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Hyde v. Maryland State Board of Dental Examiners

United States District Court, D. Maryland

July 7, 2017

DAVID J. HYDE, D.D.S., Plaintiff,



         David J. Hyde, D.D.S. filed a civil rights complaint (ECF 1-1) on July 7, 2016, against the Maryland State Board of Dental Examiners (the “Board”), alleging that the Board unlawfully revoked his dental license.[1] The suit was filed pursuant to 42 U.S.C. § 1983, asserting a violation of Hyde's due process rights under the Fifth and Fourteenth Amendments and an unlawful taking of a vested property right, without just compensation, in violation of the Fifth Amendment. Id. In addition, Hyde alleges 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. Several exhibits are appended to the Complaint.

         Dr. Hyde, who was initially licensed as a dentist in 1983, appears to have had a long history of interaction with the Board. More recently, he was charged in July 2012 with testing positive for cocaine. ECF 1-1, ¶ 13. And, after a hearing on January 2, 2013, the Board issued a written decision revoking Dr. Hyde's dental license. ECF 1-3 (“Decision”). Dr. Hyde claims that the Board “wrongfully charged [him] and then revoked [his] dental license for violating a Consent Order that never existed.” ECF 1-1, ¶ 1; see also id., ¶ 13. Further, he asserts that drug tests were “manufactured” (id. ¶ 2) to “portray” him as a drug user. Id., ¶ 3. And, Dr. Hyde, who is African American (ECF 1-1, ¶ 3), avers that the Board “has never conducted or acted similarly to any white dentist . . . .” Id., ¶ 4.

         The Board has moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6) (ECF 17), supported by a memorandum of law (ECF 17-1) (collectively, “Motion”) and one exhibit. ECF 17-2. It asserts, inter alia, that the Eleventh Amendment bars this suit. ECF 17 at 1. Dr. Hyde opposes the Motion (ECF 38, “Opposition”), supported by exhibits. ECF 38-1 to ECF 38-3. The Board has replied. ECF 41, “Reply.”[2]

         No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion, without prejudice, and with leave to amend.

         I. Factual Background[3]

         Dr. Hyde “was a board certified dentist.” ECF 1-1, ¶ 9. The Board is an administrative agency that “regulates the practice of dentistry and dental hygiene in the State of Maryland and falls under the authority of the State of Maryland.” Id. ¶ 10. See Maryland Dentistry Act, Md. Code (2015 Repl. Vol.), § 14-101 et seq. of the Health Occupations Article (“H.O.”).

         Of relevance here, the Board is a unit within the Maryland Department of Health. H.O. § 4-201; see also Md. Code (2015 Repl. Vol.), § 2-106 (a)(9) of the Health-General Article (“H.G.”).[4] 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 is 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 of a license, or revocation of a license. H.O. § 14-404.

         Hyde alleges that on July 11, 2012, “the State charged [him] with having tested positive for cocaine . . . .” ECF 1-1, ¶ 13.[5] Dr. Hyde claims that, after a hearing on January 2, 2013, the Board revoked his license for violation of a consent order that “does not exist. . . .” ECF 1-1, ¶ 13. See also Id. ¶ 14.

         According to plaintiff, the Board “acted intentionally or maliciously and ultra vires” by revoking his license. Id., ¶ 14. Further, he claims that the Board violated his civil rights by using “secret error prone, unreliable or manufactured tests” to “suggest he failed a drug test.” Id., ¶ 2. In addition, plaintiff claims that the Board and its agents, including Friends Medical Laboratory Inc. (“Friends”), used “clandestine tests” to “either manufacture evidence or use the negative result … to 'set him up and portray [him] as a drug user.'” Id., ¶ 3. Dr. Hyde, who is African American, avers that this is “prima facie evidence of biased and discriminatory conduct.” Id. He also alleges: “The [Board]'s false portrayal of [his] failed drug tests and findings in order to [i]nitiate or 'trump up charges' against him [and] then revoke his license . . . defamed, vilified and ostracized him within the dental and social community where he resides and practices.” Id., ¶ 20.

         The Board asserts that on November 30, 1999, it “entered into” a consent order with Dr. Hyde “based on unprofessional conduct.” ECF 17-1 at 4. The Board maintains that on August 17. 2005, Dr. Hyde “agreed” to a second consent order “suspending his license for one year.” Id.; see also ECF 1-3 at 1. Although the Board did not submit copies of these consent orders, they are discussed in the Board's Decision (ECF 1-3), issued on July 2, 2013.

         The Decision states that as a condition of the first consent order, Dr. Hyde “agreed to a thirty-day suspension of his license and to comply with an agreement with the Dental Well Being Committee.” ECF 1-3 at 1.[6] Further, the Decision states, in part, ECF 1-3 at 1-2:

On November 30, 1999, the [Board] entered into a Consent Order with [Dr. Hyde], based on unprofessional conduct regarding a female employee. He agreed to a thirty-day suspension of his license and to comply with an agreement with the Dental Well Being Committee (“DWBC”). After failure to comply with various conditions of the agreement, the Board suspended Dr. Hyde's license for 45 days and ordered that he undergo a drug screen as required by DWBC. After full compliance, he was placed on three years' probation with conditions. On March 25, 2001, in an Order for Reinstatement and Probation, the Board ordered that Dr. Hyde's license be reinstated and that he be placed on probation for five years subject to conditions. On July 12, 2004, the Board suspended Dr. Hyde's license after he tested positive for cocaine and it was reported that he was not able to safely practice dentistry.
On August 17, 2005, in the Consent Order, suspension was continued on Dr. Hyde's license for one year. On April 19, 2006, after the Board was informed that Dr. Hyde had not complied with all required drug testing and that he had tested positive for cocaine, it revoked his license. In a September 26, 2006 Order, the Board continued the revocation of Dr. Hyde's license based on a hair sample that had tested positive for cocaine. Around July 13, 2009, the Board received an application for dental licensure from Dr. Hyde, and after meeting with the Board, he signed a three-year contract with DWBC subject to conditions. After failing to comply with conditions of his license . . . probation, the DWBC recommended a five-day evaluation at an inpatient treatment center for professionals. On December 10, 2011, the evaluating center reported that Dr. Hyde had relapsed in his cocaine addiction and that he should spend 90 days in an inpatient program. Instead, the DWBC recommended Intensive Outpatient Treatment, 3-4 days per week at a specific outpatient clinic, continued group therapy, and after completion of the IOPT, 2-3 urines per week, continued outpatient individual therapy, and mandatory 12-step meetings, at least 3 times per week. Dr. Hyde tested positive for cocaine on three occasions, in violation of his DWBC Agreement, failed to submit ongoing quarterly progress reports on a regular basis in violation of his Consent Order, and failed to ensure that his employer submitted regular quarterly reports.

         Any adverse action taken by the Board against a licensee is subject to judicial review in a circuit court of Maryland. See H.O. § 4-319; Md. Code (2014 Repl. Vol.), State Government Article (“S.G.”) § 10-222; Maryland Rule 7-203. Hyde noted an appeal from the Board's Decision. To my knowledge, the matter is currently pending before the Maryland Court of Special Appeals. See Appeal No. 14-02618, David Hyde v. Maryland State Board of Dental Examiners; ECF 17-1 at 5.[7]

         Additional facts are included in the Discussion.

         II. Standard of Review

         Defendant has advanced several grounds in support of its Motion. I focus here on its ...

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