# Bobby Watts, M.D. v. John H. Burkhart, M.D.

> Court of Appeals for the Sixth Circuit · August 12, 1988 · 854 F.2d 839

URL: https://www.frixlaw.com/law-library/cases/9478046

## Case

- **Full name:** Bobby WATTS, M.D., Plaintiff-Appellant, v. John H. BURKHART, M.D., Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** August 12, 1988
- **Citations:** 854 F.2d 839; 1988 U.S. App. LEXIS 11071; 1988 WL 82757
- **Precedential status:** Published
- **Opinion:** Concurring in part by Nelson
- **Judges:** Martin, Nelson, Contie
- **Cited by:** 172 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9478046

## How later opinions describe it (automated extraction)

- holding that a state agency’s refusal to consider constitutional claims did not preclude Younger abstention where the constitutional claims could be presented on review in state court
- finding "no reason to believe that states have any less vital an interest in controlling the professional conduct of state-licensed physicians” than of attorneys

## Opinion text

DAVID A. NELSON, Circuit Judge,
concurring in part and dissenting in part.
I agree that the district court erred in dismissing Dr. Watts’ equal protection claim. The amended complaint avers, in essence, that the members of the Tennessee Board of Medical Examiners required the doctor to give up his federal license to prescribe controlled substances not because he was dispensing such substances with too liberal a hand, but because he is black. For purposes of the motion to dismiss — a motion filed under Rule 12(b) of the Federal Rules of Civil Procedure — the allegations of the complaint must be accepted as true. To turn the laws against a person because of his race, as the board members are said to have done here, is to deny that person the equal protection of the laws; and it was to redress precisely such conduct by persons acting under color of state law that the reconstruction Congress of 1871, re *850 sponding to a message from President Grant, enacted the legislation now codified at 42 U.S.C. § 1983 . See Monroe v. Pape, 365 U.S. 167, 171-85 , 81 S.Ct. 473, 475-83 , 5 L.Ed.2d 492 (1961). If the Board of Medical Examiners believed that Dr. Watts was guilty of malpractice in the way he dispensed diet pills, I see nothing wrong in the board’s telling him that his medical license would be suspended unless he voluntarily surrendered his federal license. Should Dr. Watts succeed in proving that the Board of Medical Examiners made him surrender his license because of his race, however, and not because of the way he was practicing medicine, he would be entitled, under § 1983, to a federal court judgment for his damages. And it would be no answer that Tennessee also has a law under which relief would be available. In addition to the authorities cited on this point in' the majority opinion, see Monroe v. Pape, 365 U.S. at 183 , 81 S.Ct. at 481-82 , and Patsy v. Florida Board of Regents, 457 U.S. 496 , 102 S.Ct. 2557 , 73 L.Ed.2d 172 (1982) (exhaustion of state administrative remedies is not required in federal actions brought under § 1983).
I have difficulty, however, with the majority’s conclusion that the district court erred in dismissing Dr. Watts’ claim that he was entitled to redress under § 1983 for the alleged deprivation of property without due process of law. It is well settled that “in section 1983 damage suits for deprivation of property without procedural due process the plaintiff has the burden of pleading and proving the inadequacy of state processes, including state damage remedies to redress the claimed wrong.” Vicory v. Walton, 721 F.2d 1062, 1063 (6th Cir.1983), cert. denied, 469 U.S. 834 , 105 S.Ct. 125 , 83 L.Ed.2d 67 (1984); cf. Hudson v. Palmer, 468 U.S. 517 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1984) (because of the availability of state tort remedies, random destruction of prisoner’s property by state prison officials, even if intentional, did not violate the Due Process Clause of the Fourteenth Amendment). As the Court of Appeals for the Second Circuit declared in Marino v. Ameruso, 837 F.2d 45, 47 (2d Cir.1988), “[ajlthough one need not exhaust state remedies before bringing a Section 1983 action claiming a violation of procedural due process, one must nevertheless prove as an element of that claim that state procedural remedies are inadequate.”
Dr. Watts alleged, in his amended complaint, that he had no adequate remedy under state law, but the district court held that this was not so. I am not prepared to say that the district court’s reading of Tennessee law was erroneous.
In his original complaint, Dr. Watts made no allegation that he lacked an adequate remedy under state law. The defendants, in their motion to dismiss, pointed out that under Hudson v. Palmer, supra, and Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981), “a plaintiff must allege that state remedies are inadequate to provide post-deprivation relief.” Dr. Watts thereupon moved to amend his complaint by adding, among other things, the following paragraph:
“The plaintiff has no adequate remedy pursuant to state law. He has attempted to assert constitutional defenses in administrative proceedings regarding his license and has been denied. He seeks injunctive relief and punitive damages not readily available. His remedy, if any, would be before the defendant Board Members who are alleged to have violated his constitutional rights.”
The district court granted the motion to amend, but held that the remedies available under Tennessee law barred the § 1983 action. Insofar as the § 1983 action was based on an alleged violation of the Due Process Clause, I think the district court was correct.
As to Dr. Watts’ plea that the Board of Medical Examiners forced him to surrender his license without allowing him to assert constitutional defenses, the district court pointed out that Tennessee’s Uniform Administrative Procedures Act, Tenn.Code Ann. §§ 4-5-101, et seq., made the Board’s action “immediately reviewable” in a state chancery court. Tenn.Code Ann. § 4-5-322(a)(2). Chancery court review, as the district court noted, “allows for the court to ‘reverse or modify’ the agency’s *851 action if such action is ‘[i]n violation of constitutional or statutory provisions.’ ” Tenn.Code Ann. § 4-5-322(h). Accordingly, as Judge Contie has written for this court, “it appears that Watts will be provided a full and fair opportunity to litigate his constitutional claims in the course of the state proceedings.”
As to Dr. Watts’ suggestion that injunc-tive relief is not “readily available” under state law, the statute provides that the chancery court not only has the power to “reverse or modify” the action of the Board of Medical Examiners, but that it has “all the powers, privileges, and jurisdiction properly and rightfully incident to a court of equity.” Tenn.Code Ann. § 16-11-101. The power to grant injunc-tive relief is, of course, a power that courts of equity — or chancery courts, to use the nomenclature that Tennessee borrowed from England by the way of North Carolina — have possessed for centuries.
As far as the power to award damages is concerned, Dr. Watts has invited our attention to Chamberlain v. Brown, 223 Tenn. 25 , 442 S.W.2d 248 (1969), where the Tennessee Supreme Court held that state courts need not entertain actions brought under 42 U.S.C. § 1983 . To the extent that Chamberlain held that state courts may not or should not exercise jurisdiction in such cases, the decision was expressly overruled in Poling v. Goins, 713 S.W.2d 305 (1986). Left untouched by Poling , however, was the Tennessee Supreme Court’s statement in Chamberlain that
“In the very proceeding filed by plaintiff for mandamus to compel defendants to renew plaintiffs [sic] license a Chancery Court could go further and decree to plaintiff damages to which he might be entitled by reason of any unlawful conduct on the part of defendants.” 223 Tenn. at 35 , 442 S.W.2d 252 .
As the district court pointed out, moreover, “under Tennessee’s Equal Access to Justice Act of 1984, Tenn.Code Ann. §§ 29-37-101, et seq., a ‘court having jurisdiction ... over an action for judicial review brought pursuant to § 4-5-322, may award reasonable and actual fees and other expenses not to exceed ten thousand dollars ($10,000) to the prevailing party.’ ”
I do not know whether Dr. Watts is correct in his contention that the chancery court lacks power to award punitive damages, but the United States Supreme Court has made it clear that the unavailability of punitive damages under state law “does not mean that the state remedies are not adequate to satisfy the requirements of due process.” Parratt v. Taylor, supra, 451 U.S. at 544 , 101 S.Ct. at 1917 .
Dr. Watts has pleaded, finally, that his state remedy is inadequate because the remedy “would be before the defendant Board Members who are alleged to have violated his constitutional rights.” With regard to the deprivation that is alleged to have occurred already, however, the remedy lies in the Tennessee courts, not the Board of Medical Examiners. With regard to any future suspension or revocation of Dr. Watts’ license, an opportunity to be heard by the board is mandated by statute, absent a finding “that public health, safety or welfare imperatively requires emergency action,” Tenn.Code Ann. § 4-5-320(c), and some opportunity to address the board would seem to be required by the very constitutional provision on which Dr. Watts relies. Cleveland Board of Education v. Loudermill, 470 U.S. 532 , 105 S.Ct. 1487 , 84 L.Ed.2d 494 (1985). If the members of the board are so biased as to make that opportunity essentially meaningless — and I do not intend to suggest that this is so, of course — the place to ferret out such bias is in post-termination proceedings before the chancery court. See Duchesne v. Williams, 849 F.2d 1004, 1008 (6th Cir.1988) (en banc).
It remains to me only to say that I have seen nothing in the Tennessee statutes or in the record of this case that would authorize the members of the Board of Examiners or anyone else to deprive Dr. Watts of his license other than by due process of law. I do not believe this case is governed by Logan v. Zimmerman Brush Company, 455 U.S. 422 , 102 S.Ct. 1148 , 71 L.Ed.2d 265 (1982), where an agency of the State of Illinois conducted itself in such a way that *852 under state law it was impossible for the plaintiff ever to present a presumptively valid discrimination claim before a court of law. Neither do I believe that the present case is governed by Spruyette v. Walters, 753 F.2d 498 (6th Cir.1985), cert. denied, 474 U.S. 1054 , 106 S.Ct. 788 , 88 L.Ed.2d 767 (1986), where the Michigan Department of Corrections had adopted a written Policy Directive which, on its face, eviscerated a federally protected property interest. No such policy directive or law is complained of in the case at bar.
Dr. Watts does not contend that there is anything wrong with the administrative scheme Tennessee has established for policing the medical profession; on the contrary, his complaint sets forth a long list of specifics in which the requirements of the established state procedure are alleged to have been violated. If a rogue board of medical examiners deliberately abused established procedures in forcing Dr. Watts to give up his license, Tennessee has hardly deprived Dr. Watts of his property “without due process of law” if it allows the doctor to call the members of the board to account in the Tennessee courts.
I cannot reconcile the majority opinion in this case with the opinion Judge Winter, of the Second Circuit, wrote in Marino v. Ameruso, 837 F.2d 45 , supra. In that case a state administrative law judge deprived the plaintiff of a property interest after administrative proceedings that were assumed to be tainted by error of constitutional magnitude. The plaintiff made no claim that such error was authorized under established state procedure, and state law provided for judicial review of administrative agency error. Absent a showing of inadequate state procedures, the Marino court held that there was no due process claim to be asserted under § 1983. I agree with Marino , and insofar as this court’s reasoning is inconsistent with it, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478046. Public record. Not legal advice.