Hyde v. Md. State Bd. of Dental Examiners, Civil Action No. ELH-16-2489

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtEllen Lipton Hollander United States District Judge
Docket NumberCivil Action No. ELH-16-2489
Decision Date05 November 2018

DAVID J. HYDE, DDS, Plaintiff,

Civil Action No. ELH-16-2489


November 5, 2018


Plaintiff David J. Hyde, DDS filed a civil rights action on July 7, 2016, against the Maryland State Board of Dental Examiners (the "Board"), alleging that the Board unlawfully revoked his dental license. ECF 1-1 (Complaint). The suit was filed, inter alia, pursuant to 42 U.S.C. § 1983, asserting a violation of Dr. Hyde's due process rights under the Fifth and Fourteenth Amendments and the unlawful taking of a vested property right, without just compensation, in violation of the Fifth Amendment. See id. In addition, Hyde alleged violations of Article 24 of the Maryland Declaration of Rights and Article III, § 40 of the Maryland Constitution, as well as a common law claim for breach of contract. Id.

Plaintiff's Complaint was dismissed, without prejudice, by Order of July 7, 2017 (ECF 43), for the reasons set forth in a Memorandum Opinion of the same date. See ECF 42. Thereafter, plaintiff filed a First Amended Complaint. ECF 46 (Amended Complaint).1 He

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asserted the same claims against the Board that were alleged in the initial Complaint. See ECF 46 at 10-12. And, Hyde named two additional defendants: Ngoc Q. Chu, DDS, the President of the Board, and Friends Medical Laboratory, Inc. ("Friends"), which conducted drug testing of plaintiff that led to the Board's revocation of Hyde's dental license. Id. ¶¶ 8-9. According to plaintiff, Friends acted as an agent of the Board. Id. ¶ 9.

Count One (id. ¶¶ 29-31) is lodged under 42 U.S.C. § 1983 against Chu and the State. Although no constitutional provision is referenced, plaintiff incorporates earlier assertions of violations of his rights under the Fourth, Fifth, and Eighth Amendments. See, e.g., id. ¶¶ 11, 29. Count Two asserts a violation of due process, but no specific defendant is identified. Id. ¶¶ 32-34. Count Three appears to be lodged against the Board, and asserts that the Board deprived Dr. Hyde of due process by taking property without just compensation, and impairing his business relationships. Id. ¶¶ 35-37. Count Four is lodged against the State, asserting that the Board has breached a contract. Id. ¶¶ 38-41. In Count Five, asserted against Friends, Dr. Hyde claims a violation of the Maryland Consumer Protection Act, Md. Code (2013 Repl. Vol., 2017 Supp.), §§ 13-101 et seq. of the Commercial Law Article ("C.L."). Id. ¶¶ 42-43. In Count Six, filed against Dr. Chu and Friends, Dr. Hyde alleges fraud and deceit. Id. ¶¶ 44-48. Count Seven asserts a claim of negligence against Friends.2 Id. ¶¶ 49-52. Count Eight seeks injunctive relief as to Dr. Chu and the Board. Id. ¶¶ 53-55.

In the suit, Hyde asserts that the "Board is an instrumentality of the State of Maryland . . . ." ECF 46, ¶ 7. By Order of April 11, 2018 (ECF 52), I granted the Board's motion to dismiss, pursuant to the Eleventh Amendment. ECF 47.

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Friends has moved to dismiss the Amended Complaint, pursuant to Fed R. Civ. P. 12(b)(6). ECF 61. The motion is supported by a memorandum of law (ECF 61-1) (collectively, "Friends Motion"). Friends contends that the Maryland statute of limitations bars plaintiff's claims. ECF 61-1 at 1. Dr. Hyde opposes the Friends Motion. ECF 69. Friends has replied. ECF 72.

In addition, Dr. Chu has moved to dismiss the Amended Complaint, pursuant to Fed R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 12(b)(1). ECF 63. The motion is supported by a memorandum of law (ECF 63-1) (collectively, "Chu Motion"). Dr. Chu also argues that plaintiff's claims against him are time-barred. ECF 63-1 at 3-5. Alternatively, he asserts, inter alia, that absolute immunity and the Eleventh Amendment bar plaintiff's suit against him. Id. at 5-9. Dr. Hyde opposes the Chu Motion. ECF 69. Dr. Chu has replied. ECF 71.

No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I shall grant the motions.

I. Factual Background

Dr. Hyde "was a board certified dentist." ECF 46, ¶ 6. The Board is an administrative agency of the State of Maryland, which "regulates the practice of dentistry and dental hygiene in Maryland." Id. ¶ 7. See Maryland Dentistry Act, Md. Code (2015 Repl. Vol., 2017 Supp.), § 14-101 et seq. of the Health Occupations Article ("H.O."). At the relevant time, Dr. Chu was President of the Board. ECF 46, ¶ 8.

Of significance here, the Board is a unit within the Maryland Department of Health. H.O. § 4-201; see also Md. Code (2015 Repl. Vol., 2017 Supp.), § 2-106 (a)(9) of the Health-

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General Article.3 In addition to issuing dental licenses (H.O. §§ 1-601; 4-101), the Board investigates complaints and may take disciplinary action against a licensee if the conduct in question provides grounds for disciplinary action under the Maryland Dentistry Act. See generally H.O. §§ 14-401-14-416. Such action may include a reprimand, probation, suspension, or revocation of a dental license. H.O. § 14-404.

Dr. Hyde has had a long history of interaction with the Board, dating to about 1999. See Hyde v. Md. State Bd. of Dental Exam'rs, No. 2618, Sept. Term 2014, 2018 WL 526662, at *2-3 (Md. Court of Special Appeals, Jan. 24, 2018).4 In May 2010, he entered into a confidential consent agreement with the Board that required, inter alia, that he undergo drug screening. ECF 46, ¶ 10. Plaintiff complains that defendants have mischaracterized the consent agreement as a consent order. In any event, Friends performed drug testing of Dr. Hyde for about two years, pursuant to the consent agreement. Id. In doing so, Dr. Hyde contends that Friends acted as an agent of the Board. Id. Moreover, plaintiff claims that he "was put through secret error prone and unreliable tests," and he claims that the testing "should have exonerated" him. Id. ¶ 2.

On September 11, 2012, as a result of drug testing performed by Friends, the Board claimed Dr. Hyde tested positive for cocaine, in violation of the terms of the consent agreement. Id. ¶ 11. The Board conducted an evidentiary hearing on January 2, 2013, in regard to the allegations. See ECF 1-1, ¶ 13. The Board issued a final decision and order on July 2, 2013,

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finding Dr. Hyde in violation of H.O. § 4-315(a)(31). Id. ¶ 12. And, it revoked Dr. Hyde's dental license for five years, for "failing to comply with a 'Board order.'" Id. ¶¶ 12, 13; see also ECF 1-3 ("Board Decision").

On August 1, 2013, Dr. Hyde sought judicial review in the Circuit Court for Montgomery County. See H.O. § 4-319; Md. Code (2014 Repl. Vol., 2017 Supp.), § 10-222 of the State Government Article; Maryland Rule 7-203. By order of January 14, 2015, the circuit court remanded the case to the Board. See Hyde v. Md. State Bd. of Dental Exam'rs, No. 379753-V, Docket No. 38. Both parties appealed the circuit court's ruling to the Maryland Court of Special Appeals. See Hyde, 2018 WL 526662, at *1.

On appeal, the Maryland Court of Special Appeals addressed the following questions: "(1) Whether Dr. Hyde waived arguments regarding the Board's authority to sanction a violation of a consent agreement as a violation of a Board order? (2) Whether the Board had the authority to sanction a violation of a consent agreement as a violation of a Board order? (3) Whether the Board's decision to revoke Dr. Hyde's license was supported by substantial evidence, and whether the Board's decision to revoke his license, given the evidence presented, was arbitrary and capricious?" Id.

In an unreported opinion, the Maryland Court of Special Appeals upheld the Board Decision. First, the court ruled that Dr. Hyde waived arguments regarding the Board's authority to revoke his license as a violation of the consent agreement. Id. at *5. The court determined that Dr. Hyde "did not present this argument before the Board" but instead "raised it for the first time on petition for judicial review." Id. Second, the court found that, under H.O. § 4-315 and the Code of Maryland Regulations, the Board "was authorized to revoke Dr. Hyde's license for violation of his consent agreement." Id. at *9; see also id. at *8. Third, the court ruled that more

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than sufficient evidence supported the Board Decision to revoke Dr. Hyde's license, and the Board Decision was not arbitrary or capricious. Id. at *9.

On May 18, 2018, the Maryland Court of Appeals denied Dr. Hyde's petition for writ of certiorari. See Hyde v. Md. State Bd. of Dental Exam'rs, Petition Docket No. 27, Sept. Term 2018; ECF 64.

Additional facts are included in the Discussion.

II. Plaintiff's Contentions

Dr. Hyde alleges that on September 11, 2012, the Board, through its members, "charged [him] for violating a consent order that did not exist by falsely and intentionally misrepresenting the consent agreement dated [sic] as a consent order when he 'tested positive [f]or cocaine . . . .'" ECF 46, ¶ 11. Moreover, Dr. Hyde asserts that the Board and Dr. Chu knew that "no consent order existed." Id. ¶ 14. Further, he claims that the Board and Dr. Chu manufactured "material facts" and published a "false" consent order to revoke his dental license. Id. ¶ 14.5 In addition, he contends that the Board, as well as its members and agents, "acted intentionally or maliciously and acted ultra vires" by revoking his license. Id. And, he maintains that the Board defamed him, vilified him, and humiliated him, id. ¶ 15, tantamount to a "'modern day lynching.'" Id. ¶ 16. Plaintiff also asserts that he "has lost all available means to support himself . . . ." Id.

In addition, Dr. Hyde claims that Friends "owed a duty of care to provide standard drug screens and to inform and to provide notice and accurate truthful information about the drug screen obtained or provided to him." Id. ¶ 11. He avers that Friends conducted "clandestine

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tests," id. ¶ 2, and performed "false, unreliable and unconstitutional" drug testing. Id. ¶...

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