United States District Court, E.D. Kentucky, Central Division, Frankfort
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove, United States District Judge.
Conrad practiced medicine in Kentucky, before the Kentucky
Board of Medical Licensure issued an emergency order,
temporarily suspending his medical license. In this action,
he brings several constitutional and federal law claims in an
attempt to overturn this decision and reinstate his license.
However, none of his claims present a legal basis for relief.
Therefore, the requests by each defendant to dismiss this
action are GRANTED.
Brandon Conrad, M.D., is a physician licensed to practice
medicine in the Commonwealth of Kentucky. [R. 16 at
¶12.] Because of his treatment of two patients, Dr.
Conrad was accused of impairment while practicing medicine.
Id. at ¶ 21. Dr. Conrad was notified by Ephraim
McDowell Regional Medical Center on or about Friday, March
17, 2017, that his hospital privileges were suspended
temporarily, pending a Medical Executive Committee review of
his treatment of the two patients in question. Id.
at ¶ 20. Following this notification, Dr. Conrad met
with agents of Ephraim McDowell concerning his alleged
impairment, at which time Ephraim McDowell required Dr.
Conrad undergo an evaluation prior to the reinstatement of
his hospital privileges. Id. at ¶21-22. Dr.
Conrad met with Defendant Will W. Ward, Jr., M.D., in his
official capacity as the Chairman of Defendant Kentucky
Committee on Impaired Physicians, Inc., d/b/a Kentucky
Physicians Health Foundation, Inc. (the Foundation), after
which the Foundation and Dr. Ward required Dr. Conrad to
submit to ninety-six (96) hours of psychiatric evaluation
prior to returning to work. Id. at ¶23-24. Dr.
Ward cited concerns about Dr. Conrad's use of prescribed
psychoactive medications. Id. at ¶24.
Dr. Conrad's interview with Dr. Ward, Dr. Conrad's
counsel requested documents pertaining to any allegations or
findings of the Foundation's in-house evaluation. Dr.
Conrad was informed he was only entitled to his laboratory
results, not any other information. Id. at ¶27.
On May 9, 2017, Dr. Conrad's attorneys contacted the
Foundation requesting the Foundation reconsider its
requirement that Dr. Conrad submit to ninety-six-hour
evaluation, as Dr. Conrad's medications were prescribed
for his common mental health ailments: anxiety and attention
deficit hyperactivity disorder (“ADHD”).
Id. at ¶29. On May 10, 2017, Dr. Ward sent a
letter to the Kentucky Board of Medical Licensure (the
Board), providing a history of the Foundation's
involvement with Dr. Conrad, reciting Dr. Conrad's
laboratory results, and outlining the Foundation's
recommendation. [R. 16-8 at 2-3.] Subsequent to this
correspondence, the Board opened an investigation into Dr.
2, 2017, Dr. Conrad met with Kevin Payne, an investigator for
the Board, who allegedly told Dr. Conrad that the Board was
treating Dr. Ward's May 10, 2017, letter as a
“grievance” because the Foundation was asserting
Dr. Conrad refused to submit to the recommended
ninety-six-hour evaluation. [R. 16 at ¶33.] Dr. Conrad
submitted to the ninety-six-hour evaluation at the Florida
Recovery Center (FRC) on or about June 10, 2017, where he was
evaluated by three physicians. Id. at ¶34.
Following the evaluation, Dr. Scott Teitelbaumnoted, in the last
three years, Dr. Conrad only consumed one or two alcoholic
drinks per week, but approximately three years earlier, Dr.
Conrad had consumed alcohol on a daily basis. Id. at
¶37. Based on these observations, Dr. Teitelbaum
diagnosed Plaintiff with a moderate alcohol use disorder.
Id. at ¶39. On July 5, 2017, Dr. Conrad
requested records of his evaluation and investigation from
the Board, the Foundation, and FRC. Id. at
¶41-43. Dr. Conrad received records from the Foundation
and FRC on July 17, 2017. Id. at ¶51.
Michael Rodman, in his official capacity as Executive
Director of the Board, e-mailed Dr. Conrad on July 14, 2017,
informing Dr. Conrad that an Inquiry Panel from the Board
would consider his case on July 20, 2017, namely, whether to
issue an emergency order against Dr. Conrad's license.
[R. 16-10 at 2.] The letter informed Dr. Conrad:
You have already been given the opportunity to respond to
this issue during the investigation process. The only issue
to be addressed with the Panel is whether or not there would
be a danger to patients or the public if the Panel permits
you to continue to practice without restrictions while the
Complaint is being resolved.
The Panel meeting will begin at 9:30 a.m., and it is not
mandatory that you attend this meeting; your attendance is
Id. at 3. Dr. Conrad requested written notice of the
accusations against him that were to be considered at the
Inquiry Panel, which was refused by the Board on July 18,
2017. [R. 16 at ¶52.] Also on July 18, 2017, Dr. Conrad
underwent psychiatric evaluation by Dr. Timothy S. Allen and
Dr. John Ranseen, which determined that Dr. Conrad suffered
from ADHD but did not have an Alcohol Use Disorder.
Id. at ¶53.
Panel B met on July 20, 2017, to consider issuance of an
emergency order against Dr. Conrad. Dr. Conrad attended, but
was denied the opportunity to present written evidence to the
panel. Id. at ¶55-57. After the
hearing, the Panel voted to issue Dr. Conrad a Complaint and
Emergency Order of Suspension, but allowed Dr. Conrad to
submit to ninety-day inpatient treatment for Alcohol Use
Disorder in lieu of a Complaint and Suspension. [R. 16-11 at
2.] Dr. Conrad was given until August 4, 2017, to accept the
inpatient treatment before the Board would proceed with the
Complaint and Emergency Order of Suspension. Id. Dr.
Conrad believes that the time elapsed between Dr. Ward's
letter on May 10, 2017, and the scheduling of a Panel hearing
on July 14, 2017, as well as the Board's permission to
delay the effective date of the emergency suspension of Dr.
Conrad's license for fifteen days reflects an
impossibility of the Board to demonstrate the required
“immediate danger” that warrants an emergency
suspension of his license. [R. 16 at ¶61-63.] On August
11, 2017, the Board suspended Dr. Conrad's license on an
emergency basis. [R. 41 at 3.]
this process, on June 20, 2017, the Lexington Herald-Leader
published an article concerning Defendant Matt Bevin, in his
official capacity as Governor of the Commonwealth of
Kentucky, and Defendant Andy Beshear, in his official
capacity as Attorney General of the Commonwealth of Kentucky.
[R. 16-4.] The article cites statements by the Kentucky
Public Protection Cabinet that Governor Bevin planned to sign
an executive order “that would dramatically change how
the [professional oversight] boards operate.”
Id. at 2. Attorney General Beshear expressed
concerns over Governor Bevin's plan, and he opposed
having the executive directors of these boards appointed by
the Governor and answerable to the executive branch.
Id. at 2-3. Elizabeth Kuhn, a spokesperson for the
Public Protection Cabinet, stated, “Without necessary
state supervision, many of Kentucky's professional
licensing boards are vulnerable to potential anti-trust
liability.” Id. at 3. No. one cited in the
article accused the Board, or any other Kentucky licensing
board, of actual violations of anti-trust or any other law.
Attorney General Beshear's comments were restricted to
his concerns about the separation of powers. Under Governor
Bevin's proposed executive order, Attorney General
Beshear was concerned that a professional licensure board
would be unable to disagree with its lawyer or executive
director, since both the lawyer and executive director would
be employed by the executive branch. Id. at 4.
“Our position and the law says it's the General
Assembly's job to reorganize these boards. I'm going
to do my job and protect the General Assembly's authority
even if the members of the General Assembly won't,
” Attorney General Beshear stated. Id.
Conrad initiated this action on July 17, 2017, prior to his
hearing before the Board Inquiry Panel. In his First Amended
Complaint, Dr. Conrad claims the structure of the Board as
established by KRS § 367.175(2) is unconstitutional and
in violation of other Kentucky law. Id. In
particular, Dr. Conrad claims the process to which he was
subjected violates both state and federal anti-trust laws,
Dr. Conrad's right to due process as guaranteed by the
Fourteenth Amendment, Dr. Conrad's right to equal
protection as guaranteed by the Fourteenth Amendment, the
Americans with Disabilities Act, KRS §§ 13B.030 and
218A.202(7). Id. All defendants have filed Motions
to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).
Rule of Civil Procedure 12(b)(1) provides that a defendant
may assert lack of subject-matter jurisdiction as a defense.
A motion to dismiss under Rule 12(b)(1) is different from a
motion to dismiss under Rule 12(b)(6) because it challenges
the Court's power to hear the case before it. When
jurisdiction is challenged under this rule, the burden is on
the plaintiff to prove that jurisdiction exists. RMI
Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125,
1134 (6th Cir. 1996). In answering this question, the Court
is “empowered to resolve factual disputes” and
need not presume that either parties' factual allegations
are true. Id.
motion to dismiss pursuant to Rule 12(b)(6) tests the
sufficiency of a plaintiff's complaint. In reviewing a
Rule 12(b)(6) motion, the Court “construe[s] the
complaint in the light most favorable to the plaintiff,
accept[s] its allegations as true, and draw[s] all inferences
in favor of the plaintiff.” DirecTV, Inc. v.
Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation
omitted). The Court, however, “need not accept as true
legal conclusions or unwarranted factual inferences.”
Id. (quoting Gregory v. Shelby County, 220
F.3d 433, 446 (6th Cir. 2000)). The Supreme Court explained
that in order “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). See also Courier
v. Alcoa Wheel & Forged Products, 577 F.3d 625, 629
(6th Cir. 2009). In the complaint, Dr. Conrad attached eight
exhibits. The Court may consider these exhibits without
converting this Motion to a motion for summary judgment
because these exhibits were attached to the complaint.
Amini v. Oberlin College, 259 F.3d 493, 502 (6th
Cir. 2001). In this case, there seem to be few, if any, facts
in dispute. Each part of Dr. Conrad's complaint states
are determinable by the relevant precedent for this Court.
of the defendants requested this Court refrain from
interfering with the administrative processes of the Board
based on the Younger doctrine. The Supreme Court of
the United States, in Younger v. Harris, created an
abstention doctrine prohibiting federal courts from enjoining
state court proceedings. 401 U.S. 37 (1971). In recent years,
the Supreme Court has limited the Younger abstention
to three circumstances: (1) ongoing state criminal
prosecutions, (2) ongoing state-initiated civil enforcement
proceedings “that are akin to criminal prosecutions,
” and (3) ongoing state civil proceedings that involve
the ability of courts to perform judicial functions.
Sprint Commc'ns, Inc. v. Jacobs, 134 S.Ct. 584,
588 (2013); New Orleans Public Service, Inc. (NOPSI) v.
Council of City of New Orleans, 491 U.S. 350, 368
(1989). In addition, administrative proceedings that are
judicial in nature are considered “state-initiated
civil proceedings” for the purpose of determining
whether Younger abstention applies, even if the case
has not yet progressed to state-court at the time of federal
review. See Ohio Civil Rights Comm'n v. Dayton
Christian Schools, 477 U.S. 619, 627 (1986);
Middlesex County Ethics Committee v. Garden State Bar
Ass'n, 457 U.S. 423, 432-34 (1982); Gibson v.
Berryhill, 411 U.S. 564, 576-77 (1973). Without these
“exceptional” circumstances, a pending state
court action is not a bar to federal jurisdiction.
Id. (citing Colorado River Water Conservation
Dist. V. United States, 424 U.S. 800, 817 (1976);
McClellan v. Carland, 217 U.S. 268, 282 (1910)).
proceeding fits into one of the three categories outlined in
Sprint Commc'ns, Inc. or NOPSI, a court
turns to a three-factor test, defined in Middlesex County
Ethics Committee v. Garden State Bar Ass'n, 457 U.S.
423 (1982), to determine whether Younger abstention
may occur. See Sprint Commc'ns, Inc. 134 S.Ct.
at 593-94. Abstention is proper when “(1) state
proceedings are currently pending; (2) the proceedings
involve an important state interest; and (3) the state
proceedings will provide the federal plaintiff with an