Lundeen v. Buehrer et al

Filing 35

ORDER finding as moot 30 Motion for Declaratory Judgment; denying 12 Motion for Summary Judgment; granting 14 Motion to Dismiss; granting 15 Motion to Dismiss for Lack of Jurisdiction; denying 16 Motion to Strike ; denying 16 Motion for Default Judgment; finding as moot 18 Motion to Strike. Signed by Judge George C Smith on 1-9-12. (ga)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JAMES E. LUNDEEN, SR., M.D.,
Plaintiff,
Case No.: 2:11-cv-363
JUDGE SMITH
Magistrate Judge King

v.

STEPHEN P. BUEHRER, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Summary Judgment (Doc. 12);
Defendants Richard Michael DeWine and the Office of the Attorney General, State of Ohio’s
Motion to Dismiss (Doc. 14); and Defendant Stephen Buehrer’s Motion to Dismiss for Lack of
Jurisdiction (Doc. 15); Plaintiff’s Motion to Strike and Motion for Default Judgment (Doc. 16);
Plaintiff’s Objection and Motion to Strike (Doc. 18); and Plaintiff’s Motion for Declaratory
Judgment (Doc. 30). Responses and replies have been filed to the aforementioned motions and
they are now ripe for review. For the reasons that follow, the Court GRANTS Defendants’
Motions to Dismiss and DENIES Plaintiff’s Motion to Strike. All the other motions are denied as
moot.
I.

BACKGROUND

In Plaintiff’s pro se Complaint1, he alleges that Defendant Stephen P. Buehrer,

1

Lundeen has also filed numerous other lawsuits with regard to the facts of this case. He has
filed a matter in Ohio Common Pleas Court, purportedly an “appeal” from the Bureau’s
revocation of his certificate, even though no hearing has yet been held. Lundeen v. Buehrer,
Franklin County Court of Common Pleas, Case No. 11CV 4590. In addition, he has filed suit in
federal court against at least one of the Ohio Common Pleas judges who issued one of the search
warrants of which he complains. Lundeen v. Ridge, United States District Court for the Northern
District of Ohio, Case No. 2:11 CV 430.

Administrator of the Ohio Bureau of Workers’ Compensation, in both his personal and official
capacities, and the Ohio Bureau of Workers’ Compensation, a state agency (hereinafter “Bureau
Defendants”), violated Plaintiff’s civil rights “in the form of a retaliatory investigation of the
undersigned Plaintiff, with the hope of prosecution, for the undersigned Plaintiff having exercised
his First Amendment right of free speech and right to petition the government for redress of
grievances, the undersigned Plaintiff having filed a Writ of Mandamus against Ohio Bureau of
Workers’ compensation in 2008 not ultimately concluded until 2011.” (Compl. ¶ 2). Plaintiff
also raises a similar claim against the Office of the Attorney General and the Ohio Attorney
General Richard Michael aka “Mike” DeWine in both his personal and official capacities
(hereinafter AG Defendants).
Plaintiff Dr. Lundeen filed a Petition for a writ of mandamus against the BWC in the Ohio
Supreme Court in 2008, alleging that the Bureau of Workers’ Compensation (“BWC”) abused its
discretion and to force the BWC to abide by the “clean claim” laws. Plaintiff alleged that the
BWC used “dirty tricks” software to reject otherwise proper claims for medical reimbursement.
(Compl. ¶¶ 1-2). The mandamus case was dismissed due to a “small technical procedural error,”
and so was never heard on the merits. (Id., ¶¶ 4, 7). Following the dismissal, Plaintiff alleges that
he “became aware” that he was under surveillance by automobiles with darkly-tinted windows.
(Id., ¶ 7). Then, to prevent him from re-filing his mandamus case or taking other legal action
against the BWC, the BWC “orchestrated” a raid on his various medical offices. (Id., ¶ 9).
According to the Complaint, “Defendants 1, 2, 3, 4, 5, and 6” secured search warrants
based upon unspecified false statements made by unidentified individuals, and proceeded to
execute the search warrants on March 15 and 16, 2011. (Id., ¶ 8). During the execution of the
warrants, unidentified “investigators” removed items beyond the scope of the search warrants.
(Id.). Finally, the Complaint alleges in conclusory fashion that the Defendants had “no probable
cause or legitimate reason to investigate him,” and claims that he believes they are attempting to
fabricate evidence because since the raids he has experienced an increase in walk-in patients
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seeking treatment. (Id., ¶ 31).
Plaintiff Lundeen generally asserts that the Defendants violated his constitutional rights,
primarily in retaliation for exercising his First Amendment rights in having filed a mandamus
action in Ohio state court against the Bureau in 2008. In general, Lundeen asserts that the
Bureau Defendants violated his rights in two ways. First, he alleges that the Bureau, in concert
with others, conducted an improper search and seizure on three of his offices, and second, he
alleges that the Bureau improperly revoked his certificate to participate in the Bureau’s Health
Partnership Program (“HPP”). He alleges that he has a right to a hearing to challenge the
decertification, and that, in violation of various laws and constitutional provisions, as of the date
of the Complaint, none had been scheduled. Plaintiff requested a hearing within the time indicated
on the Bureau’s decertification letter. He also requested that the Bureau subpoena various
persons for the hearing, including Defendant Attorney General. Plaintiff also asserts that he has
not been supplied with evidence for the decertification, despite repeated demands. (Compl. ¶ 14).
Plaintiff asserts that he was contacted soon after the Bureau decertified him by Ron Meade
of the Bureau, and discussed his entitlement to a hearing within 7 to 10 days. He further asserts
that Mr. Meade wanted to set the hearing for April 21 or 28, 2011. A short time later, he
received two letters in one envelope, one setting the hearing for April 6, 2011, and the other
continuing the hearing. Plaintiff alleges that he sent Ron Meade numerous e-mails and Mr. Meade
has not responded to his e-mails. (Compl. ¶ 15). Plaintiff asserts that the failure to set a hearing
violates his due process rights and that the actions of Defendants are also intended to interrupt
Lundeen’s cash flow to prevent him from defending himself. (Comp. ¶ 20). Plaintiff asserts that
the reasons given for decertification are “vague falsehoods” and asserts rebuttals for each one.
He also asserts that the search warrants claimed to be looking for evidence of workers’
compensation fraud, telecommunications fraud and theft, but that none of these was given as a
reason for decertification. (Compl. ¶ 22- 23). In addition, Plaintiff Lundeen asserts that the
Defendants do not want the warrants and supporting affidavits to be unsealed because they do not
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want “the falsehoods therein to be exposed.” (Compl. ¶ 26).
Plaintiff alleges that after the raid “there was a sudden occurrence of people attempting to
‘walk in’” to Lundeen’s office “without appointments.” He alleges that he does not historically
take walk-ins, and asserts that the defendants are “attempting to plant false information.” Finally,
he asserts that he has filed for an “emergency TRO” in the Franklin County Court of Common
Pleas that has not been heard. (Compl. ¶ 31-32). Plaintiff Lundeen requests $25 million in
damages for these actions, as well as “any other equitable relief deemed appropriate by this
Court.”
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a lawsuit for “failure to state
a claim upon which relief can be granted.” A Rule 12(b)(6) motion to dismiss is directed solely to
the complaint and any exhibits attached to it. Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d
134, 155 (6th Cir. 1983). The merits of the claims set forth in the complaint are not at issue on a
motion to dismiss for failure to state a claim. Consequently, a complaint will be dismissed
pursuant to Rule 12(b)(6) only if there is no law to support the claims made, or if the facts alleged
are insufficient to state a claim, or if on the face of the complaint there is an insurmountable bar to
relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir. 1978). Rule 12(b)(6)
must be read in conjunction with Rule 8(a) of the Federal Rules of Civil Procedure, which
requires the complaint to contain a “short and plain statement of the claim showing that the
pleader is entitled to relief[.]”
A court, in considering a 12(b)(6) motion to dismiss, must “construe the complaint in the
light most favorable to the plaintiff,” accepting as true all the plaintiff’s factual allegations.
Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). Although in this context all of the factual
allegations in the complaint are taken as true, a court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). Consequently, “[t]hreadbare recitals of the elements of a cause of action, supported by
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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Furthermore, to survive dismissal pursuant to Rule 12(b)(6), a claim must contain
sufficient factual matter to “state a claim to relief that is plausible on its face.” Twombly, at 570.
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, at
1950. While a complaint need not contain “detailed factual allegations,” its “factual allegations
must be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true.” Twombly, at 555. “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has alleged –
but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’ ” Iqbal, at 1950 (quoting Fed. R.
Civ. P. 8(a)(2)). In the final analysis, the task of determining plausibility is “context-specific [and]
requires the reviewing court to draw on its judicial experience and common sense.” Id.
III.

DISCUSSION

The Bureau Defendants move to dismiss asserting that the Court lacks jurisdiction over
the money claims as against Bureau and the Administrator in his official capacity under the
Eleventh Amendment. The Bureau Defendants also argue that the claims against the
Administrator in his personal capacity should be dismissed under Younger v. Harris, 401 U.S. 37
(1971), and based on qualified immunity.2
Similarly, the AG Defendants also move to dismiss asserting that Plaintiff’s claims against
the State of Ohio for money damages are barred by the Eleventh Amendment and any claims
against Mike DeWine in his personal capacity should be dismissed as he has qualified immunity.
The Court will first address Defendants’ Motions to Dismiss because the motions question

2

Plaintiff moves to strike the Bureau Defendants’ Motion to Dismiss arguing that it was not
properly served upon him (Doc. 16). Despite Plaintiff’s assertions in his Motion that he was not
served with the Motion to Dismiss, he was clearly aware of it when he filed his Motion to Strike
on June 1, 2011, 5 days after the filing of Defendants’ Motion. Therefore, the Court finds that
Plaintiff was not prejudiced by the incorrect certificate of service and denies his Motion to Strike
and for Default Judgment.
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whether Plaintiff’s claims can even be addressed on the merits by this Court. If the Court finds
that the claims are properly before this Court, then it will address Plaintiff’s Motion for Summary
Judgment and other pending motions.
A.

Eleventh Amendment
The State of Ohio Defendants, including the Bureau of Workers’ Compensation, the

Administrator of BWC in his official capacity, the State of Ohio, and Ohio Attorney General Mike
DeWine in his official capacity, argues that they enjoy absolute immunity under the Eleventh
Amendment in connection with claims for money damages brought against them in their official
capacities. Plaintiff, however, appears to be arguing that the State Defendants are not entitled to
absolute immunity because they acted in bad faith and because they are defending their interests in
this case.
“The Judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. As originally
drafted, the Eleventh Amendment referred to suits brought against a state by out-of-state foreign
citizens. Jackie S. v. Connelly, 442 F. Supp. 2d 503, 513 (S.D. Ohio 2006). In 1890, however,
the Supreme Court held the amendment barred in-state as well as out-of-state citizens from suing
a state. Hans v. Louisiana, 134 U.S. 1, 16 (1890). Therefore, the Amendment is a bar to federal
court jurisdiction whenever any private citizen attempts to sue a state. Id. “[A] federal court
cannot direct a state official to conform his or her conduct to state law . . . .” Cummings v.
Husted, 2011 WL 2375282, at *10 (S.D. Ohio June 8, 2011). The United States Supreme Court
has held that “[I]n the absence of consent, a suit in which the state or one of its agencies or
departments is named as the defendant is also prescribed by the Eleventh Amendment . . .. This
jurisdictional bar applies regardless of the nature of the relief sought.” Pennhurst State School
and Hospital v. Halderman, 465 U.S. 89, 100-01 (1984). Further, the Eleventh Amendment bars
a suit in federal court against state officials when “the state is the real, substantial party in
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interest.” Id. at 101. “[A] suit against state officials that is in fact a suit against a State is barred
regardless of whether it seeks damages or injunctive relief.” Id. at 102.
Plaintiff relies on Lapides v. Bd. of Regents, 535 U.S. 613 (2002), in support of his
argument that the State Defendants have waived their immunity to suit in federal court. However,
Plaintiff’s argument is without merit as the Lapides Court held that a state entity that voluntarily
submits itself to federal jurisdiction has waived its immunity. The State Defendants did not
voluntarily submit themselves to federal jurisdiction, but rather were sued directly in federal court
and are therefore here involuntarily.
Therefore, in accordance with the well-established law, Plaintiff’s claims against the State
of Ohio and the Bureau of Workers’ Compensation are barred under the Eleventh Amendment.
Further, because Plaintiff’s claims against the Administrator of the Bureau of Workers’
Compensation and Ohio Attorney General Mike DeWine in their official capacities are essentially
claims against the state, those claims are also barred under the Eleventh Amendment.
B.

Younger Abstention
The Bureau Defendants argue that if Plaintiff’s Complaint is construed to request

prospective injunctive relief, then the Court must abstain from deciding it against all the Bureau
Defendants under Younger v. Harris, 401 U.S. 37 (1971) and Burford v. Sun Oil Co., 319 U.S.
315 (1943). The Younger abstention doctrine, as established and extended by the United States
Supreme Court, prohibits federal courts from issuing injunctions that serve to interfere with state
criminal and civil proceedings. See Younger, 401 U.S. at 43, 46 (addressing interference with
state criminal proceedings); Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) (extending Younger to
state civil proceedings). The doctrine also prevents federal courts from interfering with certain
state administrative proceedings. Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477
U.S. 619, 627 (1986); see also Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457
U.S. 423, 433 n.12 (1982).
A federal court must consider three factors in determining whether abstention is
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appropriate: “(1) whether the underlying proceedings constitute an ongoing judicial proceeding,
(2) whether the proceedings implicate an important state interest, and (3) whether there is an
adequate opportunity in the state proceedings to raise a constitutional challenge.” Fieger v. Cox,
524 F.3d 770, 775 (6th Cir. 2008); see also Gilbert v. Ferry, 401 F.3d 411, 419 (6th Cir. 2005).
In addition, under the Burford abstention, where timely and adequate state-court review is
available, a federal court sitting in equity must decline to interfere with the proceedings or order
of state administrative agencies: (1) when there are “difficult questions of state law bearing on
policy problems of substantial public import whose importance transcends the result in the case
then at bar”; or (2) where the “exercise of federal review of the question in the case and in similar
cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of
substantial public concern.” New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S.
350, 361 (1989), citing Colorado River Water Conservation Dist. v. United States, 424 U.S. 800,
814 (1976).
Defendants argue, and the Court agrees, that there is an ongoing state administrative
action. Plaintiff Lundeen requested a hearing on the Bureau’s decision to revoke his HPP
certificate. A hearing date was initially set and then cancelled. Follow up letters request Plaintiff
to select a hearing date that works best with his schedule, giving him the option of April 21 or
April 28, 2011. Rather than selecting a hearing date, Plaintiff filed this lawsuit on April 27, 2011.
Therefore, the hearing process had begun at the time this lawsuit was filed and is ongoing.
Next, the Court must consider whether the proceedings implicate an important state
interest. Here, the hearing before the Bureau involving Plaintiff’s HPP certification and the
Bureau’s administration of that program, implicate an important state interest. The administration
of this program is important to Ohio’s workers’ compensation program as a whole. The HPP
regulates who can and cannot be a provider of services to injured workers in Ohio and it is crucial
that the Bureau be able control the quality of health care for injured workers, who may be
vulnerable.
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The final element of the inquiry is whether Plaintiff has an adequate opportunity to raise
constitutional challenges in the pending state proceedings. This Court concludes that he does.
Under Ohio Revised Code Section 119, Plaintiff has access to an administrative process that is
judicial in nature. He is entitled to a hearing and an appeal to Ohio’s court system. Ohio Revised
Code Section 119.12 specifically provides for Plaintiff to assert any constitutional claims he has
against the Bureau Defendants, whether they arise from the HPP hearing process itself, or from
other claims Plaintiff may have, such as his allegations of the unlawful raid on his business.
Plaintiff appears to be arguing that the Bureau Defendants attempt to schedule a hearing is
a sham, that they had no intention of holding a hearing. He appears to base this argument on the
fact that the first scheduled hearing was rescheduled. He also appears to be arguing that
proceeding with the hearing process would be futile. The Court disagrees. As set forth above,
the administrative hearing process had begun at the time Plaintiff initiated this lawsuit and he can
assert any constitutional claims he has against the Bureau Defendants during that hearing and
subsequent appeal to Ohio’s state courts. Accordingly, the Court concludes that if Plaintiff’s
claims against the Bureau Defendants could be construed as seeking injunctive relief, then
abstention is appropriate under Younger.
C.

Qualified Immunity
Defendants next argue that, to the extent that federal claims for monetary damages are

asserted against the Administrator of the BWC and Ohio Attorney General Mike DeWine in their
individual capacities, they are entitled to qualified immunity.
Under the doctrine of qualified immunity, government officials performing discretionary
functions are immune from suit unless the plaintiff shows the official violated “clearly established
statutory or constitutional rights of which a reasonable person would have known.” Conn v.
Gabbert, 525 U.S. 286, 290 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
“The central purpose of affording public officials qualified immunity from suit is to protect them
‘from undue interference with their duties and from potentially disabling threats of liability.’”
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Elder v. Holloway, 510 U.S. 510, 514 (1994) (quoting Harlow, 457 U.S. at 806)).
The Court must apply a two-step test to determine whether qualified immunity protects a
government official. Conn, 526 U.S. at 290; Buchanan v. City of Bolivar, 99 F.3d 1352, 1358
(6th Cir. 1996). The first step is to determine whether a violation of a clearly established
constitutional right has occurred. Conn, 526 U.S. at 290; Dickerson v. McClellan, 101 F.3d
1151, 1157 (6th Cir. 1996). If a constitutional violation is found, the second step is to determine
whether an objectively reasonable public official in the circumstances would have recognized that
his conduct violated the clearly established constitutional right. Conn, 526 U.S. at 290;
Buchanan, 99 F.3d at 1358; Dickerson, 101 F.3d at 1158.
To be clearly established at the time of the conduct in question, the constitutional right
must have been recognized by the U.S. Supreme Court, the United States Court of Appeals for
the Sixth Circuit, this Court or other courts within the Sixth Circuit, or, in some cases, courts of
other circuits. Sheets v. Moore, 97 F.3d 164, 166 (6th Cir. 1996); Dickerson, 101 F.3d at 1158.
“The contours of the right must be sufficiently clear that a reasonable person would understand
that what he is doing violates that right.” Sheets, 97 F.3d at 166. “This is not to say that an
official action is protected by qualified immunity unless the very action has previously been held
unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent.” Id.
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The United States Supreme Court
held in Pearson v. Callahan, 129 S. Ct. 808, 815 (2009), that qualified immunity balances two
important interests–the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability when they
perform their duties reasonably.
1.

Stephen Buehrer

Plaintiff alleges that Buehrer, the Administrator of the BWC, engaged in two courses of
action that resulted in constitutional violations: the HPP certification revocation; and the “raid” on
Plaintiff’s offices. With respect to the HPP certification issue, Plaintiff does not allege that
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Buehrer had any direct involvement in the decision to revoke Plaintiff’s certification, other than
merely serving as Administrator of the BWC. None of the letters Plaintiff received from the BWC
were signed by the Administrator, and there is no allegation that the Administrator directly
supervised or directed any of the actions taken by the BWC personnel who composed, signed, or
sent the letters, scheduled the hearing, or made the determination to revoke Plaintiff’s HPP
certification.
Similarly, with respect to the “raid,” Plaintiff fails to allege that Buehrer personally
obtained the search warrant, or carried out the search of Plaintiff’s offices. Rather, Plaintiff
specifically alleges that the raid was “orchestrated by the OBWC.” (Compl. ¶ 9).
Plaintiff, therefore, has failed to allege a violation of a clearly established constitutional
right by Defendant Buehrer and Defendant Buehrer is entitled to qualified immunity from
Plaintiff’s claims against him in his personal capacity.
2.

Mike DeWine

The only allegation in Plaintiff’s Complaint that specifically references Mike DeWine is
that he was physically “on site” during the search of the Plaintiff’s Portsmouth office “where there
was in fact nothing to see.” (Compl. ¶ 17). The Complaint does not set forth any additional
allegations that DeWine personally committed any constitutional violations.
Plaintiff’s allegation that DeWine was present during the search of his office is not
sufficient to establish a constitutional violation. The Sixth Circuit has emphasized that “[i]t is not
enough for a complaint . . . to contain mere conclusory allegations of unconstitutional conduct by
persons acting under color of state law. Some factual basis for such claims must be set forth in
the pleadings.” Maxwell v. Federal Correctional Inst., 43 Fed. Appx. 824, 825 (6th Cir. 2002);
see also Fennell v. Gregory, 2011 U.S. App. LEXIS 1954, *5 (9th Cir. 2011) (“Sweeping
conclusory allegations will not suffice. . .. The [plaintiff] must set forth specific facts as to each
individual defendants’ causal role in the alleged deprivation of constitutional rights.”).
Plaintiff’s Complaint generally alleges that the search warrants were signed based on false
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statements, but does not identify what the supposed falsehoods in the warrant applications were,
or who made them. Likewise, the Complaint alleges that the “investigators” exceeded the scope
of the warrant, but fails to identify who these individual actors were. Plaintiff’s Complaint does
not allege that Mike DeWine personally swore out affidavits for search warrants or personally
searched Plaintiff’s office. Not only does Plaintiff’s Complaint fail to state a claim against Mr.
DeWine under Iqbal, 129 S. Ct. at 1948, but Plaintiff has also failed to allege a violation of a
clearly established constitutional right by Defendant DeWine, and therefore, Defendant DeWine is
entitled to qualified immunity from Plaintiff’s claims against him in his personal capacity.

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IV.

CONCLUSION

Based on the above, the Court DENIES Plaintiff’s Motion for Summary Judgment (Doc.
12); GRANTS Defendants Richard Michael DeWine and the Office of the Attorney General,
State of Ohio’s Motion to Dismiss (Doc. 14); GRANTS Defendant Stephen Buehrer’s Motion to
Dismiss for Lack of Jurisdiction (Doc. 15); DENIES Plaintiff’s Motion to Strike and Motion for
Default Judgment (Doc. 16); DENIES AS MOOT Plaintiff’s Objection and Motion to Strike
(Doc. 18); and DENIES AS MOOT Plaintiff’s Motion for Declaratory Judgment (Doc. 30).
The Clerk shall remove Documents 12, 14, 15, 16, 18, and 30 from the Court’s pending
motions list.
The Clerk shall enter final judgment in favor of Defendants and remove this case from the
Court’s pending cases list.

IT IS SO ORDERED.

/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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