Felmlee v. State of Oklahoma Defendant's et al

Filing 28

OPINION AND ORDER by Judge Claire V Eagan that Defendants State [of] Oklahoma, Oklahoma Bureau of Narcotics and Dangerous Drugs, Director of the Attorney General's Office, Oklahoma Attorney Generals Office, Darrell Weaver, Jan Preslar, Mel ton Edminsten, Sandra LaVenue and Tracie [sic] McKedy's Motion to Dismiss and Brief in Support (Dkt. # 12) is granted in part as to plaintiff's federal law claims. The Court declines to consider the merits of plaintiff's state law cla ims and those claims are dismissed without prejudice for lack of jurisdiction. A separate judgment is entered herewith. Plaintiff's Motion for Reconsideration of Decision in Plaintiff's Richard Felmlee's Favor Do [sic] to Defendants Not Responding to Motion in 21 Days as Required by Law (Dkt. # 17), plaintiff's Motion to Include Oklahoma Bureau of Narcotics and Dangerous Drugs Employee Larry Carter (Dkt. # 18), plaintiff's Motion for Additional Time of 90 days (Dkt. # 22); plaintiff's Motion for a More Definite Statement (Dkt. # 25), and plaintiff's Motion to add Shannon Tarpley to Defendants List (Dkt. # 26) are denied. ; denying 27 Motion for More Definite Statement; granting in part 12 Moti on for Summary Judgment; denying 17 Motion to Reconsider; denying 22 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s); denying 25 Motion for Miscellaneous Relief; denying 26 Motion for Joinder of Party(s); denying 18 Motion to Amend (Re: 12 MOTION for Summary Judgment, 20 Order,,, 1 Complaint ) (RGG, Chambers) Modified on 9/15/2014; to create link and ruling to 18 (srt, Dpty Clk).

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

RICHARD FELMLEE,
Plaintiff,
v.
STATE OF OKLAHOMA DEFENDANT’S
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 13-CV-0803-CVE-TLW

OPINION AND ORDER
Now before the Court are the following motions: Defendants State [of] Oklahoma, Oklahoma
Bureau of Narcotics and Dangerous Drugs, Director of the Attorney General’s Office,1 Oklahoma
Attorney General’s Office, Darrell Weaver, Jan Preslar, Melton Edminsten, Sandra LaVenue and
Tracie [sic] McKedy’s2 Motion to Dismiss and Brief in Support (Dkt. # 12); plaintiff’s Motion for
Reconsideration of Decision in Plaintiff’s Richard Felmlee’s Favor Do [sic] to Defendants Not
Responding to Motion in 21 Days as Required by Law (Dkt. # 17); plaintiff’s Motion to Include
Oklahoma Bureau of Narcotics and Dangerous Drugs Employee Larry Carter (Dkt. # 18); plaintiff’s
Motion for Additional Time of 90 days (Dkt. # 22); plaintiff’s Motion for a More Definite Statement
(Dkt. # 25); and plaintiff’s Motion to add Shannon Tarpley to Defendants List (Dkt. # 26). The

1

Defendants assume that plaintiff intended to name the Oklahoma Attorney General as a party
by referring to the “Director of the Oklahoma Attorney General’s Office.” The Court finds
that this is a reasonable assumption and will refer to this party as the Oklahoma Attorney
General.

2

The documents submitted by defendants identify this defendant as “Tracy McKedy,” and the
Court will rely on the documents for the proper identification of this defendant. See Dkt. #
12-1, at 3.

Court has converted defendants’ motion to dismiss into a motion for summary judgment, and the
parties have been given an opportunity to submit additional evidence and arguments. Dkt. # 20.
I.
Richard Felmlee is a physician licensed to practice in Oklahoma, and he previously had a
license from the Oklahoma Bureau of Narcotics and Dangerous Drugs (OBN) to prescribe controlled
substances to his patients. In Oklahoma, every person who distributes, dispenses, or prescribes any
controlled dangerous substance must be registered with OBN and registrations are issued on the first
day of November each year. OKLA. STAT. tit. 63, § 2-302. Dr. Felmlee allowed his license to lapse
by failing to renew his registration by October 31, 2008. Dkt. # 12-1, at 4. On September 24, 2012,
Dr. Felmlee submitted an application for late renewal of his registration, and he included a check
for $840 with his late registration. Id.; Dkt. # 23-1. This included the $420 renewal fee and a $420
late charge. The OBN determined that it was necessary to hold an administrative hearing before
renewing Dr. Felmlee’s registration, and a hearing was set for December 18, 2012. A notice of
hearing and order to show cause was sent to Dr. Felmlee by certified mail on December 10, 2012.
Dkt. # 12-1, at 3.
Dr. Felmlee appeared at the hearing and he was not represented by an attorney. Id. Tracy
McKedy, registration officer, represented OBN at the hearing. Id. The hearing officer, Janis Preslar,
made the following findings of fact:
1.

Prior to October 31, 2008, Dr. Felmlee was a Bureau registrant with
registration number 15988.

2

2.

Dr. Felmlee’s registration expired October 31, 2008, for failure to renew, and
was subsequently inactivated pursuant to Bureau rules.3

3.

Dr. Felmlee has not had an active Bureau registration since 2008.

4.

On September 24, 2012, Dr. Felmlee submitted an application for late
renewal with a check in the amount of $840.00, which included the renewal
fee of $420.00 and a late fee of $420.00.

5.

Dr. Felmlee admitted writing the prescription to L. Masters, dated January
4, 2012, for Lortab 7.5 mg (Exhibit 6).

6.

Dr. Felmlee also admitted writing the prescription to L. Masters dated
October 13, 2012, for Percoset 10 mg (Exhibit 6). This prescription was
written after Dr. Felmlee knew he did not have a valid Bureau registration
and after he had submitted his renewal application, with late fee, to the
Bureau.

7.

There was not clear and convincing evidence presented to show Dr. Felmlee
wrote the remaining prescriptions included in Exhibit 6.

Id. at 4. Preslar found that Dr. Felmlee violated OKLA. STAT. tit. 63, §§ 2-302 and 2-304 by signing
two prescriptions without having an active registration with OBN, but Preslar recommended that Dr.
Felmlee’s registration be renewed if he paid a $2,500 administrative penalty. Id. at 5. Preslar’s
findings and conclusions were adopted by OBN Director R. Darrell Weaver. Id. at 1-2. Dr. Felmlee
paid the $2,500 administrative penalty and his registration to prescribe controlled substances was
renewed.4 Dkt. # 23-2, at 1.

3

Plaintiff repeatedly argues that Oklahoma statutes do not require him to renew his
registration. However, in the Oklahoma Administrative Code, OBN requires that a registrant
shall be required to renew his or her registration before the first day of November each year.
OKLA. ADMIN. CODE § 475:10-1-9 (2014).

4

Plaintiff makes contradictory allegations about the status of his OBN registration, and in his
complaint he repeatedly alleges that his registration has been denied. The undisputed
evidence shows that plaintiff paid the administrative penalty and that his registration has
been renewed.
3

On March 1, 2013, Dr. Felmlee appealed OBN’s decision to the Oklahoma Supreme Court
and the court clerk sent a letter to Dr. Felmlee suggesting that he may have filed the case in the
wrong court. Dkt. # 17-1, at 21. The Oklahoma Supreme Court sua sponte dismissed Dr. Felmlee’s
appeal for lack of subject matter jurisdiction. He requested an explanation of the dismissal and he
attempted to argue the merits of his case to the Oklahoma Supreme Court, and he was again advised
that his appeal had been dismissed for lack of subject matter jurisdiction because the case had been
filed in the wrong court. Id. at 28-30. Dr. Felmlee filed a motion for rehearing before the Oklahoma
Supreme Court. Dkt. # 17-2, at 1-11. His motion for rehearing was denied, and it does not appear
that he attempted to refile his appeal of OBN’s final order in the proper state court.
On December 18, 2013, Dr. Felmlee filed this case alleging that his application to renew his
registration with OBN was wrongfully denied. Dkt. # 1, at 2. Dr. Felmlee’s complaint does not
mention the renewal of his registration after he filed his late application for renewal nor does he
mention the administrative hearing and administrative penalty. Construing his pro se complaint
broadly, he appears to be alleging the following claims: (1) violation of the Uniform Controlled
Dangerous Substances Act, as codified at OKLA. STAT. tit. 63, § 2-101 et seq.; (2) violation of the
federal Controlled Substances Act, 21 U.S.C. § 801 et seq.; (3) wrongful denial of registration under
OKLA. STAT. tit. 63, § 2-303; and (4) violation of the Model State Administrative Procedures Act
as codified at OKLA. STAT. tit. 75, § 250 et seq. Based on Dr. Felmlee’s complaint, it is also
reasonable to construe his allegations as claims that his right to procedural due process was violated
and that defendants violated the federal Administrative Procedures Act, although these are not
expressly listed as claims. Dr. Felmlee seeks money damages in excess of $10,000 and prejudgment
interest. Id. at 4.

4

II.
Defendants have filed a motion to dismiss (Dkt. # 12), and the motion was converted into
a motion for summary judgment. Dkt. # 20. Plaintiff has filed numerous motions. He requests
leave to join additional parties (Dkt. ## 18, 26) and for a more definite statement (Dkt. # 25). He
asks the Court to reconsider its prior order denying his motion for default judgment. Dkt. # 17. He
also asks for additional time to conduct discovery before the Court rules on the pending motion for
summary judgment. Dkt. # 22. Plaintiff is proceeding pro se and, consistent with Supreme Court
and Tenth Circuit precedent, the Court will construe his pro se pleadings liberally. Haines v. Kerner,
404 U.S. 519, 520 (1972); Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002).
A.
Plaintiff asks the Court to reconsider its prior order (Dkt. # 15) denying his motion for
default judgment. Dkt. # 17. He argues that defendants failed to answer the complaint within 21
days of service, and he claims that defendants are in default.5 As stated in the previous order,
defendants filed a motion to dismiss and they are not required to file an answer until the Court rules
on the motion to dismiss. Dkt. # 15. Defendants are not in default, and plaintiff’s request for
reconsideration of the order denying his motion for default judgment is denied.
B.
Plaintiff has filed a motion for more definite statement (Dkt. # 25) asking the Court and
defendants to use “common sense and plain language for a non-lawyer to understand.” Dkt. # 25,

5

Plaintiff’s motion (Dkt. # 17) also contains many arguments unrelated to this issue and much
of the motion is devoted to the merits of his claims. The Court will consider these arguments
and the evidence attached to this motion in ruling on the pending motion for summary
judgment.
5

at 1. Under Fed. R. Civ. P. 12(e), “[a] party may move for a more definite statement of a pleading
to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot
reasonably prepare a response.” A defendant may request a more definite statement when the
plaintiff’s complaint is prejudicially vague and ambiguous and the defendant is unable to answer the
complaint without additional information. Poindexter v. Atchison, Topeka & Santa Fe Railway Co.,
168 F.3d 1228, 1233 (10th Cir. 1999). A motion for more definite statement should also be granted
when the plaintiff’s complaint fails to state information that would be necessary for the defendant
to file a dispositive motion and the movant’s existing knowledge would not allow it to file the
motion. Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010). Plaintiff asks the Court to
explain its prior orders and defendants’ motions in “different language so a non-legal party may
better appreciate” his obligations. Dkt. # 25, at 2. Although plaintiff is proceeding pro se and the
Court must broadly construe his filings, his pro se status does not excuse him from complying with
the Federal Rules of Civil Procedure and he is subject to the same rules as other litigants. Garrett
v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). The purpose of a motion for
more definite statement is not to explain orders or pleadings to a party but, instead, a more definite
statement is required only when the opposing party’s pleading is so vague and ambiguous that no
responsive pleading can be filed. Plaintiff’s request does not fall within the scope of Rule 12(e) and
his motion for a more definite statement should be denied.
C.
Plaintiff has filed motions requesting leave to add Larry Carter and Shannon Tarpley as
defendants. Dkt. ## 18, 26. Under Fed. R. Civ. P. 15(a)(2), after the opposing party has served a
responsive pleading, “a party may amend its pleadings only with the opposing party’s written

6

consent or the court’s leave.” Minter v. Prime Equipment Co., 451 F.3d 1196, 1204 (10th Cir.
2006). The decision to grant leave to amend is within the discretion of the district court but, when
leave is sought, it should be “freely given when justice so requires.” Bradley v.Val-Majias, 379 F.3d
892, 900-91 (10th Cir. 2004). Leave to amend may be denied if the proposed amendment would be
futile and would not survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Jefferson County
Sch. Dist. No. R-1 v. Moody’s Investor’s Services, Inc., 175 F.3d 848, 859 (10th Cir. 1999).
The Court finds that plaintiff’s request to add parties should be denied, because he has not
shown that his claims against Carter and Tarpley would survive a motion to dismiss.6 As will be
explained, plaintiff cannot proceed against employees of OBN based on their actions in connection
with his administrative hearing and he has not shown that his right to procedural due process was
violated. See infra. This case was filed in federal court based on federal question jurisdiction and
all federal law claims will be resolved in favor of defendants. See infra. To the extent that plaintiff
alleges state law claims against Carter and Tarpley, the Court finds no basis to exercise supplemental
jurisdiction over plaintiff’s state law claims and those claims will be dismissed without prejudice.
See infra. It would be futile to allow plaintiff to file an amended complaint when there is no
possibility that the claims against the new parties would survive a motion to dismiss or a motion for
summary judgment, and his motions (Dkt. ## 18, 26) to add parties should be denied.

6

The Court notes that defendants have not answered the complaint and plaintiff could have
amended his complaint as a matter of right. Glenn v. First Nat’l Bank in Grand Junction,
868 F.2d 368, 370 (10th Cir. 1989) (motion to dismiss does not constitute a responsive
pleading for the purpose of Rule 15(a)). However, plaintiff has requested leave to amend
and the Court will consider whether his proposed amendments would state a claim against
the defendants he seeks to add.
7

D.
Plaintiff requests additional time to conduct written discovery, take depositions, and
subpoena evidence in support of his claims before the Court rules on defendants’ motion for
summary judgment. Dkt. # 22. He claims that he needs 90 days to conduct “evaluations” before
he can file a response to defendants’ motion for summary judgment and provide additional evidence
in support of his claims. Id. at 2.
Construing plaintiff’s filing broadly, he could be seeking relief under Fed. R. Civ. P. 56(d).
Under Rule 56(d), a party opposing a motion for summary judgment may request additional time
to conduct discovery if it “cannot present facts essential to justify its opposition.” The Court has
discretion when considering such a request, and the Court may deny the request for additional time,
deny the motion for summary judgment, or order a continuance to allow limited discovery. Patty
Precision v. Brown & Sharpe Mfg. Co., 742 F.2d 1260, 1264 (10th Cir. 1984). The party seeking
additional time to conduct discovery must “present an affidavit that identifies ‘the probable facts not
available and what steps have been taken to obtain these facts. The nonmovant must also explain
how additional time will enable him to rebut the movant’s allegations of no genuine issue of material
fact.’” FDIC v. Arciero, 741 F.3d 1111, 1116 (10th Cir. 2013) (quoting Trask v. Franco, 446 F.3d
1036, 1042 (10th Cir. 2006)).
Plaintiff has not identified any of the specific facts or issues for which he needs additional
discovery and he has not made any attempt to show that additional discovery will be likely to rebut
defendants’ argument that there are no genuine issues of material fact precluding summary
judgment. Plaintiff repeatedly states that he is a non-lawyer and the Court has taken this into
account. However, this does not excuse plaintiff from identifying the specific and essential facts

8

about which he needs additional discovery or what steps he has already taken to obtain evidence in
support of his claims. Plaintiff filed a response (Dkt. # 16) to defendant’s motion before it was
converted into a motion for summary judgment, and it appears that he primarily contests whether
his right to procedural due process was violated during the hearing before OBN. The Court has
reviewed the parties’ filings and it does not appear that there are any facts in dispute. Instead,
plaintiff claims that he was statutorily entitled to additional procedures that he did not receive. It
is not likely that additional discovery would be of any benefit to plaintiff, and the Court can resolve
the legal issues raised by plaintiff based on the record before the Court. Plaintiff’s motion for
additional time to conduct discovery (Dkt. # 22) should be denied.
E.
Defendants argue that plaintiff has not alleged a federal law claim that can survive a motion
to dismiss or a motion for summary judgment, and they ask the Court to decline to exercise
supplemental jurisdiction over plaintiff’s state law claims. Dkt. # 12. Plaintiff responds that OBN
violated the federal Administrative Procedures Act (APA) and it failed to provide him all of the
rights available to a litigant in a civil jury trial, and this resulted in a violation of his right to
procedural due process.7 Dkt. # 16, at 1. He argues that the individual defendants acted outside the
scope of their employment, and he claims that he should be permitted to sue the individual
defendants in their official and individual capacities. Id. at 4. He also claims that defendants
violated his rights under the federal Controlled Substances Act.8 Dkt. # 1, at 3.

7

To the extent that plaintiff is alleging a constitutional violation, the Court will consider
plaintiff’s procedural due process claim as a claim under 42 U.S.C. § 1983.

8

The Court also notes that it has reviewed all of plaintiff’s filings and the Court can discern
no other federal claims that plaintiff could be alleging.
9

Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain language of
Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.
Celotex, 477 U.S. at 317. “Summary judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are
designed ‘to secure the just, speedy and inexpensive determination of every action.’” Id. at 327.
“When the moving party has carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts. . . . Where the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there
is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the [trier of fact] could
reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court
is “whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Id. at 250. In its review,
the Court construes the record in the light most favorable to the party opposing summary judgment.
Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).

10

Federal Administrative Procedures Act
Plaintiff argues that defendants committed numerous violations of the APA, and it appears
that he is relying on this argument in two ways. First, he could be attempting to state a claim under
the APA. Second, he argues that the alleged violations of the APA are also relevant to show that
he did not receive constitutional procedural due process. Plaintiff believes that the APA “applies
to all agencies and not just Federal Agencies.” Dkt. # 16, at 1. Plaintiff is mistaken. The APA
expressly states that it provides judicial review of “agency action” and “‘agency’ means each
authority of the Government of the United States . . . .” 5 U.S.C. § 702. The APA does not give
federal courts the power to review the actions of state agencies. Hunter v. Underwood, 362 F.3d
468, 477 (8th Cir. 2004); Southwest Williamson County Community Ass’n, Inc. v. Slater, 173 F.3d
1033, 1035 (6th Cir. 1999).9 Should plaintiff be alleging a claim under the APA, defendants are
entitled to summary judgment on that claim. However, the Court will consider plaintiff’s allegations
that OBN failed to provide certain procedures allegedly required under the APA, because it is
possible that the alleged procedural errors could also be used to establish that plaintiff did not
receive minimal due process as required by the Due Process Clause of the Fourteenth Amendment.
Federal Controlled Substances Act
Plaintiff alleges that defendants violated his rights under federal Controlled Substances Act
by failing to follow procedures mandated by federal law for denying an application to register under
21 U.S.C. § 823. However, there is no private right of action under the Controlled Substances Act.

9

Oklahoma has adopted the Model State Administrative Procedures Act and it is codified at
OKLA. STAT. tit. 75, § 250 et seq. In particular, judicial review is ordinarily appropriate only
in the “court of the county in which the party seeking review resides . . . .” OKLA. STAT. tit.
75, § 318.
11

Jones v. Hobbs, 745 F. Supp. 886 (E.D. Ark. 2010); McCallister v. Purdue Pharm. L.P., 164 F. Supp.
2d 783 (S.D.W.Va. 2001). Even if plaintiff could bring a claim under the Controlled Substances
Act, he has not sued parties that have any responsibility for the enforcement of federal laws. The
statute clearly states that the United States Attorney General, not state agencies, are responsible for
issuing, revoking, or suspending a federal controlled substances registration, and the named
defendants had no power to take any action concerning plaintiff’s federal registration to prescribe
controlled substances. See MacKay v. Drug Enforcement Admin., 664 F.3d 808 (10th Cir. 2011).
Summary judgment should be granted in favor of defendants on this claim.
Procedural Due Process
Defendants argue that plaintiff cannot maintain a § 1983 claim against them. The State of
Oklahoma, OBN, and the Oklahoma Attorney General’s Office argue that a state or state agency is
not a “person” for the purpose of a § 1983 claim. The individual defendants assert that plaintiff
cannot proceed with an official capacity § 1983 claim against them, because such claims are treated
as claims against the state and plaintiff may not recover money damages from the state treasury. As
to the individual capacity claims, the individual defendants argue that they are absolutely immune
from suit for actions taken to investigate and prosecute an administrative action.
Pursuant to the Eleventh Amendment, unconsenting states are immune from suit in federal
court as to claims for money damages. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). Although
Congress may enact laws that abrogate state sovereign immunity, the Supreme Court has specifically
held that § 1983 does not abrogate a state’s sovereign immunity. Trujillo v. Williams, 465 F.3d
1210, 1224 (10th Cir. 2006). To state a claim under § 1983, plaintiff must show that a “person”
acted to deprive him of his constitutional rights. See 42 U.S.C. § 1983. However, “[n]either the

12

state, nor a governmental entity that is an arm of the state for Eleventh Amendment purposes, nor
a state official who acts in his or her official capacity, is a ‘person’ within the meaning of § 1983.”
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989); Harris v. Champion, 51 F.3d 901,
906 (10th Cir. 1995). Thus, a suit against a state official in his or her official capacity is not a suit
against the individual, but rather against the state. Id. at 71. Plaintiff plainly cannot sue the state
of Oklahoma or its agencies directly for alleged violations of his right to procedural due process,
because the state is not a “person” under § 1983. OBN is an agency of the state of Oklahoma, and
it may not be sued under § 1983. McKinley v. Wall, 2011 WL 767314 (W.D. Okla. Jan. 27, 2011).
To the extent that plaintiff attempts to sue the individual defendants in their official capacities, the
individual defendants are also immune from suit under the Eleventh Amendment, because the
evidence shows that they were acting in their capacity as employees of OBN. Plaintiff cannot
proceed with an official capacity § 1983 claim against any of the defendants.
The individual defendants argue that they have absolute immunity from suit, because they
were performing “duties in investigating, drawing up and prosecuting state court or administrative
actions.” The Tenth Circuit has found that “officials in administrative hearings can claim the
absolute immunity that flows to judicial officers if they are acting in a quasi-judicial fashion.”
Guttman v. Khalsa, 446 F.3d 1027, 1033 (10th Cir. 2006). This is a fact-intensive analysis and the
Court must consider the role of each defendant separately. The individual defendants have not
undertaken an analysis of the role of each defendant in the administrative hearing, and the Court will
not make this argument on behalf of defendants. It is possible that some of the individual defendants
do possess absolute immunity, but the Court cannot simply find that the individual defendants as a
group have absolute immunity from plaintiff’s § 1983 claim. The Court will deny the individual

13

defendants’ argument without prejudice and the Court will consider the merits of plaintiff’s
procedural due process claim.
Plaintiff argues that the individual defendants violated his right to procedural due process
by failing to give him the full range of procedural rights available to a civil litigant before and during
his administrative hearing. Under the Fourteenth Amendment to the United States Constitution,
“[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.”
U.S. CONST. amend. XIV. A person alleging the denial of procedural due process must prove two
elements: (1) “that he possessed a constitutionally protected liberty or property ‘interest such that
the due process protections were applicable;’” and (2) “that he was not ‘afforded an appropriate
level of process.’” Couture v. Board of Educ. of Albuquerque Public Schools, 535 F.3d 1243, 1256
(10th Cir. 2008). Property interests are not derived directly from the Constitution, but they “are
created and their dimensions are defined by existing rules or understandings that stem from an
independent source such as state law.” Zwygart v. Board of County Commissioners of Jefferson
County, Kansas, 483 F.3d 1086, 1093 (10th Cir. 2007). A license to practice one’s chosen
profession is a protected property interest. Stidham v. Peace Officer Standards & Training, 265 F.3d
1144, 1150 (10th Cir. 2001). Although a controlled substances registration with the OBN is not
strictly an occupational license, it is unlikely that a physician could practice his chosen profession
without such a registration and the Court will assume that plaintiff has a protected property interest
in maintaining his OBN registration.
“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful
time and in a meaningful manner.’” Lawrence v. Reed, 406 F.3d 1224, 1233 (10th Cir. 2005). To
determine how much process is due, a court must consider three factors: “(1) the private interests

14

that will be affected by the official action; (2) the risk of erroneous deprivation; and (3) the burden
on the government from additional procedural requirements.” Couture, 535 F.3d at 1258. Due
process is a flexible concept that “calls for such procedural protections as the particular situation
demands,” and a hearing “need not necessarily provide all, or even most, of the protections afforded
by a trial.” Guttman v. Khalsa, 669 F.3d 1101, 1114 (10th Cir. 2012). In most cases, the Due
Process Clause requires “that an individual be given an opportunity for a hearing before he is
deprived of any significant property interest.” Riggins v. Goodman, 572 F.3d 1101, 1108 (10th Cir.
2009). Pre-deprivation process may be omitted in “extraordinary situations where some valid
governmental interest is at stake that justifies postponing the hearing until after the event.” Elwell
v. Byers, 699 F.3d 1208, 1217 (10th Cir. 2012). When matters of public health or safety are
concerned, state actors may be required to act quickly and due process requires only a
postdeprivation opportunity to challenge the state action. Camuglia v. The City of Albuquerque,
448 F.3d 1214, 1221 (10th Cir. 2006).
There is no dispute that plaintiff was given an administrative hearing on his request to renew
his OBN registration, and that he was given notice of the hearing. Plaintiff primarily argues that he
did not receive all of the rights as a civil litigant prosecuting a claim in court, such as the right to
conduct discovery and the right to a jury trial. Dkt. # 16, at 2. However, minimal due process under
the Fourteenth Amendment “does not require a trial-type hearing in every conceivable case of
governmental impairment of private interest.” See Cafeteria & Rest. Workers Union, Local 473,
AFL-CIO v. McElroy, 367 U.S. 886, 894 (1961). The findings and conclusions entered by Preslar
provide strong evidence that plaintiff received a fair hearing before an unbiased tribunal, because
Preslar expressly stated that she did not find sufficient evidence to support some of OBN’s

15

allegations that plaintiff wrote prescriptions with an expired registration. Dkt. # 12-1, at 4. This
shows that the hearing officer was not biased against plaintiff and that OBN was held to its burden
of proof. Plaintiff’s filings show that the hearing was lengthy, and according to his allegations the
hearing lasted at least five and a half hours. Dkt. # 21, at 4. He does not contend that he was
prohibited from making arguments or presenting evidence on his own behalf. Plaintiff complains
that he was not permitted to conduct discovery or subpoena evidence as permitted under the Federal
Rules of Civil Procedure, but courts have consistently held that minimal due process does not
include a right to conduct discovery. United States v. Neal, 512 F.3d 427, 432-33 (7th Cir. 2008);
Alexander v. Pathfinder, Inc., 189 F.3d 735, 741 (8th Cir. 1999). Plaintiff could be arguing that he
did not receive a jury trial and that this was a required procedure under the circumstances, but he
has not attempted to show that he had a right to a jury trial under the Seventh Amendment in an
administrative setting. Plaintiff could also be arguing that he did not receive certain procedural
protections provided by the state or federal administrative procedures acts, but this by itself would
not establish a violation of plaintiff’s right to procedural due process. The Court has reviewed the
evidence and plaintiff’s allegations in his pro se filings, and finds that plaintiff received notice and
a meaningful opportunity to be heard by OBN when his registration was renewed. Plaintiff has the
burden to establish that a constitutional violation occurred and he has not met his burden. See
Abeyta ex rel. Martinez v. Chama Valley Independant Sch. Dist., No. 19, 77 F.3d 1253 (10th Cir
1996) (the plaintiff in a § 1983 action has the burden to come forward with evidence establishing
that his constitutional rights were violated and to show that a specific state actor committed the
violation). Each of the defendants is entitled to summary judgment on plaintiff’s procedural due
process claim.

16

IV.
The Court has granted summary judgment to defendants on plaintiff’s federal law claims,
but he has also alleged claims arising under Oklahoma law. Under 28 U.S.C. § 1367(c), a federal
district court may decline supplemental jurisdiction when it has “dismissed all claims over which
it has original jurisdiction.” The Court recognizes that it has discretion to retain jurisdiction over
a pendent state law claim in some circumstances. United Mine Workers of America v. Gibbs, 383
U.S. 715 (1966). However, “if the federal claims are dismissed before trial, even though not
insubstantial in a jurisdictional sense, the state claims should be dismissed as well.” Id. at 726; see
also United States v. Botefuhr, 309 F.3d 1263, 1273-74 (10th Cir. 2002) (“a district court should
normally dismiss supplemental state law claims after all federal claims have been dismissed,
particularly when the federal claims are dismissed before trial”). The Court declines to exercise
supplemental jurisdiction over plaintiff’s state law claims, and the state law claims should be
dismissed without prejudice to refiling.
IT IS THEREFORE ORDERED that Defendants State [of] Oklahoma, Oklahoma Bureau
of Narcotics and Dangerous Drugs, Director of the Attorney General’s Office, Oklahoma Attorney
General’s Office, Darrell Weaver, Jan Preslar, Melton Edminsten, Sandra LaVenue and Tracie [sic]
McKedy’s Motion to Dismiss and Brief in Support (Dkt. # 12) is granted in part as to plaintiff’s
federal law claims. The Court declines to consider the merits of plaintiff’s state law claims and
those claims are dismissed without prejudice for lack of jurisdiction. A separate judgment is
entered herewith.
IT IS FURTHER ORDERED that plaintiff’s Motion for Reconsideration of Decision in
Plaintiff’s Richard Felmlee’s Favor Do [sic] to Defendants Not Responding to Motion in 21 Days

17

as Required by Law (Dkt. # 17), plaintiff’s Motion to Include Oklahoma Bureau of Narcotics and
Dangerous Drugs Employee Larry Carter (Dkt. # 18), plaintiff’s Motion for Additional Time of 90
days (Dkt. # 22); plaintiff’s Motion for a More Definite Statement (Dkt. # 25), and plaintiff’s Motion
to add Shannon Tarpley to Defendants List (Dkt. # 26) are denied.
DATED this 15th day of September, 2014.

18