Manion v. North Carolina Medical Board et al

Filing 66

ORDER granting 41 Motion to Dismiss; granting 43 Motion to Dismiss for Failure to State a Claim and for Lack of Jurisdiction; granting 45 Motion to Dismiss for Failure to State a Claim; granting 59 Motion to Stay; and granting 61 Motion to Stay. Signed by District Judge Terrence W. Boyle on 8/19/2016. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16-CV-63-BO
KERNAN MANION, M.D.,

)
)
Plaintiff,
)
)
v.
)
)
NORTH CAROLINA MEDICAL BOARD; )
NORTH CAROLINA PHYSICIANS
)
HEALTH PROGRAM, INC.; NORTH
)
CAROLINA MEDICAL SOCIETY;
)
WARREN PENDERGAST, M.D.; R.
)
DAVID HENDERSON; SCOTT G.
)
KIRBY, M.D.; PASCAL UDEKWU, M.D.; )
and GREGORY W. TAYLOR, M.D., each )
in his or her individual and official capacity; )
and CHERYL WALKER-MCGILL, M.D.; )
PAULS. CAMNITZ, M.D.; WILLIAM A. )
WALKER, M.D.; RALPH C. LOOMIS,
)
M.D.; JANICE E. HUFF, M.D.; and
)
DAVID D. COLLINS, M.D., each in his or )
her individual capacity,
)
)
Defendants. )

ORDER

This cause comes before the Court on three motions to dismiss by defendants. The
appropriate responses and replies have been filed and the matters are ripe for ruling. A hearing
was held on the motions before the undersigned on August 2, 2016, at Raleigh, North Carolina.
For the reasons discussed below, the motions to dismiss are granted.
BACKGROUND
Plaintiff has alleged the following in his complaint. Plaintiff, Dr. Manion, is a board
certified psychiatrist who has been practicing medicine for approximately thirty years, having
been licensed in Louisiana, Colorado, Massachusetts, and North Carolina. As is relevant here,

Dr. Manion was licensed by the State ofNorth Carolina on April17, 2002, and maintained an
active license in good standing until February 9, 20 13.
In September 2009, Dr. Manion was dismissed from his position as a civilian contract
clinical psychiatrist at the Deployment Health Center at the Naval Hospital at Camp Lejeune,
and thereafter filed suit for retaliatory discharge against his employers. Dr. Manion alleges that
following his filing of suit against the Navy he experienced a series of events, including being
followed and experiencing noxious odors and low frequency noises at his home and workplace,
which led him to believe he was being harassed for filing the civil action. In late 2010, Dr.
Manion took his concerns to the Chief of the Wilmington, North Carolina Police, who
encouraged him to speak with a detective.
After speaking with the detective, Dr. Manion was contacted by the by the North
Carolina Medical Board (Medical Board), which informed Dr. Manion that someone from the
Wilmington Police Department had expressed concern about Dr. Manion's mental health and
that the Medical Board had opened an investigation. Dr. Manion on his own initiative pursued a
comprehensive psychological evaluation from Edwin Carter, Ph.D.; the evaluator concluded that
Dr. Manion was not suffering from a delusional disorder and opined that Dr. Manion should be
permitted to retain his unrestricted medical license.
The Medical Board did not accept the conclusions of Dr. Carter and on October 12, 2011,
ordered Dr. Manion to undergo an assessment by the North Carolina Physicians Health Program
(PHP). Dr. Manion submitted, under protest, to an assessment by PHP evaluator Dr. Pendergast,
who opined that Dr. Manion was mentally ill and that his mental illness preceded his
employment at Camp Lejeune. On December 13, 2011, PHP and Dr. Pendergast recommended
that Dr. Manion complete a comprehensive psychological assessment at one of two out-of-state

2

mental health evaluation and treatment facilities, and further recommended that Dr. Manion not
practice medicine until after he received his evaluation and any required treatment.
On January 19,2012, the Medical Board voted to order Dr. Manion to undergo
evaluation and treatment at one of the recommended out-of-state facilities pursuant to N.C. Gen.
Stat. 90-14(a)(5), and served Dr. Manion with the order for assessment on February 27, 2012.
Dr. Manion then unsuccessfully sought a restraining order against the Medical Board in state
court to prevent it from taking action against him. On October 10, 2012, the Medical Board
brought formal charges against Dr. Manion for his failure to cooperate with the PHP, seeking
discipline against Dr. Manion. In January 2013, Dr. Manion submitted to another evaluation,
this time by Barry Rosenfeld, Ph.D. and Paul Appelbaum, M.D. in New York. Dr. Appelbaum
concluded that Dr. Manion was delusional, which conclusion Dr. Manion has alleged was based
not on medical evidence or corroborative fact checking but on Dr. Appelbaum's ex parte
conversation with Dr. Pendergast.
On February 7, 2013, the Medical Board through its counsel informed Dr. Manion that,
based on the findings of Drs. Pendergast and Appelbaum, in order to avoid a public sanction
finding him incapable of practicing medicine with reasonable skill and safety by reason of
mental illness, Dr. Manion must inactivate his own license. Dr. Manion did inactivate his
medical license on February 9, 2013.
Dr. Manion filed this action to "protect his property and due process rights" alleging that
he "has been, and continues to be, damaged due to the arbitrary and unlawful application of
summary suspension procedures by the North Carolina Medical Board that result from
intentionally and/or negligently abusive practices by the North Carolina Physicians Health
Program, Inc.[] and Warren Pendergast, M.D .... ". [DE 2 ~ 1]. His complaint alleges claims

3

under 42 U.S.C. § 1983 for violation ofhis procedural and substantive due process rights under
the Fifth and Fourteenth Amendments and unreasonable search and seizure in violation of the
Fourth and Fourteenth Amendments; conspiracy to interfere with civil rights under 42 U.S.C. §
1985; violations ofthe Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; as well as
state law claims for intentional and negligent infliction of emotional distress and medical
malpractice.
Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction,
lack of personal jurisdiction, and failure to state a claim upon which relief can be granted under
Rules 12(b)(l), 12(b)(2), and 12(b)(6) ofthe Federal Rules of Civil Procedure. The Medical
Board and PHP defendants specifically have raised immunity and statute of limitations defenses.
DISCUSSION
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a claim for lack of
subject matter jurisdiction. When subject matter jurisdiction is challenged, the plaintiff has the
burden ofprovingjurisdiction to survive the motion. Evans v. B.F. Perkins Co., 166 F.3d 642,
647-50 (4th Cir. 1999). "In determining whether jurisdiction exists, the district court is to regard
the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for summary judgment." Richmond,

Fredericksburg & Potomac R.R Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). To this
end, "the nonmoving party must set forth specific facts beyond the pleadings to show that a
genuine issue of material fact exists." Id (citing Trentacosta v. Frontier Pacific Aircraft Indus.,
813 F.2d 1553, 1558-59 (9th Cir. 1987)). The movant's motion to dismiss should be granted if
the material jurisdictional facts are not in dispute and the movant is entitled to prevail as a matter
oflaw. Id

4

Rule 12(b)(2) ofthe Federal Rules of Civil Procedure authorizes dismissal for lack of
personal jurisdiction. When personal jurisdiction has been challenged on the papers alone, the
plaintiff must make a prima facie case showing that personal jurisdiction exists, and a court
construes all facts and inference in favor of finding jurisdiction. Combs v. Bakker, 886 F.2d 673,
676 (4th Cir. 1989).
A Rule 12(b)(6) motion tests the legal sufficiency ofthe complaint. Papasan v. Allain,
478 U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the court
should accept as true all well-pleaded allegations and should view the complaint in a light most
favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A
complaint must allege enough facts to state a claim for relief that is facially plausible. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the facts
pled "allow[] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged," and mere recitals of the elements of a cause of action supported by
conclusory statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint
must be dismissed if the factual allegations do not nudge the plaintiff's claims "across the line
from conceivable to plausible." Twombly, 550 U.S. at 570.
I.

MOTION TO DISMISS BY THE NORTH CAROLINA MEDICAL SOCIETY

The complaint fails to state a plausible claim for relief against the North Carolina
Medical Society. As alleged in the complaint, the North Carolina Medical Society is a non-profit
professional medical association which serves to assist the medical profession in North Carolina
in providing safe, quality medical services to its patients. Plaintiff further alleges that a
significant number of directors on the PHP's board are appointed by the Medical Board and the
Medical Society, that the State ofNorth Carolina through the Medical Board entered into a

5

formal relationship with the Medical Society and the PHP, and that the Medical Society and
Medical Board failed and continue to fail to properly oversee and supervise the PHP.
Although the majority of Dr. Manion's claims are alleged against all defendants, the body
of the complaint simply fails to allege any specific fact which would support a conclusion that
the Medical Society is liable for any wrongdoing. Aside from Dr. Manion's bare allegation that
the Medical Society failed to properly oversee and supervise the PHP, the complaint is devoid of
any factual enhancement which would support such a conclusion. Moreover, as discussed in the
motion to dismiss, the Court is unaware of any legal basis upon which the Medical Society could
be held liable for the conduct of individuals it may have appointed to the PHP board of directors.
Dr. Manion's response to the motion to dismiss does not identify any factual support alleged in
the complaint which would nudge his claim against the Medical Society across the line from
conceivable to plausible, but rather asks the Court to allow him to proceed to discovery. In light
of the paucity of the allegations alleged against the Medical Society, and in the absence of any
request by Dr. Manion to amend his complaint to provide further support for his claims at this
time, the Court is constrained to dismiss the complaint against the Medical Society.
II.

MOTIONS TO DISMISS BY THE MEDICAL BOARD, THE PHP & AFFILIATED INDIVIDUALS
Dr. Manion has asserted the following claims against the Medical Board and affiliated

individual defendants Henderson, Kirby, Walker-McGill, Camnitz, Walker, Loomis, Huff, and
1

Udekwu and the PHP and affiliated individuals Pendergast, Collins, and Taylor: procedural due
process violations based on requiring Dr. Manion to undergo mental health evaluations and
coercing him to inactivate his license; systemic procedural due process violations against all
licensees wrongly accused of being impaired; substantive due process violations arising out of
deprivation of Dr. Manion's rights to bodily integrity, liberty, and property; unreasonable search
1

Improperly denominated at times by plaintiff as Odekwu.
6

and seizure in violation of the Fourth Amendment; conspiracy to deprive Dr. Manion of
licensure, health care, and equal treatment under 42 U.S.C. § 1985; violation of Title II of the
Americans with Disabilities Act; and state law claims for intentional and negligent infliction of
emotional distress. Against the PHP and individual defendant Pendergast Dr. Manion has further
alleged a state law claim for medical malpractice. Dr. Manion has conceded that dismissal of his
state law claims of intentional and negligent infliction of emotional distress against the Medical
Board defendants is appropriate. [DE 50 at 24].
The individual Medical Board defendants Henderson, Kirby, and Udekwu have been
named in the body of the complaint in their individual and official capacities; defendants
Walker-McGill, Camnitz, Walker, Loomis, and Huffhave been named in their individual
capacities only. [DE 2 ~~ 25-29]. The individual PHP defendants Pendergast and Taylor have
been named as defendants in their official and individual capacities, while Collins has been
named solely in his individual capacity. [DE 2 §§ 24, 30, 31].
A.

Section 1983 Due Process and Fourth Amendment claims.
(1)

Medical Board and affiliated defendants in their official capacities

"The Eleventh Amendment bars suit against non-consenting states by private individuals
in federal court." Bd ofTrustees ofthe Univ. ofAla. v. Garrett, 531 U.S. 356,363 (2001). This
guarantee applies not only to suits against the State itself but also to suits where "one of [the
State's] agencies or departments is named as the defendant." Pennhurst State Sch. & Hasp. v.

Halderman, 465 U.S. 89, 100 (1984); see also Hoke v. Bd ofMed Examiners ofState ofN. C.,
445 F. Supp. 1313, 1314 (W.D.N.C. 1978) ("The Board ofMedical Examiners is an agency of
the State ofNorth Carolina."). State officials sued in their official capacity for damages are also
protected by Eleventh Amendment immunity. Ballenger v. Owens, 352 F.3d 842, 845 (4th Cir.

7

2003); see also Bettencourt v. Bd. of Registration In Med. ofCom. of Mass., 904 F.2d 772,781
(1st Cir. 1990) (declining to disturb holding that Eleventh Amendment bars claims for damages
against medical board and staff in their official capacities and listing cases holding same). Dr.
Manion does not dispute that the Medical Board is immune from suit for damages. [DE 50 at 56].
In addition to damages, Dr. Manion seeks equitable and injunctive relief against the
individual Board members in their official capacities. The doctrine of Ex parte Young, 209 U.S.
123, 159-60 (1908), provides an exception to Eleventh Amendment immunity where suit is
brought against state officials and "( 1) the violation for which relief is sought is an ongoing one,
and (2) the relief sought is only prospective." Republic of Paraguay v. Allen, 134 F.3d 622,627
(4th Cir.1998). "[A] court need only conduct a 'straightforward inquiry into whether [the]
complaint alleges an ongoing violation of federal law and seeks relief properly characterized as
prospective"' to determine if Ex parte Young applies. Verizon Maryland, Inc. v. Pub. Serv.
Comm 'n of Maryland, 535 U.S. 635, 645 (2002) (citation omitted).
As they relate to the actions taken by members of the Medical Board regarding Dr.
Manion's psychiatric and psychological evaluations and the allegedly constructive suspension of
his license, Dr. Manion's claims are clearly retrospective. DeBauche v. Trani, 191 F.3d 499, 505
(4th Cir. 1999) (Ex parte Young "does not apply when the alleged violation of federal law
occurred entirely in the past."). Insofar as he has alleged claims for injunctive relief which
would direct defendants to take such immediate affirmative steps ensure that the effects of their
unconstitutional practices are eliminated and do not continue to adversely affect Dr. Manion or
those similarly situated, such relief is also retrospective in nature as it relates not to "ongoing
violations of federal law" but rather to "continued effects" and "by-products" of past action.

8

Caesars Massachusetts Dev. Co., LLC v. Crosby, No. CIV.A. 13-13144-NMG, 2014 WL
2468689, at *8 (D. Mass. May 30, 2014) (discussing cases). Indeed, where, as here, the effect of
an injunction "would be to undo accomplished state action," such relief is not prospective and
does not fall within the Ex parte Young exception. Republic of Paraguay, 134 F.3d at 628.
(2)

PHP and affiliated defendants in their official capacities

Eleventh Amendment immunity also extends to suits by private citizens for damages
against alter egos of the state. Huang v. Bd of Governors of Univ. ofN Carolina, 902 F .2d
1134, 1138 (4th Cir. 1990). In determining whether the PHP, which as alleged is a private, nonprofit organization, is an alter ego of the State ofNorth Carolina, the Court considers:
(1) whether any judgment against the entity as defendant will be paid by the State
or whether any recovery by the entity as plaintiff will inure to the benefit of the
State; (2) the degree of autonomy exercised by the entity, including such
circumstances as who appoints the entity's directors or officers, who funds the
entity, and whether the State retains a veto over the entity's actions; (3) whether
the entity is involved with state concerns as distinct from non-state concerns,
including local concerns; and (4) how the entity is treated under state law, such as
whether the entity's relationship with "the State [is] sufficiently close to make the
entity an arm of the State."

S. Carolina Dep 't of Disabilities & Special Needs v. Hoover Universal, Inc., 535 F.3d 300, 303
(4th Cir. 2008).
Both the allegations in the complaint and the Memorandum ofUnderstanding (MOU)
between the Medical Board, the Medical Society, and the PHP sufficiently establish for purposes
of this motion that the PHP receives state funds and that a judgment against it would cause the
State treasury to be functionally liable. 2 United States ex rei. Oberg v. Pennsylvania Higher

Educ. Assistance Agency, 745 F.3d 131, 137 (4th Cir. 2014). Dr. Manion alleges that the PHP
2

In deciding the instant motion, the Court has considered the MOU referenced by the complaint
and attached to the motion to dismiss without needing to convert the motion to one for summary
judgment. See Fed. R. Civ. P. 10(c); Am. Chiropractic Assoc. v. Trigon Healthcare, Inc., 367
F.3d 212, 234 (4th Cir. 2004).

9

receives part of its funding from the Medical Board, an undisputed arm of the State, and the
MOU illustrates that while the PHP is tasked with seeking to obtain funds from sources other
than the State, the Medical Board shall provide funding to the PHP based upon the number of
registered physicians in the state. [DE 2 ~ 20]; [DE 45-1 § 7]. Any judgment against the PHP
would be paid at least in part with funds supplied by the State, which is a sufficient showing by
the PHP on this first factor.
The second factor further weighs in favor of finding the PHP to be an alter ego of the
State, as the Medical Board both appoints PHP board members and retains the power to veto the
findings ofthe PHP. [DE 45-1 § 1; DE 2 ~ 20]. According to the complaint, the PHP was
created to identify and rehabilitate impaired physicians and to protect the public, which is plainly
a paramount interest of the State. [DE 2 ~ 20]. Finally, North Carolina law expressly provides
that peer review activities conducted in good faith pursuant to an agreement with the Medical
Board are "deemed to be State directed and sanctioned and shall constitute State action ... "
N.C. Gen. Stat. § 90-21.22(f). Although Dr. Manion has alleged that the peer review at issue in
this case was conducted in bad faith, his allegations are conclusory and are therefore insufficient.
See Twombly, 550 U.S. at 555. The weight of the factors clearly tips in favor of holding that the
PHP is an alter ego of the State ofNorth Carolina.
Eleventh Amendment immunity therefore bars Dr. Manion's claims against the PHP and
Drs. Pendergast and Taylor in their official capacities. As discussed above, Dr. Manion has
failed to sufficiently allege that he is seeking prospective injunctive relief, and the Ex parte
Young exception does not apply. Further, insofar as he has attempted to allege such relief, it is as

against the Medical Board defendants and not the PHP defendants.

10

(3)

Medical Board & PHP defendants in their individual capacities

Dr. Manion's claims against the individual members of the Medical Board and the PHP
in their individual capacities are barred by absolute quasi-judicial immunity and qualified
immunity. 3
"Every court of appeals that has addressed the issue has concluded that members of a
state medical disciplinary board are entitled to absolute quasi-judicial immunity for performing
judicial or prosecutorial functions." Ostrzenski v. Seigel, 177 F.3d 245,249 (4th Cir. 1999)
(citing Butz v. Economou, 438 U.S. 478, 508 (1978) and listing other cases holding same). This
is because
(1) the boards perform essentially judicial and prosecutorial functions; (2) there
exists a strong need to ensure that individual board members perform their
functions for the public good without harassment and intimidation; and (3) there
exist adequate procedural safeguards under state law to protect against
unconstitutional conduct by board members without reliance on private damages
lawsuits.

Ostrzenski, 177 F.3d at 249. Quasi-judicial or prosecutorial immunity under these circumstances
has further been extended to the physician who conducts peer review at the request of the
Medical Board. ld at 250-51.

3

The individual Medical Board-affiliated defendants who have been sued in their individual
capacities argue first that the claims against them are in reality claims against the Medical Board
and that they are thus barred by Eleventh Amendment immunity. See Martin v. Wood, 772 F .3d
192, 196 (4th Cir. 2014)(citations omitted); Booth v. State ofMd, 112 F.3d 139, 142 (4th Cir.
1997). The complaint indeed points to no specific act of any of the individual members of the
Medical Board named as defendants, and there can be no real dispute that a judgment against the
individual Medical Board defendants would operate against the Medical Board, and therefore the
State, or that any actions taken by the individual Medical Board defendants were inextricably
tied to their official duties. However, the holding in Martin concerned a claim under the Fair
Labor Standards Act, and the court of appeals has not clarified whether it would apply to bar
suits under§ 1983. Thus, the Court declines to apply Martin to bar Dr. Manion's claims here.
See Dyer v. Maryland State Bd ofEduc., _F. Supp. 3d._, No. JKB-15-3699, 2016 WL
2939740, at *7 n. 17 (D. Md. May 20, 2016).
11

Dr. Manion complains that defendants violated his constitutional rights when they failed
to establish that he is an imminent threat to himself or the public [DE 2 ~ 111 ], failed to conduct
a full and meaningful fact-finding investigation, id.

~

113, and threatened that they would issue a

finding that Dr. Manion was incapable of practicing with reasonable skill and safety. Jd.

at~

117. These actions fall within the Medical Board defendants' adjudicative and prosecutorial
function to oversee and discipline the medical profession. See, e.g., Buckley v. Fitzsimmons, 509
U.S. 259, 273 (1993) (prosecutorial immunity extends to evaluating evidence). Further, even if
the Medical Board defendants failed to perform their duties properly they are entitled to quasijudicial immunity. Richter v. Connor, 21 F.3d 423 *5 (4th Cir. 1994) (unpublished); see also

Bettencourtv. Bd. ofRegistrationlnMed. ofCom. ofMass., 904F.2d 772,783 (1stCir. 1990)
("the act of revoking a physician's license ... is likely to stimulate a litigious reaction from the
disappointed physician, making the need for absolute immunity apparent.").
The members of the PHP and the Medical Board are also protected by qualified
immunity. The privilege of qualified immunity protects government officials from liability so
long as they could reasonably believe that their conduct does not violate clearly established law.

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Henry v. Purnell, 652 F.3d 524, 531
(4th Cir. 2011) (en bane). There is a two-step procedure for determining whether qualified
immunity applies which "asks first whether a constitutional violation occurred and second
whether the right violated was clearly established." Melgar v. Greene, 593 F.3d 348, 353 (4th
Cir. 2010). Dr. Manion has not sufficiently alleged a constitutional violation.
(i)

Procedural Due Process

Dr. Manion alleges that defendants "knowingly violated [his] rights by denying him the
right to a meaningful pre-depravation hearing because they arbitrarily applied their broad policy

12

of summary suspension of any licensee who failed to comply with PHP, whether or not the
licensee is actually fit to practice." [DE 50 at 15].
As alleged in his complaint, Dr. Manion's license was not suspended by the Medical
Board, but rather was inactivated by Dr. Manion in exchange for the Medical Board's dismissal
of its charges against him for failing to cooperate with the PHP. [DE 2 ~~71-76]. "[A] plaintiff
may not bypass a seemingly adequate administrative process and then complain of that process's
constitutional inadequacy in federal court." Ashley v. NL.R.B., 255 Fed. App'x 707, 709 (4th
Cir. 2007) (listing cases holding same). Indeed, although Dr. Manion alleges that it was a
foregone conclusion that his license would be suspended based on a statement made by the
Medical Board's chief prosecutor, the Medical Board could have, when presented with Dr.
Manion's contrary evidence, found otherwise.
Nor has Dr. Manion sufficiently alleged that the process afforded to him was either
unavailable or patently inadequate. Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) ("In order
to state a claim for failure to provide due process, a plaintiff must have taken advantage of the
processes that are available to him or her, unless those processes are unavailable or patently
inadequate."). Dr. Manion could have proceeded to a hearing wherein he could have appeared
with counsel, presented evidence on his own behalf, and cross-examined witnesses. N.C. Gen.
Stat. § 90-14.2(a). Dr. Manion further could have appealed any disciplinary sanction to the state
superior court. N.C. Gen. Stat. § 90-14.8. Clearly process was available, and no allegation
before the Court would support a determination that the process available was patently
inadequate. See Fralin v. Cty. of Bucks, 296 F. Supp. 2d 609, 614 (E.D. Pa. 2003) (dismissal of
due process claim appropriate where plaintiff had alleged procedures are a sham, but failed to
allege concrete evidence that process would be futile, including that later stages, such an appeal

13

to the state court, would also be biased). Dr. Manion's failure to avail himself of the process
provided by the Medical Board thus means that he has failed to state a procedural due process
claim. Ashley, 225 Fed. App'x. at 710.
(ii)

Substantive Due Process

Dr. Manion has further failed to state a substantive due process claim. Substantive due
process "provides heightened protection against government interference with certain
fundamental rights and liberty interests." Troxel v. Granville, 530 U.S. 57, 65 (2000) (internal
quotation and citation omitted). In cases such as this, where the substantive due process claim
involves executive as opposed to legislative action, the Court must determine first the threshold
issue of"whether the challenged conduct was 'so egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience."' Hawkins v. Freeman, 195 F.3d 732,738 (4th Cir.
1999) (quoting City ofSacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)).
Nothing in Dr. Manion's complaint can be fairly said to shock the contemporary
conscience. "[C]onduct intended to injure in some way unjustifiable by any government interest
is the sort of official action most likely to rise to the conscience-shocking level." City of

Sacramento, 523 U.S. at 849. The State plainly has an important interest in regulating the
professionals who provide medical care to its citizens. Harper v. Pub. Serv. Comm'n ofW VA.,
396 F.3d 348, 353 (4th Cir. 2005). As Dr. Manion has alleged in his complaint, the members of
the Medical Board had concern about Dr. Manion's fitness to practice medicine, based at least in
part on the report of a concerned member of the Wilmington Police Department and two
physicians. Dr. Manion has failed to allege that the conduct of the Medical Board, the PHP, or
their members was unjustifiable by any governmental interest, and he cannot therefore state a
substantive due process claim.

14

(iii)

Fourth Amendment

Dr. Manion's Fourth Amendment claim for unwarranted search and seizure also fails.
Section 1983 actions are subject to the relevant state's statute of limitations for personal injury
torts. Wallace v. Kato, 549 U.S. 384, 387 (2007). In North Carolina, the relevant statute of
limitations is three years. N.C. Gen. Stat.§ 1-52 (5). "The limitations period for a§ 1983 claim
begins to run when the plaintiff has a complete and present cause of action-in other words,
when it could have filed suit and obtained relief." Tommy Davis Canst., Inc. v. Cape Fear Pub.
Uti/. Auth., 807 F .3d 62, 67 (4th Cir. 20 15) (internal quotation, alteration, citation omitted). Dr.

Manion's complaint identifies psychological testing and evaluation which occurred in 2011 and
January 2013 as the bases for his Fourth Amendment claim; his complaint was filed in February
2016, beyond the limitations period. 4 His Fourth Amendment claim therefore fails, and the
Medical Board and PHP defendants are alternatively entitled to qualified immunity.
(B)

Section 1985 Conspiracy claim.
In order to plead a conspiracy in violation of§ 1985,
a plaintiff must prove: (1) a conspiracy of two or more persons, (2) who are
motivated by a specific class-based, invidiously discriminatory animus to (3)
deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4)
and which results in injury to the plaintiff as (5) a consequence of an overt act
committed by the defendants in connection with the conspiracy.

Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995) (citation omitted). A conspiracy alleged in

a conclusory manner and without concrete supporting facts must be dismissed. Id at 1377. Dr.
Manion's conspiracy claim alleges generally that the Medical Board defendants and PHP
defendants have acted in concert to deprive Dr. Manion and others of their constitutional rights.
Dr. Manion alleges that the PHP has exceeded its authorization to act and that the Medical Board
4

Dr. Manion argues in response that he was ordered to undergo an evaluation in 2015, but he
does not allege in his complaint that he was actually examined or evaluated in 2015.
15

has developed a policy or practice of automatic ratification of the PHP' s recommendations. [DE
2,-r169].
Dr. Manion's claims fail to allege any concrete supporting facts which would support the
presence of a conspiracy. Dr. Manion fails to allege an agreement or meeting of the minds or
any evidence of invidious discriminatory animus, and indeed in his response to the instant
motion he notes that he has "weave[d) a suggestion throughout his allegations" which would
support his conspiracy claim. [DE 50 at 21]. This is simply insufficient to satisfy Dr. Manion's
weighty burden to establish a civil rights conspiracy. Hinkle v. City of Clarksburg, 81 F.3d 416,
421 (4th Cir. 1996).
(C)

Title II ADA claim.
Dr. Manion alleges that defendants discriminated against him because they regarded him

as having a disability. Title II of the ADA provides that "no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity." 42 U.S.C. § 12132. Dr. Manion argues that Title II of the
Americans with Disabilities Act (ADA) abrogates Eleventh Amendment immunity and subjects
defendants to liability for violating Dr. Manion's rights because they wrongly regarded him as
disabled.
Although it is not clear whether Title II of the ADA abrogates states' sovereign immunity
in this context, see United States v. Georgia, 546 U.S. 151, 159 (2006), the Court need not
conduct such analysis because, even if it were to find that sovereign immunity has been
abrogated, Dr. Manion's ADA claim is time-barred. Title II of the ADA does not provide a
statute of limitations, so the statute of limitations for the most analogous state-law claim is

16

applied. A Soc'y Without A Name v. Virginia, 655 F.3d 342, 347 (4th Cir. 2011). For nonemployment related claims, the most analogous statute of limitations in North Carolina is two
years. See J W v. Johnston Cty. Bd. ofEduc., No. 5:11-CV-707-D, 2012 WL 4425439, at *6
(E.D.N.C. Sept. 24, 2012) (unpublished) (citing North Carolina's Persons with Disabilities
Protection Act, N.C. Gen. Stat. § 168A-12). While state law determines the period of limitations,
federal law controls when a claim accrues, which in civil rights cases is when the plaintiff knows
or has reason to know of the injury which forms the basis of his claim. A Soc y Without A Name,
655 F.3d at 348.
Here, Dr. Manion knew of the injury which forms the basis of his claim at the very latest
on February 9, 2013, when he inactivated his medical license. Dr. Manion filed this suit on
February 8, 2016, one year beyond the two-year limitations period. In response to this
argument, Dr. Manion contends that the general, catch-all limitations period of four years,
applicable to any civil action arising under an Act of Congress after December 1, 1990, should
apply to his claim. 28 U.S.C. § 1658(a). Dr. Manion contends that his ADA claim is based on
the ADA Amendments Act of2008, Pub. L. No. 110-325, 122 Stat. 3553, and that the four-year
statute of limitations therefore applies.
In order to determine whether the two or four year limitations period applies, the Court
must determine if Dr. Manion's ADA claim "was made possible by" the 2008 amendment to the
ADA. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004). Prior to the 2008
Amendment, disability was defined as "a physical or mental impairment that substantially limits
one or more of the major life activities of such individual." Sutton v. United Air Lines, Inc., 527
U.S. 471,482 (1999) (citing prior version of ADA at§ 12102(2)(A)). Dr. Manion contends that
his ADA claim was made possible by the 2008 amendment which allows him to proceed as

17

having been regarded as having a disability, whether or not his impairment limits or is perceived
to limit a major life activity. 42 U.S.C. § 12102(3)(A). Thus, Dr. Manion contends, under the
2008 Amendment he no longer has to demonstrate whether the disability he was perceived to
have limits a major life activity.
That the 2008 Amendment made Dr. Manion's claim easier to demonstrate, does not,
however, equate to a finding that his claim was made possible by the 2008 Amendment. On the
contrary, prior to the 2008 Amendment, disability was defined to include being regarded as
having an impairment, Pub. L. 101-336, 104 Stat 327, and mental illness was expressly
considered to be a disability under the ADA. See, e.g., Pritchard v. S. Co. Servs., 92 F .3d 1130,
1132 (11th Cir.); Pathways Psychosocial v. Town of Leonardtown, MD, 133 F. Supp. 2d 772,
781 (D. Md. 2001) (parties do not dispute that mental illness may be considered a disability).
Working, which Dr. Manion alleges defendants prevented him from doing as a result of their
having regarded him as having a disability, was also considered under the pre-2008 ADA to be a
major life activity. See Pollard v. High's ofBaltimore, Inc., 281 F .3d 462, 4 71 (4th Cir. 2002)
("In order to be substantially limited in the major life activity of working, 'one must be
precluded from more than one type of job, a specialized job, or a particular job of choice."').
Thus, Dr. Manion's ADA claim was available prior to and did not arise from the ADA
Amendments Act of 2008. It is properly governed by a two-year statute of limitations and is
time-barred. Dismissal of Dr. Manion's ADA claim as against all defendants for failure to state
a claim is therefore appropriate. Moreover, "only public entities are subject to Title II," City &

Cty. ofSan Francisco, Calif v. Sheehan, 135 S. Ct. 1765, 1773 (2015), and this claim as alleged
against any individual defendant is properly dismissed.

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(D)

State law claims.
Dr. Manion concedes that his state law infliction of emotional distress claims should be

dismissed against the Medical Board defendants, but opposes dismissal of such claims as against
the PHP defendants. As discussed above, the North Carolina General Statutes provide that as
they relate to activities of the Medical Board, "[p]eer review activities conducted in good faith
pursuant to any agreement under this section shall not be grounds for civil action under the laws
of this State and are deemed to be State directed and sanctioned and shall constitute State
action." N.C. Gen. Stat. § 90-21.22(f).
Dr. Manion argues that the statutory immunity provided by N.C. Gen. Stat.§ 90-21.22(f)
is not applicable here because the actions taken by the PHP and Dr. Pendergast were not actually
peer review activities and because they were conducted in bad faith and with malice. Also as
discussed above, Dr. Manion's conclusory allegations of bad faith are insufficient to state a
claim. As to his allegation that the PHP and Dr. Pendergast did not actually conduct a peer
review, the Court cannot sanction such a theory in order to impose liability here. The allegations
in the complaint reveal that after notification from a member of the community that Dr.
Manion's mental health may be impaired, the Medical Board referred plaintiff to the PHP for an
assessment which was conducted by Dr. Pendergast. [DE 2 ~~52-53]. Although Dr. Manion
takes issues with the need for an assessment and the results of the assessment, none of his
allegations would support a finding that what was conducted by the PHP and Dr. Pendergast was
not peer review. See, e.g., Shannon v. Testen, 777 S.E.2d 153, 156 (N.C. Ct. App. 2015)
(discussing PHP peer review of physician in similar circumstances). Statutory immunity
therefore applies to bar Dr. Manion's state law tort claims against the PHP and affiliated
individual defendants in their official capacities.

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(i)

Infliction of emotional distress

Dr. Manion's claims for infliction of emotional distress as to Drs. Taylor and Collins in
their individual capacities fail to allege any specific conduct by either of these defendants, and
thus fail to satisfy Rule 8's requirement that a defendant have fair notice of the claims against
him. Fed. R. Civ. P. 8(a); see, e.g., Robbins v. Oklahoma, 519 F.3d 1242, 1250 (lOth Cir. 2008)
(particularly important in suits against a government agency and a number of actors "that the
complaint make clear exactly who is alleged to have done what to whom" in order to provide fair
notice of the basis of the claims).
Dr. Manion's claims for infliction of emotional distress as to Dr. Pendergast similarly
fail. Although Dr. Pendergast is referred to as having taken specific actions against Dr. Manion
in the complaint, Dr. Pendergast's allegedly harmful evaluation of Dr. Manion occurred on
December 5, 2011, well more than three years prior to the filing of the instant complaint. Claims
for infliction of emotional distress under North Carolina law are subject to a three year statute of
limitations, and such claims accrue when the plaintiff becomes or reasonably should have
become aware ofthe injury. Russell v. Adams, 125 N.C. App. 637,641 (1997).
Dr. Manion's allegations in his complaint make clear that he was aware that Dr.
Pendergast's evaluation had caused him injury following the Medical Board's decision, based
allegedly solely on Dr. Pendergast's evaluation, to order him to undergo further evaluation and
treatment. [DE 2 ~ 68]. Indeed, Dr. Manion sought a restraining order and a preliminary
injunction against the Medical Board to prevent such action by filing a complaint in New
Hanover County Superior Court in April2012. 5 [DE 2 ~ 69]; [DE 45-3]. The New Hanover
County complaint specifically references Dr. Pendergast's evaluation, specifically alleging that
5

The Court has considered Dr. Manion's complaint filed in New Hanover County as it was
referenced in the complaint and is part ofthe public record. See Hall v. Virginia, 385 F.3d 421,
424 n.3 (4th Cir. 2004).
20

•

after December 5, 2012, Dr. Manion was aware that Dr. Pendergast and the PHP were going to
recommend to the Medical Board that he discontinue his medical practice pending completion of
an inpatient assessment. [DE 45-3

~

34]. Thus, contrary to Dr. Manion's assertion that his

infliction of emotional distress claims did not begin to accrue until he received a copy of Dr.
Pendergast's report in 2015, his claims accrued at the lasted in April2015, and they are therefore
barred by the applicable statute of limitations.
(ii) Medical Malpractice
The same analysis applies to Dr. Manion's claim for medical malpractice against Dr.
Pendergast. The parties agree that the applicable medical malpractice statute of limitations is
three years. See, e.g., Hussey v. Montgomery Mem 'I Hosp., Inc., 114 N.C. App. 223, 226 (1994).
Dr. Manion contends that his injury was latent until he surrendered his medical license in
February 2013, and that he could not have known that Dr. Pendergast's peer review was in
actuality a diagnostic report until he received a copy of the report in August 2015. See, e.g.,
Black v. Littlejohn, 312 N.C. 626, 645 (1985) (discussing discovery rule applied to latent

injuries).
As discussed above, Dr. Manion plainly was aware that Dr. Pendergast's peer review had
caused him alleged injury, at least as of the filing of his complaint in New Hanover County in
April2012. His medical malpractice claim is therefore time-barred.
CONCLUSION
In summary, Dr. Manion's complaint concerns actions by the Medical Board and PHP
which began in 2011. While the events at issue have culminated in Dr. Manion's inactivation of
his license in 2013, his injuries plainly accrued earlier, as is evidenced by his own action in
seeking relief from the state court. Insofar as they are not time-barred, defendants' immunity

21

defenses further preclude advancement of Dr. Manion's claims, as does his failure to plead
plausible claims for relief. Finally, because Dr. Manion's claims that he brings to remedy
alleged violations against himself are subject to dismissal, any claim brought on behalf of others
similarly situated must be dismissed as well.
Accordingly, for the foregoing reasons, the motions to dismiss [DE 41, 43, 45] are
GRANTED. The motions to stay discovery [DE 59, 61] are DENIED AS MOOT. This action is
DISMISSED in its entirety.

SO ORDERED, this

J!/day of~016.

~~·~hA-jJ
~,-r.

TE
NCE W. BOYLE
UNITED STATES DISTRICT JUDGE

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