Jackson v. Conn. Dep't of Pub. Health

BEVERLY JACKSON, personally, andin her official capacity as CEO of theAmerican Nedicine Licensing Board, Plaintiff, v. STATE OF CONNECTICUT DEPARTMENT OF PUBLIC HEALTH,Jewel Mullen, in her official capacity as Commissioner ofthe State of Connecticut Department of Public Health;Adrienne Anderson, in her official capacity asInvestigations Supervisor of the State ofConnecticut Department of Public Health and as an individual, Defendants.

3:15 - CV - 750 (CSH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

JUNE 20, 2016

RULING ON STATE DEFENDANTS' MOTION TO DISMISS [DOC. 28]

HAIGHT, Senior District Judge:

I. INTRODUCTION

Pro se plaintiff Beverly Jackson commenced this action for declaratory judgment "for the purpose of determining a question of actual controversy between the parties of whether . . . under the Supremacy Clause of the United States Constitution a federal trademark preempts an inconsistent state statute or regulation." Doc. 1, at 3-4. She brings the action against the Connecticut State Department of Public Health (the "Department") and two of its officials, Jewel Mullen, the Commissioner, and Adrienne Anderson, the Investigations Supervisor.¹ Plaintiff alleges that a Connecticut state statute "precludes [her] from practicing her profession in violation of rights secured by the federal [C]onstitution."² Id., at 6. The state statute in question is Conn. Gen. Stat. § 20-9(a), which provides that "[n]o person shall, for compensation, gain or reward, received or expected, diagnose, treat, operate for or prescribe for any injury, deformity, ailment or disease, actual or imaginary, of another person, nor practice surgery, until he has obtained such a license as provided in section 20-10, and then only in the kind or branch of practice stated in such license."³

Jackson, who identifies herself as an "N.D., Doctor of Nedicine," is the licensor of the "American Nedicine Licensing Board, Inc.," a federal licensing agency organized and existing under the laws of the United States through its trademark" (Reg. No. 3,765,779).⁴ Doc. 1, at 2. She obtained this trademark to verify her "intent to validate licensure for the Doctor of Nedicine® to provide 'alternative medical services related to the practice of functional diagnostics and natural medicine.'"⁵ Id.

Plaintiff's central claim is that the United States Patent and Trademark Office has sanctioned her practice of Nedicine and that by issuing her a trademark, the federal government preempted Connecticut's ability to regulate Nedicine, even if, as Defendants assert, "Connecticut finds that the practice of Nedicine constitutes the practice of medicine defined by the Connecticut General Statutes" without the requisite medical license. Doc. 28-1, at 2. Furthermore, in "[b]uilding off this central premise, Plaintiff also alleges that the Defendants' attempt to investigate her practices violate[s] the Lanham Act, the Sherman Act, the Dormant Commerce Clause, and the Fourteenth Amendment's freedom to contract provision." Id.

Pending before the Court is the State Defendants' Motion to Dismiss this action pursuant to Rules 12(b)(1), 12(b)(5), and 12(b)(6), Fed. R. Civ. P. See Doc. 28. First, Defendants assert that Plaintiff has failed to properly serve any of them so that the Court lacks personal jurisdiction over each and all of the Defendants, Fed. R. Civ. P. 12(b)(5). Second, Defendants argue that the Eleventh Amendment provides sovereign immunity to the Connecticut Department of Public Health, as a state entity, and to Commissioner Mullen and Investigations Supervisor Anderson, in their official capacities, to the extent that Plaintiff seeks money damages.⁶ In addition, Defendants assert that Anderson is entitled to qualified immunity in her individual capacity. Finally, Defendants maintain that to the extent Plaintiff seeks prospective relief, her claims are barred because Plaintiff fails to state any plausible claims that would entitle her to relief. The Court resolves Defendants' motion to dismiss herein.

II. BACKGROUND

A. Conn. Gen. Stat. § 20-9(a)

The Connecticut General Statutes provide a comprehensive regulatory scheme overseeing the practice of medicine and surgery in Connecticut. See Conn. Gen. Stat., Ch. 368a, 370. Under these provisions, the Department of Public Health is the sole entity responsible for licensing physicians in Connecticut. See Conn. Gen. Stat. § 20-10. An individual who applies to the Department for a medical license must meet certain criteria; and no person shall practice medicine or perform surgery within the state without first obtaining such a license. Id. §§ 20-9, 20-10. Specifically, Conn. Gen. Stat. § 20-9(a) provides:

No person shall, for compensation, gain or reward, received or expected, diagnose, treat, operate for or prescribe for any injury, deformity, ailment or disease, actual or imaginary, of another person, nor practice surgery, until he has obtained such a license as provided in section 20-10, and then only in the kind or branch of practice stated in such license.

In addition to determining whether applicants are eligible for permits, licensure, certification or registration, the Department conducts investigations into possible violations of the statutes or regulations. Conn. Gen. Stat. § 19a-14(a)(6), (a)(10).

The Connecticut legislature created the Connecticut Medical Examining Board ("Board"), Conn. Gen. Stat. § 20-8a, which conducts the administrative hearings on charges issued by the Department. Once the Board issues a final decision, that decision may be appealed to the Connecticut Superior Court pursuant to Conn. Gen. Stat. § 4-183(a). In addition, the Board may issue an order to any person who is violating an applicable statute or regulation to immediately discontinue the violation.⁷ Conn. Gen. Stat. § 19a-11. The Board, through the Office of the Attorney General, may "petition the [Connecticut] superior court . . . for the enforcement of any order issued by it and for appropriate temporary relief or a restraining order." Id.⁸

B. Plaintiff's Allegations

Plaintiff asserts that she is a licensee of the American Nedicine Licensing Board, Inc. ("Board").⁹ Doc. 1 (Complaint), ¶ 1. She claims that this Board is "an organization authorized by the United States Patent and Trademark Office to license an individual as a Doctor of Nedicine®, N.D." Id. In support, she argues that this Board, a Connecticut corporation, registered a certification mark, "Doctor of Nedicine," with the United States Patent and Trademark Office (Reg. No. 3,765,779).¹⁰ Id., ¶ 2. Thereafter, the Board began issuing "Physician Licenses," including the first such license, which she issued to herself. Id. & Ex. 2 ("Physician's License," No. ND00001, issued 8/12/09). Plaintiff alleges that this license "verifies that Beverly Jackson, Ñ.D., is licensed nationally as a physician to diagnose, treat, prescribe and practice alternative medicine." Id. Under said license, Plaintiff began treating individuals. Id., ¶ 14 (e.g., "the case of Shaun Sloley," whom Jackson allegedly treated "with Infoceuticals and acupressure for a mystery vomiting issue").

Moreover, Plaintiff issued "Physician Licenses" to others to practice Nedicine, acting essentially as a parallel Board for regulating the practice of medicine in Connecticut. For example, Jackson set up the "American Nedicine Board of Examiners," a review board established allegedly "to promote high standards of competency and to assure that the licensed professionals meet specific standards of education." Id., ¶ 11. She also created the "United States Nedicine Licensing Examination," which allegedly administers a three-part exam to applicants for licenses. Id. According to Plaintiff, in order to become a "Doctor of Nedicine," one must pass the exam and graduate from an institution accredited by the "American Nedicine Accreditation Board." Id. Jackson allegedly created such an "accredited" institution herself - the "American School of Nedicine," "which was founded in 2010 to educate students in Informational Medicine related to quantum electrodynamics."¹¹ Id. (emphasis in original). She then established her own "Federal Department of Public Health," designed "to investigate and handle complaints against licensed practitioners and to protect the public's health, safety and welfare." Id.

The Connecticut Department of Public Health began investigating Jackson's Nedicine-related practices in May of 2013. Id., ¶ 18. Plaintiff claims that to initiate the investigation, the Department issued her a subpoena duces tecum on May 1, 2013, requesting medical records. Id. She also alleges that she received a "threatening letter from the Department of Health accusing her of criminal misconduct for unlicensed practice" of medicine. Id. In that letter, the Department noted that it had been informed that Plaintiff had undertaken treatment of "a patient who had been diagnosed with a brain tumor, resulting in a delay in the patient resuming treatment with her physicians at Yale-New Haven Hospital who had diagnosed the brain tumor." See Doc. 28-2 (Ex. 2). The letter also stated that "[t]his delay caused the tumor to increase in size which was detrimental to the patient and adversely affected her health."¹² Id.

In her Complaint, Plaintiff alleges that she has been harmed by the Department's ongoing investigation, claiming that the "Department has displayed a complete disregard for Plaintiff's federal license in an attempt to impose enforcement actions." Doc. 1, ¶ 18.. Furthermore, she asserts that the Department, "by and through Defendant Adrienne Anderson, has refused to acknowledge that Plaintiff is authorized to practice Nedicine under federal authority."¹³ Id. (emphasis in original).

Plaintiff summarizes her case as "all about the Defendants refusing to acknowledge a Federally USPTO issued Certification Mark, attempting to rename it with their own definition and scope of practice, thus creating a different field by their...