Cooksey v. Futrell et al

Filing 21

ORDER denying 4 Motion for Preliminary Injunction. Signed by District Judge Max O. Cogburn, Jr on 8/7/12. (com)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12cv336
STEVE COOKSEY,

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Plaintiff,
Vs.
MICHELLE FUTRELL, et al,
Defendants.
_______________________________

ORDER ON
PRELIMINARY INJUNCTION

THIS MATTER is before the court on plaintiff Steve Cooksey’s Motion for a Preliminary
Injunction (#4), defendants’ Memorandum of Law in Opposition (#14), and plaintiff’s Reply Brief
(#18). Having reviewed the motion, in accordance with Rule 65(a)(1), Federal Rules of Civil
Procedure, the court issues the following order denying plaintiff’s motion for a preliminary
injunction.
FACTS
This motion arises out of plaintiff’s desire to provide nutritional counseling and support on
his personal website, “Diabetes Warrior” (www.diabetes-warrior.net), notwithstanding his lack of
training or certification in such areas. Pl. Br., p. 3. Plaintiff began posting online in 2010 and
primarily shares his experience with managing his diabetes through a high-fat, low-carbohydrate
diet, which is sometimes known as a “Paleolithic diet.” Id. His website receives thousands of visits
each month. Id. The website includes a disclaimer that plaintiff is neither a licensed medical
professional nor does he have any formal medical education. See id.
Plaintiff receives online requests for advice from individuals seeking dietary and nutritional
advice, to which he sometimes posts public responses, Pl. Br., pp. 4-5. Through the website and
other online networks, he has fostered personal friendships with some of his readers. Id., pp. 3-4.
This inspired plaintiff to offer a “coaching” service by charging a monthly fee of up to $200 in
exchange for making personal telephone calls and emails on a regular basis. Id., p. 4. Plaintiff
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generated one paying client and stated that the service was not a “money maker.” Affidavit of
Charla Burill, ¶ 8, attached as Defs. Ex. 1.
In January of 2012, an unknown individual filed a complaint with the North Carolina Board
of Dietetics/Nutrition, (the “Board”) after plaintiff voluntarily expressed his support for the
Paleolithic diet at a nutritional seminar for diabetics held at a local church. Pl. Br., p. 5. The Board
is required to investigate all complaints. Defs. Mem., p. 2. The Executive Director informed
plaintiff by telephone on January 18 that he and his website were under investigation. Pl. Br., p. 5;
Defs. Mem., p. 4. By the end of January, the Board informally reviewed the contents of plaintiff’s
website and made line-by-line edits to demonstrate what plaintiff may advise as a non-licensed
dietician. Pl. Br., p. 6. Plaintiff voluntarily updated his website to conform with the Board’s
revisions, id., p. 7, and had no further contact with the Board.
Through its Executive Director, the Board sent a letter to plaintiff on or about April 20,
indicating that it would continue monitoring plaintiff but not take further action, based on plaintiff’s
compliance. Id. According to the Board, it only opened and closed an investigation of plaintiff, but
never ordered him to make any changes to his website nor did it threaten or take legal action against
him. Defs. Mem., p. 4; see also Burill Letter, attached as Pl. Exh. A. Plaintiff filed suit against
various members of the Board including its Executive Director.
ANALYSIS
I.

Standard for Granting Preliminary Injunction
Preliminary injunctions are an extraordinary remedy whose primary function is to protect

the status quo and to prevent irreparable harm during the pendency of a lawsuit. In re Microsoft
Corp. Antitrust Litigation, 333 F.3d 517, 525 (4th Cir. 2003). A plaintiff seeking a preliminary
injunction or temporary restraining order (“TRO”) must give notice to the opposing party under
Federal Rule of Civil Procedure 65 and establish all four of the following elements: (1) plaintiff is
likely to succeed on the merits; (2) plaintiff is likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of the equities tips in plaintiff’s favor; and (4) an injunction is in
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the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374 (2008);
Moore v. Kempthorne, 465 F. Supp. 2d 519, 525 (E.D. Va. 2006) (“[t]he standard for granting either
a TRO or a preliminary injunction is the same”). The most recent Supreme Court test was adopted
by the Fourth Circuit in The Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342,
346-47 (4th Cir. 2009), vacated on other grounds, 130 S.Ct. 2371, 176 L.Ed.2d 764
(2010)(memorandum opinion), reissued in pertinent part, 607 F.3d 355 (4th Cir. 2010), overruling
Blackwelder Furniture Co. v. Selig Mfg. Co., 550 F.2d 189 (4th Cir. 1977).
In Winter, the Supreme Court emphasized that a plaintiff must demonstrate more than just
a “possibility” of irreparable harm and a strong showing of likelihood of success on the merits.
Winter, 129 S.Ct. at 375. As discussed below, although plaintiff has given defendants the requisite
notice under Rule 65, he has already voluntarily complied with defendants’ suggested revisions and
cannot establish the four requirements needed to obtain a preliminary injunction, nor can he show
the heightened burden set forth in Winter.
II.

Discussion
A.

Likelihood of Success on the Merits

Plaintiff claims that he is likely to succeed on the merits under a theory that his First
Amendment right to free speech is currently restricted in three ways: he may not provide free advice
on his website; he may not provide free advice to others privately; and he may not receive payment
for his advice. Pl. Br., p. 8. In order to demonstrate the requisite likelihood of success on the merits,
plaintiff must show that he is likely able to prove that the state laws amount to a content-based
restriction of his right to free speech and that the restriction is subject to a strict scrutiny standard.
He must first meet the minimal requirements of standing.
1.

Elements of Standing

To establish standing sufficient to confer subject matter jurisdiction, plaintiff must show that
he (1) has suffered an injury in fact; (2) which was caused by the action of the defendants; and (3)
which will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555,
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560-61 (1992). First, the extent of plaintiff’s injury is questionable, because the Board never took
formal action against plaintiff. Plaintiff volunteered to remove parts of his website which the
Executive Director explained were problematic. The Executive Director wrote, “Should you agree
with our comments, we would ask that you make any necessary changes to your site, and moreover,
going forward, align your practices with the guidance provided.” Burill Aff., ¶ 15. There is no
evidence that plaintiff protested further or was otherwise ordered to comply. With respect to the
second element, plaintiff can claim that he would not have edited his website without pressure from
the Board. The third factor is difficult to determine because defendants have not taken any formal
action which a court could find violated plaintiff’s rights. Plaintiff has already removed the content
which defendants objected to, thus a favorable decision to plaintiff would not necessarily provide
him with full redress.
Similar to standing, defendants question whether plaintiff’s suit is ripe for review.
Ripeness is a justiciability doctrine designed “to prevent the courts, through
avoidance of premature adjudication, from entangling themselves in abstract
disagreements over administrative policies, and also to protect the agencies from judicial
interference until an administrative decision has been formalized and its effects felt in a
concrete way by the challenging parties.” The ripeness doctrine is “drawn both from
Article III limitations on judicial power and from prudential reasons for refusing to
exercise jurisdiction [.]” Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n. 18 (1993).
In assessing whether a dispute is ripe for adjudication, a court must evaluate “(1)
the fitness of the issues for judicial decision and (2) the hardship to the parties of
withholding court consideration.” Nat'l Park Hospitality Ass'n, 538 U.S. at 808; Abbott
Labs., 387 U.S. at 149 (emphasis added).
Intl. Acad. of Oral Medicine & Toxicology v. North Carolina State Bd. Of Dental Exam’rs, 451
F.Supp.2d 746, 749 (E.D.N.C., 2006) (quoting Nat'l Park Hospitality Ass'n v. Dep't of Interior),
538 U.S. 803, 807-08, (2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, (1967),
overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977); see also Ohio Forestry
Assoc., Inc. v. Sierra Club, 523 U.S. 726, 732 (1998). With respect to the first factor in
determining ripeness, a “case is fit for judicial decision where the issues to be considered are
purely legal ones and where the agency rule or action giving rise to the controversy is final and
not dependent upon future uncertainties or intervening agency rulings.” Intl. Acad., 451
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F.Supp.2d at 750 (E.D.N.C., 2006), quoting Charter Fed. Sav. Bank v. Office of Thrift
Supervision, 976 F.2d 203, 208 (4th Cir.1992). The Board has not issued a final ruling or taken
a final action with respect to plaintiff’s website. It simply closed the investigation based upon
plaintiff’s substantial and voluntary compliance and made clear that it reserves the right to
continue to monitor plaintiff. See Burill Letter. The second factor, hardship to the parties if
court consideration is withheld, similarly weighs in favor of defendants, due to plaintiff’s
voluntary compliance and defendants’ closing of its investigation.
2.

Restrictions on Free Speech

Plaintiff attempts to classify defendants’ suggested changes to his website as contentbased restrictions subject to strict scrutiny. The United States Court of Appeals for the Fourth
Circuit has held that governmental regulation of a profession is constitutional if the regulations
have a rational connection with the applicant’s fitness or capacity to practice the profession.
Accountant’s Soc’y of Virginia v. Bowman, et al., 860 F.2d 602, 603-04 (4th Cir. 1988), citing
Lowe v. S.E.C., 472 U.S. 181, 211 (1985) (White, J., concurring). Furthermore, “[p]rofessional
regulation is not invalid, nor is it subject to first amendment strict scrutiny, merely because it
restricts some kinds of speech.” Id. at 604, citing Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447,
456-57 (1978). Defendants reviewed plaintiff’s website and explained which statements violate
North Carolina law, and defendants’ suggested changes have a rational connection with
plaintiff’s lack of training or certification in dietetics or nutrition.
The Fourth Circuit further explained how trial courts should determine when the
regulation of a profession becomes a regulation of speech or of the press. Accountant’s Soc’y,
860 F.2d at 604 (internal citations omitted). Specifically, the key is to find “a personal nexus
between professional and client.” Id. (internal citations omitted). As Justice White set forth in
Lowe, supra, “[o]ne who takes the affairs of a client personally in hand and purports to exercise
judgment on behalf of the client in the light of the client’s individual needs and circumstances is
properly viewed as engaging in the practice of a profession.” Id. (internal citations omitted).
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Plaintiff does not dispute that he lacks any professional credentials, so any regulations pertaining
to nutrition and/or dietetics are applicable to him. He also refers to developing relationships
with his readers and seeks permission to provide one-on-one advice about medical issues, which
by their nature, must be highly individualized and personally tailored. Because the speech at
issue is restricted as a professional regulation, it must only withstand a rational-basis test, and
plaintiff’s claim that the speech should be permitted is unlikely to succeed at trial.
Thus, having considered the likelihood that he will succeed on the merits of his claim as
well as preliminary issues of standing and ripeness, plaintiff has not met the first element
necessary for the court to preliminarily enjoin the enforcement of the Act.
B.

Irreparable Harm

Plaintiff claims that “the suppression of speech is always an irreparable harm,” Pl. Br., p.
22, yet he acknowledges that he updated his website to conform with defendants’ edits prior to
filing his Motion for a Preliminary Injunction and prior to defendants taking any formal action
against him. Id., p. 7. He does not claim that he will suffer financially if the website continues
in its current state, or even that fewer viewers will visit his site. Indeed, plaintiff concedes his
site is not a money maker. Because plaintiff’s website now complies with the Board’s request
and there is no speech in violation of North Carolina law, the evidence overwhelmingly shows
that plaintiff will not be irreparably harmed in any way in the absence of preliminary relief.
C.

Balance of the Equities

With respect to the third element, plaintiff claims that the balance tips decidedly in his
favor and asserts that he will suffer irreparable harm if his nutritional speech is limited. Pl. Br.,
p. 29. He further requests broad relief: that this court preliminarily enjoin the Board from
enforcing state law against plaintiff and “other laypeople like him who want to offer advice,
either for free or for compensation, about what food to buy at the grocery store.” Pl. Reply, p.
24. In response, defendants have described the origins of the Board and its legitimate purpose:
that dieticians and nutritionists be licensed to effectively protect the public against unsafe health
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practices. Def. Mem., p. 18.
While there is no doubt that members of the public can seek nutritional and medical
advice from countless sources, whether licensed by the state of North Carolina or not, plaintiff’s
interest in providing nutritional advice is outweighed by defendants’ responsibility to the public
in that area. The facts as presented demonstrate that the Board responded to a citizen’s
complaint by opening an investigation. The correspondence between plaintiff and the Board, via
the Executive Director, shows that plaintiff’s treatment was neither arbitrary nor capricious.
Plaintiff remains free to advocate his nutritional beliefs through other avenues: he may associate
himself with a licensed nutritionist; become a licensed nutritionist himself; or sell or endorse a
line of nutritional supplements or products which would allow him to legally assert nutritional
claims. Thus, because plaintiff has other forms of free speech through which he may continue to
promote his beliefs, but defendants are charged with enforcing laws that are patently designed to
protect public welfare, the balance of equities tips in defendants’ favor in order to enforce the
laws which protect the public.
D.

Public Interest

Similar to plaintiff’s argument with respect to the balance of equities, plaintiff claims that
an injunction will serve the public interest by promoting an open marketplace of ideas.
Defendants counter that the statutes serve the public interest by protecting the health, safety, and
welfare of North Carolinians against unlicensed individuals from providing medical advice.
Defendants further correctly note that individuals living with diabetes are more likely to suffer
from complicated health problems and need personalized care from a licensed professional.
The court is mindful of the positive changes that plaintiff has made in his own life and
plaintiff undoubtedly serves as an inspirational figure who can empower others to begin to take
charge of their health. However, the public interest in accurate medical information is strong.
After all, defendants began investigating plaintiff based on a complaint from a member of the
community who was clearly concerned about plaintiff’s conduct. Plaintiff is still free to post his
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experience online and voice his opinion at community discussions, and members of the public
may still visit plaintiff’s website and use his inspirational story as a springboard to discuss their
individual condition with a qualified practitioner. Therefore, the court concludes that the fourth
element, public interest, will not be served by an injunction.
III.

Conclusion
Because plaintiff has not established each of the four elements needed to obtain a

preliminary injunction, this court will deny plaintiff’s motion for a preliminary injunction.
Accordingly, plaintiff’s request with respect to setting a bond requirement is also denied.
ORDER
IT IS, THEREFORE, ORDERED that plaintiff's Motion for a Preliminary Injunction
(#4) is DENIED.

Signed: August 7, 2012

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