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Proctor v. Krzanowski

United States District Court, W.D. Michigan, Southern Division

November 19, 2019

VERNON EUGENE PROCTOR, Plaintiff,
v.
KAREN KRZANOWSKI and DESMOND MITCHELL, Defendants.

          OPINION REGARDING DEFENDANTS' MOTION TO DISMISS AND PLAINTIFF'S MOTION TO AMEND

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE.

         Plaintiff, Vernon Eugene Proctor, is suing Defendants, Karen Krzanowski and Desmond Mitchell, pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his procedural due process rights when the Michigan Department of Licensing and Regulatory Affairs (LARA) personnel stopped accepting applications for medical marihuana dispensation that were accompanied by a written certification from Plaintiff, a licensed physician. Defendants filed a motion to dismiss the complaint, arguing that (1) Defendants are immune from suit under the Eleventh Amendment; (2) Plaintiff lacks standing; (3) Plaintiff has not articulated a cause of action against Defendant Mitchell; (4) Plaintiff did not have a federal due process right to certify medical marihuana applications; and (5) Defendants are entitled to qualified immunity on Plaintiff's claim. (ECF No. 8.) Plaintiff responded to the motion to dismiss and also filed a motion to amend his complaint. (ECF Nos. 9, 10.) The Court finds that Plaintiff lacks a property or liberty interest in acceptance of his written certifications, or at least such an interest was not clearly established. Thus, Defendants are entitled to qualified immunity. The added factual allegations in the proposed amended complaint do not change the analysis. Therefore, the Court denies the motion to amend because the amendment would be futile.

         I. Factual Allegations

         Plaintiff is a licensed physician. (ECF No. 1 at PageID.2.) In February 2016, Defendant Krzanowski became the manager of the Michigan Medical Marihuana Section within the Bureau of Professional Licensing of LARA. Beginning in February 2016, employees from Defendant Krzanowski's section called Plaintiff's office on multiple occasions to verify patients' applications for medical marihuana registry cards. The LARA employees attempted to verify the information using the patients' name and birthdates. (Id.) Plaintiff and his staff asked the LARA employees to, instead, provide the date of the certification because that was the primary method by which Plaintiff organized his files. (Id. at PageID.2-3.) On only two occasions, LARA employees provided the date of certification. On those two occasions, the request for verification was answered within 30 minutes. A member of Plaintiff's staff asked Defendant Mitchell to put the requests for verification in writing (rather than orally over the phone), but Defendant Mitchell refused. (Id. at PageID.3.)

         On June 15, 2016, two patients informed Plaintiff that Defendants were no longer accepting applications that were accompanied by a certification from Plaintiff because of Plaintiff's refusal to participate in LARA's verification process, i.e. by verifying certifications using names and birthdates. On that same day, Defendant Krzanowski confirmed over the phone that Defendants would no longer accept certifications from Plaintiff. (Id.) Defendants did not provide Plaintiff with any notice or an opportunity to be heard before deciding to no longer accept Plaintiff's certifications, nor did they provide Plaintiff notice of any available procedure to challenge the decision. (Id. at PageID.6-8.) Nonetheless, Defendants resumed acceptance of Plaintiff's certifications in July 2016, when he began participating in Defendants' ordinary verification procedures. (ECF No. 8 at PageID.32-33.)

         II. Eleventh Amendment Immunity

         Plaintiff's complaint does not identify the capacity in which Defendants are being sued- official or individual. Defendants argue that absent any indication that Defendants are being sued in their individual capacities, courts must assume that Defendants are being sued in their official capacities, Whittington v. Milby, 928 F.2d 188, 193 (6th Cir. 1991), and, because officials acting in their official capacities are not subject to suit under 42 U.S.C. § 1983 due to Eleventh Amendment immunity, Will v. Michigan Department of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312 (1989), Plaintiff's claims should be dismissed. However, even if Plaintiff does not affirmatively plead individual capacity claims, as long as there is some indication in the complaint that puts Defendants on notice that they are being sued in their individual capacities, the claims should proceed. Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001). Moreover, Plaintiff could cure the defect if the Court grants his motion to amend. Therefore, Eleventh Amendment immunity is not a valid reason to dismiss Plaintiff's claims.

         III. Standing

         Defendants argue that Plaintiff's theory of liability revolves around the denial of his patients' marihuana registry cards, and thus Plaintiff lacks standing because “[o]rdinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party.” Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1034 (1953). However, Plaintiff is not suing because his patients' applications were denied; Plaintiff is suing because his own written certifications were being denied. Accordingly, Plaintiff is suing for an injury that he personally suffered, not an injury suffered by a third party. Therefore, he has standing to sue Defendants. Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607-08 (1979) (“In order to satisfy Art. III, the plaintiff must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.”).

         IV. Personal Involvement of Defendant Mitchell

         Plaintiff's complaint names Defendant Mitchell in only three paragraphs. The factual allegations regarding Defendant Mitchell are that Mitchell was asked by Plaintiff's staff to put verification requests in writing, but Mitchell refused to do so, and that Mitchell “was involved in the decision to reject patient applications accompanied by a certification from Plaintiff.” (ECF No. 1 at PageID.4.) Plaintiff seeks to amend his complaint to clarify that Defendant Mitchell personally approved the decision to deny written certifications from Plaintiff. Because the motion to amend could clarify Defendant Mitchell's involvement, the Court will not dismiss on this ground.

         V. Procedural Due Process Rights

         “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705 (1972).

         Defendants characterize Plaintiff's interest as the right to prescribe medical marihuana, which is not a recognized federal right. In fact, prescribing marihuana could be a serious violation of federal law. Nevertheless, there are a few problems with Defendants' characterization. First, Plaintiff was not prescribing marihuana; he was submitting written certifications to accompany patients' applications for medical marihuana. Second, Defendants' argument focuses on the fact that no one has a substantive due process right to possess, use, or prescribe marihuana, but Plaintiff is claiming a procedural due process right to have notice and an opportunity to be heard prior to Defendants' decision to not accept Plaintiff's written certifications. See ...


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