United States District Court, Southern District of Indiana
JAMES E. LUNDEEN, SR., Plaintiff,
NICHOLAS RHOAD, Executive Director of the Indiana Professional Licensing Agency, in his official capacity, Defendant.
Denise K. LaRue Judge
Plaintiff’s Motion for Leave To File Verified Second Amended Complaint [doc. 77]
The Court previously dismissed, without prejudice, the Amended Complaint in this Cause, Order of Dismissal of Amended Complaint [doc. 76], and afforded plaintiff James E. Lundeen, Sr., one opportunity to seek leave to file an amended complaint “that corrects the deficiencies addressed” in the Court’s accompanying Entry of January 7, 2014 [doc. 75] at 21. Now before the Court is Mr. Lundeen’s motion for leave to file that invited amended complaint.
In its Entry, the Court stated that counts 1, 2, and 3 of the Amended Complaint were barred by the Eleventh Amendment because they failed to allege “ongoing violations of federal law.” Entry at 12-16. The Court found that those counts failed to adequately and plausibly allege the substance of Constitutional violations, not that they failed to adequately allege that those violations were ongoing or continuing. Id. The Court dismissed counts 4, 5, and 6 for failure to state deprivations of federal due process rights. Id. at 17-21. The Court concluded that, “[b]ecause the Amended Complaint fails to identify an ongoing violation of federal law, it is barred by the Eleventh Amendment and fails to state a claim . . . .” Id. at 21.
In addition to modifying the original allegations of the Amended Complaint, Mr. Lundeen’s proposed Verified Second Amended Complaint [doc. 77-3] (“Proposed Complaint”) adds three new defendants; adds that present sole defendant Nicholas Rhoad is sued in his individual capacity, as well as his official capacity; drops his Eighth Amendment claim (count 2), and adds four new counts. Familiarity with the Entry is assumed in the following discussion.
New defendants, claims, and capacity.
The Court afforded Mr. Lundeen an opportunity only to “file a motion for leave to file a second amended complaint that corrects the deficiencies addressed herein . . . .” Entry at 21. He was not allowed leave to add parties, claims, or capacities. Mr. Lundeen has had ample opportunity to plead all claims he has against all defendants that he desires in this Cause and he was already granted leave to file his Amended Complaint. He points to no new evidence that explains or justifies his failure to plead the new claims or join the new defendants before now, particularly in light of Defendant’s motion to dismiss filed back in July 2013. For this reason, leave is denied to plead the Proposed Complaint ‘s (1) new claims (counts 2, 7, 8, and 9, and part of count 1), (2) new defendants (Stephen Huddleston, Amber Swartzell, and Frances L. Kelly), and (3) individual-capacity claims against defendant Nicholas Rhoad.
Count 1, First Amendment retaliation.
In count 1 of the Amended Complaint, Mr. Lundeen alleged that the Medical Licensing Board of Indiana (“Indiana Board” or “Board”) indefinitely suspended his medical license as retaliation for his state-court suit that challenged the Board’s earlier summary ninety-day suspension of his license. Mr. Lundeen claimed that the alleged retaliation violated his First Amendment free-speech and petition rights.
A brief background will facilitate this discussion; fuller details are in the Court’s Entry. On December 14, 2011, seven months after summarily suspending Mr. Lundeen’s Ohio medical license, the State Medical Board of Ohio (“Ohio Board”) permanently revoked his medical license, finding that his “continued practice presents a danger of immediate and serious harm to the public.” After learning of the Ohio revocation, the Attorney General of Indiana filed a complaint with the Indiana Board, asking it to suspend Mr. Lundeen’s Indiana medical license. On February 10, 2012, after a hearing, the Indiana Board suspended Mr. Lundeen’s Indiana license pursuant to an Indiana statute authorizing the Board to “summarily suspend a practitioner’s license for ninety (90) days before a final adjudication or during the appeals process if the board finds that a practitioner represents a clear and immediate danger to the public health and safety if the practitioner is allowed to continue to practice.” Six days later, on February 16, 2012, Mr. Lundeen filed suit in Marion Superior Court in Marion County, Indiana, challenging the Indiana Board’s summary suspension. Twenty-one days later, on March 8, 2012, the Attorney General of Indiana filed a complaint with the Indiana Board for final action against Mr. Lundeen’s medical license pursuant to an Indiana statute authorizing disciplinary sanctions if the Board finds that another state has taken disciplinary action against the practitioner’s license in that state. The complaint asked for “the appropriate disciplinary sanction.” The Indiana Board held a hearing on April 26, 2012 and, on May 2, 2012, it placed Mr. Lundeen’s medical license on indefinite conditional suspension.
The Entry found that the only fact alleged in count 1 to show that the Indiana Board’s final suspension was motivated by retaliation was time proximity – the twenty-one days between the filings of Mr. Lundeen’s state-court suit and the Attorney General’s complaint for final discipline – and the Court rejected the plausibility of that allegation:
This conclusory allegation is not enough to allege a claim of retaliation especially when the Attorney General’s complaint and the Board’s indefinite suspension both logically followed the ninety-day temporary summary suspension. Under these circumstances, there is no plausible basis to infer that the intervening state court case, rather than the Ohio Board’s actions and the Indiana Board’s summary ...