Lundeen v. The State Medical Board of Ohio

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 7-17-12. (ga)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES E. LUNDEEN, SR.,
Plaintiff,
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Case No.: 2:11-CV-1128
JUDGE SMITH
Magistrate Judge King

THE STATE MEDICAL BOARD OF OHIO,
Defendant.

OPINION AND ORDER
Plaintiff James E. Lundeen initiated this action to challenge the permanent revocation of his
medical license by Defendant, the State Medical Board of Ohio (“the Board”). He seeks
declaratory and injunctive relief.
On May 8, 2012, the Magistrate Judge issued a Report and Recommendation (“R & R”)
(Doc. 19) proposing that Plaintiff’s pending motions be denied and this action dismissed in its
entirety. Plaintiff filed objections to the Magistrate Judge’s R & R (Docs. 20, 21).1 Defendant
subsequently filed a Notice of Additional Development, with a state court ruling attached, which
Plaintiff opposed by filing a Motion to Strike (Doc. 24).
The Court, having reviewed the record de novo, finds for the reasons that follow that
Plaintiff’s objections are without merit. Therefore, Plaintiff’s objections are OVERRULED, and
the R & R is ADOPTED and AFFIRMED. Accordingly, Plaintiff’s motion for preliminary

1

Plaintiff’s objections, titled Verified Response in Opposition to Magistrate Judge’s Report and
Recommendation, were filed in duplicate on the docket.

injunction (Doc. 6), motion for declaratory judgment and permanent injunction (Doc. 13), and
motion for judgment on the pleadings (Doc. 16) are DENIED. Further, as the Court reached its
decision without considering Defendant’s Notice of Additional Development or the state court
decision underpinning Plaintiff’s Motion to Strike, the Motion to Strike (Doc. 24) is DENIED as
MOOT.
I.

LEGAL STANDARD
When objections are received to a Magistrate Judge’s R & R on a dispositive matter, the

assigned District Judge “must determine de novo any part of the magistrate judge’s disposition that
has been properly objected to.” Fed. R. Civ. P. 72(b). After review, the District Judge “may
accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1)(B). General
objections are insufficient to preserve any issues for review. Howard v. Sec’y of Health & Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991).
II.

DISCUSSION
As an initial matter, the Court notes that a large part of Plaintiff’s opposition to the

Magistrate Judge’s R & R amounts to political conspiracy theories and unsupported factual
inferences and opinions. These are not proper means of objecting to the R & R, let alone
admissible evidence, and have been disregarded by the Court. See, e.g., Risch v. Royal Oak Police
Dept., 581 F.3d 383, 398 (6th Cir. 2009) (“[O]ur law is well-established that rumors, conclusory
allegations and subjective beliefs ... are wholly insufficient evidence . . . .”); Begun v. Ohio State
Med. Bd., 872 F.2d 1023, 1989 WL 34047, at *1 (6th Cir. ) (“[P]laintiff’s unwarranted factual
inferences and conclusory allegations of conspiracy are insufficient to state a claim.”). With that
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said, the Court will now address the two categories of objections properly before the Court for
review: jurisdiction and abstention.
Plaintiff objects to the Magistrate Judge’s conclusion that the Court lacks both subject
matter and personal jurisdiction over Defendant State Medical Board of Ohio. The Magistrate
Judge found no subject matter jurisdiction due to the Eleventh Amendment bar prohibiting suit by
a private citizen against a state, including agencies of the state. The Magistrate Judge also found
no personal jurisdiction due to Plaintiff’s failure to complete service of process in conformance
with Fed. R. Civ. P. 4 and S.D. Ohio Civ. R. 4.2.
For the first time in this action, Plaintiff claims that the intended party-defendant is Richard
Whitehouse, in his official capacity as the Executive Director of the Board, rather than the Board
itself. The Court finds this sudden revelation to be a disingenuous attempt to avoid the Eleventh
Amendment bar applicable to Plaintiff’s case. Plaintiff specifically captioned the defendant in his
Complaint as “The State Medical Board of Ohio, C/o Richard A. Whitehouse, Exec. Director.”
(Doc. 2). Even though Plaintiff is proceeding pro se, Plaintiff clearly knew enough to properly title
his case—when he has intended to sue state officials in their personal and/or official capacities in
other cases before this Court, he has aptly specified it in the case caption.2 And since the inception
of this lawsuit, the Ohio Attorney General’s Office has clearly stated its representation on behalf of
the Board, not Mr. Whitehouse; yet Plaintiff never once, in all of his filings with the Court,
attempted to clarify any alleged misunderstanding until after the Magistrate Judge correctly

2

See, e.g., Lundeen v. Buehrer, Case No. 2:11-cv-363 (“Stephen P. Buehrer, personal capacity Defendant
and Stephen P. Buehrer, Administrator, Ohio Bureau of Workers’ Compensation, official capacity Defendant . . .
.”); Lundeen v. Ridge, Case No. 2:11-cv-430 (“John S. Ridge, personal capacity Defendant and John S. Ridge,
official capacity Defendant”); Lundeen v. Talmadge, Case No. 2:11-cv-484 (“Lance A. Talmadge, MD, official
capacity, Board Member, State Medical Board of Ohio . . . .”).

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recommended dismissal for lack of subject matter jurisdiction.
The Court also agrees with the Magistrate Judge that there is no personal jurisdiction over
Defendant Board because Plaintiff has failed to perfect service of process in the almost seven
months that this action has been pending. Plaintiff’s claims that service has been waived because
Defendant had “actual notice” and “material involvement” have no merit. And, ironically, if the
Court were to treat Mr. Whitehouse as the real party-defendant, as Plaintiff requests, Plaintiff
would have an even weaker argument as to personal jurisdiction since Mr. Whitehouse has never
even entered an appearance in this matter.
Plaintiff additionally objects to the Magistrate Judge’s conclusion that federal abstention, as
articulated in Younger v. Harris, 401 U.S. 37 (1971), applies to this case. The Magistrate Judge
found each of the three Younger factors satisfied and no exceptions counseling against abstention.
Even were the Court to adopt Plaintiff’s argument that he actually sued Mr. Whitehouse in his
official capacity, rather than the Board, for prospective injunctive relief, the same abstention
analysis would still apply.
Plaintiff’s objections to abstention focus on two main issues: adequacy of the state forum
and alleged bad-faith harassment of the state proceedings.3 First, Plaintiff disagrees with the
Magistrate Judge’s conclusion that the state proceedings afford an adequate opportunity to raise
constitutional challenges. But as highlighted by the Magistrate Judge, Ohio courts entertain appeals
of Board decisions based on federal constitutional issues, and this Court has specifically held that

3

Plaintiff also generally objects to the Magistrate Judge’s conclusion that “the mere fact that §4731.22
may not expressly require a particular mental element does not render the statute so flagrantly and patently
violative of express constitutional prohibitions that equitable relief is warranted notwithstanding the Younger
analysis.” Plaintiff does not offer any new insight, but only references the Court to his earlier briefing. The Court
agrees with the Magistrate Judge’s analysis on this issue.

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such state appeals provide an adequate forum to satisfy Younger. Plaintiff’s continued belief that
the “high-profile” nature of his case is an “unusual circumstance” making the state proceedings
inadequate simply has no merit. Also, just because all of Plaintiff’s prior state court actions have
failed does not change this analysis. Younger simply requires having the opportunity to seek relief
on federal constitutional grounds; it is not a guarantee of success on the merits.
Second, Plaintiff objects to the Magistrate Judge’s conclusion that none of the recognized
Younger exceptions apply. Specifically, Plaintiff claims that the state proceeding was motivated by
a desire to harass and conducted in bad faith. See Huffman v. Pursue, Ltd., 420 U.S. 592, 611
(1975). Notably, however, Plaintiff never addressed this exception when discussing Younger in
earlier filings in this action. Even had Plaintiff raised this exception for the Magistrate Judge’s
consideration, the Court would still find it inapplicable to Plaintiff’s case. Plaintiff has made no
attempt to provide admissible evidence that the Board’s proceedings to permanently revoke his
license, or the subsequent appeal before the Franklin County Common Pleas Court, were initiated
to harass or conducted in a bad faith manner. Thus, the Magistrate Judge correctly applied
Younger, and this Court agrees that abstention is appropriate in this matter.
III.

CONCLUSION
Having carefully reviewed the record, the Report and Recommendation, and Plaintiff’s

objections, the Court agrees with the conclusion of the United States Magistrate Judge. Plaintiff’s
objections (Doc. 20) are DENIED. The Report and Recommendation (Doc. 19) is ADOPTED
and AFFIRMED. All of Plaintiff’s pending motions (Docs. 6, 13, 16, 24) are DENIED. This
action is hereby DISMISSED.
The Clerk shall enter FINAL JUDGMENT in favor of Defendant and close this case.
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IT IS SO ORDERED.
/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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