Karimi v. Nebrasks

DR. FARID KARIMI, Plaintiff, v. STATE OF NEBRASKA, DEPARTMENT OF HEALTH AND HUMAN SERVICES,STACEY SWEENEY, in her official and individual capacities; DR. ROGER DONOVICK,in his official and individual capacities; SHERI DAWSON, in herofficial and individual capacities; and MARK LABOUCHARDIERE, in hisofficial and individual capacities; Defendants.

4:18CV3088

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

January 10, 2019

MEMORANDUM AND ORDER

This matter is before the Court on the Motion to Dismiss, ECF No. 32, filed by Defendants State of Nebraska, Sheri Dawson in her official capacity, and Mark LaBouchardiere in his official capacity; and the Motion to Dismiss, ECF No. 30, filed by Defendant Stacey Sweeney in her individual and official capacities. For the reasons stated below, the Motions will be granted.

BACKGROUND

The following facts are a summary of those alleged in the Amended Complaint, ECF No. 24, and assumed true for the purposes of the Motions to Dismiss. Defendant, State of Nebraska operates the Lincoln Regional Center ("LRC"), an entity responsible for the diagnosis and treatment of patients with mental health issues. The State of Nebraska receives federal funds to care for LRC patients who are eligible for Medicaid, Medicare, or Social Security disability. Plaintiff Dr. Farid Karimi works as a forensic psychiatrist at the LRC and other locations.¹ In February 2016, LRC hired Karimi to perform forensic evaluations for the courts, to assist with training psychiatric residents in forensic rotation, and to establish a forensic fellowship program. Karimi properly performed all duties and assignments.

Defendant Stacey Sweeney was a State of Nebraska employee and functioned as the LRC Chief Operating Officer. She was supervised by Defendant Sheri Dawson, a Department of Health and Human Services ("DHHS") employee. Defendant Dr. Roger Donovick was LRC Chief Medical Officer. Defendant Mark LaBouchardiere is the current DHHS Facilities Director and has been in charge of LRC since February 2018. The State of Nebraska is responsible for training, hiring, supervising, and monitoring all persons who work at LRC, and contracts for services as dictated by patient needs.

After several months of employment, Karimi noted procedural and/or medical irregularities occurring at LRC. He reported these violations to Donovick, Sweeney, and/or Dawson. At LRC, Karimi provided programs and services for patients with disabilities. Most of these patients were not aware of their rights under the Rehabilitation Act, 29 U.S.C. §§ 701-796.² Karimi "has protested to Sweeney and Donovick, and the Defendant State Human Resources Department,³ and later to Dawson and LaBouchardiere, the denial of these program benefits to disabled patients he has treated." Am. Compl., ECF No. 24, Page ID 87. Karimi alleges that "Defendants took no action to correct the deficiencies cited by Plaintiff, and engaged in retaliatory conduct against him for reporting said deficiencies." Id. at 88.

Specifically, Karimi alleges Defendants, under the direction of Donovick and Sweeney and with the approval of Dawson and later LaBouchardiere:

1) followed outdated treatment policies and refused to re-evaluate or put into place policies and procedures to secure patient safety and well-being;

2) failed to use highly restrictive status restraints on patients requiring this status which resulted in repeated assaults and injuries to LRC employees;

3) allowed the assistant director of nursing to follow the orders of non-medical psychologists which disturbed the proper performance of medical activities and procedures vital to patient care;

4) failed to follow the level of security required for patient monitoring; and

5) through staff psychologists, requested forced medication orders from the Court for one of Karimi's patients without informing the attending psychiatrist.

Karimi also alleges that one or more of the Defendants:

1) changed patient orders dictated by attending physicians, such as discharging patients or removing them from suicide watch (Sweeney and Donovick); 2) inaccurately charted time with patients, and unnecessarily denied visitation rights to some patients (Sweeney and Donovick);

3) told staff not to listen to or follow Karimi's orders (Donovick);

4) interfered with Karimi's patient relations⁴ (Sweeney);

5) allowed improper distribution of the controlled substance Ambien to Karimi's patients without Karimi's knowledge (State of Nebraska, Sweeney, and Dawson);

6) moved dangerous patients admitted under Karimi's name from in-patient to residential beds in violation of Court orders (Sweeney with Donovick and Dawson's approval);

7) housed mentally challenged and disabled individuals without providing them with necessary and appropriate needed services (State of Nebraska); and

8) jeopardized patient care by not following the recommendations of physicians and outside consultants (State of Nebraska).

Karimi also reported general concerns about the functioning of LRC which included:

1) assignment of a psychologist to oversee the medical units which should have been run by medical doctors;

2) use of job threats to staff to cover management deficiencies, such as ordering minutes of official meetings to be changed and authorizing documents suggesting nurses were working when they were not; 3) assignment of psychologists without medical expertise to be supervisors in charge of medical and psychological patient treatment, resulting in psychiatrists working under improper supervision;

4) changes to the minutes of staff meetings and falsification of information needed to meet requirements of state and federal agencies;

5) allowing an unlicensed professional to operate the facility in violation of state statutes and regulations;

6) mismanagement resulting in attacks on technicians; and

7) understaffing resulting in diminished patient care and a back-up in admissions, causing patients to wait in jail.

Karimi alleges he "has attempted to bring the Defendants into compliance with federal regulations and requirements under the Rehabilitation Act, but has been admonished and punished for his efforts in this regard." Id. at 93. Karimi alleges that due to his reporting of the activities at LRC he has been subjected to retaliatory acts from Defendants. Specifically, he alleges Defendants altered his job duties in violation of his contract and initial job posting; deprived him of decision-making capacities in the hospital; did not inform him about the Policy and Procedure Committee or Improvement Committee meetings to which he was assigned; eliminated the Steering Committee to limit his ability to participate in proper facility management; stopped including him on mass emails; negated orders he issued; failed to follow his medical instructions; and gave him a higher work load than other physicians. He also alleges Donovick and Sweeney bypassed him in connection with his patients' care and made medication recommendations to the court without his input.

He further alleges that on or about October 6, 2016, the State of Nebraska, Sweeney, and Donovick falsely accused him of making terroristic threats and communicated this to other physicians and third parties. He also alleges that the State of Nebraska, through Scott Rassmussen, Sweeney, and Donovick asked other physicians to report that he made terroristic threats. He states that on or about November 2016, Donovick and Sweeney falsely accused him of attempting to kidnap a patient and communicated this to other physicians and third parties. He states that Defendants accused him of being emotional and unprofessional, and, on January 6, 2017, State of Nebraska and Donovick gave him a written warning for being disrespectful, unprofessional, and hostile toward staff and leadership members although such accusations were false. He states that although he was initially told he would lead the training of psychiatry residents, this changed on or about February 2017. He contends that In March 2018, Sweeney falsely accused him of giving a patient an incorrect prescription and practicing outpatient psychiatry from his office at LRC. Finally, he alleges that the State of Nebraska and Donovick initially refused to allow him to withdraw his resignation. Karimi contends that he has suffered emotional pain and injury, humiliation, fear, and embarrassment.

Karimi's Amended Complaint, ECF No. 24, filed on October 10, 2018, sets forth eight causes of action. His first, second, and third cause of action are claims under 42 U.S.C. § 1983 and 42 U.S.C. §1988(a). His fourth and fifth cause of action are claims under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. His sixth, seventh, and eighth causes of action are state-law defamation claims against Sweeney, Donovick, and Dawson respectively, in their individual capacities.

Sweeney filed a Motion to Dismiss, ECF No. 30, asking the Court to dismiss the Amended Complaint against her for failure to state a claim on which relief can be granted and based on qualified immunity. State of Nebraska; Dawson, in her official capacity; and LaBouchardiere in his official capacity filed a Motion to Dismiss, ECF No. 32, based on failure to state a claim and sovereign immunity.⁵

STANDARD OF REVIEW

I. Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1)

"In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments." Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (citing Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)). "[M]ootness and standing are questions of subject matter jurisdiction." Doe v. Nixon, 716 F.3d 1041, 1047 (8th Cir. 2013). "In a facial challenge to jurisdiction, the court presumes all of the factual allegations concerning jurisdiction to be true and will grant the motion only if the plaintiff fails to allege an element necessary for subject...