Kirschner v. Klemons
| Decision Date | 01 August 1999 |
| Docket Number | Docket No. 99-9173 |
| Citation | 225 F.3d 227 |
| Parties | (2nd Cir. 2000) HOWARD J. KIRSCHNER, D.D.S., Plaintiff-Appellant, v. IRA KLEMONS, D.D.S., JAY GOLDMAN, D.D.S., LOUIS CATONE, Director of the Office of Professional Discipline, RICHARD P. MILLS, Commissioner of the New York State Education Department, CARL T. HAYDEN, Chancellor of the Board of Regents of the University of the State of New York, JOHN DOES 1-5, and JANE DOES 1-5, Defendants-Appellees |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from judgment of the United States District Court for the Southern District of New York (Casey, J.) dismissing Kirschner's suit on the ground that doctrine of Younger abstention required dismissal. The Court of Appeals (Leval, J.) affirms the judgment in part and vacates in part. [Copyrighted Material Omitted]
[Copyrighted Material Omitted]
JEFFREY A. JANNUZZO, New York, NY, for Appellant.
JOEL SIMON, New York, NY, for Appellee Ira Klemons.
JAMES MODZELEWSKI, New York, NY, for Appellee Jay Goldman.
MARION R. BUCHBINDER, Assistant Solicitor General, New York, NY (Eliot Spitzer, Attorney General of the State of New York), for Appellees Louis Catone, Director of the Office of Professional Discipline, Richard P. Mills, Commissioner of the New York State Education Department, and Carl T. Hayden, Chancellor of the Board of Regents of the University of the State of New York.
Before: LEVAL, SACK, Circuit Judges, and GOLDBERG*, Judge.
Plaintiff-Appellant Howard J. Kirschner, D.D.S., brought suit against Defendants-Appellees Ira Klemons, D.D.S., Jay Goldman, D.D.S., Louis Catone, Director of the Office of Professional Discipline, Richard P. Mills, Commissioner of the New York State Education Department, and Carl T. Hayden, Chancellor of the Board of Regents of the University of the State of New York. Kirschner sought (1) a preliminary injunction against the Board of Regents ("Regents") to enjoin the Regents from publishing a decision regarding complaints of professional misconduct against Kirschner until Kirschner could obtain review of the Regents' decision in an Article 78 proceeding, (2) declaratory and injunctive relief against Catone, Mills, and Hayden, pursuant to 42 U.S.C. § 1983, based on their alleged violation of Kirschner's federal and state constitutional rights to free expression, (3) money damages from Klemons, pursuant to § 1983, based on his alleged violation of Kirschner's federal and state constitutional rights to free expression, and (4) money damages from Klemons and Goldman based on their allegedly bringing malicious professional misconduct complaints against Kirschner and committing prima facie tort, and based on Klemons's alleged dissemination of confidential information from Kirschner's professional misconduct hearings. The district court (Casey, J.) dismissed Kirschner's suit in its entirety on the ground that the doctrine of Younger abstention required dismissal. See Younger v. Harris, 401 U.S. 37 (1971).
On appeal, Kirschner contends that the Younger abstention doctrine does not require dismissal of any of his claims. We find that Kirschner's arguments have merit with respect to his claims against Klemons, but not as to the other defendants. We therefore (1) affirm the district court's dismissal as against Catone, Mills, and Hayden, because the doctrine of Younger abstention requires dismissal, and (2) affirm the district court's dismissal as against Goldman because federal court jurisdiction does not lie, but (3) vacate the dismissal as against Klemons.
Kirschner is a dentist, licensed to practice in the State of New York, who makes part of his living performing Independent Medical Examinations ("IMEs") for insurance companies. The insurance companies that employ Kirschner use his IME reports, which give his opinions on the conditions of claimant policyholders, in determining how to treat individual policyholders' claims for coverage. With respect to claims of a disorder known as TMJ (tempromandibular joint disorder), Kirschner believes that diagnoses are fraudulent unless confirmed by "objective" tests and that the patients diagnosed as suffering from TMJ do not actually have any dental disorder. Kirschner also believes and claims that a dental appliance called a MORA, commonly prescribed to treat this disorder, is ineffective as a treatment and may even be harmful. Kirschner has apparently performed thousands of IMEs on automobile accident victims who claimed to suffer from TMJ but has never found a patient to be suffering from an actual dental disorder. His IMEs in such cases have led to the insurer's denial of benefits. The New York State licensing authority imposed sanctions on Kirschner, based at least in part on his IMEs rejecting claims for TMJ. He brought this suit for injunctive relief and damages contending that his opinions rendered in IMEs are protected speech. In this appeal, Kirschner continues his efforts to contest professional misconduct complaints that were brought against him based, in part, on statements he had made in IMEs. He also seeks protection against future complaints that he anticipates will be brought against him for similar reasons.
In New York, complaints of professional misconduct by dentists are dealt with by the State Education Department ("Department"), the licensing authority for dentists in New York. The Department grants licenses to dentists for life, unless the Board of Regents of the University of the State of New York ("Regents") determines that a dentist's license should be revoked, annulled, or suspended. A state board of dentistry, appointed by the Regents, assists the Regents and the Department in their professional licensing and discipline functions. When a complaint alleging professional misconduct by a dentist is received, the Department investigates the complaint and then refers it to a professional conduct officer designated by the Regents. If the professional conduct officer finds that there is substantial evidence of misconduct, the Department prepares charges of the alleged misconduct. The charge is then tried before a hearing panel composed of members of the state dentistry board and a public representative who may or may not be a member of the state dentistry board or another professional board. The Department also designates an administrative officer who does not vote but who rules on motions, procedures, and legal objections, and drafts the panel's final written report, which contains findings of fact, a determination of guilt or non-guilt on each charge, and a penalty recommendation. The dentist and his counsel may appear before the panel, and the dentist may make a written response prior to the hearing. A Regents review committee, appointed by the Board of Regents and including at least one Regent, reviews the panel's report. The dentist may also appear, and may be represented by counsel, before the Regents review committee. The review committee submits its report, in conjunction with the hearing panel's report and a transcript of the hearing, to the Regents, who determine whether the dentist is guilty or not guilty of each charge and determine any penalty to be imposed. The dentist may seek further review of the Regents' decision by bringing an Article 78 proceeding in the Appellate Division, Third Department.
In Kirschner's case, charges were brought against him for: "practicing the profession [of] dentistry fraudulently" (for making allegedly false statements in IME reports to Allstate Insurance Company ["Allstate"]), "committing unprofessional conduct" (for failing to use proper infection prevention techniques), "practicing the profession of dentistry with gross incompetence" (for making statements in IME reports to Allstate that "were unscientific and far removed from currently accepted information"), and "practicing the profession of dentistry with incompetence on more than one occasion" (also for making unscientific statements in IME reports). The hearing panel recommended finding Kirschner guilty of the vast majority of the charges. As penalties, the panel recommended (1) a fine of 500 dollars, for the charge of committing unprofessional conduct by failing to use scientifically accepted infection prevention techniques, in violation of N.Y. Education Law § 6509(9) and 8 N.Y.C.R.R. 29.2(a)(13), and (2) a 10,000 dollar fine, a two year suspension of his license, with the last eighteen months stayed, and a two year period of probation, for the charges of practicing dentistry fraudulently in violation of Education Law § 6509(2), practicing dentistry with gross incompetence in violation of Education Law § 6509(2), and practicing dentistry with incompetence on more than one occasion in violation of Education Law § 6509(2).
The gravamen of Kirschner's claim is that the complaints filed against him, and the findings against him, were impermissible efforts to silence his expression of his belief that the vast majority of patient complaints identified as "TMJ" are not "due to dental conditions and should not be treated dentally." Kirschner's suit against Catone, Director of the Office of Professional Discipline, Mills, Commissioner of the Education Department, and Hayden, Chancellor of the Board of Regents, seeks declaratory and injunctive relief against current and future prosecution based on statements made by Kirschner in his IMEs. Kirschner's suit against Klemons alleges that defendant Klemons used state disciplinary procedures for the unconstitutional purpose of silencing Kirschner's opposition to dental treatment of TMJ. Klemons acted as a witness for the prosecution against Kirschner, and Kirschner alleges that Klemons has advocated "using state disciplinary procedures to silence opponents of the dental treatment of . . . TMJ" by attending dental society conferences and "pass[ing] out model forms of complaint,...
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