Read v. Haley

Decision Date10 April 2013
Docket NumberNo. 3:12-cv-02021-MO,3:12-cv-02021-MO
PartiesRALPH LEWIS READ, Plaintiff, v. KATHLEEN HALEY et al., Defendants.
CourtU.S. District Court — District of Oregon
OPINION AND ORDER

MOSMAN, J.,

Defendants Kathleen Haley, Warren Foote, Dove Gutman, Dr. Douglas Kirkpatrick, and Dr. Lisa Cornelius move to dismiss [8]1 claims brought by pro se plaintiff Ralph Lewis Read. I GRANT defendants' motion based on the Rooker-Feldman doctrine, absolute immunity, and failure to comply with Rule 9(b).

BACKGROUND
I. Facts

Mr. Read filed a convoluted, 132-page complaint [1] alleging fraud and numerous constitutional violations under 42 U.S.C. § 1983. Mr. Read's allegations surround the revocation of his medical license by the Oregon Medical Board (the "Board") and the review of the Board'sactions by the Oregon Court of Appeals. See In re Ralph Lewis Read, MD, Oregon Medical Board (Jan. 14, 2010);2 Read v. Or. Med. Bd., 244 Or. App. 603, 260 P.2d 771 (2011). While Mr. Read's pro se complaint is difficult to follow and contains little factual background, the Final Order of the Board and the Opinion of the Oregon Court of Appeals provide additional context for Mr. Read's claims.3

Mr. Read was a diagnostic radiologist who received his license to practice medicine in Oregon in 1999. The administrative rules of the Board require that a person who practices medicine in the State of Oregon register with the Board every two years and pay a biennial "active status" registration fee. Or. Admin. R. 847-008-0015; 847-008-0040. If a person licensed to practice medicine ceases to practice for a period of 12 or more consecutive months, the Board in its discretion may require the person to prove to its satisfaction that the licensee has maintained competence. Or. Rev. Stat § 677.175(2); Or. Admin. R. 847-008-0040(5). When a physician has been out of practice for a number of years, it is the Board's practice to change the status of the license to "inactive." Read, 244 Or. App. at 606, 260 P.2d at 772.

On November 30, 2007, Mr. Read applied for renewal of his active status. The renewal application requires the applicant to provide information about his or her practice over the preceding several years and to disclose any arrests or convictions. Mr. Read disclosed that he had been unemployed since 2003 and had ceased the active practice of medicine in his specialty. He also disclosed that he had been arrested and charged with disorderly conduct in August 2006. Subsequently, Mr. Read wrote letters to the Board explaining that he had become unemployedwhen the Woodland Park Hospital closed and that the disorderly conduct charge had arisen out of a false allegation that he had abused his dog. Id. at 605-06, 260 P.2d at 772.

On March 12, 2008, the Board's Administrative Affairs Committee examined Mr. Read's application and recommended that the status of his license be changed to inactive. The full Board later ratified the Committee's recommendation. On April 14, 2008, the Board informed Mr. Read that if he wanted to return his license to active status, he must undergo an evaluation from either the Center for Personalized Education for Physicians (the "CPEP") or the Physician Assessment and Clinical Education Program (the "PACE"). The Board stipulated that the evaluation must include an assessment of Mr. Read's medical knowledge, clinical skills, and psychiatric health. Id. at 606, 260 P.2d at 772.

Pursuant to Board procedures, Mr. Read requested an investigative interview with the Board's Investigation Committee to challenge the Board's decision. On June 5, 2008, the Committee conducted an investigative interview with Mr. Read. The Committee was comprised of seven members of the Board, including defendants Kathleen Haley, Dr. Lisa Cornelius, and Dr. Douglas Kirkpatrick. Mr. Read's responses to the Committee's questions about his qualifications to practice medicine and the extent to which he had maintained his medical skills were evasive, nonresponsive, and combative. At the interview, Mr. Read stated that his only purpose in meeting with the Investigation Committee was to exhaust his administrative remedies. On June 11, 2008, the Board informed Mr. Read that his medical license would remain inactive due to his failure to provide the Board with the additional information it had requested. Id. at 607-08, 260 P.2d at 773.

On July 20, 2008, Mr. Read again asked the Board to change the status his license to active and also requested administrative review of the Board's decision. On September 3, 2008,the Board issued an Order for Evaluation requiring that within 90 days Mr. Read successfully complete an evaluation by the CPEP, including a psychiatric evaluation. The Board further advised Mr. Read that his failure to comply with the order would constitute a violation of Or. Rev. Stat. § 677.190(18) (2008)4 and could result in disciplinary action. Mr. Read then sent an email to the CPEP, which the Oregon Court of Appeals described as a semi-coherent rant. The CPEP did not respond to that email, and Mr. Read never underwent the required evaluation. Id. at 608-10, 260 P.2d at 773-74.

On January 8, 2009, the Board issued a Complaint and Notice of Proposed Disciplinary Action (the "Board Complaint") pursuant to Or. Rev. Stat. § 677.205 for violations of the Medical Practice Act, specifically violations of Or. Rev. Stat. § 677.190(1)(a) (unprofessional or dishonorable conduct) and Or. Rev. Stat. § 677.190(18) (2008) (willful violation of a Board order). The Board Complaint advised Mr. Read that he was entitled to a hearing. Mr. Read then wrote a letter to the Board in which he stated that he was surrendering his medical license and requested a hearing. Read, 244 Or. App. at 610. 260 P.2d at 774.

On May 28, 2009, a hearing was held before Senior Administrative Law Judge Dove Gutman, a defendant in this case. Senior Assistant Attorney General Warren Foote, also a defendant in this case, represented the Board at the hearing. ALJ Gutman issued a proposed order finding that (1) Mr. Read's failure to answer the Board's questions before the Investigation Committee amounted to unprofessional or dishonorable conduct; (2) the alleged dog abuse incident did not involve unprofessional or dishonorable conduct; and (3) Mr. Read did not willfully disobey the Board's order to obtain a psychiatric evaluation at the CPEP because the CPEP did not perform such evaluations. Id. at 610, 260 P.2d at 774-75.

On January 14, 2010, the Board issued a Final Order. Like ALJ Gutman, the Board found that Mr. Read's refusal to answer questions at the investigative interview constituted unprofessional or dishonorable conduct in violation of Or. Rev. Stat. § 677.190(1)(a) and that there was no such conduct in the alleged dog abuse incident. Unlike ALJ Gutman, however, the Board found that Mr. Read had violated Or. Rev. Stat. § 677.190(18) (2008) by failing to undergo an evaluation by the CPEP. The Board then ordered Mr. Read's license revoked, imposed a civil penalty of $10,000, and assessed the cost of the disciplinary proceedings, which amounted to $14,599.05. Read, 244 Or. App. at 611, 260 P.2d at 772.

Mr. Read sought judicial review of the Board's decision before the Oregon Court of Appeals. On August 3, 2011, the Oregon Court of Appeals remanded the Board's decision for reconsideration of the $10,000 civil penalty but otherwise affirmed. Id. at 605, 260 P.2d at 771. On January 1, 2012, the Board issued a Final Order on Remand without imposing the $10,000 civil penalty. See In re Ralph Lewis Read, MD, Oregon Medical Board (Jan. 12, 2012).5 And on March 8, 2012, the Oregon Supreme Court denied review without opinion. Read v. Or. Med. Bd., 351 Or. 649, 275 P.3d 968 (2012).

II. The Complaint

Mr. Read's 132-page complaint lacks both structure and coherence. (Compl. [1].) Despite these obstacles, the Court construes pro se pleadings liberally, affording a pro se plaintiff the "benefit of any doubt." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)). Construing Mr. Read's complaint as liberally as I can, I find that he asserts five claims: (1) the Order for Evaluation was a "sham" intended to punish him for repeatedly requesting review of Board actions, in violation of the FirstAmendment, (Compl. [1] at 7-9); (2) the Board's statutory authority to issue orders violates Article I, Section 10 of the United States Constitution, (Id. [1] at 8); (3) the Board's actions against Mr. Read violated the Equal Protection Clause of the Fourteenth Amendment, (Id. [1]); (4) defendants falsified the record at the investigative interview and ALJ hearing, (Id. [1] at 7, 9); and (5) defendants deprived him of his liberty and property interests without due process, in violation of the Fourteenth Amendment,6 (Id. [1] at 6-9).

LEGAL STANDARDS
I. Subject-Matter Jurisdiction Pursuant to Rule 12(b)(1)

When a defendant moves to dismiss an action pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction, the plaintiff bears the burden of establishing that the Court does, indeed, have jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, (1994). The Court will grant defendant's motion if the complaint fails to allege facts sufficient to establish subject-matter jurisdiction. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). Alternatively, a defendant may seek dismissal under Rule 12(b)(1) by presenting evidence to refute the jurisdictional facts alleged in the complaint. Id. Once the defendant has introduced such evidence, the plaintiff "must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Id.

II. Failure to State a Claim Pursuant to Rule 12(b)(6)

Under Rule 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." To survive a Rule 12(b)(6) motion to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT