The opinion of the court was delivered by: SIDNEY STEIN, District Judge
Plaintiff was licensed to practice medicine in New York in 1993 and is
also an attorney licensed to practice law in this state. He has brought
this action, pro se, seeking declaratory and injunctive relief relating
to the revocation of his New York state medical license in November
1999, as well as compensatory and punitive damages. Defendants have now
moved to dismiss the Amended Complaint pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure for lack of subject matter jurisdiction
and pursuant to Rule 12(b)(6) for failure to state a claim upon which
relief may be granted. For the reasons set forth below, defendants'
motion is granted and the Amended Complaint is dismissed with prejudice.
In August 1999, the New York State Department of Health initiated a
proceeding against Dr. Michael J. Hason, charging him with medical
misconduct pursuant to New York Education Law § 6530(9)(d).*fn1 That administrative action against plaintiff was
premised on a February 24, 1998 decision of the Medical Board of
California denying his application for a California medical license on
the ground, inter alia, that he was "not emotionally stable [enough] to
safely practice medicine." See Statement of Charges in In the Matter of
Michael Jeffrey Hason, M.D., (Appendix A to Determination and Order,
attached to Declaration of Scott Fisher in Support of Defendants' Motion
to Dismiss at Exhibit B); Proposed Decision in the Matter of Michael J.
Hason, OAH No. N-9704117 at 4 (attached to Fisher Declaration at Exhibit
A). In the New York proceeding, Hason was charged with violating New York
Education Law § 6530(7): "[p]racticing the profession while impaired by
alcohol, drugs, physical disability, or mental disability."
An expedited hearing was held in New York in September of 1999 before a
three member panel of the New York Board of Professional Medical
Conduct (the "BPMC") pursuant to New York Public Health Law §
230(10)(p). At this hearing, plaintiff appeared pro se and offered
testimony of his therapist, David Molko, M.S.W., and a letter from his
treating psychiatrist, Robert M. Petrovich M.D., in support of Hason's
contention that although he had been diagnosed with "major depression,"
that condition was "currently in remission" and that he would be able to
"safely practice medicine." See Transcript of Referral Hearing dated
Sept. 2, 1999 at 4-9 (attached to Fisher Declaration at Exhibit D);
Letter from Dr. Petrovich dated August 29, 1999 (attached to Fisher
Declaration at Exhibit C).
On November 9, 1999, the panel issued its Determination and Order (the
"BPMC decision"). The panel concluded the California Medical Board
"appropriately denied [plaintiff's] application . . . based on [his]
psychiatric history." See Determination and Order at 3 (attached to Fisher
Declaration at Exhibit B). In its consideration of the appropriate
penalty, the BPMC panel wrote that it was "not convinced by Mr. Molko's
testimony that [plaintiff] was ready to resume all duties and
responsibilities involved in the practice of medicine." Id. at 5. It also
concluded that revocation of plaintiff's medical license would serve "to
protect the safety of the public until such time that [he] can demonstrate
that he is fully rehabilitated and is ready to resume all duties and
responsibilities as a physician in the state of New York." Id. Pursuant
to New York Public Health Law § 230(10)(p) and New York Education Law § 6
530(9)(d), the BPMC panel then revoked plaintiff's New York medical
license. Id. at 6.
Plaintiff next requested the Administrative Review Board of the New
York Department of Health (the "ARB") to nullify or modify the BPMC
decision pursuant to New York Public Health Law § 230(c)(4). Among the
errors Hason alleged to have taken place in the BPMC proceeding was that
the BPMC panel violated provisions of the Americans with Disabilities Act
of 1990 (the "ADA"), 42 U.S.C. § 12101 et. seq. See Administrative Review
Board Determination and Order No. 99-273 at 3 (attached to Fisher
Declaration at Exhibit E). However, the ARB held that it lacked
jurisdiction to entertain allegations of ADA violations and wrote that
"we leave [Hason] to raise those issues in the courts." Id. at 4. The ARB
also sustained the BPMC panel's finding that plaintiff was unfit to
practice medicine under N.Y. Educ. Law § 6530(9)(d) because the BPMC was
entitled to rely on the holding of the California decision. Nevertheless, the ARB disagreed with the penalty imposed
by the BPMC-revocation of plaintiff s medical license-and imposed instead
a suspension of his medical license for "one year certain and for such
time thereafter until [plaintiff] can demonstrate to a BPMC Committee
[his] fitness to return to practice." Id. at 4-6.
Plaintiff appealed that ARB decision to the Appellate Division of the
New York Supreme Court, Third Judicial Department, pursuant to Article 78
of New York Civil Procedure Law and Rules. In his legal memorandum in
that Article 78 proceeding, Hason argued, among other points, that: 1)
the BPMC and ARB decisions discriminated against him on the basis of his
disability in violation of the ADA and New York Human Rights Law, New
York Executive Law § 296; 2) the BPMC hearing and the ARB review deprived
him of the right to due process because he was allocated the ultimate
burden of proof; and 3) the BPMC panel members acted out of bias against
him and violated his right to equal protection. See Petitioner Dr.
Hason's Amended Brief at 3-16, 16-19, 20-22 (attached to Fisher
Declaration at Exhibit I).
As a preliminary matter, the Appellate Division noted in the resulting
opinion that, in Article 78 proceedings, its jurisdiction was limited to
review of the ARB decision and, therefore, it lacked authority to review
the BPMC decision. See In the Matter of Hason v. Department of Health,
295 A.D.2d 818, 822 (3rd Dept., 2002) ("to the extent that petitioner
challenges the findings of the Hearing Committee, we note that our review
of the Hearing Committee's decision is precluded as petitioner sought
review of such decision from the ARB") (internal citations omitted).
Substantively, the Appellate Division concluded that the ARB decision had
ua rational basis which is factually supported and was not arbitrary and
capricious, affected by an error of law or an abuse of discretion" and
affirmed the ARB's finding as to plaintiff's professional misconduct. Id. The Appellate Division further found plaintiff's
arguments of lack of due process and of bias to be "unavailing." Id. With
respect to the penalty imposed, however, the Appellate Division held that
the indefinite suspension of plaintiff's medical license imposed by the
ARB exceeded the ARB's statutory authority. See id, Accordingly, the
Appellate Division remitted the matter to the ARB for reconsideration of
an appropriate penalty.
Upon remittal from the Appellate Division, the ARB in turn remanded the
proceeding in September 2002 to the BPMC panel in order to gather
"additional evidence or testimony regarding [plaintiff's] mental status"
and to provide a new penalty recommendation. See New York Department of
Health Administrative Review Remand Order No. 99-273R at 2 (attached to
Fisher Declaration at Exhibit F). On remand, the BPMC panel ordered
plaintiff to submit to a psychiatric examination by Melvin Steinhardt
M.D., who then issued a report in May of 2003. Approximately two months
later, the BPMC recommended, based in part upon Dr. Steinhardt's report,
that plaintiff "should be allowed to practice medicine in New York upon
the condition that he remain on the appropriate medication and continue
psychotherapy" and that such monitoring should continue for three years.
See Supplemental Determination in the Matter of Michael Jeffery Hanson
M.D. (the "Supplemental Determination") at 8 (attached to Reply
Declaration of Scott Fisher at Exhibit 1).
On the basis of that recommendation by the BPMC, the ARB issued a new
Determination and Order in October of 2003 that permitted plaintiff to
practice medicine "if [he] remained on appropriate medication and
continued with psychotherapy," along with other conditions. See ARB
Determination and Order dated October 24, 2003 ("2003 ARB Order") at 6-7
(attached to Letter of Assistant Attorney General James M. Hersler dated
February 26, 2004). In addition, the 2003 ARB Order placed plaintiff on probation for five years and
restricted his practice to a hospital setting, rather than permitting him
to engage in a solo practice. See 2003 ARB Order at 7.
Plaintiff instituted this action on November 14, 2002 to challenge the
revocation of his New York medical license-11 months prior to the
issuance of the 2003 ARB Order. Plaintiff's Amended Complaint alleges
that the BPMC decision violated plaintiff's rights under 1) the Americans
with Disabilities Act ("ADA"), 2) the Rehabilitation Act of 1974,*fn2
29 U.S.C. § 701 et. seq. and 3) the due process clause of the Fourteenth
Amendment to the United States Constitution. He fails to identity any
particular provision of the ADA or the Rehabilitation Act that he claims
had been violated. Plaintiff also challenges the constitutionality of New
York Education Law § 6330(10)(d) under the due process clause of the
Fourteenth Amendment on the ground that the statute impermissibly places
the burden of proof on a respondent in a BPMC proceeding. Finally,
plaintiff claims that the individual defendants-members of the BPMC
panel-deprived him of the right to substantive due process in violation of
42 U.S.C. § 1983 and also conspired to deprive him of his civil rights in
violation of 42 U.S.C. § 1985. Plaintiff seeks declaratory and injunctive
relief as well as compensatory and punitive damages.
Defendants offer a variety of arguments in support of their motion to
dismiss, including that, in light of Appellate Division decision in In
the Matter of Hason, 295 A.D.2d 818, application of the Rooker Feldman
doctrine requires dismissal of this action for lack of subject matter
jurisdiction, Defendants also contend that plaintiff's claims are barred
by the statute of limitations because the initial complaint was filed on November 14,
2002, more than three years after the BPMC ...