Bock v. Sloane

United States District Court

District of Massachusetts

)

Randall Bock, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 22-10905-NMG

Candace Lapidus Sloane, et al., )

)

Defendants. )

)

MEMORANDUM AND ORDER

GORTON, J.

Plaintiff Randall Bock (“Bock” or “plaintiff”), acting pro

se, brings a one-count complaint against Candace Lapidus Sloane

(“Sloane”) and George Abraham (“Abraham”) (collectively,

“defendants”), in their individual capacities, for alleged

violations of Section 1 of the Sherman Act. Bock claims that

defendants took unlawful actions against him while they were

serving as members of the Massachusetts Board of Registration in

Medicine (“the Board”). Pending before the Court is defendants’

motion to dismiss for failure to state a claim. For the reasons

that follow, the motion will be allowed.

I. Background

A. Factual Background

Bock is a physician residing in Massachusetts who treats

opioid use disorders and has been licensed in Massachusetts

since 1984 except during certain periods of suspension.

Defendants Sloane and Abraham are both residents of

Massachusetts. Sloane was a member and Chair of the Board from

2011 to 2020. Abraham was a Board member from some time before

2014 until 2021 and served at various times as Vice Chair and

Chair of the Board. Bock seeks damages against Sloane and

Abraham in their individual capacities.

The allegations in the complaint refer to a litany of

events, policies and proceedings beginning in about 2006 and

continuing until 2021. Bock’s factual allegations are

interspersed with myriad legal arguments and with his

speculation about the motivations of defendants. He has

enclosed with his complaint a transcript of a September 26,

2019, Board meeting.

Defendants have submitted more than a dozen exhibits of

public administrative actions and judicial proceedings which

provide additional information about: 1) the first disciplinary

proceeding against Bock, beginning in early 2014; 2) his appeals

therefrom, ending, in pertinent part, in late 2018; 3)

litigation with respect to the reinstatement of his medical

license, throughout 2019; 4) the second disciplinary proceeding

as to plaintiff’s medical license, beginning in 2019; and 5) his

appeals therefrom, ending in late 2021.

Reduced to its underlying theory of unlawful conduct, the

complaint alleges that Sloane and Abraham violated Section 1 of

the Sherman Act by causing the Board to take unwarranted,

adverse action against Bock’s medical license to the detriment

of market competition. Specifically, in 2014, the Board issued

a Statement of Allegations against Bock and, contemporaneously,

temporarily suspended his medical license. The suspension was

referred to the Division of Administrative Law Appeals (“DALA”),

an independent agency in Massachusetts which provides due

process hearings with respect to state agency actions and then

makes a “recommended decision” to the pertinent agency.

After convening a hearing on the summary suspension, DALA

recommended that the suspension be upheld and the Board accepted

and adopted that recommendation. Bock appealed to a single

justice of the Massachusetts Supreme Judicial Court (“SJC”) who

remanded the matter to DALA because it had applied an incorrect

evidentiary standard. DALA convened another hearing on the

merits of the suspension in 2018 and issued a recommended

decision to the Board that Bock had violated certain statutes

and regulations but that he had not provided substandard care to

his patients.

The Board accepted and adopted DALA’s second recommended

decision and issued its final decision in November, 2018, but

did not reinstate Bock’s license at that time because it had

lapsed during the period of summary suspension. Bock filed a

petition for certiorari with a single justice of the SJC who

reported the case to the full SJC. Before that Court decided

the case, the Board reinstated Bock’s license in September,

2019.

In the meantime, the Board issued a second Statement of

Allegations in July, 2019, with respect to a recently-disclosed

settlement of a malpractice lawsuit against Bock. Thus,

although the Board reinstated plaintiff’s license in September,

2019, it suspended his license for a second time the following

month. Bock appealed that suspension and, in 2020, DALA

recommended that his suspension be vacated. The Board accepted

and adopted that recommendation. In June, 2021, DALA

recommended dismissal of the second Statement of Allegations

which the Board did in October, 2021.

Bock alleges that Sloan and Abraham promoted and

manipulated the Board proceedings regarding his license because

of their opposition to his treatment model for opioid use

disorder. He avers that he has, for many years, followed a

treatment model in which patients with opioid use disorders are

tapered off Suboxone rather than forced to purchase it monthly

“for the rest of their natural lives.” Bock concludes that

Sloan, Abraham and the Board persecuted him for this treatment

model and sought to “eliminate [his] business”, thereby harming

competition and affecting interstate commerce.

B. Procedural History

Plaintiff filed suit pro se in the District of

Massachusetts in June, 2022, and shortly thereafter filed

motions to reassign this action and to disqualify opposing

counsel. This Court denied those motions in July, 2022.

Defendants filed the pending motion to dismiss for failure to

state a claim in August, 2022, which plaintiff timely opposed.

In the interim, Bock filed a second motion to disqualify

opposing counsel which this Court denied.

II. Motion to Dismiss

A. Legal Standard

To survive a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the subject pleading must contain sufficient factual

matter to state a claim for relief that is actionable as a

matter of law and “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)). A claim is facially plausible if,

after accepting as true all non-conclusory factual allegations,

the court can draw the reasonable inference that the defendant

is liable for the misconduct alleged. Ocasio-Hernandez v.

Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011).

When rendering that determination, a court may consider

certain categories of documents extrinsic to the complaint

“without converting a motion to dismiss into a motion for

summary judgment.” Freeman v. Town of Hudson, 714 F.3d 29, 36

(1st Cir. 2013) (citing Watterson v. Page, 987 F.2d 1, 3 (1st

Cir. 1993)). For instance, a court may consider documents of

undisputed authenticity, official public records, documents

central to a plaintiff’s claim and documents that were

sufficiently referred to in the complaint. Watterson, 987 F.2d

at 3.

A court may not disregard properly pled factual allegations

in the complaint even if actual proof of those facts is

improbable. Ocasio-Hernandez, 640 F.3d at 12. Rather, the

court’s inquiry must focus on the reasonableness of the

inference of liability that the plaintiff is asking the court to

draw. Id. at 13.

B. Application

Defendants move to dismiss the complaint on the following

grounds: 1) Sloane and Abraham are entitled to absolute quasi-

judicial immunity, 2) Bock has failed to state a plausible claim

for an antitrust violation and 3) his claim is barred by

qualified immunity and/or state-action immunity.

1. Quasi-Judicial Immunity

Sloane and Abraham contend that they are entitled to

absolute immunity with respect to actions they took as Board

members in their quasi-judicial capacity. In Bettencourt v. Bd.

of Registration in Medicine of Com. of Mass. [hereinafter

“Bettencourt”], the First Circuit Court of Appeals (“the First

Circuit”) held that Board members are entitled to absolute

immunity when acting in a quasi-judicial capacity. See 904 F.2d

772, 782-84 (1st Cir. 1990). An official acts in a quasi-

judicial capacity if he or she

perform[s] functions essentially similar to those of

judges or prosecutors, in a setting similar to that of

a court.

Id. at 782.

The First Circuit specifically addressed the adjudicatory

function of a Board member in the context of “revoking a

physician’s license” and held that quasi-judicial immunity is

appropriate in such circumstances. Id. at 783-84. Although

plaintiff suggests that Bettencourt is a “zombie” precedent and

refers to N. Carolina State Bd. of Dental Examiners v. F.T.C.,

574 U.S. 494 (2015) [hereinafter “N. Carolina Dental”], in

support of such assertion, that decision is not relevant to the

issue of whether defendants are entitled to quasi-judicial

immunity.

N. Carolina Dental concerned the purported state-action

immunity of a state dental board and did not involve a claim for

money damages against individual board members. The Supreme

Court explained that the case

[did] not offer occasion to address the question

whether agency officials, including board members,

may, under some circumstances, enjoy immunity from

damages liability.

Id. at 513. The First Circuit has expressly held that N.

Carolina Dental does not disturb the absolute quasi-judicial

immunity afforded to Board members under Bettencourt. See

Padmanabhan v. Hulka, 2019 WL 10378226, at *1 (1st Cir. July 10,

2019).

There is no reason to doubt the continuing vitality of the

quasi-judicial immunity for Board members recognized in

Bettencourt and the question in the case at bar is, therefore,

whether the allegations against Sloane and Abraham are directed

at their performance of an adjudicative or prosecutorial

function. Bock asserts that, as Board members, Sloane and

Abraham: 1) summarily suspended his license in 2014 and

eliminated him from the “medical marketplace”, 2) mishandled

patient complaints, 3) issued unfounded Statements of

Allegations, 4) allowed investigations and prosecutions to be

mishandled, 5) wrongfully kept the suspension of his license in

place from 2014 through 2019 and 6) unfairly suspended his

license again in 2019.

An individual Board member acts in a manner similar to a

judge when he or she

weighs evidence, makes factual and legal

determinations, chooses sanctions, [or] writes

opinions explaining [his or her] decisions. . . .

Bettencourt, 904 F.2d at 783; see also Ramsaran v. Sloane, 159

N.E.3d 1088, 2020 WL 7821410 (2020) (explaining in an

unpublished opinion that the defendant Board member was entitled

to immunity when determining whether to bring a charge, rely on

certain evidence or issue a Statement of Allegations).

Furthermore, the First Circuit has held that members of

similar boards are immune from liability for their performance

of a quasi-judicial or prosecutorial function in circumstances

where they “instigat[e] and prosecut[e]” charges, Wang v. N.H.

Bd. of Registration in Med., 55 F.3d 698, 701 (1st Cir. 1995),

or suspend a license even if the suspension involved a “grave

and unacceptable procedural error”, Guzman-Rivera v. Lucena-

Zabala, 642 F.3d 92, 99 (1st Cir. 2011).

The Court concludes that Bock’s allegations are squarely

directed at the performance by Sloane and Abraham of quasi-

judicial functions to which immunity applies. The conduct in

question is: 1) comparable to that of a judge and, in some

respects, a prosecutor, 2) likely to “stimulate a litigious

reaction” and 3) occurred in the context of proceedings with

adequate procedural safeguards. Bettencourt, 904 F.2d at 783

(listing those three factors as guides for analyzing “how

closely analogous the adjudicatory experience of a Board member

is to that of a judge”); Wang, 55 F.3d at 701 (explaining that

the distinction between a quasi-judicial and a prosecutorial

function does not affect the applicability of absolute

immunity). Although Bock emphasizes that his claims are brought

against Sloane and Abraham in their “individual capacities”,

that distinction does not negate their entitlement to quasi-

judicial immunity in this case. See id. (citing Bettencourt, 904

F.2d at 782-85).

Finally, the complaint is littered with speculative

pronouncements about purported improper motivations of Sloane

and Abraham. Even if it were appropriate to accept such

speculation as factual allegations, the motives of officials

entitled to absolute immunity do not affect the application of

the immunity. See Cleavinger v. Saxner, 474 U.S. 193, 199-201

(1985) (explaining that absolute immunity is not “affected by

the motives with which [one’s] judicial acts are performed”)

(quoting Bradley v. Fisher, 80 U.S. 335, 347 (1871));

Bettencourt, 904 F.2d at 785 n.16 (finding that Board members

were entitled to absolute immunity even though plaintiff claimed

they had participated in “an ongoing conspiracy to deprive

physicians of their rights”).

In light of the foregoing, the Court concludes that Sloane

and Abraham are entitled to absolute quasi-judicial immunity in

this matter.

2. Section 1 of the Sherman Act

Furthermore, Bock has failed to allege facts sufficient to

state a claim under the Sherman Act. In order to state a claim

that Section 1 of the Sherman Act has been violated, a plaintiff

must plausibly allege:

(1) the existence of a contract, combination or

conspiracy;

(2) that the agreement unreasonably restrained trade

. . . and

(3) that the restraint affected interstate commerce.

Dahl v. Bain Capital Partners, LLC, 937 F. Supp. 2d 119, 134 (D.

Mass. Mar. 13, 2013) (citation omitted).

A claim under Section 1 of the Sherman Act cannot survive a

motion to dismiss if the conduct alleged “stems from independent

decision [rather than] from an agreement, tacit or express.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 553 (2007) (cleaned

up). A complaint that alleges mere “parallel conduct” or states

only “a conclusory allegation of agreement at some unidentified

point” is insufficient. Id. at 557. The Twombly standard does

not, however, permit this Court to dismiss a Section 1 claim on

grounds that a plausible theory of permissible conduct appears

more probable than a plausible theory of liability. See

Evergreen Partnering Grp., Inc. v. Pactiv Corp., 720 F.3d 33, 46

(1st Cir. 2013) (emphasizing the difference between a court’s

analysis at the motion to dismiss stage and its analysis at

“later litigation stages”). Instead, the Court must assess

whether the complaint alleges

the general contours of when an agreement was made,

supporting those allegations with a context that tends

to make said agreement plausible.

Id. at 46.

Bock labels the conduct of Sloan and Abraham as unlawful

collusion in conclusory fashion but does not proffer the general

contours of a plausible agreement or conspiracy. He repeatedly

expounds that there was no medical basis or state policy which

justified taking action against him based upon his “non-

adherence to the Lifetime Subscription Model” but nothing about

that conclusory allegation suggests that defendants’ conduct

stemmed from any mutual agreement.

The most pertinent allegations in the complaint assert that

the Board’s treatment of patient complaints about Bock changed

once Sloane and Abraham “took over the medical board.” Bock

also avers that Sloane and Abraham supported one another or

agreed with one another at certain meetings. Such allegations

suggest only that Sloane and Abraham participated in typical

disciplinary proceedings together in their role as Board members

but provide no basis to infer the existence of an agreement or

conspiracy between them.

Furthermore, the allegations in the complaint do not

support a plausible inference that Sloane and Abraham acted as

separate entities. A violation of Section 1 of the Sherman Act

requires a conspiracy or agreement between two or more separate

entities and thus conduct by individuals who belong to, and act

for the benefit of, the same organization is insufficient to

state a claim. See Podiatrist Ass'n v. La Cruz Azul de P.R.,

Inc., 332 F.3d 6, 13 (1st Cir. 2003).

Because Sloane and Abraham were both Board members, the

complaint must allege that they acted as “independent, self-

interested economic agents” rather than for the benefit of the

entity (the Board) of which they were both members. Id. at 14.

Bock’s complaint does not, however, set forth any facts

suggesting that Abraham or Sloane had self-interested economic

interests separate from the unilateral, regulatory aims of the

Board itself. For the foregoing reasons, the Court concludes

that the allegations in the complaint fail to state a claim that

defendants violated Section 1 of the Sherman Act.

3. Qualified Immunity

In addition to this Court’s determination that defendants

are entitled to quasi-judicial immunity with respect to the

conduct at issue and that plaintiff fails to state a plausible

claim under Section 1 of the Sherman Act, the Court also finds

that defendants would be entitled to qualified immunity in any

event.

Whether defendants are entitled to qualified immunity

requires a two-prong analysis as to whether: 1) plaintiff has

alleged facts which state a violation of his statutory or

constitutional rights and 2) whether the subject right was

clearly established at the time of the alleged violation. See

Díaz-Bigio v. Santini, 652 F.3d 45, 50 (1st Cir. 2011). The

second prong of the analysis itself consists of two parts:

(a) whether the legal contours of the right in

question were sufficiently clear that a reasonable

official would have understood that what he was doing

violated that right, and (b) whether the particular

factual violation in question would have been clear to

a reasonable official.

Id.

Thus, even if this Court were to find that Bock states a

plausible claim under Section 1 of the Sherman Act (which it

does not), the Court is unaware of any prior case law which

“clearly established” that a member of a medical licensing board

may be held individually liable under the antitrust laws for

participating in enforcement actions against a licensee.

Plaintiff, upon whom the burden rests to demonstrate the

inapplicability of defendants’ qualified immunity defense, cites

no authority in his favor other than N. Carolina Dental, 574

U.S. 494. As this Court has already noted, the Supreme Court’s

decision in N. Carolina Dental did not address the specific

liability or immunity of “agency officials, including board

members”. Id. at 513.

ORDER

For the foregoing reasons, defendants’ motion to dismiss

(Docket No. 26) is ALLOWED.

So ordered.

_/s/ Nathaniel M. Gorton____

Nathaniel M. Gorton

United States District Judge

Dated: June 1, 2023