
Given the fact that the Director has been sued in her officially capacity, harm
to the director is necessarily related to harm to the public interest. Lundeen argues
that “[t]here is no apparent reason why the Director would suffer damage if ordered
by this Court not to enforce her orders ([in] 2012 MLB 0005 case) and to place
Lundeen’s medical license in active unrestricted status.” Dkt. 10 at p. 10. In
addition, Lundeen contends that allowing him to practice medicine will allow him to
meet his financial obligations and provide needed medical services to Indiana’s
rural communities.
Any injunction allowing Lundeen to practice medicine in Indiana at this
point in time is clearly not in the public interest. The Indiana Board found that the
disciplinary sanctions taken by Ohio Board evidenced that Lundeen was practicing
medicine in a dangerous manner, and that he should not be permitted to practice in
Indiana. The Seventh Circuit has acknowledged that it is beyond dispute that “the
regulation and licensing of health care professionals is an important matter of state
concern.” Majors v. Engelbrecht, 149 F.3d 709, 713 (7th Cir. 1998). Allowing
Lundeen to practice in Indiana while this case proceeds is harmful to the State, and
the danger to Indiana citizens far outweighs any harm asserted by Lundeen in not
being able to practice pending resolution of this case.

Conclusion
Because Lundeen has not satisfied any of the threshold elements of a
temporary restraining order or preliminary injunction, his requests for such relief
[dkts. 8 and 9] are denied.
IT IS SO ORDERED.

09/06/2012
Date: __________________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

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