Majors v. Engelbrecht

• Decision Date: 23 July 1998
• Docket Number: No. 97-2174,97-2174
• Citation: 149 F.3d 709
• Parties: Orville Lynn MAJORS, Plaintiff-Appellant, v. Katie ENGELBRECHT, Kay Leach, Nancy McKee, George Patton, Juanita Richards, and Brenda Smith, individually and in their official capacities as members of the Indiana State Board of Nursing, Pamela Carter, individually and in her official capacity as Attorney General of the State of Indiana, Michael Aikman, Alan Fortner, Joan Kanizer, Mike Carty, Butch O'Neal, and Norma Hughes, individually and as members of the Board of Trustees of Vermillion County Hospital, and John Ling, Jr., individually and as former president and chief executive officer of Vermillion County Hospital, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 709

149 F.3d 709

Orville Lynn MAJORS, Plaintiff-Appellant, v. Katie ENGELBRECHT, Kay Leach, Nancy McKee, George Patton Juanita Richards, and Brenda Smith, individually and in their official capacities as members of the Indiana State Board of Nursing, Pamela Carter, individually and in her official capacity as Attorney General of the State of Indiana, Michael Aikman, Alan Fortner, Joan Kanizer, Mike Carty, Butch O'Neal, and Norma Hughes, individually and as members of the Board of Trustees of Vermillion County Hospital, and John Ling, Jr., individually and as former president and chief executive officer of Vermillion County Hospital, Defendants-Appellees.

No. 97-2174.

United States Court of Appeals Seventh Circuit.

Argued Feb. 9, 1998.

Decided July 23, 1998.

I. Marshall Pinkus, Dutton & Overman, Craig Pinkus (argued), Lowe, Gray, Steele & Darko, Indianapolis, IN, for Plaintiff-Appellant.

Jon B. Laramore (argued), Office of the Attorney General, Indianapolis, IN, for Defendants-Appellees Katie Engelbrecht, Kay Leach, Nancy McKee, George Patton.

Donald D. Levenhagen (argued), Hill, Fulwider, McDowell, Funk & Matthews, Indianapolis, IN, for Defendant-Appellee Michael Aikman.

Before FLAUM, DIANE P. WOOD, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

From 1993 to 1995 Orville Lynn Majors worked as a licensed practical nurse (LPN) in the intensive care unit (ICU) of Vermillion County Hospital (since renamed West Central Community Hospital) in Clinton, Indiana. Although he may have been a competent nurse, he had one problem: an incredibly high number of elderly patients died under his watch. By 1995, after rumors that he was euthanizing patients started to circulate, the hospital suspended him, and the Indiana State Board of Nursing suspended his license. Thereafter, the state attorney general started an action to revoke Majors' license. In response, Majors filed this § 1983 suit asking the district court to enjoin the state proceedings. The suit also sought damages from the AG, the members of the board, and from the hospital's board of trustees and president. District Judge Larry McKinney abstained from entertaining the claims against the AG and the board and dismissed the damages claims against the hospital defendants.

During 1994, 100 of the 351 people admitted to the Vermillion County hospital's tiny 4-bed ICU died. A large percentage of those who died were elderly. In comparison, during the previous 4 years, an average of only 27 patients a year passed away, out of an average of 354 admitted to the ICU each year.

In early 1995, spurred on by her suspicions (and those of other nurses), registered nurse Dawn Stirek did a correlation, based on work attendance charts, between Majors' presence in the ICU and patient deaths. Her rough analysis--it was done in 2 days and didn't account for all others present-showed that Majors was present for more deaths than any other nurse, almost twice as many as the nearest contender.

On March 7, 1995, Stirek showed her analysis to John Ling, the president and chief executive officer of the hospital. Two days later, Ling called Majors into his office and suspended him from work, with pay. Ling refused to give Majors a reason for the suspension. Later, Ling went to the police and asked them to investigate.

After Majors' suspension, although the hospital apparently tried to keep a lid on the controversy, leaks developed. Some nurses, who were afraid of being fired if they spoke publicly about the issue, wrote an anonymous "letter to the editor" accusing Majors of being a "Dr. Krevorkian" and the hospital of covering it up. A family member of a nurse wrote a similar letter.

Meanwhile, the attorney general began an investigation at the hospital. After deciding that there was evidence of misconduct, she asked the Indiana State Board of Nursing to consider suspending Majors' nursing license. At the time, Indiana's summary license suspension law, Ind.Code § 25-1-9-10(a), allowed the board to suspend any health practitioner's license for 90 days, without notifying the practitioner, ¹ if his continued practice posed "a clear and immediate danger to the public health and safety." The suspension was renewable for additional 90-day periods, but only after notice and a hearing.

Pursuant to the summary suspension law, the board held a hearing on the status of Majors' license on April 27, 1995, without giving Majors notice-although, curiously, the board gave notice to the news media. Evidence (the Stirek analysis and statistics from the investigations, and testimony from some nurses and the relative of a dead patient about Majors' conduct with patients) was presented, and the board voted to suspend Majors for 90 days. Ling then told Majors that his suspension from the hospital was now without pay.

Because the emergency suspension order was not reviewable under Indiana law, Majors was without an immediate judicial remedy. So he asked the board for a hearing to attack his suspension. Meanwhile, a majority of the board ordered the AG to file a complaint against Majors for the permanent revocation of his license. See Ind.Code § 25-17-7(b). The complaint which was filed, besides alleging Majors' responsibility for patient deaths, also hedged and asserted alternative grounds for revocation--that he performed certain tasks without direction or supervision from a registered nurse or doctor, and other related claims.

The hearing Majors requested (which doubled as a suspension renewal hearing) was held in September, and it resulted in another 90-day suspension. The board's official reason for renewing the suspension was Majors' unsupervised working habits, although the bigger issue of the patients' deaths was lurking in the background.

After the hearing, the attorney general dropped from her complaint the allegations that Majors participated in patient deaths. In mid-November the board set the hearing on its revocation complaint for December 18, 1995. A few days later Majors filed this federal suit, under § 1983. He lodged official capacity claims against the AG and the board to enjoin them from taking his license on the grounds that the board was biased against him and had prejudged his case. He also wanted a declaration that Indiana's summary suspension law was unconstitutional--on equal protection and due process grounds. And he wanted damages (1) from the individual board members (and apparently the AG, too) for violating his right to due process of law throughout the suspension/revocation process, and (2) from Ling and the hospital's board of trustees for singling him as a culprit and suspending him from work.

At the end of November Majors filed a motion in federal court to preliminarily enjoin the December hearing on the AG's complaint. The board and the AG then filed a Rule 12(b)(1) motion to dismiss, citing Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny, which require federal courts to abstain from enjoining ongoing state proceedings that are (1) judicial in nature, (2) implicate important state interests, and (3) offer an adequate opportunity for review of constitutional claims, (4) so long as no extraordinary circumstances--like bias or harassment--exist which auger against abstention. Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 429, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982).

The district court held a hearing on the board's motion to dismiss. Although the motion was addressed under Rule 12(b)(1), the judge evaluated it under Rule 12(b)(6) by taking the allegations of the complaint--including the allegations of bias from Majors' injunction request--as true. He denied the motion because the allegations established one of Younger's extraordinary circumstances.

Afterwards, Judge McKinney heard argument on Majors' preliminary injunction motion, and on December 18 the request was denied because Majors hadn't shown a likelihood of success on the merits. The judge noted that Majors' evidence of bias (the way the emergency suspension hearings were conducted and some unfavorable evidentiary rulings made there) wasn't nearly enough to win at trial.

Later that same day the state licensing hearing got underway. The board (with two members dissenting) ended up lifting Majors' license indefinitely (at least for a minimum of 5 years), essentially for working without proper supervision. The suspension was a final order suitable for judicial review in the courts of Indiana.

Under Indiana law, state courts consider agency actions after the aggrieved party files a petition for review. See Ind.Code § 4-21.5-5-1 et seq. Majors quickly filed such a petition in the Marion County Superior Court, asking the court to reverse the board's order and reinstate his license, and for "such relief as is permitted to remedy the monetary damage he has suffered [and] the legal costs and expenses he has incurred." He raised the same constitutional issues as in his federal suit. That action, as far as we know, is still pending.

Although the passing of the December hearing took the urgency out of Majors' federal suit, it was still alive, so the hospital and Ling filed motions to dismiss and the board (and AG) filed a motion for summary judgment (on Younger abstention grounds). Judge McKinney granted both motions. And now, despite more pressing matters created by intervening events, Majors' appeal, filed in the summer of 1997, is up for consideration. The "more pressing matters" are that after a 34-month investigation, the estimated expenditure of more than a million dollars, and the exhumation of some 15 bodies, Majors was arrested on December 29, 1997. He is presently charged with six counts of murder in an Indiana state court. We do not know the status of the criminal case.

We first consider the claims against the state defendants and Judge McKinney's decision to abstain under the framework set forth in Middlesex. We revie...