United States District Court, W.D. Michigan, Southern Division
OPINION REGARDING DEFENDANTS' MOTION TO DISMISS
AND PLAINTIFF'S MOTION TO AMEND
J. QUIST UNITED STATES DISTRICT JUDGE.
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.
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.)
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.)
Eleventh Amendment Immunity
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
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.”).
Personal Involvement of Defendant Mitchell
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.
Procedural Due Process Rights
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).
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