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Hyde v. Maryland State Board of Dental Examiners

United States District Court, D. Maryland

November 5, 2018

DAVID J. HYDE, DDS, Plaintiff,
v.
MARYLAND STATE BOARD OF DENTAL EXAMINERS et al., Defendants

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge

         Plaintiff 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.

         Plaintiff's 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).[1] 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. ¶ 9.

         Count 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.[2] Id. ¶¶ 49-52. Count Eight seeks injunctive relief as to Dr. Chu and the Board. Id. ¶¶ 53-55.

         In the 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.

         Friends 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. ECF 72.

         In 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.

         No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I shall grant the motions.

         I. Factual Background

         Dr. 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, ¶ 8.

         Of 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.[3] 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.

         Dr. 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).[4] 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.

         On 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”).

         On 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.

         On 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?” Id.

         In an 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.

         On May 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.

         Additional facts are included in the Discussion.

         II. Plaintiff's Contentions

         Dr. 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.[5] 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 . . . .” Id.

         In 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.

         Dr. 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.

         III. Standards of Review

         As 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).

         A. Rule 12(b)(1)

         A 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).

         In a 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).

         With 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.

         B. Rule 12(b)(6)

         A 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.”

         Whether 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).

         To 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).

         Nevertheless, 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).

         In 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).

         Courts 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).

         “[A] 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 Cir. 1990).

         C. Rule 9(b)

         To the 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.”

         As a 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 Procedure 9(b)”).

         Under 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 ...


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