Howes v. N.M. Dep't of Health
| Decision Date | 31 January 2023 |
| Docket Number | Civ. 21-0263 JB/SCY |
| Parties | RONALD HOWES, Plaintiff, v. NEW MEXICO DEPARTMENT OF HEALTH; THOMAS MASSARO and RICHARD GROGAN, in their official and individual capacities, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Heather C. Burke Burke Law Santa Fe, New Mexico Attorney for the Plaintiff
Laura Renee Ackermann Miller Stratvert P.A. Albuquerque, New Mexico Attorneys for the Defendant
THIS MATTER comes before the Court on: (i) the Defendants' Memorandum Brief in Support of Their Motion to Dismiss for Failure to State a Claim, Qualified Immunity and Prohibition Against Implied Contracts with the State filed March 29, 2021 (Doc. 7)(“MTD”); (ii) the Plaintiff's Opposed Motion to Remand to State Court filed April 1, 2021 (Doc. 9)(“Remand Motion”); (iii) the Plaintiff's Emergency Opposed Motion for Stay of Briefing of Defendants' Motion to Dismiss Pending Consideration of Plaintiff's Motion to Remand, or in the Alternative, an Extension of Time to Respond, filed April 11, 2021 (Doc. 11)(“Stay Motion”); and (iv) the Defendants' Motion to Strike Plaintiff's Second Amended Complaint for violation of 42 U.S.C. § 1983, filed March 28, 2022 (Doc. 31)(“Strike Motion”). The Court held a hearing on the MTD, Remand Motion, and Stay Motion on March 1, 2022. See Clerk's Minutes at 1, filed March 1, 2022 (Doc. 28). The primary issues are: (i) whether the Court should stay briefing on the MTD pending consideration of the Remand Motion; (ii) whether the Court should dismiss the Plaintiff's Amended Complaint for Violations of 42 U.S.C. §1983, Breach of Implied Contract, and Wrongful Termination\Breach of Implied Covenant of Good Faith and Fair Dealing, filed March 25, 2021 (Doc. 5-1)(“Removed Complaint”),[2] because (a) Dr. Howes does not state a claim upon which relief can be granted against Defendants Dr. Thomas Massaro and Richard Grogan where Dr. Howes does not show that he has a property or liberty interest, (b) Dr. Massaro and Grogan are entitled to qualified immunity for claims brought under 42 U.S.C. § 1983, (c) Dr. Massaro and Grogan are not proper defendants to Dr. Howes' contract claims, and (d) Dr. Howes does not have an express written contract with the State of New Mexico; (iii) whether the Court should remand the case to State court, because the contract at issue in the litigation contains a forum selection clause that grants exclusive venue and exclusive jurisdiction to the State Courts of New Mexico; and (iv) whether the Court should strike the Plaintiff's Complaint for Violations of 42 U.S.C. § 1983, Breach of Implied Contract, and Wrongful Termination\Breach of Implied Contract of Good Faith and Fair Dealing, filed March 14, 2022 (Doc. 29)(“Amended Complaint”). For the reasons stated below, the Court will: (i) grant the Defendants' requests in their MTD;
(ii) deny the Stay Motion; (iii) deny the Remand Motion; and (iv) deny the Strike Motion.
FACTUAL BACKGROUND[3]
Dr. Howes is a clinical psychologist who, pursuant to a one-year contract with the placement firm Ap.Contractor.com/Locumtenans (“Locumtenens”),[4] contracts with hospitals around the nation. See Removed Complaint ¶ 8 at 3; id. ¶ 51, at 7. Pursuant to a separate contract with Locumtenens, Defendant New Mexico Department of Health (“NMDOH”) employed Dr. Howes as a contractor at the New Mexico Behavioral Health Institute (“NMBHI”) beginning May, 2020. See Removed Complaint ¶ 2, at 2; id. ¶ 11, at 3. The contract between the NMDOH and Locumtenens is a standard contract that the NMDOH issues for services. See Amended Complaint ¶ 12, at 3. Dr. Howes was the contract's intended third-party beneficiary, in exchange for providing services to the NMDOH. See Amended Complaint ¶ 59, at 8.
In its services contracts, the NMDOH grants itself the “unilateral right to terminate the contract for ‘cause or convenience.'” Amended Complaint ¶ 60, at 8 (). Locumtenens, on the other hand, has the right to terminate the contract only “for a ‘material, uncured breach.'” Amended Complaint ¶ 61, at 9 (). The contract also requires Locumtenens to give the NMDOH notice and an opportunity to cure. See Amended Complaint ¶ 61, at 9. Locumtenens cannot terminate the contract if the NMDOH “notice[s] an intent to cure and [makes] any good faith effort to begin to cure the breach.” Amended Complaint ¶ 61, at 9. The contract requires both parties to give 30 days' notice of termination. See Amended Complaint ¶ 62, at 9. The contract does not provide that the NMDOH can terminate the contracted employees that Locumtenens provides the NMDOH, with or without notice. See Amended Complaint ¶ 64, at 9.
Dr. Howes required a reciprocal license to practice medicine in New Mexico. See Removed Complaint ¶ 13, at 3. While he awaited his reciprocal license's approval, Dr. Howes worked under Dr. Matthias Stricherz' supervision. See Removed Complaint ¶ 14, at 3. Dr. Howes is “already licensed in four other states, and has never experienced a single problem . . . obtaining a reciprocal license in any state he has worked in.” Removed Complaint ¶ 9, at 3. Dr. Howes did not encounter any problems while working under Dr. Stricherz. See Removed Complaint ¶ 15, at 3.
On Thursday, June 25, 2020, Locumtenens called Dr. Howes and informed him that “someone from DOH had called Locumtenens and told them that Dr. Howes' license had been suspended after a complaint had been made that he was practicing medicine without a license.”
Removed Complaint ¶ 16, at 3-4. Practicing medicine without a license is a crime, and allegations that a doctor has practiced medicine without a license “is a serious and damaging allegation which can have lasting consequences.” Amended Complaint ¶ 31, at 5. Neither Dr. Stricherz nor NMBHI's Chief Medical Officer, Dr. Wendy Dimmette, had any knowledge about this allegation, and no one alerted Dr. Howes to any concerns regarding his performance before he received this phone call. See Removed Complaint ¶¶ 17-18, at 4. Dr. Howes has since received no further information regarding this allegation. See Amended Complaint ¶ 17, at 4. Dr. Massaro, the NMDOH's Chief Medical Officer and an NMBHI Governing Board member, made the decision to terminate immediately Dr. Howes' employment and contract. See Removed Complaint ¶ 19, at 4; id. ¶ 42, at 6. Grogan, NMBHI's hospital administrator, ordered someone -- presumably NMBHI security -- to escort Dr. Howes from the premises. See Removed Complaint ¶ 20, at 4; id. ¶ 26, at 4. Grogan is responsible for all NMBHI employment decisions. See Removed Complaint ¶ 27, at 5. Dr. Howes did not receive any written documentation that explained why NMBHI terminated his contract, and did not have the opportunity to be heard or to defend himself or his reputation. See Removed Complaint, ¶¶ 21-22, at 4. Dr. Stricherz believed that Dr. Howes' termination was a mistake and appealed Dr. Howes' termination to Grogan, who denied the appeal. See Removed Complaint, ¶ 23, at 4. The New Mexico Regulation and Licensing Department, which oversees the Board of Psychological Examiners, granted Dr. Howes' license in August, 2020, “after a period of unexplained delay.” Removed Complaint ¶ 24, at 4. The New Mexico Regulation and Licensing Department has no record of anyone lodging a complaint or taking disciplinary action against Dr. Howes or his license. See Removed Complaint ¶ 24, at 4. Because of his termination, Dr. Howes returned to South Carolina to search for another job. See Removed Complaint ¶ 38, at 6. Dr. Howes has resorted to accepting several shorter-term contracts around the country, which requires that he incur costs to relocate and terminate leases. See Removed Complaint ¶ 58, at 8.
On February 24, 2021, Dr. Howes filed with Santa Fe County First Judicial District Court, State of New Mexico, his Amended Complaint for Violations of 42 U.S.C. §1983, Breach of Implied Contract, and Wrongful Termination\Breach of Implied Covenant of Good Faith and Fair Dealing, filed March 25, 2021 (Doc. 5-1)(“Removed Complaint”). The Removed Complaint alleges: (i) that both Dr. Massaro and Grogan, in his individual capacity, violated Dr. Howes' right to “procedural and substantive due process prior to being deprived of his property interests in his professional license and contract and his liberty interests in his reputation and his job at NMBHI,” Removed Complaint ¶ 28, at 5; Id. ¶ 46, at 7; (ii) that the Defendants, in their official capacities, breached an “implied one-year contract directly between Dr. Howes and the Department of Health,” Removed Complaint ¶ 53, at 8; see Removed Complaint ¶ 55, at 8; and (iii) that the Defendants, in their official capacities, “breached the Implied Covenant of Good Faith and Fair Dealing when they called Locumtenens and made defamatory statements about Dr. Howes['] work performance and the status of his license,” Removed Complaint ¶ 61, at 8, and when they “wrongfully terminated Dr. Howes' contract with no notice and provided him no reason for this termination,” Removed Complaint ¶ 62, at 9. The Defendants removed this case to federal court on March 24, 2021. See Notice of Removal at 1, filed March 24, 2021 (Doc. 1).
The Defendants filed their MTD on March 29, 2021. See MTD at 1. The MTD states four grounds on which the Court should dismiss the Removed Complaint: (i) Dr. Howes fails to state a claim on which relief can be granted, because he cannot show that he has a property or liberty interest; (ii) Dr. Massaro and Grogan are entitled to qualified immunity on Dr. Howes' § 1983 claims; (iii) Dr. Massaro and Grogan are not proper Defendants to Dr. Howes' contract claims; and (iv) Dr. Howes did not have...
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