Kiser v. Reitz et al

Filing 17

OPINION AND ORDER granting 6 Motion to Dismiss. Signed by Judge Algenon L. Marbley on 8/13/2013. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DR. RUSSELL KISER, D.D.S., M.S.,
Plaintiff,
v.
LILI REITZ, et al.,
Defendants.

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Case No. 2:12-cv-574
JUDGE ALGENON L. MARBLEY

Magistrate Judge Deavers

OPINION & ORDER
I. INTRODUCTION
This matter is before the Court on Defendants’ Motion to Dismiss. (Doc. 6) For the
reasons stated herein, the Defendants’ Motion is GRANTED. This action is DISMISSED in its
entirety.
II. BACKGROUND
Plaintiff, Russell Kiser, D.D.S., M.S., (“Dr. Kiser”) is a licensed dentist practicing in the
state of Ohio. He owns a dental practice at 1245 South Trimble Road, Mansfield, Ohio 44907.
Defendants are fourteen members of the Ohio State Dental Board, sued in their official
capacities: Lili Reitz, Marybeth D. Shaffer, Jacinto W. Beard, Mary Ellen Wynn, Douglas W.
Wallace, Ketki B. Desai, James J. Lawrence, Constance F. Clark, Lawrence B. Kaye, W. Chris
Hanners, Linda R. Staley, Clifford Jones, William G. Leffler, and Gregory A. McDonald
(“Defendants”). The Dental Board is a state agency, established by Ohio Revised Code Chapter
4715.01, et seq., and the regulations in the Ohio Administrative Code Chapter 4715, et. seq.
Members of the Dental Board are empowered by statute to license and regulate dental

professionals in the State of Ohio, as well as enforce the provisions of O.R.C. § 4715.01, et. seq.,
and O.A.C. § 4715, et. seq.
Ohio Administrative Code § 4715-13-05 regulates the advertising of specialty dental
services. The rule provides that a dentist may only advertise that she is a specialist if she meets
the requirements of O.A.C. § 4715-5-04(B). The Code mandates that “the practice of the licensed
dentist seeking specialty recognition must be limited exclusively to the indicated specialty
area(s).” O.A.C. § 4715-5-04(B)(2). Section 4715-13 also governs public announcements,
publicity, advertising, and solicitation of licensed dentists.
According to Plaintiff’s Complaint, Dr. Kiser is a specialist in the area of endodontics
because he has completed an American Dental Association Commission on Dental
Accreditation-accredited post-doctoral education program in endodontics and is a “Diplomate”
of the American Board of Endodontics.1 On August 17, 2009, Dr. Kiser received a warning
letter from the Dental Board for an alleged violation of O.A.C. § 4715-5-04(B)(2). The Board
issued the warning to Dr. Kiser for practicing “outside the scope” of his declared specialty—
endodontics. Dr. Kiser alleges that the warning and threat of formal disciplinary action was
intended to have a chilling effect on his commercial speech and induce him to forego lawful
advertising. In May 2012, nearly three years after the Board issued the warning, Dr. Kiser
requested that the Board review and approve proposed signage for his office that would include
the terms “endodontist” and “general dentist” or “general dentistry.” The Board neither rejected
nor approved the signage, but responded with a copy of the relevant regulations and a letter
advising Dr. Kiser to consult with legal counsel. With its response, the Board also included a
copy of the 2009 warning to Dr. Kiser. The Board did not, however, commence any formal

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An “endodontist” is a specialist in root canal procedures.
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proceedings or disciplinary action against Dr. Kiser, nor has the Board initiated any such
discipline to date.
Dr. Kiser brings multiple causes of action against the Defendants. Dr. Kiser seeks
declaratory and injunctive relief related to the Ohio statutory scheme for the regulation of the
practice of dentistry. See O.A.C. §§ 4715-5-04 and 4715-13-05. Dr. Kiser filed his Complaint
on June 28, 2012. On September 18, 2012, Defendants filed this Motion to Dismiss (the
“Motion”) for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1). The Motion has been fully briefed and is ripe for adjudication.
III. STANDARD OF REVIEW
Subject matter jurisdiction is a threshold matter that a court must decide prior to
considering the merits of a claim. City of Heath, Ohio v. Ashland Oil, Inc., 834 F.Supp. 971, 975
(S.D. Ohio 1993). Rule 12(b)(1) provides that the defendant may file a motion to dismiss based
on a “lack of jurisdiction over the subject matter.” Fed. R. Civ. P. 12(b)(1). The plaintiff has the
burden of proving jurisdiction when subject matter jurisdiction is challenged. Rogers. v. Stratton
Indus., 798 F.2d 913, 915 (6th Cir. 1986). Attacks on subject matter jurisdiction may be either
facial attacks or factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A
facial attack challenges the legal sufficiency of the complaint. When considering such a
challenge, the court “must take the material allegations of the petition as true and construe[]
[them] in the light most favorable to the nonmoving party.” Id. To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that
is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662 (2009). A legal conclusion couched as a
factual allegation, however, need not be accepted as true. Fritz v. Charter Township of
Comstock, 592 F.3d 718, 722 (6th Cir. 2010).

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IV. LAW & ANALYSIS
Defendants’ Motion states multiple grounds for dismissal, one of which is lack of
ripeness, a threshold matter. This Court is one of limited jurisdiction, granted authority under
Article III of the United States Constitution to adjudicate only actual “Cases” or “Controversies.”
United States Const. art. III, § 2, cl. 1. Justiciability doctrines have developed to ensure the
federal courts do not transgress that fundamental limitation. Ripeness is one such justiciability
doctrine, “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, 58 n.18
(1993). Enforcing ripeness requirements “prevents a court from engaging in premature
adjudication of an issue, particularly when an administrative decision is not yet final.” Conlon v.
Sebelius, 2013 WL 500835, ___ F. Supp. 2d ___ (N.D. Ill. Feb. 8, 2013) (citing Nat’l Park
Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807-08 (2003)) (emphasis added).
Ripeness is a subtle issue “whose threshold is notoriously hard to pinpoint.” Pittsburgh
Mack Sales & Serv. Inc. v. Int’l Union of Operating Eng’rs, Local Union, 580 F.3d 185, 190 (3d
Cir. 2009). To assist courts in pinpointing that threshold, the Supreme Court has stated that “[a]
claim is not ripe for adjudication if it rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998).
The Supreme Court has also explained that ripeness turns on “the fitness of the issue for judicial
decision” and “the hardship to the parties of withholding court consideration.” Abbot Labs. v.
Gardner, 387 U.S. 136, 149 (1967).
The Sixth Circuit has further elaborated on ripeness, establishing three “key factors” for
assessing ripeness: (1) the likelihood that the harm alleged by the party will ever come to pass;
(2) the hardship to the parties if judicial relief is denied at this stage in the proceedings; and (3)

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whether the factual record is sufficiently developed to produce a fair adjudication of the merits.
Dealer Computer Servs., Inc. v. Dub Herring Ford, 547 F.3d 558, 561 (6th Cir. 2008).2
Application of these three factors to the case at hand demonstrates that Dr. Kiser’s claims are not
ripe and, thus, not fit for adjudication.
A. First Factor: Likelihood the Alleged Harm Will Ever Come to Pass
“The ripeness inquiry arises most clearly when litigants seek to enjoin the enforcement of
statutes, regulations, or policies that have not yet been enforced against them.” Ammex, Inc., v.
Cox, 351 F.3d 697, 706 (6th Cir. 2003) (emphasis added). At this time, the Board has not
formally charged or disciplined Dr. Kiser and it is uncertain whether any such action will ever be
taken. Since the Board issued a warning letter to Dr. Kiser in 2009, it has not taken one more
step towards disciplinary action. Moreover, the Board’s subsequent decision to neither reject nor
approve the signage does not resemble any disciplinary action. Since the Board has not yet
enforced the regulations at issue against Dr. Kiser, his claim is not ripe for adjudication.3 See
Ammex, Inc. v. Cox, 351 F.3d 697, 708 (6th Cir. 2003) (cautioning courts to “avoid preenforcement challenges that do not permit enforcement agencies to refine their policies”).
B. Second Factor: Hardship to the Parties if Judicial Relief is Denied
Dr. Kiser asserts that the Board’s regulations have a chilling effect on his right to free
speech. There are mechanisms in place at the administrative level, however, for Dr. Kiser to
challenge the any disciplinary action the Board takes against him. See Derakhshan v. State Med.
Bd. of Ohio, 10th Dist. No. 07AP-261, 2007-Ohio-5802 at ¶ 30. The absence of any disciplinary
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While “the ripeness analysis ‘is somewhat relaxed in the First Amendment context,’” it is not so relaxed as to
vitiate the Sixth Circuit’s ripeness analysis, nor so relaxed as to allow this Court jurisdiction over a matter which is
not an actual case or controversy. Lawrence v. Welch, 531 F.3d 364, 374 (6th Cir. 2008).
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Lack of ripeness in this case is largely predicated on the absence of any formal disciplinary charges against Dr.
Kiser. If the Board did initiate charges against Dr. Kiser, his case may ripen, but this Court would still have to
consider whether to abstain from exercising jurisdiction pursuant to Younger v. Harris, 401 U.S. 37, 44 (1971). See
Kalniz v. Ohio State Dental Bd., 699 F. Supp. 2d 966, 971 (S.D. Ohio 2010).
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action leads this Court to the conclusion that denying judicial relief at this stage imposes no
significant hardship to the parties. If the Board initiates charges against Dr. Kiser, the Board can
only discipline him through administrative action. In an administrative action, the Board would
determine whether Dr. Kiser violated the Board’s regulations. At that time, Dr. Kiser would have
the opportunity to challenge the Board’s disciplinary action, and present evidence at a hearing to
support his argument that the Board’s rules are unconstitutional. See id.
C. Third Factor: Whether the Factual Record is Sufficiently Developed
Since the Board has not taken disciplinary action against Dr. Kiser, no record has
developed which would allow the Court to determine whether Dr. Kiser has suffered an injury.
This leads the Court to conclude that the factual record is not sufficiently developed for
adjudication.
In summary, the Court finds that this case is not ripe for adjudication. It is uncertain
whether the Dental Board will ever initiate any formal charges against Dr. Kiser, and if it does,
there are mechanisms in place at the administrative level for Dr. Kiser to challenge the Board’s
disciplinary action. Since the dispute is not ripe, this Court lacks subject matter jurisdiction to
adjudicate the merits of Dr. Kiser’s claims, and the Court thus dismisses all of Plaintiff’s claims.
V. CONCLUSION
For the foregoing reasons Defendants’ Motion to Dismiss is, hereby, GRANTED. This
case is DISMISSED in its entirety.
IT IS SO ORDERED.

s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: August 14, 2013

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