United States District Court, D. Maryland
DAVID J. HYDE, DDS, Plaintiff,
MARYLAND STATE BOARD OF DENTAL EXAMINERS et al., Defendants
Lipton Hollander United States District Judge
David J. Hyde, DDS filed a civil rights action on July 7,
2016, against the Maryland State Board of Dental Examiners
(the “Board”), alleging that the Board unlawfully
revoked his dental license. ECF 1-1 (Complaint). The suit was
filed, inter alia, pursuant to 42 U.S.C. §
1983, asserting a violation of Dr. Hyde's due process
rights under the Fifth and Fourteenth Amendments and the
unlawful taking of a vested property right, without just
compensation, in violation of the Fifth Amendment. See
id. In addition, Hyde alleged 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.
Complaint was dismissed, without prejudice, by Order of July
7, 2017 (ECF 43), for the reasons set forth in a Memorandum
Opinion of the same date. See ECF 42. Thereafter,
plaintiff filed a First Amended Complaint. ECF 46 (Amended
Complaint). He asserted the same claims against the
Board that were alleged in the initial Complaint.
See ECF 46 at 10-12. And, Hyde named two additional
defendants: Ngoc Q. Chu, DDS, the President of the Board, and
Friends Medical Laboratory, Inc. (“Friends”),
which conducted drug testing of plaintiff that led to the
Board's revocation of Hyde's dental license.
Id. ¶¶ 8-9. According to plaintiff,
Friends acted as an agent of the Board. Id. ¶
One (id. ¶¶ 29-31) is lodged under 42
U.S.C. § 1983 against Chu and the State. Although no
constitutional provision is referenced, plaintiff
incorporates earlier assertions of violations of his rights
under the Fourth, Fifth, and Eighth Amendments. See,
e.g., id. ¶¶ 11, 29. Count Two
asserts a violation of due process, but no specific defendant
is identified. Id. ¶¶ 32-34. Count Three
appears to be lodged against the Board, and asserts that the
Board deprived Dr. Hyde of due process by taking property
without just compensation, and impairing his business
relationships. Id. ¶¶ 35-37. Count Four is
lodged against the State, asserting that the Board has
breached a contract. Id. ¶¶ 38-41. In
Count Five, asserted against Friends, Dr. Hyde claims a
violation of the Maryland Consumer Protection Act, Md. Code
(2013 Repl. Vol., 2017 Supp.), §§ 13-101 et
seq. of the Commercial Law Article (“C.L.”).
Id. ¶¶ 42-43. In Count Six, filed against
Dr. Chu and Friends, Dr. Hyde alleges fraud and deceit.
Id. ¶¶ 44-48. Count Seven asserts a claim
of negligence against Friends. Id. ¶¶ 49-52.
Count Eight seeks injunctive relief as to Dr. Chu and the
Board. Id. ¶¶ 53-55.
suit, Hyde asserts that the “Board is an
instrumentality of the State of Maryland . . . .” ECF
46, ¶ 7. By Order of April 11, 2018 (ECF 52), I granted
the Board's motion to dismiss, pursuant to the Eleventh
Amendment. ECF 47.
has moved to dismiss the Amended Complaint, pursuant to Fed
R. Civ. P. 12(b)(6). ECF 61. The motion is supported by a
memorandum of law (ECF 61-1) (collectively, “Friends
Motion”). Friends contends that the Maryland statute of
limitations bars plaintiff's claims. ECF 61-1 at 1. Dr.
Hyde opposes the Friends Motion. ECF 69. Friends has replied.
addition, Dr. Chu has moved to dismiss the Amended Complaint,
pursuant to Fed R. Civ. P. 12(b)(6) and Fed.R.Civ.P.
12(b)(1). ECF 63. The motion is supported by a memorandum of
law (ECF 63-1) (collectively, “Chu Motion”). Dr.
Chu also argues that plaintiff's claims against him are
time-barred. ECF 63-1 at 3-5. Alternatively, he asserts,
inter alia, that absolute immunity and the Eleventh
Amendment bar plaintiff's suit against him. Id.
at 5-9. Dr. Hyde opposes the Chu Motion. ECF 69. Dr. Chu has
replied. ECF 71.
hearing is necessary to resolve the motions. See
Local Rule 105.6. For the reasons that follow, I shall grant
Hyde “was a board certified dentist.” ECF 46,
¶ 6. The Board is an administrative agency of the State
of Maryland, which “regulates the practice of dentistry
and dental hygiene in Maryland.” Id. ¶ 7.
See Maryland Dentistry Act, Md. Code (2015 Repl.
Vol., 2017 Supp.), § 14-101 et seq. of the
Health Occupations Article (“H.O.”). At the
relevant time, Dr. Chu was President of the Board. ECF 46,
significance here, the Board is a unit within the Maryland
Department of Health. H.O. § 4-201; see also
Md. Code (2015 Repl. Vol., 2017 Supp.), § 2-106 (a)(9)
of the Health- General Article. 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 provides
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,
or revocation of a dental license. H.O. § 14-404.
Hyde has had a long history of interaction with the Board,
dating to about 1999. See Hyde v. Md. State Bd. of Dental
Exam'rs, No. 2618, Sept. Term 2014, 2018 WL 526662,
at *2-3 (Md. Court of Special Appeals, Jan. 24,
2018). In May 2010, he entered into a
confidential consent agreement with the Board that required,
inter alia, that he undergo drug screening. ECF 46,
¶ 10. Plaintiff complains that defendants have
mischaracterized the consent agreement as a consent order. In
any event, Friends performed drug testing of Dr. Hyde for
about two years, pursuant to the consent agreement.
Id. In doing so, Dr. Hyde contends that Friends
acted as an agent of the Board. Id. Moreover,
plaintiff claims that he “was put through secret error
prone and unreliable tests, ” and he claims that the
testing “should have exonerated” him.
Id. ¶ 2.
September 11, 2012, as a result of drug testing performed by
Friends, the Board claimed Dr. Hyde tested positive for
cocaine, in violation of the terms of the consent agreement.
Id. ¶ 11. The Board conducted an evidentiary
hearing on January 2, 2013, in regard to the allegations.
See ECF 1-1, ¶ 13. The Board issued a final
decision and order on July 2, 2013, finding Dr. Hyde in
violation of H.O. § 4-315(a)(31). Id. ¶
12. And, it revoked Dr. Hyde's dental license for five
years, for “failing to comply with a ‘Board
order.'” Id. ¶¶ 12, 13; see
also ECF 1-3 (“Board Decision”).
August 1, 2013, Dr. Hyde sought judicial review in the
Circuit Court for Montgomery County. See H.O. §
4-319; Md. Code (2014 Repl. Vol., 2017 Supp.), § 10-222
of the State Government Article; Maryland Rule 7-203. By
order of January 14, 2015, the circuit court remanded the
case to the Board. See Hyde v. Md. State Bd. of Dental
Exam'rs, No. 379753-V, Docket No. 38. Both parties
appealed the circuit court's ruling to the Maryland Court
of Special Appeals. See Hyde, 2018 WL 526662, at *1.
appeal, the Maryland Court of Special Appeals addressed the
following questions: “(1) Whether Dr. Hyde waived
arguments regarding the Board's authority to sanction a
violation of a consent agreement as a violation of a Board
order? (2) Whether the Board had the authority to sanction a
violation of a consent agreement as a violation of a Board
order? (3) Whether the Board's decision to revoke Dr.
Hyde's license was supported by substantial evidence, and
whether the Board's decision to revoke his license, given
the evidence presented, was arbitrary and capricious?”
unreported opinion, the Maryland Court of Special Appeals
upheld the Board Decision. First, the court ruled that Dr.
Hyde waived arguments regarding the Board's authority to
revoke his license as a violation of the consent agreement.
Id. at *5. The court determined that Dr. Hyde
“did not present this argument before the Board”
but instead “raised it for the first time on petition
for judicial review.” Id. Second, the court
found that, under H.O. § 4-315 and the Code of Maryland
Regulations, the Board “was authorized to revoke Dr.
Hyde's license for violation of his consent
agreement.” Id. at *9; see also Id.
at *8. Third, the court ruled that more than sufficient
evidence supported the Board Decision to revoke Dr.
Hyde's license, and the Board Decision was not arbitrary
or capricious. Id. at *9.
18, 2018, the Maryland Court of Appeals denied Dr. Hyde's
petition for writ of certiorari. See Hyde v. Md. State
Bd. of Dental Exam'rs, Petition Docket No. 27, Sept.
Term 2018; ECF 64.
facts are included in the Discussion.
Hyde alleges that on September 11, 2012, the Board, through
its members, “charged [him] for violating a consent
order that did not exist by falsely and intentionally
misrepresenting the consent agreement dated [sic] as a
consent order when he ‘tested positive [f]or cocaine .
. . .'” ECF 46, ¶ 11. Moreover, Dr. Hyde
asserts that the Board and Dr. Chu knew that “no
consent order existed.” Id. ¶ 14.
Further, he claims that the Board and Dr. Chu manufactured
“material facts” and published a
“false” consent order to revoke his dental
license. Id. ¶ 14. In addition, he contends
that the Board, as well as its members and agents,
“acted intentionally or maliciously and acted ultra
vires” by revoking his license. Id. And, he
maintains that the Board defamed him, vilified him, and
humiliated him, id. ¶ 15, tantamount to a
“‘modern day lynching.'” Id.
¶ 16. Plaintiff also asserts that he “has lost all
available means to support himself . . . .”
addition, Dr. Hyde claims that Friends “owed a duty of
care to provide standard drug screens and to inform and to
provide notice and accurate truthful information about the
drug screen obtained or provided to him.” Id.
¶ 11. He avers that Friends conducted “clandestine
tests, ” id. ¶ 2, and performed
“false, unreliable and unconstitutional” drug
testing. Id. ¶ 11. According to Hyde, the
testing was “faulty and unreliable due to contamination
or improper handling . . . .” Id.
Hyde asserts violations of his rights under the Fourth,
Fifth, Eighth, and Fourteenth Amendments to the Constitution.
ECF 46, ¶¶ 11, 18, 21. He also alleges a violation
of Article 24 of the Maryland Declaration of Rights and
Article III, § 40 of the Maryland Constitution.
Id. ¶ 21. Further, he alleges that defendants
engaged in a conspiracy, id. ¶ 25, and acted
with malice. Id. ¶ 23.
Standards of Review
noted, both defendants have moved to dismiss the Amended
Complaint for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6). ECF 61; ECF 63. And, Dr. Chu also
seeks to dismiss plaintiff's claims for lack of subject
matter jurisdiction, based on sovereign immunity.
See ECF 63. Therefore, I shall also construe the Chu
Motion as one under Fed.R.Civ.P. 12(b)(1).
challenge to a federal court's subject matter
jurisdiction is reviewed pursuant to Fed.R.Civ.P. 12(b)(1).
Under Rule 12(b)(1), the plaintiff bears the burden of
proving, by a preponderance of evidence, the existence of
subject matter jurisdiction. See Demetres v. East West
Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see
also Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th
Cir. 1999). A test of subject matter jurisdiction under Rule
12(b)(1) may proceed “in one of two ways”: either
a facial challenge, asserting that the allegations pleaded in
the complaint are insufficient to establish subject matter
jurisdiction, or a factual challenge, asserting “that
the jurisdictional allegations of the complaint [are] not
true.” Kerns v. United States, 585
F.3d 187, 192 (4th Cir. 2009) (quotation marks and citation
omitted); accord Durden v. United States, 736 F.3d
296, 300 (4th Cir. 2013).
facial challenge, “the facts alleged in the complaint
are taken as true, and the motion must be denied if the
complaint alleges sufficient facts to invoke subject matter
jurisdiction.” Kerns, 585 F.3d at 192; see
also Ibarra v. United States, 120 F.3d 472, 474 (4th
Cir. 1997). In a factual challenge, on the other hand,
“the district court is entitled to decide disputed
issues of fact with respect to subject matter
jurisdiction.” Kerns, 585 F.3d at 192. In that
circumstance, the court “may regard the pleadings as
mere evidence on the issue and may consider evidence outside
the pleadings without converting the proceeding to one for
summary judgment.” Velasco v. Gov't of
Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see
also Richmond, Fredericksburg & Potomac R.R. Co. v.
United States, 945 F.2d 765, 768 (4th Cir. 1991).
respect to Dr. Chu's contention that plaintiff's
claims are barred by Eleventh Amendment immunity, Dr. Chu
seems to raise a facial challenge. Therefore, I shall assume
the truth of Dr. Hyde's allegations.
defendant may test the legal sufficiency of a complaint by
way of a motion to dismiss under Rule 12(b)(6). In re
Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines
v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th
Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393,
408 (4th Cir. 2010), aff'd sub nom. McBurney v.
Young, 569 U.S. 221 (2013); Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule
12(b)(6) motion constitutes an assertion by a defendant that,
even if the facts alleged by a plaintiff are true, the
complaint fails as a matter of law “to state a claim
upon which relief can be granted.”
a complaint states a claim for relief is assessed by
reference to the pleading requirements of Fed.R.Civ.P.
8(a)(2). That rule provides that a complaint must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” The purpose of the
rule is to provide the defendants with “fair
notice” of the claims and the “grounds” for
entitlement to relief. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555-56 (2007).
survive a motion under Rule 12(b)(6), a complaint must
contain facts sufficient to “state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662,
684 (2009) (“Our decision in Twombly expounded
the pleading standard for ‘all civil actions' . . .
.” (citation omitted)); see also Willner v.
Dimon, 849 F.3d 93, 112 (4th Cir. 2017). But, a
plaintiff need not include “detailed factual
allegations” in order to satisfy Rule 8(a)(2).
Twombly, 550 U.S. at 555. Moreover, federal pleading
rules “do not countenance dismissal of a complaint for
imperfect statement of the legal theory supporting the claim
asserted.” Johnson v. City of Shelby, Miss.,
__U.S.___, 135 S.Ct. 346, 346 (2014) (per curiam).
the rule demands more than bald accusations or mere
speculation. Twombly, 550 U.S. at 555; see
Painter's Mill Grille, LLC v. Brown, 716 F.3d 342,
350 (4th Cir. 2013). If a complaint provides no more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action, ” it
is insufficient. Twombly, 550 U.S. at 555. Rather,
to satisfy the minimal requirements of Rule 8(a)(2), the
complaint must set forth “enough factual matter (taken
as true) to suggest” a cognizable cause of action,
“even if . . . [the] actual proof of those facts is
improbable and . . . recovery is very remote and
unlikely.” Twombly, 550 U.S. at 556 (internal
quotation marks omitted).
reviewing a Rule 12(b)(6) motion, a court “must accept
as true all of the factual allegations contained in the
complaint” and must “draw all reasonable
inferences [from those facts] in favor of the
plaintiff.” E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)
(citations omitted); see Reyes v. Waples Mobile Home Park
Ltd. P'ship, __F.3d___, 2018 WL 4344682, at *4 (4th
Cir. Sept. 12, 2018); Semenova v. Md. Transit
Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v.
Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir.
2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th
Cir. 2011), cert. denied, 565 U.S. 943 (2011). But,
a court is not required to accept legal conclusions drawn
from the facts. See Papasan v. Allain, 478 U.S. 265,
286 (1986). “A court decides whether [the pleading]
standard is met by separating the legal conclusions from the
factual allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations
allow the court to reasonably infer” that the plaintiff
is entitled to the legal remedy sought. A Soc'y
Without a Name v. Cmm'w of Va., 655 F.3d 342, 346
(4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012).
generally do not “resolve contests surrounding the
facts, the merits of a claim, or the applicability of
defenses” through a Rule 12(b)(6) motion.
Edwards, 178 F.3d at 243 (quotation marks and
citation omitted). But, “in the relatively rare
circumstances where facts sufficient to rule on an
affirmative defense are alleged in the complaint, the defense
may be reached by a motion to dismiss filed under Rule
12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d
458, 464 (4th Cir. 2007) (en banc); accord Pressley v.
Tupperware Long Term Disability Plan, 533 F.3d 334, 336
(4th Cir. 2009); see also U.S. ex rel. Oberg v. Penn.
Higher Educ. Assistance Agency, 745 F.3d 131, 148 (4th
Cir. 2014). However, because Rule 12(b)(6) “is intended
[only] to test the legal adequacy of the complaint, ”
Richmond, Fredericksburg & Potomac R.R. Co. v.
Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his
principle only applies . . . if all facts necessary to the
affirmative defense ‘clearly appear[ ] on the face
of the complaint.'” Goodman, 494 F.3d
at 464 (quoting Forst, 4 F.3d at 250) (emphasis
added in Goodman).
court may properly take judicial notice of ‘matters of
public record' and other information that, under Federal
Rule of Evidence 201, constitute ‘adjudicative
facts.'” Goldfarb v. Mayor & City Council
of Balt., 791 F.3d 500, 508 (4th Cir. 2015); see
also Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007); Katyle v. Penn Nat'l
Gaming, Inc., 637 F.3d 462, 466 (4th Cir. 2011),
cert. denied, 565 U.S. 825 (2011); Philips v.
Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Pursuant to Fed.R.Evid. 201, a court may take judicial notice
of adjudicative facts if they are “not subject to
reasonable dispute, ” in that they are “(1)
generally known within the territorial jurisdiction of the
trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.” And, courts may take
judicial notice of publicly available records, without
converting a motion to dismiss to a motion for summary
judgment. See, e.g., Zak v. Chelsea Therapeutics
Int'l, Ltd., 780 F.3d 597, 607 (4th Cir. 2015)
(“Courts are permitted to consider facts and documents
subject to judicial notice without converting the motion to
dismiss into one for summary judgment.”). A court may
also take judicial notice of its own records. Anderson v.
Fed. Deposit Ins. Corp., 918 F.2d 1139, 1141 n.1 (4th
extent that the Amended Complaint lodges a claim of fraud,
Fed.R.Civ.P. 9(b) is pertinent. Rule 9(b) states: “In
alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or
mistake. Malice, intent, knowledge, and other conditions of a
person's mind may be alleged generally.”
preliminary matter, claims that sound in fraud, whether
rooted in common law or arising under a statute, implicate
the heightened pleading standard of Fed.R.Civ.P. 9(b).
See, e.g., E-Shops Corp. v. U.S. Bank N.A.,
678 F.3d 659, 665 (8th Cir. 2012) (“Rule 9(b)'s
heightened pleading requirement also applies to statutory
fraud claims.”); see also Spaulding v. Wells Fargo
Bank, N.A., 714 F.3d 769, 781 (4th Cir. 2013) (stating
that an MCPA claim that “sounds in fraud is subject
to the heightened pleading standards of Federal Rule of Civil
the rule, a plaintiff alleging a claim that sounds in fraud
“‘must, at a minimum, describe the time, place,
and contents of the false representations, as well as the
identity of the person making the misrepresentation and what
he obtained thereby.'” United States ex rel.
Owens v. First Kuwaiti Gen'l Trading & Contracting
Co.,612 F.3d 724, 731 (4th Cir. 2010) (citation
omitted). In other words, “‘Rule 9(b) requires
plaintiffs to plead the who, what, when, where, and how: the