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Tavernier v. Colorado State Board of Nursing

United States District Court, D. Colorado

March 17, 2017

CAROL TAVERNIER, Plaintiff,
v.
COLORADO STATE BOARD OF NURSING, a public entity, WENDY COLON, in her official capacity, MATTHEW FOGEL, in his official capacity, KRISTINE REUSS, in her official capacity, THERESA CURE, in her official capacity, AMY STORM, in her official capacity, and JOE NEGUSE, in his official capacity, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

          Scott T. Varholak United States Magistrate Judge

         This matter comes before the Court on Defendants' Motion to Dismiss (the “Motion”), filed September 14, 2016. [#20]. This Court has carefully considered Plaintiff's Complaint [#1], the Motion and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the instant Motion. For the following reasons, the Motion is GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND[1]

         Plaintiff obtained her license to practice as a licensed nurse in 1982 and her license to practice as a professional nurse in 2011. [#1, ¶ 12]. Plaintiff began working for Pikes Peak Hospice and Palliative Care in Colorado Springs, Colorado (“Pikes Peak”) in or around 2010. [Id., ¶ 14]. In 2013, Plaintiff worked for Pikes Peak Mondays through Fridays from 8:00 a.m. until 5:00 p.m., providing nursing services to patients in their homes. [Id., ¶ 15]. Plaintiff alleges that although she attempted to perform all required charting tasks related to her patient visits “at bedside” during the visits, “[b]ecause of the demands on her time, ” Plaintiff completed some charting, including patient summaries, after hours. [Id., ¶ 16]. Plaintiff contends that she worked on and off the clock during evening hours, almost every day, performing charting tasks related to her patient visits. [Id., ¶ 15]. Plaintiff alleges that charting at home after hours was “common practice” by employees of Pikes Peak. [Id., ¶ 17]. Plaintiff alleges that it was not uncommon for Pikes Peak nurses, including Plaintiff, to fall behind in their charting responsibilities as a result of their heavy caseloads. [Id., ¶ 23].

         On or before November 22, 2013, Plaintiff expressed to her supervisor a need to take time off due to work stress. [Id., ¶ 27]. Shortly thereafter, Pikes Peak conducted an audit of Plaintiff's charting. [Id.]. In connection therewith, Pikes Peak administrators discovered that Plaintiff had failed to record all of the required information in her patients' medical records. [Id., ¶ 28]. In December 2013, while Plaintiff was on leave pursuant to the Family Medical Leave Act, Plaintiff was called back into work for two days to complete charting for certain patient records. [Id., ¶ 29]. Because Plaintiff was unable to answer certain questions to her manager's satisfaction, Pikes Peak conducted a second audit of Plaintiff's charting. [Id., ¶ 31]. As a result of the alleged deficiencies in Plaintiff's charting, Pikes Peak terminated Plaintiff's employment and made a complaint concerning Plaintiff to the Colorado State Board of Nursing (the “Board of Nursing”). [Id., ¶¶ 33-34].

         Almost a year later, in December 2014, the Board of Nursing ordered Plaintiff to undergo a mental examination with a mental health professional employed by an organization known as Peer Assistance Services. [Id., ¶ 35]. Based upon Plaintiff's responses to memory-type questions during that examination, Plaintiff was ordered to submit to neuropsychological testing by a psychologist selected by the Board of Nursing, Dr. Stephanie S. Huzij. [Id., ¶¶ 38-39]. Following the testing, Dr. Huzij issued a report to the Board of Nursing that diagnosed Plaintiff with “Other Specified Neurodevelopmental Disorder, ” which according to Plaintiff's Complaint, means Plaintiff “has a long standing learning disability which include[s] memory deficits and problems with concentration.” [Id., ¶ 41]. Dr. Huzij's report noted that Plaintiff had developed strategies and methods to cope with and accommodate for her disability. [Id., ¶ 42]. Dr. Huzij also allegedly opined “unequivocally that ‘[Plaintiff] is safe to practice as an RN with reasonable skill and safety.'” [Id., ¶ 43].

         Following the receipt of Dr. Huzij's report, the Board of Nursing mailed Plaintiff a proposed stipulation and final agency order (the “Stipulation”).[2] [#1, ¶¶ 44, 46]. The Stipulation stated that Plaintiff was “subject to discipline pursuant to section 12-38-117(1)(c), (f), (h) and (j), C.R.S.” and went on to define each of those grounds. [#20-1, ¶¶ 7, 9; #1, ¶ 53]. Subsection (j) defines as a “ground for discipline” a person who “[h]as a physical or mental disability which renders him unable to practice nursing with reasonable skill and safety to the patients and which may endanger the health or safety of persons under his care.” [#20-1, ¶ 9; see also #1, 54]. The Stipulation provided for a two-year probation during which time Plaintiff would be restricted from practicing certain types of nursing and would be required to obtain a Practice Monitor with whom she would be required to work 32-80 hours every two weeks throughout the probation period. [#1, ¶ 45; #20-1, ¶¶ 10-14].

         Plaintiff was out of state when the Stipulation was received at her home in Colorado Springs. [#1, ¶ 51]. Plaintiff alleges that she did not understand many of the terms in the Stipulation or cover letter sent by the Board of Nursing. [Id., ¶ 49]. The nine-page Stipulation was never discussed or explained to Plaintiff by anyone from the Board of Nursing. [Id., ¶ 47]. Plaintiff allegedly understood the Stipulation to mean that the Board of Nursing “had already found her ‘guilty'” of the misconduct described therein and that she would lose her nursing license if she did not sign the Stipulation and return it by the date requested by the Board of Nursing. [Id., ¶¶ 46, 50]. Plaintiff did not understand that if she chose not to sign the Stipulation, she would receive a fair hearing with a neutral officer. [Id., ¶ 48]. Plaintiff did not understand that by signing she was admitting that: (1) she had negligently practiced nursing in a manner “inconsistent with the health and safety of persons under [her] care” and (2) she had “a mental disability which renders [her] unable to practice nursing with reasonable skill and safety …” [Id., ¶ 54 (quoting #20-1, ¶ 9)]. Plaintiff contends that she would not have signed the Stipulation if she had understood she was admitting these allegations. [#1, ¶ 56].

         Upon receipt of the signed Stipulation, the Board of Nursing published the Stipulation on its website, including the allegation that Plaintiff “had a mental disability which rendered her unable to practice nursing with reasonable skill and safety or that she negligently practiced nursing.” [Id., ¶ 57]. Plaintiff contends that neither of these allegations is true. [Id., ¶ 55].

         Plaintiff subsequently retained counsel and, on or about March 22, 2016, petitioned the Board of Nursing to set aside the Stipulation or grant her a hearing on the issue of whether she had made a knowing and voluntary waiver of her right to a hearing. [Id., ¶ 58]. In support, Plaintiff submitted an affidavit explaining that she did not understand that she had a choice about signing the Stipulation or that she was entitled to receive a fair hearing if she did not sign. [Id., ¶ 59]. On July 27, 2016, the Board of Nursing considered and denied Plaintiff's petition either: (1) without hearing testimony or receiving any evidence that contradicted Plaintiff's affidavit; or (2) without providing Plaintiff an opportunity to appear and confront any evidence that contradicted her affidavit. [Id., ¶¶ 60, 61].

         Plaintiff contends that she has been unable to find employment as a result of the Board of Nursing publicly publishing on its website the allegedly false accusation that Plaintiff has a mental disability that may endanger the health and safety of patients and that she negligently provided care to her patients. [Id., ¶ 64].

         On August 17, 2016, Plaintiff filed the instant lawsuit asserting three causes of action and naming as defendants the Board of Nursing and six individual defendants.[3] [#1]. In her first cause of action, Plaintiff alleges that the Board of Nursing violated Title II of the Americans with Disabilities Act (the “ADA”) by: (1) disciplining Plaintiff because of her disability; (2) including in the Stipulation an unsubstantiated allegation regarding Plaintiff's disability-i.e., that Plaintiff had a mental disability that may endanger the health and safety of patients; and (3) publishing the Stipulation, which included the allegedly unsubstantiated allegation regarding Plaintiff's disability, on a publicly accessible website. [Id., ¶¶ 70-73]. Plaintiff contends that the Board of Nursing's actions in violation of the ADA “have caused others to discriminate against Plaintiff because of her disability.” [Id., ¶ 74]. In her second cause of action, Plaintiff asserts Defendants' actions violated the ADA and thus constitute a violation of her rights under the laws of the United States pursuant to 42 U.S.C. § 1983 (“Section 1983”). [Id., ¶¶ 78-79]. In her third cause of action, Plaintiff alleges a Section 1983 claim for alleged violations of her due process rights under the Fourteenth Amendment based upon Defendants' (1) failure to provide Plaintiff with a hearing on the allegations for which she was disciplined that she violated the Nurse Practice Act; and (2) failure to provide Plaintiff with a hearing to determine whether Plaintiff made a knowing, intelligent and voluntary waiver of her right to a due process hearing. [Id., ¶¶ 84-88]. Plaintiff seeks injunctive relief ordering a hearing before a neutral hearing officer to determine whether Plaintiff violated the Nurse Practice Act or, in the alternative, a hearing before a neutral hearing officer to determine whether Plaintiff made a knowing, intelligent and voluntary waiver of her right to a due process hearing. [Id. at 13]. In addition, Plaintiff seeks compensatory and consequential damages, including an award of monetary damages for the publication of allegedly false information about her disability that allegedly has caused others to discriminate against her. [Id.].

         On September 14, 2016, Defendants filed the instant Motion to Dismiss, arguing that: (1) Individual Defendants are entitled to absolute quasi-judicial immunity; (2) the Eleventh Amendment bars Plaintiff's claim for violation of the ADA and her claims for damages under Section 1983; (3) Individual Defendants are entitled to qualified immunity to the extent Plaintiff intended to assert claims for damages against them; and (4) Plaintiff fails to demonstrate that she is entitled to injunctive relief pursuant to Section 1983. [#20]. Plaintiff filed a Response to the Motion on October 3, 2016 [#21] and Defendants filed their Reply in Support of the Motion on October 24, 2016 [#32]. The parties have all consented to having a United States Magistrate Judge conduct all proceedings, including trial, and to order the entry of a final judgment [#27, 28] and an Order of Reference has been entered referring the case to this Court for all purposes pursuant to D.C.COLO.LCivR 72.2(d) and 28 U.S.C. § 636(c) [#35].

         II. STANDARD OF REVIEW

         A. Lack of Subject Matter Jurisdiction

         Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate for any claim over which the Court lacks subject matter jurisdiction. Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir.2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir.2003)). Here, Defendants make a facial attack on the allegations of subject matter jurisdiction based upon Eleventh Amendment immunity. See Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). Accordingly, the Court presumes all of the allegations in the complaint to be true. Id.

         B. Failure to State a Claim

         Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” In evaluating such a motion, the Court must “assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Granting a motion to dismiss “is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.” Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quotation omitted). As a result, “‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'” Id. (quoting Twombly, 550 U.S. at 556 (internal quotation omitted)).

         III. ANALYSIS

         Defendants seek dismissal of Plaintiff's claims on the following grounds: (i) absolute quasi-judicial immunity for the Individual Defendants; (ii) Sovereign Immunity pursuant to the Eleventh Amendment for the Board of Nursing and Individual Defendants in their official capacities; (iii) qualified immunity for the Individual Defendants to the extent Plaintiff asserts claims for damages against them in their personal capacities; and (iv) failure to state a claim for injunctive relief. Because, as the parties both concede, Sovereign Immunity implicates the Court's subject-matter jurisdiction, the Court begins its consideration of the Motion with that issue and then addresses the remaining issues in turn.

         A. Sovereign Immunity

         The Eleventh Amendment grants immunity to the states from “any suit in law or equity, commenced or prosecuted . . . by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Although the language of the Amendment applies only to suits against a State “by Citizens of another State, ” the Supreme Court “ha[s] repeatedly held that this immunity also applies to unconsented suits brought by a State's own citizens.” Tennessee v. Lane, 541 U.S. 509, 517 (2004). “[B]ecause ‘an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity, ' the Eleventh Amendment provides immunity ‘when [s]tate officials are sued for damages in their official capacity.'” Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)).

         In Ex parte Young, 209 U.S. 123, 159-60 (1908), the Supreme Court recognized an exception to Eleventh Amendment immunity for actions seeking to enjoin a state official's ongoing constitutional violation. Subsequently, “the Supreme Court has applied Ex parte Young to allow suits for prospective relief against a state officer to enjoin future violations of federal law, but it has consistently prohibited any retroactive or compensatory relief.” Elephant Butte Irr. Dist. of New Mexico v. Dep't of Interior, 160 F.3d 602, 608 (10th Cir. 1998). Moreover, the Ex parte Young doctrine “has no application in suits against the States and their agencies, which are barred regardless of the relief sought.” Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993).

         Nonetheless, the Supreme Court has held that “Congress may abrogate the State's Eleventh Amendment immunity.” Lane, 541 U.S. at 517. To determine whether Congress has effectively abrogated the immunity, the Court “must resolve two predicate questions: first, whether Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000).

         Eleventh Amendment immunity “constitutes a bar to the exercise of federal subject matter jurisdiction.” Fent v. Okla. Water Res. Bd., 235 F.3d 553, 559 (10th Cir. 2000). As a result, any dismissal premised thereon should be a dismissal without prejudice. See Barnes v. United States, 776 F.3d 1134, 1151 (10th Cir. 2015) (stating that jurisdictional dismissals should ordinarily be without prejudice).

         1. ADA Claim

         Defendants argue that Plaintiff's ADA claims are barred by the Eleventh Amendment.[4] [#20 at 8-13]. Plaintiff responds that Congress validly abrogated any claim of Sovereign Immunity for Plaintiff's ADA claims. [#21 at 9-18]. Congress unequivocally expressed its intent to abrogate Eleventh Amendment immunity for ADA claims by enacting the following language: “A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter.” 42 U.S.C. § 12202; see also Lane, 541 U.S. at 518. The question that remains is “whether Congress acted pursuant to a valid grant of constitutional authority” when it expressed this intent. Kimel, 528 U.S. at 73.

         To resolve that question, the Court must:

determine in the first instance, on a claim-by-claim basis, (1) which aspects of the State's alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.

United States v. Georgia, 546 U.S. 151, 159 (2006).

         a. Step One: ADA Claims

         In the first step, the Court thus must “identify the state's conduct that allegedly violated Title II's prohibition against disability discrimination in the provision of state services or programs.” Guttman v. Khalsa (Guttman II), 669 F.3d 1101, 1113 (10th Cir. 2012). Here, Plaintiff alleges that Defendants violated Title II of the ADA by: (1) disciplining Plaintiff because of her disability; (2) including in the Stipulation an unsubstantiated allegation regarding Plaintiff's disability-i.e., that Plaintiff had a mental disability that may endanger the health and safety of patients; and (3) publishing the Stipulation, which included the allegedly unsubstantiated allegation regarding Plaintiff's disability, on a publicly accessible website. [#1, ΒΆΒΆ 70-73]. Plaintiff further ...


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