County Superior Court
Plaintiff: Michael A. Kelly, Esq.
Defendant: Michael W. Field, Esq.; Adam J. Sholes, Esq.
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.
Facts and Travel
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.
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
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.
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.
Standard of Review
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).
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.
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.
Law of the Case Doctrine
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.
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.
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)).
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
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.
Claims Regarding Summary Suspension of License
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.
Claims Regarding Rejection of Recommended Sanctions and
Revocation of License
Federal Law Claims
Counts II and V 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
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
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."
Director Fine in his Official Capacity and the DOH
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 ...