Rindley v. Gallagher

• Decision Date: 30 April 1991
• Docket Number: No. 89-6186,89-6186
• Citation: 929 F.2d 1552
• Parties: Stephen RINDLEY, D.D.S., Plaintiff-Appellant, v. Thomas GALLAGHER, et al., Defendants-Appellees, Marshall Brothers, D.D.S., et al., Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1552

929 F.2d 1552

Stephen RINDLEY, D.D.S., Plaintiff-Appellant, v. Thomas GALLAGHER, et al., Defendants-Appellees Marshall Brothers, D.D.S., et al., Defendants.

No. 89-6186.

United States Court of Appeals Eleventh Circuit.

April 30, 1991.

Karen C. Amlong, Fort Lauderdale, Fla., for plaintiff-appellant.

Betsy E. Gallagher, Gail Leverett (f/k/a Kniskern), Miami, Fla., for defendants-appellees.

J. Terrell Williams, Tallahassee, Fla., for Ferris, et al.

M. Stephen Smith III, Lee S. Miller, Amy Uber, Miami, Fla., for Secy., Gallagher and Lamb.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT and EDMONDSON, Circuit Judges, and PECKHAM ^*, Senior District Judge.

HATCHETT, Circuit Judge:

In this lawsuit filed by a dentist undergoing disciplinary proceedings, we reverse the district court's dismissal of the lawsuit through the application of doctrines of abstention. 719 F.Supp. 1076.

FACTS AND PROCEDURAL HISTORY

Stephen Rindley is an advertising dentist who alleges that non-advertising dentists, as well as non-dentists who are economically dependent on non-advertising dentists, conspired with the Florida Department of Professional Regulation (DPR) to implement a policy of selective enforcement of the disciplinary statutes regulating the practice of dentistry against those dentists who engage in commercial advertising.

Rindley filed this lawsuit in the district court against present and former members of the Florida Board of Dentistry (the board), the Secretary of the DPR, two DPR attorneys, two dentists who had worked as consultants for the DPR and the board, the East Coast Dental Society (the society), one of its officers, and two of its employees. According to Rindley, the DPR is more likely to require field investigations of advertising dentists and desk investigations of non-advertising dentists in matters involving similar allegations of incompetence or misconduct. In addition, according to Rindley, the DPR is more likely to recommend, and the board through its "probable cause" panels is more likely to find, that probable cause exists to believe a violation of the statutes has occurred when reviewing an advertising dentist's conduct than when reviewing a non-advertising dentist's similar conduct. Rindley also alleges that the board and the DPR, through its disciplinary procedure of issuing "letters of guidance" without providing for notice and a hearing, have violated his due process rights.

Rindley sought declaratory and injunctive relief, as well as damages, pursuant to 42 U.S.C. Sec. 1983 for the alleged violation of his rights guaranteed under the first, fifth, and fourteenth amendments to the Constitution. Specifically, Rindley sought injunctive relief to prevent selective enforcement of laws against advertising dentists (Count I), damages for selective enforcement of laws (Count II), damages for conspiracy to selectively enforce the laws (Count III), injunctive relief to prevent the further use of letters of guidance pursuant to Florida Statutes Sec. 455.225(3) (1983) (Count IV), damages for the improper use of letters of guidance (Count V), and declaratory and injunctive relief against the appellees' interpretation of Florida Statutes Sec. 455.225(9) (1983) (Count VI). ¹

All appellees filed motions to dismiss the complaint. The district court granted the motions to dismiss Rindley's complaint based on the Pullman and the Burford abstention doctrines. Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). The court also stated that a prima facie case for abstention under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), had been made, but that it did not rely upon this ground for dismissal. The district court made no other determination of the merits of the case or of any other ground for dismissal.

CONTENTIONS

Rindley contends that neither the Pullman, Burford, nor Younger abstention doctrines apply to Counts I through V of his complaint. ²

The DPR (other appellees present similar contentions) contends that the district court correctly applied Pullman and Burford abstention, and that Rindley's action is also barred by the Younger abstention doctrine.

The society members contend that Rindley's section 1983 claim against them should be dismissed because they did not act under color of state law.

The board members contend that the section 1983 claim for monetary damages against them is barred by eleventh amendment and quasi-judicial immunity.

ISSUES

The issues are: (1) whether the district court correctly determined that the Pullman doctrine applies to this action; (2) whether the district court correctly determined that the Burford doctrine applies to this action; and (3) whether Rindley's action is barred by the Younger abstention doctrine.

DISCUSSION

In the Eleventh Circuit, a district court's decision to abstain will only be reversed upon a showing of abuse of discretion. Casines v. Murchek, 766 F.2d 1494, 1502 (11th Cir.1985) (district court's decision to refrain from Pullman abstention is subject to abuse of discretion standard of review); Southern Ry. Co. v. State Bd. of Equalization, 715 F.2d 522 (11th Cir.1983) (district court's decision to abstain under the Burford doctrine is subject to abuse of discretion standard of review), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984); High Ol' Times, Inc. v. Busbee, 621 F.2d 135, 138 (5th Cir.1980) (Pullman abstention by district court is subject to abuse of discretion standard of review). ³

I. Pullman Abstention

Under the Pullman abstention doctrine, "a federal district court is vested with discretion to decline to exercise or to postpone the exercise of its jurisdiction in deference to state court resolution of underlying issues of state law." Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1181, 14 L.Ed.2d 50 (1965) (citing Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941)). Two criteria have been established for application of the Pullman doctrine: (1) the case presents an unsettled question of state law, and (2) the question of state law is dispositive of the case or would avoid, or substantially modify, the constitutional question presented. Duke v. James, 713 F.2d 1506, 1510 (11th Cir.1983). If a case presents such an issue, it is incumbent on the court to exercise discretion in deciding whether to abstain. Duke, 713 F.2d at 1510. Because it is "severely circumscribed to constitutional challenges posing 'special circumstances,' ... [Pullman abstention] is therefore the exception rather than the rule." High Ol' Times, 621 F.2d at 139 (quoting Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967)).

Section 455.225(4) provides in pertinent part:

If the probable cause panel finds that probable cause exists, it shall direct the [DPR] to send the licensee a letter of guidance or to file a formal complaint against the licensee.... If directed to do so, the [DPR] shall file a formal complaint against the [subject] and prosecute that complaint pursuant to the provisions of chapter 120.

Fla.Stat.Ann. (West Supp.1990). Rindley argues that the state's current use of this section violates his due process rights.

A question of state law is "unsettled" if it is "fairly subject to an avoiding construction." Duke, 713 F.2d at 1510. The district court found that Rindley's claims directly presented unsettled issues of state law. In reaching this conclusion, the district court addressed its entire discussion of Pullman abstention to the lack of judicial interpretation of section 455.225(4) and other sections relating to issuance of letters of guidance, possible "avoiding constructions," and available state court means to obtain a judicial interpretation of the section.

In Counts I, II, and III of the amended complaint, the issuance of letters of guidance are but two of ten categories of conduct with regard to which Rindley alleges he and other advertising dentists are treated differently than their non-advertising colleagues. Moreover, in these counts, Rindley does not question the constitutionality of Florida's statutes, but rather their selective enforcement. Thus, the constitutional questions presented in Counts I, II, and III would remain unanswered regardless of any interpretation placed on the statutes by the Florida Supreme Court.

In regard to Counts IV and V which seek declaratory and injunctive relief concerning the state's alleged improper use of letters of guidance, the district court determined that federal constitutional questions concerning section 455.225(4) could be avoided depending on state court construction of that section in relation with (1) section 455.208, Florida Statutes (1988), and (2) the Administrative Procedure Act, Florida Statutes, chapter 120 (1988).

Section 455.208 allows the DPR and the board to advise licensees, through the publication of a newsletter, of information of interest to the industry. Fla.Stat.Ann. (West Supp.1990). Although section 455.225(4) states that letters of guidance shall be sent to the licensee, the DPR and the board published letters of guidance to Rindley in such a newsletter. The district court posited that the dissemination of letters of guidance through the newsletter is not authorized by section 455.208, and that such a conclusion could moot the federal constitutional questions because Rindley's due process might not be violated if the letters of guidance were not so publicized.

The district court's proposed interpretation of section 455.208 does not substantially avoid Rindley's due process claims. In Buxton v. City of Plant City, Florida, 871 F.2d 1037 (11th Cir.1989), we held that placing stigmatizing information into the public record by including it in a public employee's personnel file or in an internal affairs...