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Blais v. Rhode Island Department of Health And Michael Fine, M.D.

Superior Court of Rhode Island

May 11, 2017

LEO BLAIS, RPH
v.
RHODE ISLAND DEPARTMENT OF HEALTH and MICHAEL FINE, M.D. in his Capacity as Director of Department of Health And Individually

         Providence County Superior Court

          For Plaintiff: Michael A. Kelly, Esq.

          For Defendant: Michael W. Field, Esq.; Adam J. Sholes, Esq.

          DECISION

          Procaccini, J.

         The matter before the Court is Round Three of the litigation related to disciplinary action taken by the Rhode Island Department of Health (DOH) against Plaintiff pharmacist Leo Blais (Mr. Blais) for egregious pharmaceutical errors made in erroneously dispensing morphine in prescriptions for two children in 2012. Mr. Blais now brings a lawsuit against the Rhode Island Department of Health and Michael Fine, M.D. (Director Fine) former Director of the DOH, in both his official and individual capacities. In his suit, Mr. Blais alleges state and federal constitutional violations and seeks money damages under 42 U.S.C. § 1983 and declaratory relief under G.L. 1956 §§ 9-30-1 et seq. The parties have filed cross-Motions for Summary Judgment. On December 14, 2016, this Court heard oral arguments on the cross-Motions. After hearing arguments, this Court requested a conference with counsel. At the conference both parties agreed-at this Court's request-to submit supplemental briefs on immunity and statutory authority in an effort to direct this Court's focus to dispositive issues. A hearing on the limited issues was held on February 15, 2017. For the reasons set forth in this Decision, this Court finds that Defendants are entitled to judgment as a matter of law on all counts. Accordingly, this Court grants Defendants' Motion for Summary Judgment as to all counts in the Third Amended Verified Complaint.

         I Facts and Travel

         The facts underlying this case are essentially undisputed and set out in further detail in Blais v. R.I. Dep't of Health, No. PC20125791, 2014 WL 7368789 (R.I. Super. Dec. 22, 2014). The travel of this case is outlined below.

         On November 9, 2012, Mr. Blais filed a complaint in Superior Court. On July 16, 2013, Mr. Blais filed an Amended Verified Complaint that added an appeal from Director Fine's Final Decision to the existing constitutional claims. In April 2014, Justice Matos bifurcated the constitutional claims from the administrative appeal and determined that the administrative appeal portion would be dealt with first. On December 22, 2014, this Superior Court, Nugent, J., decided the administrative appeal concluding that no legally competent evidence existed to support Director Fine's rejection of Hearing Officer Warren's recommended sanctions and revocation of Mr. Blais's pharmacist license. See Blais v. R.I. Dep't of Health, 2014 WL 7368789, at *8. Justice Nugent ordered that Hearing Officer Warren's less stringent recommended sanctions be imposed. Accordingly, Mr. Blais's pharmacist license was immediately reinstated, and a two-year probationary period with continuing education classes commenced. See id. On June 6, 2015, the State filed a petition for writ of certiorari. The Rhode Island Supreme Court denied the petition.

         On March 3, 2015, Mr. Blais filed a Second Amended Verified Complaint that added an equal protection monetary damages claim under 42 U.S.C. § 1983. Subsequently, on December 9, 2015, Mr. Blais filed a Third Amended Verified Complaint that added Director Fine in his individual capacity as a defendant. The Third Amended Verified Complaint consists of seven counts: Count I - Violation of the Due Process Clause of the Rhode Island State Constitution due to the Director's Summary Suspension-Substantive and Procedural; Count II - Violation of 42 U.S.C. § 1983 for Violation of Due Process-Substantive and Procedural; Count III - Violation of the Equal Protection Clause of the Rhode Island State Constitution due to the Director's Summary Suspension; Count IV - Violation of the Equal Protection Clause of the Rhode Island State Constitution due to the Director's Rejection of the Hearing Officer's Decision; Count V - Violation of 42 U.S.C. § 1983 for Violation of Equal Protection; Count VI - Violation of the Non-delegation Doctrine Under Rhode Island State Constitution Article VI, Sections I and II; Count VII - Appeal of the Director's Final Decision. See Third Am. Verified Compl. 9-17.

         On May 3, 2016, Mr. Blais filed a Motion for Litigation Expenses arising out of and related to his appeal of Director Fine's Final Decision under the Equal Access to Justice for Small Businesses and Individuals Act. See G.L. 1956 §§ 42-92-1 et seq. This Court heard the Motion and on July 21, 2016, held that Mr. Blais was entitled to recover reasonable litigation expenses totaling $43, 140.45. This Court calculated the expenses after the issuance of Director Fine's Final Decision because it determined that the Director's actions up until that decision were "substantially justified." See Blais v. R.I. Dep't of Health, No. PC-2012-5791, 2016 WL 4039819 (R.I. Super. July 21, 2016). On September 2, 2016, the parties filed cross-Motions for Summary Judgment that are presently before this Court.

         II Standard of Review

         Summary judgment on cross-motions is proper when in ". . . viewing the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the [C]ourt determines that there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law." CCF, LLC v. Pimental, 130 A.3d 807, 810 (R.I. 2016); Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007). The purpose of summary judgment is "'issue finding, not issue determination.'" Estate of Giuliano v. Giuliano, 949 A.2d 386, 391 (R.I. 2008) (quoting Indus. Nat'l Bank v. Peloso, 121 R.I. 305, 307, 397 A.2d 1312, 1313 (1979)). Moreover, a "'[c]omplete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.'" Beauregard v. Gouin, 66 A.3d 489, 494 (R.I. 2013) (quoting Lavoie v. N.E. Knitting, Inc., 918 A.2d 225, 228 (R.I. 2007)). "Even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

         III Analysis

         A Count VI

         The cross-Motions for Summary Judgment before this Court focus on the first five of the seven counts in Mr. Blais's Third Amended Verified Complaint. Count VI alleges a violation of the non-delegation doctrine under the Rhode Island State Constitution. In a footnote in Mr. Blais's supplemental memorandum on limited issues, submitted on December 30, 2016, he acquiesces that the statute in question does not violate the non-delegation doctrine. See Pl.'s Suppl. Mem. 10 n.2; G.L. 1956 § 5-19.1-5. Therefore, Defendants are entitled to judgment as a matter of law on Count VI because Mr. Blais admits that there are no issues of material fact in dispute regarding the non-delegation doctrine. See CCF, LLC, 130 A.3d at 810.

         B Count VII

         Count VII is the appeal of Director Fine's Final Decision to revoke Mr. Blais's pharmacist license. This Court finds that judgment has been entered in the administrative appeal. See Blais v. R.I. Dep't of Health, 2014 WL 7368789. In that decision, this Superior Court, Nugent, J., found that "no legally competent evidence" supported Director Fine's Final Decision and ordered that Hearing Officer Warren's recommended sanctions be enforced, thereby reinstating Mr. Blais's pharmacist license. Id. Accordingly, Defendants are entitled to judgment as a matter of law on Count VII. See CCF, LLC, 130 A.3d at 810.

         C Law of the Case Doctrine

         Both parties assert that this Superior Court's two prior decisions in this case constitute the law of the case. See Blais v. R.I. Dep't of Health, 2014 WL 7368789; Blais v. R.I. Dep't of Health, 2016 WL 4039819; see also Pl.'s Mem. Obj. to Defs.' Mot. Summ. J. 11; Defs.' Suppl. Mem. 13; §§ 42-92-1 et seq.

         The law of the case doctrine is applied in cases wherein a judge decided an interlocutory matter in the suit and another judge, at a later stage, is confronted with "'the same question in the identical manner.'" Chavers v. Fleet Bank (RI), N.A., 844 A.2d 666, 677 (R.I. 2004) (quoting Paolella v. Radiologic Leasing Assocs., 769 A.2d 596, 599 (R.I. 2001)). In such cases, the doctrine constrains the second judge's decision-making in order to avoid disturbing the previous ruling. See id. The law of the case doctrine is "particularly applicable when the rulings under consideration pertain to successive motions for summary judgment . . . ." McNulty v. Chip, 116 A.3d 173, 179 (R.I. 2015) (citing Ferguson v. Marshall Contractors, Inc., 745 A.2d 147, 151 (R.I. 2000)).

         Justice Nugent's decision was part of the bifurcated administrative appeal and therefore separate from the constitutional claims presently before this Court. In that decision, Justice Nugent sat as an appellate court "'. . . limited to an examination of the record to determine whether some or any legally competent evidence exist[ed] to support . . .'" Director Fine's Final Decision. Blais v. R.I. Dep't of Health, 2014 WL 7368789 (quoting Mine Safety Appliances Co. v. Berry, 620 A.2d 1255, 1257-58 (R.I. 1993) (internal quotations omitted)). Justice Nugent determined that Director Fine's Final Decision to reject Hearing Officer Warren's recommended sanctions and revoke Mr. Blais's license was not supported by "'substantial evidence in the record.'" Blais v. R.I. Dep't of Health, 2014 WL 7368789 (quoting Envtl. Scientific Corp. v. Durfee, 621 A.2d 200, 210 (R.I. 1993)).

         Furthermore, this Court's separate decision regarding litigation fees was also part of the administrative appeal portion of this case. See Blais v. R.I. Dep't of Health, 2014 WL 4039819. In that decision, this Court applied the Equal Access to Justice standard providing that fees are awarded if the agency was not "'substantially justified'" in its actions. See Blais v. R.I. Dep't of Health, 2016 WL 4039819 (quoting § 42-92-3(a)); see also §§ 42-92-1 et seq. This Court found that Director Fine's Final Decision to revoke Mr. Blais's license was not "substantially justified" and awarded fees accordingly.

         In looking at the two prior decisions in this case, this Court finds that not only do the standards in those decisions-"substantially justified" and "supported by legally competent evidence"-differ from the constitutional standards in the present case, but the issues governed by those standards differ as well. Thus, the completely distinct legal issues presently before this Court must be answered separate and apart from those of the prior decisions. See Balletta v. McHale, 823 A.2d 292, 295 (R.I. 2003) (holding that the issue did not arise in an identical manner before the two justices). Accordingly, this Court finds that neither Justice Nugent's nor this Court's decisions constitute law of the case as to the issues herein. See Blais v. R.I. Dep't of Health, 2014 WL 7368789; Blais v. R.I. Dep't of Health, 2016 WL 4039819.

         D Claims Regarding Summary Suspension of License

         During the February 15, 2017 hearing on limited issues before this Court, Mr. Blais conceded on the record that Director Fine had the authority to summarily suspend Mr. Blais's license pursuant to § 42-35-14. Therefore, Defendants are entitled to judgment as a matter of law on Count I and Count III of the Third Amended Verified Complaint, which contest the summary suspension. Therefore, because Mr. Blais admits that there are no issues of material fact in dispute regarding the summary suspension of his license, Defendants are entitled to judgment as a matter of law on those counts. See CCF, LLC, 130 A.3d at 810.

         E Claims Regarding Rejection of Recommended Sanctions and Revocation of License

         1 Federal Law Claims

         In Counts II and V[1] of the Third Amended Verified Complaint, Mr. Blais seeks monetary relief under section 1983 for alleged due process and equal protection violations. In addition, in Count V, Mr. Blais seeks declaratory relief pursuant to §§ 9-30-1 et seq. for his equal protection claim. See Third Am. Verified Compl. 1.

         A court's decision to grant or deny declaratory relief is "purely discretionary." Sullivan v. Chafee, 703 A.2d 748, 751 (R.I. 1997). In order to have standing to bring a declaratory relief claim, Mr. Blais must establish that an "actual justiciable controversy" exists. Id. To establish standing, Mr. Blais must show a ". . . sufficient likelihood that he will again be wronged in a similar way." Am. Postal Workers Union v. Frank, 968 F.2d 1373, 1376 (1st Cir. 1992); Boyer v. Bedrosian, 57 A.3d 259 n.27 (R.I. 2012) (holding that "[p]ast exposure to harm will not, in and of itself, confer standing upon a litigant to obtain equitable relief"). Mr. Blais has alleged only past unconstitutional conduct by Director Fine. See id. He has not put forth any evidence of continuing conduct or likelihood of future injury. See id. Therefore, while Mr. Blais's allegations of past constitutional violations give him standing to bring the section 1983 claims for damages, they fail to establish standing for declaratory relief. See Am. Postal Workers Union, 968 F.2d at 1376. Accordingly, Defendants are entitled to judgment as a matter of law as to Mr. Blais's declaratory relief claims.

         Therefore, this Court will address Mr. Blais's section 1983 claims that remain. "'Section 1983 supplies a private right of action against a person who, under color of state law, deprives another of rights secured by the Constitution or by federal law.'" Harron v. Town of Franklin, 660 F.3d 531, 535 (1st Cir. 2011) (quoting Santiago v. Puerto Rico, 655 F.3d 61, 68 (1st Cir. 2011)). In order "[t]o make out a viable section 1983 claim, a plaintiff must show both that the conduct complained of transpired under color of state law and that a deprivation of federally secured rights ensued."

         a Director Fine in his Official Capacity and the DOH

         Mr. Blais brings federal constitutional claims pursuant to section 1983 against the DOH and Director Fine in his official capacity. For section 1983 purposes, neither the State nor its officials in their official capacities are considered a "person." See 42 U.S.C. § 1983; Pontbriand v. Sundlun, 699 A.2d 856, 868 (R.I. 1997) (quoting Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989)) (holding that summary judgment was appropriate for federal constitutional claims against the Governor because in his official capacity he was not a "person" for purposes of section 1983). Accordingly, this Court finds that no cause of action under section 1983 can be asserted against Director Fine in his official capacity and ...


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