Seay et al v. Oklahoma Board of Dentistry et al

Filing 32

ORDER denying 28 Defendants' Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 1/10/2019. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOSEPH P. SEAY, D.D.S, MS, et al.,
Plaintiffs,
v.
OKLAHOMA BOARD OF DENTISTRY, et al.,
Defendants.

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Case No. CIV-17-682-D

ORDER
Before the Court is Defendants’ Motion to Dismiss [Doc. No. 28]. Plaintiffs have
filed their response in opposition [Doc. No. 29] and Defendants have replied [Doc. No.
30]. The matter is fully briefed and at issue.
BACKGROUND 1
Plaintiffs are dentists/dentist anesthesiologists who bring this action under 42
U.S.C. § 1983, challenging as unconstitutional the “Specialty License” section of the
Oklahoma Dental Act (hereinafter “ODA” or “the Act”), Okla. Stat. tit. 59, § 328.22; its
penalty section, Okla. Stat. tit. 59, § 328.32; certain rules and regulations of the Oklahoma
Board of Dentistry (the Board); and actions taken by Defendants that Plaintiffs contend
violated their constitutional rights and were made under color of law.

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The following well-pleaded facts were largely taken from the Amended Complaint
and, along with all reasonable inferences, are viewed in the light most favorable to
Plaintiffs. Legal arguments and conclusory allegations, however, were not
considered. See Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081,
1105 (10th Cir. 2017).

Plaintiff Joseph Seay has an advanced post-doctoral degree in dental anesthesiology
and is certified as a Dentist Anesthesiologist by the American Dental Board of
Anesthesiology (ADBA). Plaintiff Lois Jacobs has been certified in dental anesthesiology
for nearly forty years. As dental anesthesiologists, Plaintiffs have completed postdoctoral
anesthesiology residency programs in hospitals, ambulatory surgical centers and offices
for patients receiving both medical and dental procedures, emergency medicine, acute and
chronic pain management, internal medicine, and cardiology.
The Board is an agency of Oklahoma state government charged with enforcing the
provisions of the State Dental Act. Okla. Stat., tit. 59 § 328.7(A). It is empowered to
formulate, adopt, and promulgate rules as may be necessary to regulate the practice of
dentistry in Oklahoma. Id. § 328.15. The individual defendants are members of the Board
who are sued in their individual and official capacities.
The State Dental Act provides for the issuance of specialty licenses. It states:
The Board of Dentistry may issue a dental specialty license authorizing a
dentist to represent himself or herself to the public as a specialist, and to
practice as a specialist, in a dental specialty.
See Okla. Stat. tit. 59, § 328.22(A)(1). The statute, however, also provides that no dentist
shall represent themselves to the public as a specialist, nor practice as a specialist, unless
the individual has: (1) successfully completed an advanced dental specialty educational
program defined by the American Dental Association (ADA) and the Board and accredited
by the Commission on Dental Accreditation, (2) met the requirements for a general dental
license set forth by § 328.21 of the ODA, (3) passed the jurisprudence examination
covering the Act, rules and state laws, and (4) completed any additional requirements set

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forth in state law or rules and has been issued a dental specialty license by the Board. Id. §
328.22(A)(2).
Under its administrative regulations, the Oklahoma Board of Dentistry (“the
Board”) states that it will recognize only those specialties which have been approved by
the ADA, which are: dental public health, endodontics, oral and maxillofacial surgery, oral
and maxillofacial radiology, orthodontics and dentofacial orthopedics, pediatric dentistry,
periodontics, prosthodontics and oral pathology. See Okla. Stat. tit. 59, § 328.22(A)(3);
Okla. Admin. Code (OAC) § 195:10-9-2. The Board may penalize dentists if they advertise
to the public that they are a specialist without holding a specialty license issued by the
Board. See Okla. Stat. tit. 59, § 328.32 (10), (11).2
In applying the foregoing statutes and regulations against them, Plaintiffs contend
Defendants engaged in several instances of unconstitutional conduct, to wit:
(1)

(2)

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Plaintiffs allege Seay’s due process rights were violated because his
application for a specialty license was never put on the Board’s docket
for consideration, despite the Board’s assurances to Seay that the
application was complete and no additional information was
necessary;
Plaintiffs allege Defendants violated the due process guarantees of the
Fourteenth Amendment by requiring Plaintiffs to provide details
about every dental office where they provided their services, even
though the governing statute only requires the Board to maintain
information regarding a dentist’s principal place of business; and

Such penalties include, but are not limited to, suspension of the dentist’s license,
revocation of the license, imposition of an administrative penalty not to exceed
$1,000, a censure, probation, and restriction of services the dentist may provide. See
Okla. Stat. tit. 59, § 328.44a.
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(3)

Plaintiffs allege the Board sent intimidating letters to dentists who
contracted with Seay for services.

Amend. Compl. at 9-12.
Plaintiffs contend the foregoing statutes and rules unconstitutionally prohibit them
from truthfully advertising their area of expertise; irrationally and arbitrarily create
discriminatory classifications between dentists who have specialties approved by the ADA
and those who have obtained professional credentials in areas not recognized by the trade
association; deprive them from receiving a specialty license; unreasonably restrict their
practice; and prohibit them from advertising as specialists despite their having received
advanced dental degrees and training.
Plaintiffs request that the Court declare Okla. Stat. tit. 59, §§ 328.22, 328.32 (10),
(11) and Okla. Admin. Code § 195:10-9-2 unconstitutional and enjoin Defendants from
enforcing the foregoing laws against them. Plaintiffs also seek compensatory damages
against the individual Defendants for the alleged deprivation of their constitutional rights,
which Plaintiffs contend has damaged their earning capacity and “thwarted their legitimate
expectation of the economic and reputational benefits of their advanced degrees.” See
Amend. Compl. ¶ 39.
Defendants move to dismiss the Amended Complaint alleging the Complaint fails
to state a claim upon which relief can be granted because: (1) Plaintiffs lack standing to
challenge the statutes in question; (2) Plaintiffs have failed to exhaust their administrative
remedies; (3) Plaintiffs cannot obtain money damages against the Board members in their

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official capacities; (4) Oklahoma neither recognizes nor permits the issuance of an
anesthesiology specialty license; and (5) Plaintiff Seay was not denied due process.
STANDARD OF DECISION
Pursuant to the seminal decisions of Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), to survive a motion to dismiss, a
complaint must contain enough allegations of fact, taken as true, “to state a claim to relief
that is plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir.
2012) (quoting Twombly, 550 U.S. at 570). Under this standard, “the mere metaphysical
possibility that some plaintiff could prove some set of facts in support of the pleaded claims
is insufficient; the complaint must give the court reason to believe that this plaintiff has a
reasonable likelihood of mustering factual support for these claims.” Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Ridge at Red Hawk, L.L.C. v. Schneider,
493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original)).
The “plausibility” standard announced in Twombly and Iqbal is not considered a
“heightened” standard of pleading, but rather a “refined standard,” which the court of
appeals has defined as “refer[ring] to the scope of the allegations in a complaint: if they are
so general that they encompass a wide swath of conduct, much of it innocent, then the
plaintiffs have not nudged their claims across the line from conceivable to plausible.”
Khalik, 671 F.3d at 1191 (citing Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1214 (10th Cir. 2011)). The Tenth Circuit has noted that the nature and specificity of the
allegations required to state a plausible claim will vary based on context. Robbins, 519 F.3d
at 1248. “Thus, [it has] concluded the Twombly/Iqbal standard is ‘a middle ground between

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heightened fact pleading, which is expressly rejected, and allowing complaints that are no
more than labels and conclusions or a formulaic recitation of the elements of a cause of
action, which the Court stated will not do.’” Id. at 1247.
Accordingly, in deciding Twombly and Iqbal, there remains no indication the
Supreme Court “intended a return to the more stringent pre-Rule 8 pleading requirements.”
Khalik, 671 F.3d at 1191 (citing Iqbal, 556 U.S. at 678). It remains true that “[s]pecific
facts are not necessary; the statement need only ‘give the defendant fair notice of what the
... claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (quoting Twombly, 550 U.S. at 555); Khalik, 671 F.3d at 1192 (“Twombly and Iqbal
do not require that the complaint include all facts necessary to carry the plaintiff’s burden.”)
(quoting al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009)).

A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction takes
one of two forms: a facial attack or a factual attack. 3 Pueblo of Jemez v. United
States, 790 F.3d 1143, 1148 n. 4 (10th Cir. 2015). A facial attack questions the
sufficiency of the complaint’s allegations. Id. In reviewing a facial attack, a district
court must accept the allegations in the complaint as true. Id. In a factual attack, the
moving party may go beyond allegations contained in the complaint and challenge
the facts upon which subject matter jurisdiction depends. Id. When reviewing a
factual attack on subject matter jurisdiction, a district court may not presume the

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Defendants characterize their Motion as one pursuant to Rule 12(b)(6) but also include
an attack on subject matter jurisdiction based on standing. Motion at 5.

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truthfulness of the complaint’s factual allegations. Id. Instead, the court has wide
discretion to allow affidavits, other documents, and a limited evidentiary hearing to
resolve disputed jurisdictional facts. Id. Here, the contentions in Defendants’ motion
constitute a factual attack because they challenge the facts upon which Plaintiffs
base subject matter jurisdiction. However, neither party has presented any evidence
outside the pleadings for examination nor is any necessary given the nature of the
factual allegations in the Amended Complaint and the admissions in the briefs.
DISCUSSION
I.

Exhaustion
Defendants argue Plaintiffs’ claims must be dismissed because they failed to

exhaust administrative remedies under OAC § 195:3-1-10. This provision allows an
individual to seek a declaratory ruling from the Board regarding its application or
enforcement of a rule or statute. Generally, the request must (1) be in writing and signed
by the individual seeking the ruling; (2) state the rule or statute involved; and (3) contain a
concise statement of fact for which the ruling is sought. OAC § 195:3-1-10(a). Upon
receipt, the Board may consider the request at its next scheduled meeting, or defer action
pending an investigation or hearing. The Board shall issue a written ruling or provide a
written explanation to the individual filing the request as to why a ruling will not be issued.
Id. §§ 195:3-1-10(b)-(d).

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In Pinder v. Mitchell, 658 F. Appx. 451 (10th Cir. 2016) (unpublished), the Tenth
Circuit described three types of § 1983 cases, two of which do not require exhausting state
remedies while the third does:
In a civil rights claim against a state official brought under 42 U.S.C. § 1983,
the general rule is that a plaintiff need not exhaust potential state-level
remedies before seeking federal relief. This is because the constitutional
violation actionable under § 1983 is complete when the wrongful action is
taken. This rule applies to two of the three kinds of § 1983 claims that can be
brought under the Due Process Clause of the Fourteenth Amendment: (1)
deprivations of rights guaranteed by the Bill of Rights and incorporated by
the Due Process Clause, and (2) substantive due process rights. But the
general rule does not always apply to the third kind of due process claim:
when a plaintiff complains that his procedural due process rights were
violated. This is because the Constitution does not outright prohibit states
from ever taking a citizen’s life, liberty, or property, but only from doing so
without due process of law. Therefore, to determine whether a constitutional
violation has occurred, it is necessary to ask what process the State provided,
and whether it was constitutionally adequate. Only if the State provided no
remedies, or the remedies were inadequate, could a plaintiff claim a taking
of property occurred without due process of law.
Id. at 453 (internal citations and quotations omitted). In sum, the two types of § 1983 claims
that do not require exhausting state remedies are those which allege (1) deprivations of
rights guaranteed by the Bill of Rights and incorporated by the Due Process Clause, or (2)
substantive due process rights. The third type of case—that requires exhausting state
remedies—arises when a plaintiff complains that his procedural due process rights were
violated.
Plaintiffs’ § 1983 claims are of the first and second types, which do not require
exhaustion of state remedies. “It is undisputed that [Plaintiffs have] a property interest in
[their] professional license to practice dentistry.” Seay v. Campbell, 130 F. App’x 268 (10th
Cir. 2005) (unpublished). As noted above, in their Amended Complaint, Plaintiffs allege

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the statutes in question, as implemented by Defendants, violate their First Amendment right
to free speech, deprive them of their property and liberty interests, and violate their right
to equal protection under the Fourteenth Amendment of the U.S. Constitution. To bring a
substantive due process claim, a plaintiff must allege the deprivation of property.
Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 527 (10th Cir. 1998). Plaintiffs claim
violations of their rights guaranteed by the Bill of Rights and incorporated by the Due
Process Clause, as well as substantive due process rights. Therefore, their § 1983 claim
falls under the first and second categories described in Pinder. The Tenth Circuit does not
require Plaintiffs to exhaust all state remedies prior to pursuing any federal remedies.
Defendants’ motion on this issue is therefore denied.
It may be argued Plaintiffs have also alleged a procedural due process violation,
which would require exhaustion under Pinder. Plaintiff Seay alleges his application for a
specialty license was never considered, which is the essence of a due process claim. See
Amend. Compl. ¶ 41 (“Oklahoma’s regulatory scheme deprives Plaintiffs of procedural
and substantive due process of law.”) (emphasis added); id. ¶¶ 44-46; see also Jones v.
Nuclear Pharmacy, Inc., 741 F.2d 322, 325 (10th Cir. 1984) (“The essence of procedural
due process is that the parties be given notice and opportunity for a hearing.”) (citations
omitted). This is unpersuasive for two reasons. First, in closely examining Plaintiffs’
Amended Complaint, the thrust of Plaintiffs’ Amended Complaint is Defendants’ failure
and/or refusal to recognize their specialties as dental anesthesiologists, which implicates
substantive due process considerations.

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Second, under the allegations of the Amended Complaint, failure to exhaust
remedies would be excusable. “A court may excuse exhaustion if administrative remedies
would be futile, when administrative remedies would provide inadequate relief, or when
the agency has adopted a policy or practice of general applicability which is contrary to
law.” Bryan v. Office of Personnel Mgmt., 165 F.3d 1315, 1319 n. 4 (10th Cir. 1999)
(citation omitted). The Board argues that Oklahoma does not recognize anesthesiologist
specialists as a dental specialty and it thus has no authority to issue such a license.
Therefore, the administrative remedy would be inadequate. Plaintiffs request that the Court
declare the statutes in question to be unconstitutional, issue injunctive relief, and award
them compensatory damages -- remedies that the Board has no authority to grant. Thus, in
the Court’s view, resort to administrative relief is excused.
II.

Standing
Defendants next contend Plaintiffs lack standing to bring the present suit because

the Board has neither taken nor threatened any action against Plaintiffs. Motion at 7.
Indeed, “[t]hose who seek to invoke the jurisdiction of the federal courts must satisfy the
case-or-controversy requirement imposed by Article III of the Constitution.” Ward v. Utah,
321 F.3d 1263, 1266 (10th Cir. 2003) (citing City of Los Angeles v. Lyons, 461 U.S. 95,
101 (1983); Faustin v. City and County of Denver, Colo., 268 F.3d 942, 947 (10th Cir.
2001)). A plaintiff “must demonstrate a personal stake in the outcome in order to assure
that concrete adverseness which sharpens the presentation of issues necessary for the
proper resolution of constitutional questions.” Id. (quoting Lyons, 461 U.S. at 101). “To
meet this standing requirement, a plaintiff must demonstrate ‘that (1) he or she has suffered

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an injury in fact; 4 (2) there is a causal connection between the injury and the conduct
complained of; and (3) it is likely that the injury will be redressed by a favorable decision.’”
Ward, 321 F.3d at 1266) (quoting Phelps v. Hamilton, 122 F.3d 1309, 1326 (10th Cir.1997)
(further citations omitted)). At the pleading stage, the plaintiff must clearly allege facts
demonstrating each element. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547, 194 L. Ed. 2d
635 (2016), as revised (May 24, 2016). “In the First Amendment context, two types of
injuries may confer Article III standing to seek prospective relief. First, a plaintiff generally
has standing if he or she alleges ‘an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by statute, and there exists a credible
threat of prosecution thereunder.’ 5 Second, although allegations of a ‘subjective’ chill are
not adequate, a First Amendment plaintiff who faces a credible threat of future prosecution
suffers from an ‘ongoing injury resulting from the statute’s chilling effect on his desire to
exercise his First Amendment rights.’” Id. at 1267 (citations omitted). A plaintiff may have
standing even if they have never been prosecuted or actively threatened with prosecution.
Id. (citing Doe v. Bolton, 410 U.S. 179, 188 (1973)).

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“To establish injury in fact, a plaintiff must show that he or she suffered ‘an
invasion of a legally protected interest’ that is ‘concrete and particularized’ and
‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 136 S.Ct. at 1548
(citation omitted). “For an injury to be ‘particularized,’ it ‘must affect the plaintiff
in a personal and individual way.’” Id. (citation omitted).
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The Court sees no meaningful distinction under present circumstances between an
individual’s prosecution and the penalties at issue here, since both acts entail
punishment by the State for participating in certain prohibited conduct.
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Under this standard, the Court finds Plaintiffs have pled adequate facts evidencing
standing. As stated supra, Plaintiffs have a property interest in their professional license to
practice dentistry. Plaintiffs allege they cannot advertise truthfully or hold themselves out
as anesthesiologists due to (1) the statutes and regulations only recognizing specific,
enumerated specialties and (2) the threat of punishment from the Board. 6 The Tenth Circuit
has previously held there is no requirement that an alleged injury must meet some threshold
of pervasiveness to satisfy Article III; rather, “an identifiable trifle is enough for standing
to fight out a question of principle.” American Humanist Ass’n, Inc. v. Douglas Cnty. Sch.
Dist. RE-1, 859 F.3d 1243, 1248 (10th Cir. 2017) (quoting United States v. Students
Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14 (1973)).
Obviously, a ruling from this Court permitting Plaintiffs to advertise their specialty would
redress the alleged injury. Accordingly, Plaintiffs have standing in these proceedings.
III.

Money Damages
Defendants next contend that, to the extent Plaintiffs seek money damages against

the Board, its members, and its director, Susan Rogers, in their official capacities, such

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To the extent that Defendants argue an Oklahoma Court of Civil Appeals ruling that the
advertising prohibition violated Plaintiff Jacobs’ First Amendment free speech rights is not
binding on Defendant Board, or in the alternative, is res judicata, the Court finds there is
insufficient evidence to rule in Defendants’ favor. Neither party has attached, fully cited,
quoted, or even provided the date of the unpublished opinion. See LCvR 7.1(f). Plaintiffs
concede that the ruling constitutes issue preclusion as to the prohibition’s violation of the
First Amendment, but the Court cannot determine the extent of the ruling’s implications
on this case from the briefing before it or locate the unpublished opinion for examination.
However, Defendant admits “that no statutory changes have been made” since the
Oklahoma Court of Civil Appeals ruling. Motion at 6. Therefore, Plaintiffs are still subject
to “running afoul of the law and jeopardizing their professional licenses” and the motion
to dismiss should be denied for the reasons stated herein. Response at 7.

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claim is barred. Indeed, it is well-established that the Eleventh Amendment bars a § 1983
claim for money damages against state officials in their official capacities. Ellis v. Univ. of
Kansas Med. Ctr., 163 F.3d 1186, 1196 (10th Cir. 1998). Plaintiffs’ Amended Complaint,
however, states it seeks, inter alia, “compensatory damages from the individually named
Defendant Board members and Defendant Rogers” and a permanent injunction. See
Amend. Compl. at 19 (emphasis added). It is likewise well-established that a plaintiff
suing under § 1983 “may sue individual-capacity defendants only for money damages and
official-capacity defendants only for injunctive relief.” Brown v. Montoya, 662 F.3d 1152,
1161 n. 5 (10th Cir. 2011) (citing Hafer v. Melo, 502 U.S. 21, 30, 27 (1991)). Here,
Plaintiffs do not seek monetary damages from Defendants in their official capacities, but
individually, and request prospective injunctive relief. Such recourse is permissible under
extant precedent from the Supreme Court and Tenth Circuit. Accordingly, Defendants’
motion is denied on this issue.
V.

Seay’s Application
Lastly, Defendants’ contend Plaintiff Seay has failed to state a claim because (1) he

has applied for a license that does not exist, and (2) his due process claim fails because
Oklahoma law does not require an individual hearing on a license application. These
contentions are without merit. First, the crux of Plaintiffs’ lawsuit is the assertion that
Oklahoma law impermissibly prohibits them from advertising or otherwise holding
themselves out as anesthesiology specialists. Plaintiffs challenge this non-recognition as
an infringement on their constitutional rights to free speech, due process, as well as an
unlawful restraint on trade. Second, Plaintiffs’ Amended Complaint alleges that Seay’s

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application was never considered, and thus, he was not afforded an opportunity to be heard.
See Amend. Compl. ¶¶ 44-45. Stated supra, the essence of procedural due process is that
a party must be given notice and opportunity for a hearing. Jones v. Nuclear Pharmacy,
Inc., 741 F.2d 322, 325 (10th Cir. 1984).
This contrasts with the facts in Boyer v. State Bd. of Examiners of Psychologists,
1992 OK CIV APP 80, 834 P.2d 450, cited by Defendants. There, the Court of Civil
Appeals noted the plaintiff/appellant “had the opportunity to be heard and to present
materials supporting his application, and he was represented by counsel.” Id. at 453. Thus,
although an individual proceeding may not be required under Oklahoma law, it envisions,
at a bare minimum, that a party be given notice and an opportunity to be heard. Plaintiffs’
Amended Complaint alleges such did not occur.
At this stage of proceedings, Plaintiffs are required only to give Defendants fair
notice of their claims and the grounds upon which they rest. Erickson, 551 U.S. at 93. A
well-pleaded complaint may proceed in court “even if it strikes a savvy judge that actual
proof of [the alleged] facts is improbable, and that a recovery is very remote and unlikely.”
Sanchez v. Hartley, 810 F.3d 750, 756 (10th Cir. 2016) (paraphrasing in original, internal
quotations omitted). Plaintiffs have satisfied this standard.

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CONCLUSION
Accordingly, Defendants’ Motion to Dismiss is DENIED as set forth therein.
IT IS SO ORDERED this 10th day of January, 2019.

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