Alsager v. Board of Osteopathic Medicine and Surgery et al

Filing 28

ORDER ON MOTION TO DISMISS, finding as moot 7 Motion for Summary Judgment; granting 10 Motion to Dismiss. Signed by Judge Robert J. Bryan. (JL)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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DALE E. ALSAGER, D.O. PhD., as a
professional licensed Osteopathic
Physician and Surgeon in the State of
Washington License No. OP00001485,
Plaintiff,

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v.
BOARD OF OSTEOPATHIC
MEDICINE AND SURGERY, a
Washington State Agency;
WASHINGTON STATE DEPARTMENT
OF HEALTH, a Washington State
Agency, and the STATE OF
WASHINGTON, JAY R. INSLEE, as
Governor of the State of Washington;
ROBERT W. FERGUSON, as Attorney
General of the State of Washington;
MARY C. SELENCKY, as Secretary of
Health; CATHERINE HUNTER, D.O., as
Chair of the Board of Osteopathic
Medicine and Surgery; KAREN JENSEN,
as Assistant Secretary of Health for Health
Systems Quality Assurance; PATRICIA
HOYLE, as Health Care Investigator; and
KRISTI LYNN WEEKS, as Director of
Office of Legal Services;
Defendants.

ORDER ON MOTION TO DISMISS- 1

CASE NO. 13-5030 RJB
ORDER ON MOTION TO DISMISS

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This matter comes before the Court on the Defendants Board of Osteopathic Medicine

2 and Surgery, Washington State Department of Health and State of Washington’s Motion to
3 Dismiss. Dkt. 10. The Court has considered the pleadings filed regarding the motion and the
4 remaining record.
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Plaintiff, a licensed physician, brings this case seeking injunctive relief and a declaration

6 from this Court that certain Washington statutes governing professional medical license
7 disciplinary proceedings violate the Fourth, Fifth and Fourteenth Amendments to the U.S.
8 Constitution. In Defendants’ Motion to Dismiss, they argue that the Plaintiff’s Complaint
9 against them should be dismissed pursuant to the Eleventh Amendment and under the Younger
10 abstention doctrine. Dkt.10. Defendants’ Motion should be granted. To the extent that Plaintiff
11 asserts claims against the State of Washington or its agencies, the Complaint should be dismissed
12 because they are immune from suit in federal court under the Eleventh Amendment. Further,
13 pursuant to the Younger abstention doctrine, this Court should not exercise jurisdiction on
14 Plaintiff’s remaining claims against the individual state officials, and so those claims should also
15 be dismissed.
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I.

FACTS AND PROCEDURAL HISTORY

This case arises from an investigation by the Washington State Board of Osteopathic

18 Medicine and Surgery (“Board”) into alleged physician misconduct by Plaintiff. Dkt. 16.
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A. BACKGROUND FACTS

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The Board is a state created entity that regulates the practice of Washington’s osteopathic

21 physicians to ensure public health and safety. RCW § 18.57.01 et seq. To that end, the Board
22 disciplines osteopathic physicians in Washington who conduct themselves in an “unprofessional
23 manner” as defined in Washington’s Health Professions Uniform Disciplinary Act (“UDA”)
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ORDER ON MOTION TO DISMISS- 2

1 RCW § 18.130.001, et seq. RCW §§ 18.130.040(2)(vii) and 18.130.180. In addition to setting
2 out what conduct is considered “unprofessional,” the UDA further establishes a uniform
3 procedure for disciplinary action against all health care professionals in the state. RCW §
4 18.130.001. In Washington, the disciplinary process begins with a complaint, which, in the case
5 of osteopathic physicians, is filed with the Board. RCW § 18.130.080. If the Board “determines
6 that the complaint merits investigation,” the Board “shall investigate to determine whether there
7 has been unprofessional conduct.” Id. (The Board directs a Washington State Department of
8 Health health care investigator to begin the investigation. RCW 18.130.060(4).) At the earliest
9 point of time, insofar as it does not impede an investigation, the physician about whom the
10 complaint is made is allowed to submit a written statement about that complaint. RCW §
11 18.130.95(1)(a).
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Upon investigation, if there is reason to think unprofessional conduct has occurred, a

13 statement of charges is served on the physician. RCW § 18.130.090(1). The statement of
14 charges is accompanied by a notice that the physician may request a hearing to contest the
15 charges. Id. If a hearing is requested, the time of the hearing shall be fixed by the Board “as
16 soon as convenient, but the hearing shall not be held earlier than thirty days after service of the
17 charges.” RCW § 18.130.090(2). Hearings are conducted in accord with Washington’s
18 Administrative Procedures Act, RCW § 34.05. RCW § 18.130.100. If an adverse decision is
19 issued against a physician, that decision may be challenged in Washington’s superior courts and
20 if necessary, appealed to the state appellate courts. RCW §§ 34.05.514 and 34.05.526. A
21 physician that has been found to have engaged in unprofessional conduct can be censured,
22 reprimanded, required to participate in a remedial program, put on probation, ordered to pay a
23 fine, and/or have their license suspended or revoked. RCW § 18.130.160.
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ORDER ON MOTION TO DISMISS- 3

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B. INVESTIGATION OF PLAINTIFF

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The Amended Complaint alleges that in Plaintiff’s case, the Board’s investigator sent him

3 a letter on November 26, 2012, informing Plaintiff that the Board had received a complaint
4 against him and was investigating that complaint. Dkt. 16-1, at 2. The letter outlined the alleged
5 violations of the UDA as follows:
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RCW 18.130.180(1) The commission of any act involving moral
turpitude, dishonesty, or corruption relating to the practice of the person’s
profession, whether the act constitutes a crime or not.”
RCW 18.130.180(7) “Violation of any state or federal statute or
administrative rule regulating the profession in question, including any
statute or rule defining or establishing standards of patient care or
professional conduct or practice.”
RCW 18.130.180(11) “Violation of rules established by any health
agency.”
RCW 18.130.180(24) “Abuse of a client or patient or sexual contact with
a client or patient.”

12 Dkt. 16-1, at 2. The letter then described the allegations:
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Specifically, you have been treating Ms. ------- since approximately May 2009 for
numerous health conditions. During her second appointment with you in 2009 for
neck pain you inappropriately touched her bare breasts and placed your hand
inside her pants and touched her vagina. After that appointment you developed a
sexual relationship with Ms. -------- which has continued to the present time. The
initial sexual assault was reported to Bothell Police Department by Ms.-------.
The treatment you have provided to Mr. ------ has been questionable, according to
two doctors that are familiar with her health history and prior care.
Ms. ------- stated you have attempted to obtain partial ownership of her real estate
property on more than one occasion.
According to Ms. -------, you have threatened to kill or physically harm her during
her stay at your facility and while under your care.

21 Id. (------ designates redactions in record). The letter states that Plaintiff is “required” by state
22 law to cooperate with the investigation. Id. at 3. Plaintiff was informed that he must “respond to
23 requests for records and documentation” and that a failure to do so may result in fines and/or
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ORDER ON MOTION TO DISMISS- 4

1 being charged with a further violation of unprofessional conduct under RCW 18.130.180(8).
2 Plaintiff was notified that he “must provide a full and complete explanation of the matter if
3 requested.” RCW 18.130.180(8)(b).” Id. Plaintiff was advised that the Board “may use [his]
4 response if they take disciplinary action, or in a hearing.” Id. Plaintiff was then informed he
5 may have an attorney assist him. Id. The investigator requested the following information:
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A detailed narrative description of [his] personal and professional relationship
with Ms. --------. Provide all documents pertaining to her renting space at your
resident or adult care facility. . . .
Provide a detail statement regarding the allegations listed above and your
financial arrangement with Ms. ------- both past and present.
Complete copies of Ms. -------- patient file including but not limited to patient
history, intake sheet, chart notes, test and test results, X-rays, financial records
and all correspondence.
Provide a copy of Ms. ------- personnel records while she was employed at your
facility including application, complete payroll records, dates of employment,
position held.

12 Id. (------ designates redactions in record).
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In his Amended Complaint, Plaintiff alleges that, by e-mail dated November 26, 2012,

14 his attorney sent a request for production of documents to the Board’s investigator, and further
15 stated that Plaintiff “asserts in all matters regarding and relating to this quasi-criminal action his
16 Fourth and Fifth Amendment constitutional right to due process and, moreover, his right to
17 remain silent and his privilege against self- incrimination [and that] the assertion of his
18 constitutional rights and privileges cannot be held or used against him in any proceedings.” Dkt.
19 16, at 10. His Amended Complaint further alleges that he filed a “Petition for Declaratory
20 Order” with the Board, the Department of Health and Office of the Attorney General, seeking to
21 have the board quash demands for certain documentation and a declaration that certain of the
22 statutes involved, including RCW 18.130.050(7), RCW 18.130.180(8), RCW 18.130.230(1), and
23 RCW 70.02.050(2)(a) are unconstitutional. Dkt. 16, at 11-12. The Board responded by letter
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ORDER ON MOTION TO DISMISS- 5

1 declining to quash the request for documentation or to enter Plaintiff’s proposed declaration
2 because he sought a remedy that “is not properly addressed by means of a declaratory order” and
3 is “not within the Board’s authority to provide.” Id.
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C.

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Plaintiff filed his original Complaint against the State of Washington and two state

PROCEDURAL HISTORY

6 agencies, the Board of Osteopathic Medicine and Surgery and the Washington State Department
7 of Health, on January 15, 2013. Dkt. 1. He sought (and still seeks) injunctive relief and a
8 declaration from this Court that “certain statutes of the State of Washington are unconstitutional
9 under and pursuant to the U.S. Constitution Amendments IV, V, and XIV, as applied by the U.S.
10 Supreme Court and other state courts to professional license disciplinary proceedings that are
11 quasi-criminal actions of state government.” Dkts. 1 and 16.
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On January 24, 2013, Plaintiff filed a Motion for Summary Judgment, which is noted for

13 consideration on March 22, 2013. Dkt. 7. In lieu of filing an answer to the original Complaint,
14 on February 7, 2013, Defendants Washington State and the named state agencies filed the instant
15 Motion to Dismiss, based on Eleventh Amendment immunity and the Younger abstention
16 doctrine. Dkt.10.
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On February 12, 2013, Plaintiff filed an Amended Complaint for Declaratory Judgment

18 and Injunctive Relief, naming the following individual state officers, in their official capacity:
19 Jay R, Inslee, Robert W. Ferguson, Mary C. Selecky, Catherine Hunter, Karen Jensen, Patricia
20 Hoyle, and Kristi Lynn Weeks. Dkt. 16.
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D.

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In the pending motion, Defendants argue that Plaintiff’s case should be dismissed

PENDING MOTION

23 because the state and its agencies have Eleventh Amendment immunity from suit in federal
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ORDER ON MOTION TO DISMISS- 6

1 court. Dkts. 10 and 27. Defendants argue that this Court should decline to exercise jurisdiction
2 over Plaintiff’s case under the Younger abstention doctrine. Id.
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Plaintiff responds, and argues that now that he has amended his complaint pursuant to

4 Fed. R. Civ. P. 15(a)(1)(B), his case should not be completely dismissed pursuant to the Eleventh
5 Amendment because he has named individual defendants, and seeks prospective injunctive relief
6 from them. Dkt. 24. He further argues that the requirements for abstention under Younger are
7 not met so the Defendants’ motion to dismiss should be denied. Id.
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II.

DISCUSSION

A. MOTION TO DISMISS – STANDARD
Fed. R. Civ. P. 12(b) motions to dismiss may be based on either the lack of a cognizable

11 legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri
12 v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken
13 as admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d
14 1295 (9th Cir. 1983). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
15 need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement
16 to relief requires more than labels and conclusions, and a formulaic recitation of the elements of
17 a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65
18 (2007)(internal citations omitted). “Factual allegations must be enough to raise a right to relief
19 above the speculative level, on the assumption that all the allegations in the complaint are true
20 (even if doubtful in fact).” Id. at 1965. Plaintiffs must allege “enough facts to state a claim to
21 relief that is plausible on its face.” Id. at 1974.
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ORDER ON MOTION TO DISMISS- 7

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B. ELEVENTH AMENDMENT IMMUNITY

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“The Eleventh Amendment has been authoritatively construed to deprive federal courts

3 of jurisdiction over suits by private parties against unconsenting States.” Seven Up Pete Venture
4 v. Schweitzer, 523 F.3d 948, 953 (9th Cir. 2008).
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To the extent that Plaintiff makes claims against the state of Washington or its agencies,

6 the claims should be dismissed as barred by the Eleventh Amendment. There is no evidence that
7 Washington or its agencies have consented to such a suit and are, accordingly, immune from
8 suits of this kind brought in federal courts. Pittman v. Oregon Employment Dept., 509 F.3d
9 1065, 1071 (9th Cir. 2007) (internal quotations omitted).
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There are exceptions to Eleventh Amendment immunity. Pitmann, at 1071. For

11 example, sovereign immunity does not bar suits for prospective injunctive relief against
12 individual state officials acting in their official capacity. Id.
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To the extent that Plaintiff seeks prospective injunctive relief against the individual state

14 officials acting in their official capacity, (Jay R, Inslee, Robert W. Ferguson, Mary C. Selecky,
15 Catherine Hunter, Karen Jensen, Patricia Hoyle, and Kristi Lynn Weeks) his claims against them
16 should not be dismissed pursuant to the Eleventh Amendment.
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C. ABSTENTION

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“Younger abstention requires federal courts to abstain from hearing claims for equitable

19 relief as long as the state proceedings are ongoing, implicate important state interests, and
20 provide an adequate opportunity to raise federal questions.” Buckwalter v. Nevada Bd. of
21 Medical Examiners, 678 F.3d 737, 747 (9th Cir. 2012).
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In Buckwalter, a physician alleged that the individual members of the Nevada Board of

23 Medical Examiners “deprived him of his constitutional rights when, in an ex parte emergency
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ORDER ON MOTION TO DISMISS- 8

1 proceeding, they summarily suspended his authority to prescribe medication.” Id. Pursuant to
2 Younger, the district court dismissed his claims. Id. The Ninth Circuit affirmed, holding that
3 each of the Younger requirements were met. Id. As was the case in Buckwalter, this Court
4 should abstain from exercising jurisdiction pursuant to Younger, because each of the Younger
5 requirements are met.
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1. Ongoing State Proceedings
The first Younger requirement is whether there is an state-initiated “ongoing” proceeding.

8 Buckwalter, at 747. A proceeding must be judicial in nature to qualify as an ongoing state
9 proceeding for purposes of Younger. New Orleans Public Service, Inc. v. Council of City of New
10 Orleans, 491 U.S. 350, 369–71, (1989). “A judicial inquiry investigates, declares and enforces
11 liabilities as they stand on present or past facts and under laws supposed already to exist. That is
12 its purpose and end.” Id. at 370.
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The Board’s investigation of Plaintiff’s conduct constitutes a state initiated “ongoing

14 proceeding” for the purposes of Younger abstention. San Jose Silicon Valley Chamber of
15 Commerce Political Action Committee v. City of San Jose, 546 F.3d 1087, 1092 (9th Cir.
16 2008)(holding that the first Younger requirement is met - “state-initiated proceeding in this case17 the Elections Commission's investigation of Plaintiffs' activities-is ongoing”); Amanatullah v.
18 Colorado Board of Medical Examiners, 187 F.3 1160 (10th Cir. 1999) (holding that for the
19 purposes of Younger, state proceedings began when disciplinary board initiated investigation of
20 complaint against physician). The Board here is charged with reviewing complaints, and if they
21 feel the complaint merits it, investigating those complaints, and then if necessary, charging
22 physicians, holding hearings and then making disciplinary decisions. Each of their actions, are
23 accordingly, judicial in nature. In this case, when they began investigation of Plaintiff, the state
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ORDER ON MOTION TO DISMISS- 9

1 initiated proceedings began. Further, parties appear to be engaging in discovery. The Board has
2 requested certain documents from Plaintiff and Plaintiff has requested documents from the
3 Board, and attempted to quash certain of the Board’s discovery requests. The state proceedings
4 are “ongoing.”
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Plaintiff argues that under Washington’s APA that state proceedings are not

6 “commenced” and therefore cannot be “ongoing” until after charging documents are filed. Dkt.
7 24, at 17 (citing Canatella v. State of California, 304 F.3d 850 (9th Cir. 2002)). In Canatella,
8 the Ninth Circuit held that the filing of a complaint (in that case the attorney’s self reporting) of a
9 potential violation of the state bar rules was not a state initiated “ongoing proceeding” for the
10 purposes of Younger abstention. The Court reviewed California law and held that the state rules
11 governing disciplining a member of the bar explicitly stated that the proceedings commenced
12 with the filing of the “initial pleading” which was further defined in the rules as the “notice of
13 disciplinary charges.” Id. Plaintiff does not point to any such language in the UDA or APA.
14 Plaintiff cites Hutmacher v. Board of Nursing, 81 Wn. App. 768, 771-72 (1996), a case involving
15 a nurse’s challenge of whether the board had timely commenced adjudicative proceedings
16 against her, to argue that state proceedings are not commenced until charging documents are
17 filed under Washington law. In that case, for purposes of determining the timeliness of the
18 charges, the Court held that the adjudicative proceedings commenced when the state filed the
19 statement of charges. Id. Plaintiff confuses state initiated “ongoing proceedings” for purposes of
20 Younger abstention, with “adjudicative proceedings.” His narrow definition of “ongoing” state
21 proceedings should not be accepted. The first Younger requirement is met.
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ORDER ON MOTION TO DISMISS- 10

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2. Implicate Important State Issues
As to the second Younger requirement, the Ninth Circuit held in Buckwalter that “[i]t is

3 self-evident that the Board's disciplinary proceedings implicate the important state interest of
4 ensuring quality health care.” Buckwalter, at 747 (citing Kenneally v. Lungren, 967 F.2d 329,
5 331–32 (9th Cir.1992); see also Gibson v. Berryhill, 411 U.S. 564, 576–77, 93 S.Ct. 1689, 36
6 L.Ed.2d 488 (1973) (“[A]dministrative proceedings looking toward the revocation of a license to
7 practice medicine may in proper circumstances command the respect due court
8 proceedings....”)).
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Like the situation in Buckwalter, the Board’s investigation of Plaintiff and disciplinary

10 proceedings, if any, implicate important state interests and federal court involvement would
11 create significant comity concerns. Federal court adjudication of Plaintiff’s case would hamper
12 the Board’s investigation and would interfere with Washington’s authority to regulate physicians
13 practicing within its borders. Buckwalter, at 747. The second Younger requirement is met.
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3. Adequate Opportunity to Raise Federal Questions
As was the case in Buckwalter, the third Younger requirement is satisfied by the fact that

16 Washington courts may entertain federal questions when they review the Board's actions.
17 Buckwalter, at 747. Pursuant to Washington law, if Plaintiff loses in the disciplinary hearing,
18 whether in the form of losing his license, or being reprimanded for failing to cooperate, etc.,
19 Washington’s UDA gives him an adequate opportunity to raise his federal constitutional
20 challenges on appeal to the Washington courts.
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D. CONCLUSION

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To the extent that Plaintiff asserts claims against Washington State or its agencies, the

23 claims should be dismissed pursuant to the Eleventh Amendment. Plaintiff’s remaining claims
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ORDER ON MOTION TO DISMISS- 11

1 should be dismissed pursuant to Younger because state initiated proceedings are ongoing,
2 important state interests are implicated, and state law provides adequate forums and
3 opportunities for Plaintiff to raise federal questions. This case should be dismissed and other
4 pending motions should be stricken as moot.
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III.

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ORDER

It is hereby ORDERED that:

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Defendants’ Motion to Dismiss (Dkt. 10) IS GRANTED;

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This case is DISMISSED; and

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All other motions are STRICKEN AS MOOT.

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The Clerk is directed to send uncertified copies of this Order to all counsel of record and

11 to any party appearing pro se at said party’s last known address.
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Dated this 8th day of March, 2013.

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A

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ROBERT J. BRYAN
United States District Judge

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ORDER ON MOTION TO DISMISS- 12