Cook v. Hobbins et al

Filing 28

MEMORANDUM DECISION AND ORDER granting 8 Motion to Dismiss for Failure to State a Claim. Signed by Judge Bruce S. Jenkins on 3/10/2017. (las)

FILED
2017 MAR 10 AM 11:57
CLERK
IN THE UNITED STATES DISTRICT COURT U.S. DISTRICT COURT
FOR THE DISTRICT OF UTAH

MONICA C. COOK,
Plaintiff,
v.
DEBRA F. HOBBINS, MARK B.
STEINAGEL, FRANCINE A. GIANI,
MICHELLINA STOFFEL, BRITTANY
BUTSCH, DEBRA A. SCHILLEMAN,
SUSAN M. KIRBY, MARIE PARTRIDGE,
BARBARA JEFFRIES, M. PEGGY
BROWN, K. JOEL ALLRED, TONYA
BAILEY, JOHN R. KILLPACK, DIANA
PARRISH, ALISA BANGERTER,
CESCILBB RALL, RALPH C. PITTMAN,
CAROL INGLBSBY, and STATE OF
UTAH,

MEMORANDUM DECISION AND
ORDER
Case No. 2:16-CV-00840-BSJ
District Judge Bruce S. Jenkins

Defendants.

On September 28, 2016 Defendants Debra F. Hobbins, Mark B. Steinagel, Francine A.
Giani, Michellina Stoffel, Brittany Butsch, Debra A. Schilleman, Susan M. Kirby, Marie
Partridge, Barbara Jeffries, M. Peggy Brown, K. Joel Allred, Tonya Bailey, John R. Killpack,
Diana Parrish, Alisa Bangerter, Cescilee Rall, Ralph C. Pittman, Carol Inglesby, and State of
Utah filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a
Claim ("Motion to Dismiss"). 1 Plaintiff Monica C. Cook filed an opposition on December 15,
2016. 2 Defendants filed a reply on January 11, 2017. 3 Defendants' Motion to Dismiss came

1

See Mot. to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim, filed September
28, 2016 (CM/ECF No. 8) [hereinafter Motion to Dismiss].
2
See Mem. in Opp'n to Defendants Mot. to Dismiss, filed December 15, 2016 (CM/ECF No. 18)
[hereinafter Response to Motion to Dismiss].

before the court for hearing on January 18, 2017. 4 David S. Cook appeared on behalf of the
Plaintiff. Darin B. Goff appeared on behalf of the Defendants.
At the close of oral argument, the court reserved on the matter. 5 The court asked
Defendants to submit additional briefing to the court addressing whether they had complied with
the notice requirement of Utah Administrative Code, Nurse Practice Act Rule Rl56-1-308(c).
The Defendants filed the Affidavits of Tanja Salazar and Carol Inglesby on January 25, 2017
indicating that they had sent notice of license renewal to Ms. Cook. Plaintiff filed a
Supplemental Memorandum Responding to the Affidavits of Tanja Salazar and Carol Inglesby
on February 16, 2017.
Having considered the parties' briefs, the evidence presented, the arguments of counsel,
and the relevant law, the court hereby GRANTS Defendants' Motion to Dismiss.

DISCUSSION
In their briefing on the Motion to Dismiss, Defendants argue that Plaintiff has failed to
state a claim upon which relief can be granted for each of Plaintiff's causes of action: (1) equal
protection, (2) procedural due process, and (3) excessive fine and cruel and unusual punishment
under the Eighth Amendment of the Constitution of th~ United States. 6 The court will consider
each issue in turn.
According to Rule 12 (b )(6) of the Federal Rules of Civil Procedure, a complaint may be
dismissed if it is "clear that no relief could be granted under any set of facts that could be proved
consistent with the allegations."7 In order "[t]o survive a motion to dismiss, a complaint must

3

See Reply Mem. in Supp. of Mot. to Dismiss, filed January 11, 2017 (CM/ECF No. 23) [hereinafter Reply
to Motion to Dismiss].
4
See Minute Entry, filed January 18, 2017 (CM/ECF No. 24).
5
Id.
6
See Reply to Motion to Dismiss, supra note 3, at 1-5.
7
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

2

contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face."' 8 A plaintiff is obligated "to provide the 'grounds' of his 'entitle[ment] to relief' [which]
requires more than labels and conclusions, and a formulaic recitation of a cause of action's
elements will not do." 9
A. Equal Protection Claim
Plaintiff has not alleged facts that allow the court to plausibly infer the violation of equal
protection. To survive the Motion to Dismiss, Ms. Cook's equal protection claim must allege
facts that assert (1) "state action intentionally discriminates between groups of persons," and (2)
there is no ''upright governmental purpose" behind the distinction. 10
The state action that Ms. Cook claims violates the Equal Protection Clause are Utah Code
Section 58-31 b-305(3) and Utah Administrative Code, Nurse Practice Act Rule Rl 56-31 b3 03 (b ).

11

These regulations discuss the Advance Practice Registered Nurse ("APRN") license

renewal process, which differs for individuals initially licensed before and after July 1, 1992. 12
Ms. Cook is a post-1992 APRN licensee because she received her initial APRN license after July
1, 1992. 13
Plaintiff characterizes this regulation as state action that impermissibly discriminates
between pre- and post-1992 APRN s because of the different license renewal requirements for

8

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007).
10
SECSYS, LLC v. Vigil, 666 F.3d 678, 685-86 (10th Cir. 2012).
11
See Complaint, filed on July 29, 2016 (CM/ECF No. 1), iii! 14, 31, 56-62 [hereinafter Complaint]; see
also Response to Motion to Dismiss, supra note 2, at 1-2.
12
For a licensee who received his initial APRN license before July 1, 1992 (pre-1992 APRNs), the licensee
must "complete 3 0 hours of approved continuing education and 400 hours of practice," in order to renew his APRN
license. Utah Admin. Code R 15 6-31b-303 (b) (i)(B). However, for a licensee who received his initial APRN license
after July 1, 1992 (post-1992 APRNs), the licensee must "be currently certified or recertified in [his] specialty area
of practice,'' by a licensing body such as the National Ce1iification Corporation ("NCC"), in order to renew his
APRN license. Id. at Rl 56-31 b-303(b )(i)(A).
13
See Complaint, supra note 11, iJ 15.
9

3

each group. 14 However, Ms. Cook has failed to allege facts that address whether there is an
"upright govermnent purpose" behind the distinction. 15
As Plaintiff acknowledges, "the expressed statutory purpose of the [Utah Division of
Occupational and Professional Licensing ("DOPL")] medical practitioner licensing procedure
and of the Utah Nurse Practice act is to ensure the welfare and safety of patients and to guard
against medical malpractice and abuse of patients." 16 She argues in her opposition to the Motion
that "the burden placed on all post July 1, 1992 APRNs is obviously not required to ensure safe
treatment of patients," because "all APRNs are required to treat patients competently and
safely." 17
However, the question that the court must address is "whether the state's intentional
decision to discriminate can be justified by reference to some upright government purpose." 18
Indeed, "the law ... may take cognizance of meaning/it! distinctions between individuals without
violating the constitutional command of treating similarly situated persons similarly." 19
The general purpose behind the APRN renewal process is to protect the public health and
safety and prevent public harm or injury. 20 In its brief submitted to the Utah Court of Appeals,
DOPL explains that the renewal requirements have been adopted for the specific purpose of
assuring "that all APRNs are qualified-through national certification if it was available at the
time of initial licensing, and by alternative means if it was not." 21 It appears that the renewal
requirements for pre-1992 APRNs are an attempt to accommodate for the fact that a national
certification process was not available at the time of initial licensing.
14

See id. ii 57.
SECSYS, LLC v. Vigil, supra note 10, at 686.
16
See Complaint, supra note 11, ii 66(f).
17
Response to Motion to Dismiss, supra note 2, at 2.
18
SECSYS, LLC v. Vigil, supra note 10, at 686,
19
Id. (citing City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439-40 (1985)).
20
mahCodeAnn. § 58-31b-102 (West).
21
Motion to Dismiss, supra note 1, ex. 7, at 36 (emphasis added).
15

4

Therefore, the intentional decision to differentiate between pre-1992 and post-1992
APRN renewal procedures is justified by the state's specific purpose of assuring all APRNs are
qualified and its general purpose of protecting the public health and safety. The state does this by
considering the different circumstances in place at the time of initial APRN licensing and
accounts for these differences in each group's respective renewal requirements.
From the allegations in Plaintiff's complaint and the arguments offered in her response to
the Motion, it ca1mot plausibly be infeITed that the purpose is not upright or that there is no
rational basis for this distinction. The court finds that the Plaintiff has failed to state an equal
protection claim.
B. Procedural Due Process Claim
Plaintiff has not alleged facts that allow the court to plausibly infer the violation of due
process. To survive the Motion to Dismiss, Ms. Cook's procedural due process claim must
address (1) "whether a liberty or property interest exists," and (2) "whether the State provided
sufficient procedures."22
Ms. Cook claims that she was "depriv[ed] of her liberty interest in her reputation," by
DOPL when it revoked her license and published a notice to that effect. 23 However, Plaintiff
does not assert sufficient facts that specifically address the second prong of this analysis, explain
what the required due process procedures are, whether they were adequate, and how they were
not followed.
The record demonstrates that Ms. Cook engaged with the administrative and judicial
process over an extended period. After her license was revoked, the Board of Nursing reviewed
the matter: there was a hearing; there was a record of the hearing; Ms. Cook was represented by

22
23

See Brown v. Univ. ofKansas, 599 F. App'x 833, 837 (10th Cir. 2015) (unpublished).
Response to Motion to Dismiss, supra note 2, at 6.

5

counsel at the hearing; there was an opportunity to examine and present witnesses; the
administrative law judge presided at the hearing; the decision was ultimately a board decision
and was adopted by DOPL. 24 The required process was followed.
Thereafter, Plaintiff appealed the DOPL decision to the Utah Court of Appeals. 25 While
the court "decline[d] to review [the equal protection and due process arguments] because Cook
ha[d] failed to carry her burden on appeal," 26 it found that revoking Ms. Cook's licenses to be "a
draconian response," 27 and directed the Department of Commerce, DOPL, and Board of Nursing
"to fashion a remedy consistent with [the court's] opinion."28
Unsatisfied, Ms. Cook filed a petition for certiorari with the Supreme Court of Utah
which was denied. 29 Plaintiff did not file a petition for certiorari with Supreme Court of the
United States although that process was available to her. 30 Now Ms. Cook has filed this action
before this U.S. District Court. 31
While the complaint alleges several alleged violations of due process, the majority of
these alleged facts do not address whether the state provided adequate procedures. 32 The relevant
fact that concerns due process here is the allegation that Ms. Cook was not notified that her

24

See Complaint, supra note 11, iii! 35-46; see Motion to Dismiss Hearing Transcript, Jan. 18, 2017, at
50:2-53:18.
25
See Complaint, supra note 11, iJ 4 7.
26
Cookv. Dep't of Commerce, 2015 UT App 64, iJ 31, 347 P.3d 5, 13, cert. denied sub nom. Cookv. DOC,
362 P.3d 1255 (Utah 2015).
27
Id. iJ 36.
28
Id. iJ 37.
29
See Motion to Dismiss, supra note 1, at xi.
30
See Motion to Dismiss Hearing Transcript, Jan. 18, 2017, at 28: 10-17.
31
See Complaint, supra note 11.
32
Ms. Cook claims that procedural due process was violated because Defendants (1) failed to recognize the
Wlconstitutionality of the statute and rule; (2) failed to comply with Utah Code Section 58-l-308(3)(a) and Rule
Rl 56-1-308(c) to notify Plaintiff of her license renewal; (3) assumed Plaintiff knew the procedure for relicensure;
(4) misconstrued Plaintiff's relicensure applications; (5) misconstrued statutory language concerning sanctions; (6)
ignored the purpose of the DOPL licensing procedure and Utah Nurse Practice act to ensure the welfare and safety
of patients; (7) inflicted mental and emotional stress anxiety upon plaintiff by revoldng her license and publishing
that event; and (8) refused to correct the publication of that revocation. See Complaint, filed July 29, 2016 (CM/ECF
No. 1), iJ 66. Issues (1), (3)-(8) do not address whether the state provided adequate procedures. Only issue (2) has
some relevance to clue process and is discussed in the main text of this decision.

6

APRN license would soon expire (as required by statute, Utah Code, 58-1-308(a), and
implemented by Utah Administrative Code, Nurse Practice Act Rule Rl56-l-308(c)). 33
However, affidavits submitted post-oral argument by Defendants demonstrate that a notification
was generated and mailed to Ms. Cook reminding her to renew. 34 The process that historically
took place was adequate.

C. Excessive Fine Claim and Cruel and Unusual Punishment Claim
Ms. Cook has failed to allege facts that allow the court to plausibly infer that the fine is
excessive or that revocation of her license constitutes cruel and unusual punishment. To survive
the Motion to Dismiss, Ms. Cook must allege facts that assert the $5,000 fine issued by DOPL
was "grossly disproportional." 35
Ms. Cook states that the $5,000 fine is excessive under the Eighth Amendment because it
"was clearly excessive - completely unjustified by any law or rule and cruel and unusual

33

Utah Code§ 58-1-308: "(3)(a) The division shall notify each licensee in accordance with procedures
established by rule that the licensee's license is due for renewal and that unless an application for renewal is received
by the division by the expiration date shown on the license, together with the appropriate renewal fee and
documentation showing completion of or compliance with renewal qualifications, the license will not be renewed."
Utah Administrative Code, Nurse Practice Act Rule RI 56-1-308( c) states in part: "The procedures for renewal of
licensure shall be as follows: (1) The Division shall send a renewal notice to each licensee at least 60 days prior to
the expiration date shown on the licensee's license. The notice shall include directions for the licensee to renew the
license via the Division's website. (2) Except as provided in Subsection(4), renewal notices shall be sent by mail
deposited in the post office with postage prepaid, addressed to the last mailing address shown on the Division's
automated license system .... "
Ms. Tanja Salazar, a DOPL employee with personal knowledge about the Division's online license renewal
system, submitted an affidavit declaring that license renewal notices were generated and sent out to Ms. Cook in
October 2009 and 2011. Affidavit of Tanja Salazar, filed January 1, 2017 (CM/ECF No. 25), iii! 1-5. Furthermore,
exhibit A to the affidavit is an example of the renewal notice that was generated and mailed to Ms. Cook. Id. iii! 2, 4.
This notice directs the licensee to renew via the Division's website as required by Utah Administrative Code, Nurse
Practice Act Rule R 156-1-308(c).
34
Affidavit of Tanja Salazar, filed January 1, 2017 (CM/ECF No. 25), iii! 1-7.
35
Brent Brown Dealerships v. Tax Comm'n, Motor Vehicle Erif't Div., 2006 UT App 261, iJ 15, 139 P.3d 296,
301.

7

punislunent." 36 As noted by Defendants, DOPL issued the fine according to its fine schedule 37 in
light of the fact that "Plaintiff benefited from four years' salary of unlicensed practice." 38
Regarding Plaintiffs allegation of crnel and unusual punishment, the court finds that it
has no basis because the Eighth Amendment's proscription against this type of treatment was
"designed to protect those convicted of crimes." 39 Ms. Cook has not been convicted of a crime.
CONCLUSION

For the reasons analyzed above, the court finds that Ms. Cook has failed to state a claim
for relief on her equal protection, due process, and excessive fine and crnel and unusual
punislunent causes of actions. The court GRANTS Defendants' Motion to Dismiss. Let judgment
be entered accordingly.

DATEDthis

36

fr~of/WJ~

,2017.

See Complaint, supra note 11, ~ 71.

37

UtahAdmin. Code Rl56-31b-402(1)(a), (d), (q), (s), (mm), (pp).
Reply to Motion to Dismiss, supra note 3, at 5.
39
Ingraham v. Wright, 430 U.S. 651, 664 (1977).
38

8