Kiser v. Reitz et al

Filing 27

ORDER GRANTING Defendants' motion to dismiss. This case is DISMISSED in its entirety. Signed by Judge Algenon L. Marbley on 3/20/2015. (cw1)

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

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Case No. 2:12-CV-574
JUDGE ALGENON L. MARBLEY
Magistrate Judge Elizabeth P. Deavers

OPINION & ORDER
I. INTRODUCTION
This matter is before the Court on remand from the Sixth Circuit (Doc. 22) for
consideration of all defendants’ (“Defendants”) Motion to Dismiss (Doc. 6). For the following
reasons, Defendants’ motion to dismiss is GRANTED.
II. BACKGROUND
Plaintiff, Russell Kiser, D.D.S., M.S., (“Plaintiff”) 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 (“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

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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.
Plaintiff 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. On
August 17, 2009, Plaintiff 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 for practicing “outside the
scope” of his declared specialty— endodontics. Plaintiff 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, Plaintiff 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 Plaintiff to consult with legal counsel. With its response, the
Board also included a copy of the 2009 warning to Plaintiff. The Board did not, however,
commence any formal proceedings or disciplinary action against Plaintiff, nor has the Board
initiated any such discipline to date.

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Plaintiff brings multiple causes of action against the Defendants. Plaintiff 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. Plaintiff filed his Complaint in
June 2012. In September 2012, Defendants filed this motion to dismiss for lack of subject matter
jurisdiction and for failure to state a claim. This Court dismissed the case as unripe for
adjudication in August 2013. (Doc. 17). The Plaintiff appealed, and the Sixth Circuit overturned
that decision and remanded the case back to this Court for adjudication in August 2014. (Doc.
22). The Court now considers the fully briefed motion.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows for a case to be dismissed for “failure to
state a claim upon which relief can be granted.” Such a motion “is a test of the plaintiff's cause
of action as stated in the complaint, not a challenge to the plaintiff's factual allegations.” Golden
v. City of Columbus, 404 F.3d 950, 958–59 (6th Cir.2005). Thus, a court must construe the
complaint in the light most favorable to the non-moving party. Total Benefits Planning Agency,
Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir.2008). But a court is not
required to accept as true mere legal conclusions unsupported by factual allegations. Ashcroft v.
Iqbal, 556 U.S. 662, 664 (2009). Although liberal, Rule 12(b)(6) requires more than bare
assertions of legal conclusions. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir.1993) (citation
omitted). Generally, a complaint must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must “give the
defendant fair notice of what the claim is, and the grounds upon which it rests.” Nader v.
Blackwell, 545 F.3d 459, 470 (6th Cir.2008) (quoting Erickson v. Pardus, 551 U.S. 89, 93
(2007)). In short, a complaint's factual allegations “must be enough to raise a right to relief

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above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). It must
contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
A federal district court’s basis for subject matter jurisdiction over a dispute may be
challenged by filing a motion under Federal Rules of Civil Procedure 12(b)(1). See Rogers v.
Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986). Subject matter jurisdiction may be
challenged at any time by any party, and the court itself may dismiss a case where it decides that
it lacks subject matter jurisdiction. Ogle v. Church of God, 153 F. App’x 371, 374 (6th Cir.
2005) (“The existence of subject matter jurisdiction may be raised at any time, by any party, or
even sua sponte by the court itself.”). The party invoking federal subject matter jurisdiction
bears the burden of proving the existence of subject matter jurisdiction in the case. Id. at 375.
IV. LAW AND ANALYSIS
A. Abstention
Defendants argue that this Court should abstain from asserting jurisdiction because
Ohio’s statutory scheme provides adequate judicial relief for agency decisions.1 Plaintiff
disagrees and argues that Ohio’s process is inadequate to address Plaintiff’s constitutional
claims. The Court finds that abstention would be improper because Defendants have not made
an adequate showing that adjudication would be disruptive to the administrative scheme.
“Abstention from the exercise of federal jurisdiction is the exception, not the rule.”
Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S. Ct. 1236,
1244, 47 L. Ed. 2d 483 (1976). A federal court must “abstain from jurisdiction where to assume
jurisdiction would ‘be disruptive of state efforts to establish a coherent policy with respect to a

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Defendants also urge abstention under the Pullman doctrine, but that is inapplicable here because there is no
pending state proceeding. R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 501, 61 S. Ct. 643, 646, 85 L. Ed.
971 (1941) (where the Court abstained from hearing the case until the conclusion of state court proceedings because
the controversy could be concluded in state court).

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matter of substantial public concern.’ ” AmSouth Bank v. Dale, 386 F.3d 763, 783 (6th Cir. 2004)
(quoting Colo. River, 424 U.S. at 814). But it would be inappropriate for a federal court “to
dismiss a suit merely because a State court could entertain it.” Colo. River, 424 U.S. at 814
(quoting Alabama Pub. Serv. Comm'n. v. Southern R. Co., 341 U.S. 341, 361, 71 S.Ct. 762, 774,
95 L.Ed. 1002, 1015 (1951) (Frankfurter, J., concurring in result)).
Here, Plaintiff challenges two independent sections of a statutory scheme. Defendants
allege that if Plaintiff’s claims are successful, it will “disrupt the administrative scheme for the
regulation of the practice of dentistry in Ohio.” (Doc. 6 at 19). But Defendants do not provide
any detail about what would be disruptive to the administrative scheme. If this Court abstained
from ruling on the constitutionality of state regulations because of abstention, Plaintiff would not
have a practical alternative. Moreover, Plaintiff could be required to violate the regulations in
order to challenge them under state law. The Court does not find Defendants’ argument
persuasive, and declines to abstain from hearing the merits of Plaintiff’s claims.
B. Subject Matter Jurisdiction
Defendants argue that the Eleventh Amendment renders state agents immune from suit
for monetary damages when sued in their official capacity. Plaintiff agrees and stipulates that he
seeks no monetary relief. (Doc. 8 at 10-11). Although the Plaintiff initially requested “all
attorneys’ fees and costs incurred in bringing this action” and “all other relief to which he may
be entitled,” (Doc. 2 at 17) Plaintiff now agrees that he is not entitled to monetary relief against
state agent Defendants. “[T]he federal court may award an injunction that governs the official’s
future conduct[] but not one that awards retroactive monetary relief.” Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 102-03, 104 S. Ct. 900, 909, 79 L. Ed. 2d 67 (1984). On this

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point, the parties agree, and this Court GRANTS Defendants’ motion to dismiss any elements of
Plaintiff’s prayer for relief that would provide for monetary relief.
C. Substantive Due Process
Defendants argue that Plaintiff has not adequately pled a substantive due process
violation because he did not allege that Defendants deprived him of any fundamental right.
Plaintiff responds that the challenged statutes “constitute a taking of a constitutionally protected
interest.” (Doc. 8 at 27). Plaintiff has not identified any fundamental right that has been
affected, so his substantive due process claim fails.
Substantive due process is “[t]he doctrine that governmental deprivations of life, liberty
or property are subject to limitations regardless of the adequacy of the procedures employed.”
Does v. Munoz, 507 F.3d 961, 964 (6th Cir. 2007) (quoting Bowers v. City of Flint, 325 F.3d
758, 763 (6th Cir.2003)). Courts require a “ ‘careful description’ of the asserted fundamental
liberty interest.” Washington v. Glucksberg, 521 U.S. 702, 721, 117 S. Ct. 2258, 2268, 138 L.
Ed. 2d 772 (1997) (citing Reno v. Flores, 507 U.S. 292, 301, 113 S. Ct. 1439, 1447, 123 L. Ed.
2d 1 (1993)). Here, Plaintiff has not identified any fundamental interest in his substantive due
process claim. He states that enforcement of the regulations “constitute[s] a taking of a
constitutionally protected interest” (Doc. 2 at ¶ 43) without identifying what that constitutionally
protected interest is. Plaintiff has not pled a required element of claim for substantive due
process with adequate specificity, so this claim is DISMISSED.
D. Procedural Due Process
In his complaint, Plaintiff complains that the challenged regulations violate procedural
due process because the American Dental Association (“ADA”) determines “which areas of
dentistry are ‘specialty areas.’ ” (Doc. 2 at ¶ 28). He argues that there is “no procedural

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protection from arbitrary or self-interested determinations by the ADA, which in turn are blindly
adopted by the Defendant Board to determine what constitutes the lawful practice of dentistry
and related advertising.” (Id. at ¶ 39). Defendants argue that there is no constitutional right to
participate in the rulemaking process, but that Ohio provides such opportunity through a public
hearing. (Doc. 6 at 23). Plaintiff argues that the constitutionally protected right is to licensure.
(Doc. 2 at ¶ 40). Plaintiff further alleges that there is no legally protected right to notice or an
opportunity to be heard when the ADA determines which areas of dental practice will be deemed
specialties, and there is no right to appeal the ADA’s decisions to a neutral body. (Doc. 8 at 2425).
“In procedural due process claims, the deprivation by state action of a constitutionally
protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is
unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v.
Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983, 108 L. Ed. 2d 100 (1990) (citing Parratt v.
Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1913, 68 L. Ed. 2d 420 (1981)). “[P]rocedural due
process generally requires notice and an opportunity to be heard.” Spinosi v. United States, No.
2:11-CV-00961, 2011 WL 7144897, at *6 (S.D. Ohio Dec. 6, 2011) (citing Marderosian v. City
of Beavercreek, 423 F. App'x 524, 527 (6th Cir.2011)).
Here, the Plaintiff has pled that the Defendants have deprived him of a property interest
in practicing in all the dental areas in which he is licensed. (Doc. 2 at ¶ 40). And the statute in
question defers to the ADA in determining the areas of dentistry in which a candidate may
become a specialist. O.A.C. § 4715-5-04(B)(1) (stating “[t]he indicated specialty(s) of dentistry
must be those for which there are certifying boards recognized by the [ADA]”). But the ADA
itself does not limit Plaintiff from practicing general dentistry. The ADA merely publishes a list

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of specialties, and individual states have the opportunity to use that list for lawmaking purposes.
It is the Ohio law that limits Plaintiff from practicing general dentistry when he chooses to
designate himself as a specialist in endodontics. Plaintiff argued that the ADA does not provide
opportunity to participate in the rulemaking process, but the real inquiry is whether he has the
right to participate in that rulemaking process or to petition the Board to amend its rules. And he
pleads no facts to suggest that he cannot participate in that rulemaking process. In fact,
Defendants state that “Ohio statutes provide for notice and opportunity for public comment in the
rulemaking process.” (Doc. 10 at 17). Plaintiff does not plead that he has no opportunity to be
heard in the rulemaking process by the Ohio Board, so his procedural due process claim fails.
Defendant’s motion to dismiss this claim is GRANTED.
E. Equal Protection
Defendants argue that the regulations have a reasonable relationship to the substantial
government interest in enabling the public to distinguish between specialists and general dentists.
Plaintiff argues that the regulations impinge on his fundamental right “to be rewarded for [his]
industry” and they do not satisfy strict scrutiny or rational review. (Doc. 8 at 26). Plaintiff’s
equal protection claim fails because the law does not burden a fundamental right, and it is
rationally related to a legitimate government interest.
Under an equal protection analysis, “if a law neither burdens a fundamental right nor
targets a suspect class, we will uphold the legislative classification so long as it bears a rational
relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631, 116 S. Ct. 1620, 1627,
134 L. Ed. 2d 855 (1996) (citing Heller v. Doe, 509 U.S. 312, 319–320, 113 S.Ct. 2637, 2642,
125 L.Ed.2d 257 (1993)). “[T]he right to work in a specific profession is not a fundamental
right.” Helm v. Liem, 523 F. App'x 643, 645 (11th Cir.) cert. denied, 134 S. Ct. 830, 187 L. Ed.

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2d 691 (2013) (citing Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562,
2566–67, 49 L.Ed.2d 520 (1976)) (stating that “a standard less than strict scrutiny has
consistently been applied to state legislation restricting the availability of employment
opportunities”). Plaintiff points to no case law that would suggest that a fundamental right exists
to be “rewarded for [one’s] industry.” And the Supreme Court has held that the right to a certain
type of employment is not a fundamental right. Furthermore, Plaintiff has not alleged that he
belongs to a suspect class, so the proper analysis for this claim is rational basis review.
Rational basis review “employs a relatively relaxed standard reflecting the Court's
awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an
unavoidable one.” Murgia, 427 U.S. at 314. “On rational-basis review, a classification in a
statute [] comes to us bearing a strong presumption of validity.” F.C.C. v. Beach Commc'ns,
Inc., 508 U.S. 307, 314-15, 113 S. Ct. 2096, 2101-02, 124 L. Ed. 2d 211 (1993) (citing Lyng v.
Automobile Workers, 485 U.S. 360, 370, 108 S.Ct. 1184, 1192, 99 L.Ed.2d 380 (1988)). A law
will survive rational basis review “if there is a rational relationship between the disparity of
treatment and some legitimate governmental purpose.” Heller v. Doe by Doe, 509 U.S. 312, 320,
113 S. Ct. 2637, 2642, 125 L. Ed. 2d 257 (1993). The state has a legitimate purpose in enabling
the public to distinguish between general and specialist dentists, and the Sixth Circuit even
suggests that the interest might be “substantial.” Parker v. Com. of Ky., Bd. of Dentistry, 818
F.2d 504, 510 (6th Cir. 1987).
Here, the government has at least a legitimate purpose, if not a substantial interest, in
enabling the public to distinguish between general and specialist dentists. And it is rational to
further that interest by requiring dentists to categorize themselves as either a generalist or

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specialist, and limit advertising accordingly. The challenged laws survive a rational basis
analysis, so Plaintiff’s equal protection claim is DISMISSED.
F. First Amendment
Plaintiff brings a claim that the challenged regulations violate the First Amendment
because they do not allow him to advertise for all dental services he is licensed to perform.
Defendants argue that because Ohio law prevents Plaintiff from providing services as a specialist
and a general dentist, advertising both services would be advertising an illegal activity, which is
not granted First Amendment protections. The Court finds no First Amendment violation here
because advertisement for both specialist and general dentistry services violate Ohio laws, which
would constitute advertisement for illegal activity.
“The First Amendment, as applied to the States through the Fourteenth Amendment,
protects commercial speech from unwarranted governmental regulation.” Cent. Hudson Gas &
Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557, 561, 100 S. Ct. 2343, 2349, 65 L.
Ed. 2d 341 (1980). But “false, deceptive, or misleading commercial speech may be banned.”
Ibanez v. Florida Dep't of Bus. & Prof'l Regulation, Bd. of Accountancy, 512 U.S. 136, 142, 114
S. Ct. 2084, 2088, 129 L. Ed. 2d 118 (1994) (citing Zauderer v. Office of Disciplinary Counsel of
Supreme Court of Ohio, 471 U.S. 626, 638, 105 S.Ct. 2265, 2275, 85 L.Ed.2d 652 (1985)). And
advertising that “proposes an illegal transaction is not protected by the First Amendment from
state regulation.” Parker v. Com. of Ky., Bd. of Dentistry, 818 F.2d 504, 509 (6th Cir. 1987).
Here, the Board issued a warning to Plaintiff when he advertised services outside of his
specialization of endodontics. (Doc. 2 at ¶ 22). But Plaintiff has not succeeded on any other
grounds to challenge the regulation that limits his practice to endodontics. The Ohio regulation
banning a specialist from performing general dentistry remains in full effect. So any

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advertisement for services outside endodontics would constitute deceptive advertising, if
Plaintiff did not anticipate performing the additional services, or would be for an illegal activity
if Plaintiff planned to perform the services. For these reasons, Plaintiff’s First Amendment claim
is DISMISSED.
V. CONCLUSION
For the foregoing reasons, this Court GRANTS Defendants’ motion to dismiss, and the
case is DISMISSED in its entirety.
IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: March 20, 2015

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