Brizuela v. W.Va. Bd. of Osteopathic Med.
| Decision Date | 09 January 2023 |
| Docket Number | Civil Action 2:22-CV-00345 |
| Parties | FELIX BRIZUELA, Plaintiff, v. WEST VIRGINIA BOARD OF OSTEOPATHIC MEDICINE, Defendant. |
| Court | U.S. District Court — Southern District of West Virginia |
PROPOSED FINDINGS AND RECOMMENDATION
Pending before the Court are the Defendant, West Virginia Board of Osteopathic Medicine's, Motion to Dismiss the Amended Complaint and accompanying Memorandum of Law in Support of same (ECF Nos. 30, 31). By Administrative Order entered on August 19, 2022, this matter was referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 8) Having examined the “Am[]ended Complaint Against West Virginia Medical Board” (ECF No. 29), the additional pleadings of record, and pertinent legal authority, the undersigned has concluded that the Motion to Dismiss should be GRANTED for the reasons stated infra:[1]
In this case, the Plaintiff accuses the Defendant of improperly injecting itself into the Plaintiff's criminal trial which resulted in his conviction but was later reversed by the Fourth Circuit. (ECF No. 29 at 2) The Plaintiff alleges that the Defendant violated his civil rights, when in response to the prosecuting attorney during his trial, it disclosed that it intended to investigate whether the Plaintiff was receiving investment money from a urine drug screen company; the Plaintiff contends that such investigations are to be confidential and privileged “unless admitted as evidence during the course of a formal disciplinary proceeding.” (Id.) The Plaintiff concedes that he signed an earlier consent order at the conclusion of an investigation by the Defendant in involving an alleged overdose of a patient, however, the Plaintiff asserts that this is “evidence of collusion between the [Defendant] and prosecutors” because the Defendant omitted the fact the patient had epilepsy (Id. at 2-3). The Plaintiff further alleges that the Defendant's disclosure of a potential investigation during his criminal trial “defamed” him; the Plaintiff also accuses the Defendant of “malicious prosecution” when it omitted the patient's epilepsy diagnosis and by colluding with the prosecution (Id. at 3-4).
For relief, the Plaintiff “will settle” for $1,000,000 and reinstatement of his medical license with no restrictions (Id. at 4).
On November 10, 2022, the Plaintiff, acting pro se[2], filed his Amended Complaint[3] against the Defendant for violating his civil rights when it revoked his license to practice medicine and for participating in his criminal trial, supra. (ECF No. 29) On November 23 2022, the Defendant filed its Motion to Dismiss[4] and Memorandum of Law in support. (ECF Nos. 30, 31) In accordance with the Roseboro notice issued by the undersigned (ECF No. 32), on December 8, 2022, the Plaintiff filed his “Amended Objection to Defendant West Virginia Board of Osteopathic Medicine's Motion to Dismiss the Amended Complaint/Memorandum of Law in Support of Defendant, West Virginia Board of Osteopathic Medicine's Motion to the Amended Complaint” (ECF No. 34), and subsequently on December 9, 2022, the Plaintiff filed another “Objection to Defendant West Virginia Board of Osteopathic Medicine's Motion to Dis[]miss the Amended Complaint” (ECF No. 35). On December 15, 2022, the Defendant filed its Reply to Plaintiff's Amended Objection to the Motion to Dismiss the Amended Complaint (ECF No. 36).
Consequently, this matter is fully briefed and ready for resolution.
As background, the Defendant observes that the Plaintiff's alleged causes of action relate to criminal proceedings that resulted in the Plaintiff's conviction in 2019 of fifteen counts of distribution of a controlled substance outside the bounds of a medical practice, which the Fourth Circuit overturned on appeal. (ECF No. 31 at 2; citing United States v. Brizuela, 962 F.3d 784, 786 (4th Cir. 2020)) The Defendant notes that the Plaintiff pled guilty to a single violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) instead of retrying the case, and because of that, the Defendant revoked his license to practice medicine. (Id. at 2-3)
The Defendant argues that all of the Plaintiff's claims, except his potential Section 1983 claim for malicious prosecution fail due to failure to exhaust his administrative remedies. (Id. at 4) The Defendant notes that its decision revoking the Plaintiff's license to practice medicine is governed under W.Va. Code § 29A-5-4 that provides that he should have filed his petition for appeal within thirty days of the final order, and that the petition was to be filed in a circuit court in a county in West Virginia in which the Plaintiff resides or does business. (Id. at 5) Since the Plaintiff filed no appeal of the Defendant's decision in any circuit court within West Virginia, and did not file this complaint until August 2022, he failed to exhaust his administrative remedies per law. (Id.)
Additionally, the Defendant contends that as an agency of the State of West Virginia, the Plaintiff's claim is considered a claim against the State, and therefore barred by the Eleventh Amendment. (Id. at 5-6) Further, none of the exceptions to this sovereign immunity are applicable herein. (Id. at 6-8)
Next, the Defendant asserts that the Plaintiff's state law claims, malicious prosecution and defamation, are governed under the one-year statute of limitations per W.Va. Code § 55-2-12, and should have been brought prior to October 16, 2021 - one year from the Defendant's final order. (Id. at 8-9) Contrary to the Plaintiffs allegations that the “continuing violations doctrine” survives any applicable statute of limitations, there are no facts to support a continuing violation, as the Defendant has taken no further action since the October 16, 2020 final order. (Id. at 9-10)
The Defendant next argues that the Plaintiff also failed to provide the proper notice of suit to the Defendant as required under W.Va. Code § 55-17-3: he did not file his original complaint before expiration of the ninety-day requirement; and he only sent an email to the Defendant on March 23, 2022 and via regular mail on March 28, 2022. The Plaintiff never provided proper notice to the Attorney General of West Virginia. (Id. at 11-12)
The Defendant points out that both state and federal law recognize that as a testifying witness in a criminal trial, the Defendant is absolutely immune from any civil actions, including Section 1983 claims. (Id. at 12-13)
The Defendant observes that even if this Court found that the Plaintiff's claims survive the exhaustion of administrative remedies, the various immunities and applicable statutes of limitations, the Plaintiff's Amended Complaint nevertheless fails to allege sufficient allegations to state any cognizable legal claims. (Id. at 13) Regarding the Plaintiff's defamation claim, the Defendant contends that he fails to cite any negligent statements from the Defendant, save for its testimony in his criminal trial when the prosecutor asked if it was aware of the Plaintiff receiving money from a urine drug screen company: “oh, we will have to look into that.” (Id. at 14) This testimony fails to meet all the elements of defamation. (Id. at 15) Moreover, the Defendant's order revoking the Plaintiff's license was published due to the non-discretionary duty to do so because of the criminal offenses involved pursuant to W.Va. Code § 30-14-11(a)(1). (Id.) The Defendant had qualified privilege to publish, and it did not do so out of negligence, but only due to the Plaintiff's criminal convictions and later guilty plea. (Id.) The Amended Complaint fails to state a colorable defamation claim against this Defendant. (Id.)
To the extent the Plaintiff has asserted a Section 1983 claim against the Defendant, since it is not a “person” under this statute, it is not subject to such a suit. (Id. at 16) The Defendant further states that the Plaintiff's malicious prosecution claim fails, as it does not meet the elements provided under Section 1983 or its state law equivalent - neither a reversal of his conviction nor his eventual guilty plea equate to a favorable outcome for the Plaintiff. (Id. at 16, 18) To the extent the Plaintiff alleges that his conviction was secured by fraud, he fails to allege so with any particularity required by Rule 9 of the Federal Rules of Civil Procedure, however, the probable cause for the offense is supported by the fact that he later plead guilty. (Id. at 17) This fact further bolsters the Defendant's nondiscretionary duty to suspend the Plaintiff's license under West Virginia law. (Id. at 17-18) The Defendant also states that the Plaintiff's claim for malicious prosecution fails as there is no evidence that the Defendant had any authority or control over the prosecution, as it only served as a witness at trial. (Id. at 18-19)
Finally, the Defendant points out that the Plaintiff's claim that it violated the law by disclosing a potential criminal investigation fails because he relies upon a Pennsylvania state regulation. (Id. at 19)
The Plaintiff states that he could not exhaust his administrative remedies because the Defendant did not respond to his multiple requests to hear his side of the story - he complains he was not afforded a hearing. (ECF No. 34 at 2, 7) The Plaintiff asserts that the Defendant's representative who testified at his criminal trial did so not in good faith and that he feels he was targeted by prosecutors and the prosecution was racially charged....
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