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Conrad v. Bevin

United States District Court, E.D. Kentucky, Central Division, Frankfort

February 21, 2018

MATTHEW G. BEVIN, in his official capacity as Governor of the Commonwealth of Kentucky, et al., Defendants.


          Gregory F. Van Tatenhove, United States District Judge.

         Brandon 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.



         Plaintiff 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.

         After 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.[1] [R. 16-8 at 2-3.] Subsequent to this correspondence, the Board opened an investigation into Dr. Conrad.

         On June 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 Teitelbaum[2]noted, 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.

         Defendant 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 optional.

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.

         Inquiry 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.[3] 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.]

         During 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.


         Dr. 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).


         Federal 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.

         A 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.



         Several 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)).

         Once a 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 adequate ...

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