J. RONNIE GREER, UNITED STATES DISTRICT JUDGE.
This matter is before the Court on the motion of plaintiffs, Tri-Cities Holdings,
Summary judgment is proper where the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Nat'l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material factual dispute. Id. at 322, 106 S.Ct. 2548. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252, 106 S.Ct. 2505; McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). This Court's role is limited to determining whether the case contains sufficient evidence from which the finder of fact could reasonably find for the non-moving party. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505; Nat'l Satellite Sports, 253 F.3d at 907. If the non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If this Court concludes that a fair-minded jury could not return a verdict in favor of the non-moving party based on the evidence presented, it may enter a summary judgment. Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
The party opposing a Rule 56 motion may not simply rest on the mere allegations or denials contained in the party's pleadings. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Instead, an opposing party must affirmatively present competent evidence sufficient to establish a genuine issue of material fact necessitating the trial of that issue. Id. Merely alleging that a factual dispute exists cannot defeat a properly supported motion for summary judgment. Id. A genuine issue for trial is not
This is the third of three lawsuits
TCH is a Georgia limited liability company which proposed to establish an opioid treatment program ("OTP") (methadone clinic) in Johnson City, Tennessee. The individual plaintiffs are opiate-addicted residents of the Johnson City area and prospective clients of TCH's Johnson City OTP. Tennessee state law requires a CON from the THSDA before an entity can establish certain health care services, including an OTP, in Tennessee, see generally Tenn. Code Ann. § 68-11-1601 et seq. (The Tennessee Health Services and Planning Act of 2002), consistent with the public policy of the state "that the establishment and modification of health care institutions, facilities and services shall be accomplished in a manner that is orderly, economical and consistent with the effective development of necessary and adequate means of providing for the health care of the people of Tennessee." Tenn. Code Ann. § 68-11-1603. Tennessee law also requires the entity operating an OTP to obtain a license from the TDMHSAS. Tenn. Code Ann. § 33-2-403. As part of the CON process, TDMHSAS is required to conduct an independent review of information submitted to THSDA in the application to "ensure that such information is accurate, complete, comprehensive, timely, and relevant to the decision to be made by the THSDA." Tenn. Code Ann. § 68-11-1614(a) and (b).
TCH filed an application for a CON to establish a non-residential substitution-based treatment center for opiate addiction and the initiation of opiate-addiction treatment at 4 Wesley Court, Johnson City, Tennessee on March 8, 2013. [Doc. 15-2 at 1]. As required by Tennessee Code Annotated § 68-11-1607(c)(3)
While the CON application was pending, TCH filed, on April 1, 2013, the first of the three federal lawsuits related to its efforts to establish its proposed methadone clinic in Johnson City. See Tri-Cities Holdings, LLC, Jane Doe Nos. 1-2, and John Doe Nos. 1-6 v. The City of Johnson City, Tennessee, Johnson City Board of Commissioners, and the Johnson City Board of Zoning Appeals, No. 2:13-CV-108 (Tri-Cities I"). The plaintiffs sought, among other things, a declaration that Johnson City's zoning ordinance relating to methadone clinics was facially invalid and in violation of the ADA and Rehabilitation Act. [See Doc. 1, No. 2:13-CV-108]. Plaintiffs sought a preliminary injunction restraining Johnson City "from withholding the necessary permits and permission from the [sic] TCH for a methadone clinic to be located at 4 Wesley Court, Johnson City, Tennessee." [See Doc. 2, No. 2:13-CV-108]. On May 24, 2013, the Court held an all-day evidentiary hearing on the motion for a preliminary injunction. [See Docs. 36, 40, 41, 42, No. 2:13-CV-108]. The Court dismissed plaintiffs' complaint without prejudice on June 12, 2013, holding that the matter was not ripe for disposition because TCH did not have, and might never have, a CON from the State of Tennessee. [See Doc. 45, No. 2:13-CV-108]. Plaintiffs did not appeal the Court's judgment.
Meanwhile, TCH's application for a CON was proceeding. On June 8, 2013, Mr. Dunlap, TCH's attorney, sent a letter, a copy of which does not appear to be in the record, requesting what Mr. Dunlap characterizes as an "accommodation" under the ADA. On June 11, 2013, TDMHSAS issued its review and analysis as required by Tennessee Code Annotated § 68-11-1608, [Doc. 15-1]. TDMHSAS concluded that it could not "support approval of the application because the majority of the criteria and standards for the type of facility being proposed in the application have not been met." [Id. at 4]. More specifically, TDMHSAS concluded, among other things, that need for the facility "has not been clearly established," and that the "project does not contribute to the overall and orderly development of healthcare" in the region. [Id. at 5, 6]. THSDA considered the TCH CON application at its monthly meeting on June 26, 2013. [Doc. 31-3].
At the outset of the June 26 hearing, it was noted that the application was opposed by Senator Rusty Crowe, Congressman Phil Roe, the City of Johnson City, various healthcare providers, medical doctors, and private citizens. [Id. at 4-5]. An initial statement was made by Jim Christoffersen, THSDA's general counsel, who out-lined the general legal and policy bases upon which the agency's decision was to be made, i.e., the statutory criteria of need, economic feasibility, and contribution to the orderly development of healthcare, and Tennessee's state health plan and its "Guidelines for Growth." [Id. at 6]. He also noted this Court's holding in Tri-Cities I and urged that "the decision not be based on zoning" because the zoning issue had not "been definitely determined." [Id. at 8]. Mr. Christoffersen also made the agency aware of a June 18 letter from Mr. Dunlap in which he requested that "the applicant be provided with all reasonable accommodations or modifications to any and all applicable requirements necessary to enable its application to be approved, as required by the ADA and RA," and noted
Both opponents and supporters of the application were present for the hearing and were allowed to speak. The opponents included an attorney representing the City of Johnson City, Johnson City's mayor, himself an oral surgeon who treats addicts, and Steven Lloyd, a board-certified internal medicine physician, Associate Dean of Medicine at the Quillen College of Medicine at East Tennessee State University, Associate Chief of Staff at the Mountain Home VA Medical Center, and a practicing hospitalist. [Id. at 10-94]. After extensive questioning and statements by THSDA members, a motion was made to approve the CON application. The motion failed by a 3-6-1 vote. [Id. at 196-97].
At the conclusion of the hearing on June 28, Mr. Dunlap addressed the chairman as follows: "On behalf of my individual clients, who, as I would submit to the panel, are disabled, under the Americans With Disabilities Act, I would ask, is there anything that the panel can identify with the application that would enable the CON to go forward and allow my individual clients to be able to receive reasonable access to treatment for their disabilities?" [Id. at 197]. Mr. Dunlap was directed to "talk to staff." [Id. at 198]. Then, on June 28, 2013, Mr. Dunlap mailed a letter to Melanie M. Hill, Executive Director of THSDA, which he referred to as a follow[] up on my letter of June 17, 2013" and stated that he "understood the chairman, at the end of the hearing, to direct him to contact HSDA staff to pursue my request for a reasonable modification or accommodation." [Doc. 15-5 at 1]. Mr. Dunlap stated that "[T]HSDA has not made a reasonable modification of its rules and regulations required under the ADA and RA to allow the CON to be granted," and requested that THSDA modify "one or all of the criteria related to need, economic feasibility, and orderly development... and allow the CON application to be approved." The letter requested that this be done by July 5, 2013. [Id. at 2-3].
On July 8, 2013, plaintiffs filed their second lawsuit, this time in the Middle District of Tennessee, against THSDA and the same Johnson City defendants as in Tri-Cities I, again alleging violations of the ADA and Rehabilitation Act. (See Tri-Cities Holdings, LLC, et al. v. THSDA, et al., No. 3:13-CV-669 (M.D. Tenn.), filed as Doc. 1 in No. 2:13-CV-305 in this Court) (Tri-Cities II). The case was transferred to this district from the Middle District of Tennessee on November 13, 2013, and has proceeded in this Court as case No. 2:13-CV-305. The complaint has been amended twice in this Court, first to add Melanie M. Hill in her official capacity as Executive Director of THSDA, as a party defendant, [see Doc. 113 in No. 2:13-CV-305], and second to add the individual members of THSDA in their official capacities as party defendants. [See Doc. 136 in 2:13-CV-305]. Tri-Cities II remains pending in this Court. TDMHSAS and its commissioner are not sued in No. 2:13-CV-305.
On July 19, 2013, TCH filed an administrative appeal of THSDA's CON decision with the Secretary of State's Administrative Procedures Division ("APD") pursuant to Tennessee Code Annotated § 68-11-610 and the Tennessee Uniform Administrative Procedures Act and the appeal was assigned to ALJ Summers. On July 25, 2013, Mr. Dunlap mailed a letter to "Department of State Administrative Procedures Division" in which he "ask[ed] your office directly to provide my clients with a reasonable modification of any and all applicable state and local rules and regulations as required under the Americans With Disabilities Act ... to allow TCH to operate its Opiate Treatment Program at 4 Wesley
According to the letter, "[T]HSDA's clearly illegal requirement to notify local politicians when we applied for the clinic provides the lever to engage the federal court to provide equitable relief enforcing issuance of the CON." [Id. at 6]. On July 29, 2013, Mr. Dunlap sent a letter to ALJ Summers in which he moved to stay the "administrative appeal process pending resolution of the federal court action." (referring to No. 3:13-CV-669 in the United States District Court for the Middle District of Tennessee) [Doc. 15-7]. The letter concludes that "I am again respectfully asking you, [T]HSDA, and Johnson City to provide a reasonable modification under the ADA and the Rehabilitation Act to allow TCH to locate its OTP clinic in Johnson City." The letter was copied to both the general counsel for THSDA and the city attorney for Johnson City. [Id.]. Conference calls between ALJ Summers and the attorneys for the parties in the administrative appeal were held on July 31 and September 5, 2013. During the September 5 conference call, Mr. Dunlap again asked that the proceedings be stayed pending a decision in the federal court which he claimed "would resolve the CON appeal" and "would be very shortly forthcoming." After the September 5 conference call, the request for stay of the administrative proceeding was granted, over the objection of THSDA's counsel. [Doc. 71]. There was another conference call on November 5, 2013, and neither party had anything new to report. [Id.].
Meanwhile, Tri-Cities II had been docketed as case No. 2:13-CV-305 upon its transfer to this Court from the Middle District of Tennessee. Within days of the transfer, the Johnson City defendants moved for a stay, [Docs. 98, 100, No. 2:13-CV-305], and THSDA filed a motion to dismiss, [Doc. 109, No. 2:13-CV-305]. On December 10, 2013, the parties appeared before Chief United States Magistrate Judge Dennis H. Inman for a hearing on the motions to stay, [Doc. 133, No. 2:13-CV-305]. Defendants sought the stay on the basis that Tri-Cities II had been filed by plaintiffs in the Middle District of Tennessee in defiance of this Court's prior ruling in Tri-Cities I that the matters were not ripe for disposition because the plaintiffs had not received a CON and license from the State of Tennessee. [Doc. 137 at 4-5, No. 2:13-CV-305]. Mr. Dunlap, representing plaintiffs, candidly indicated to the magistrate judge that plaintiffs disagreed with the earlier ripeness decision and suggested to the magistrate judge that the case should proceed because the CON application was on administrative appeal and had then been stayed for approximately 60-days "waiting for a direction from the Federal Court in this case." [Id. at 11-13]. The magistrate judge expressed some consternation that the administrative appeal had been stayed at the request of Mr. Dunlap and ultimately entered an order finding plaintiffs' explanation for filing their suit in the Middle District of Tennessee to be "rather obvious judge-shopping" and "if not a sanctionable contempt, certainly manifested a contemptuous attitude toward this Court's earlier decision." [Doc. 135, No. 2:13-CV-305 at 4]. The magistrate judge further found that "plaintiffs' counsel has been more than a bit loose with his interpretation of what occurred while this case was pending before the
[Id. at 6]. Plaintiffs' motion to stay was therefore denied. [Id.]. Plaintiffs did not appeal the magistrate judge's order pursuant to Federal Rule of Civil Procedure 72(a) and 28 U.S.C. § 636(b)(1)(A).
Another conference call had been scheduled with the administrative law judge for January 10, 2014. On January 8, 2014, an e-mail inquiry was sent by the ALJ to counsel for the parties concerning any further developments in the federal litigation. Mr. Dunlap responded that there were no new developments, despite the above described developments before the Magistrate Judge just a month earlier, and that the motion for summary judgment and the motion to dismiss were still pending. On March 7, 2014, Mr. Christoffersen filed a motion on behalf of THSDA asking that a hearing be scheduled on the administrative appeal and attached to the motion was a copy of the December 10, 2013 order issued by Judge Inman. [See Doc. 31-5]. On March 10, 2014, Mr. Dunlap responded to THSDA's motion, once again objecting to any hearing on the administrative appeal prior to the resolution of the federal court litigation. Mr. Dunlap once again requested "a reasonable modification to allow the CON to be issued." He further stated that "this tribunal's continuing failure to do this creates a cause of action that Petitioner may bring against [ALJ Summers]," and indicated that if a hearing was scheduled on the administrative appeal, "petitioner respectfully indicates that it will have no choice but to join Your Honor, in an official capacity, and this tribunal, as defendants in the pending federal court action." [Doc. 15-10 at 4] (underlining in original). Mr. Dunlap's 21-page filing in the administrative action made no mention of the developments in the federal litigation. On March 12, 2014, Mr. Dunlap sent another letter to ALJ Summers "to outline further [his] position regarding the previous requests" and to request "a conference ... to specifically to address the reasonable request modification request — before a full-blown hearing is scheduled." [Doc. 15-11] (emphasis in original).
On March 14, 2014, ALJ Summers entered an order in the administrative appeal sua sponte revoking Mr. Dunlap's permission to appear pro hac vice in the administrative matter. In her order, ALJ Summers referenced Mr. Dunlap's lack of disclosure of matters related to the federal court action, noted his "threats" to join the administrative law judge and the THSDA in the federal court action should the stay of the administrative proceedings be lifted and the CON appeal set for hearing, noted
On May 1, 2014, TCH appealed the order revoking permission to appear pro hac vice to the Chancery Court for Davidson County, Tennessee. On December 10, 2014, the Chancery Court upheld ALJ Summers's revocation of counsel's admission pro hac vice, concluding, among other things:
[Doc. 51 at 18, 19, 21-22, 22, 23, 24, 26, 27]. The Davidson County Chancery Court's judgment was appealed to the Tennessee Court of Appeals, which issued its judgment and opinion on February 22, 2016, affirming the Chancery Court's judgment. See Tri-Cities Holdings, LLC v. Tennessee Health Services and Development Agency, No. M2015-00058-COA-R3-CV, 2016 WL 721067 (Tenn. Ct. App. Feb. 22, 2016). The Tennessee Supreme Court denied TCH's application for permission to appeal on June 23, 2016. [Doc. 58].
TCH thereafter moved to dismiss its administrative appeal because it was unable to renew its option to lease the premises at 4 Wesley Court, Johnson City, Tennessee and could find no other location for the clinic. [Attachment 2 to Declaration of James B. Christoffersen]. ALJ Stovall then dismissed the administrative appeal with prejudice. [Attachment 4 to Christoffersen Declaration].
Plaintiffs' claims are set out in eight counts in the complaint filed in this case. In Counts 1 and 2, plaintiffs assert claims under the Rehabilitation Act (Count 1) and Title II of the ADA (Count 2) against ALJ Summers, TDOS and TAPD for failure to make reasonable modification. In Counts 3 and 4, plaintiffs assert claims under the Rehabilitation Act (Count 3) and Title II of the ADA (Count 4) for TDMHSAS's failure to make reasonable modification. In Counts 5 and 6, plaintiffs assert claims under the Rehabilitation Act against ALJ Summers, TDOS and TAPD for retaliation against TCH.
Plaintiffs seek summary judgment on their reasonable modification and retaliation claims set forth in Counts 1 through 7 of the complaint. The defendants seek summary judgment as to all counts. Plaintiffs do not address their due process clause claim in Count 8 and defendants address it only in a footnote. According to defendants, "should Plaintiffs choose to pursue such claims, they will be subject to many, if not all, of the defenses described above, and defendants assert that they will be entitled to summary judgment thereupon." [Doc. 71 at 19 fn. 8].
Both the ADA
Three inquiries are made with respect to a requested accommodation: (1) Whether the modification requested was reasonable, (2) whether it was necessary for the disabled individual, and (3) whether it would fundamentally alter the nature of the program or activity. PGA Tour, Inc. v. Martin, 532 U.S. 661, 682-83, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001). An ADA plaintiff "bears the initial burden of proposing an accommodation and showing that that accommodation is objectively reasonable."
"[A]n accommodation is reasonable unless it requires `a fundamental alteration in the nature of a program' or imposes `undue financial and administrative burdens.'" Smith & Lee Assoc. v. City of Taylor, 102 F.3d 781, 795 (6th Cir. 199 (quoting Southeastern Cmty. College v. Davis, 442 U.S. 397, 410, 412, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979)). The Supreme Court has indicated that, "in most cases," determining whether an accommodation is
In the present case, plaintiffs have made several requests for what they see as a "reasonable" accommodation,
The purpose of the CON requirement in Tennessee is set out at Tennessee Code
Counts 5 (Summers/APD/DOS), 6 (Summers/APD/DOS) and 7 (Summers/APD/DOS) claim retaliation against TCH in violation of the ADA and Rehabilitation Act. TCH alleges that its attorney, Mr. Dunlap, simply "demand[ed] a reasonable modification under the ADA, and discuss[ed] a well-founded potential civil action against a state administrative official if this is not provided" and was ejected from the administrative litigation through the revocation of his pro hac vice status and accused of criminal conduct, i.e. extortion, in retaliation. The state defendants respond, however, that Mr. Dunlap's pro hac vice revocation was a direct result of attorney misconduct, and that TCH is bound by the final rulings of the state courts on the issue.
The framework of McDonald Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) governs claims of retaliation based on circumstantial evidence.
If the plaintiffs establish a prima facie case, "the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for its actions. The defendant bears only the burden of production; the burden of persuasion remains with the plaintiffs at all times." Weigel v. Baptist Hosp. of E. Tennessee, 302 F.3d 367, 377-78 (6th Cir. 2002). If the defendant articulates such a reason, the plaintiff may then show that the defendant's stated reason "is merely a pretext for discrimination." Id. at 378. "A plaintiff can demonstrate pretext by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant's challenged conduct, or (3) was insufficient to warrant the challenged conduct." Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000). The plaintiff must produce sufficient evidence from which the jury could reasonably reject [the defendant's] explanation and infer that the defendant[]... did not honestly believe in the proffered nondiscriminatory reason ..." Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th Cir. 2001) (internal quotations and citations omitted).
Mr. Dunlap, a lawyer licensed to practice in the state of Georgia, was granted pro hac vice admission by ALJ Summers in the administrative appeal of the denial by THSDA of the CON application of TCH. On March 14, 2014, ALJ Summers sua sponte revoked Mr. Dunlap's pro hac vice admission, finding:
[Doc. 15-12 at 9-10].
The ALJ's revocation order was appealed to the Davidson County Chancery Court, which affirmed the ALJ's order in full except for the finding that Mr. Dunlap had violated Tennessee Code Annotated § 39-14-112, and then to the Tennessee Court of Appeals. In an opinion issued on February 22, 2016, the Court of Appeals affirmed the Chancery Court judgment, finding that the evidence supported the finding that Mr. Dunlap had breached the conditions on which he was granted pro hac vice admission. Tri-Cities Holdings, LLC v. Tennessee Health Services and Development Agency, 2016 WL 721067 (Tenn. Ct. App. 2016). Finding the ALJ's factual findings "supported by substantial and material evidence," the Court of Appeals "agree[d] that Mr. Dunlap's conduct did not comply with Tennessee Supreme Court Rule 8, Rules of Professional Conduct 3.3
A plaintiff proves the fourth element of his or her prima facie case, the causal connection between the protected activity and the adverse action, by producing evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Walborn
A defendant is entitled to summary judgment on a claim of unlawful retaliation when he can show that "he would have taken the same action in the absence of the protected activity." Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir. 1999) (en banc) (plurality op.). See also Thomas v. Eby, 481 F.3d 434, 442 (6th Cir. 2007) (citing Thaddeus-X); Cameron v. Grainger County, 274 Fed.App'x 437, 440 (6th Cir. 2008). Defendants Summers, Hargett, and the Administrative Procedures Division of the Office of the Secretary of State argue that plaintiffs are now "precluded from asserting that defendant Summers revoked TCH attorney Dunlap's pro hac vice privilege in retaliation for Mr. Dunlap's demand for a reasonable accommodation under the ADA or Rehabilitation Act." [Doc. 71 at 16]. Defendants further argue that it is conclusively established, as a result of the state court proceedings, that it was Mr. Dunlap's misconduct, i.e. violation of Supreme Court Rule 8, RPC 3.3, 3.5 and 8.4, that led to revocation of his pro hac vice privilege and TCH cannot relitigate "that now-settled issue," citing the doctrine of issue preclusion. [Id.].
The Sixth Circuit recently set out a succinct statement of the doctrine of issue preclusion in this circuit:
Georgia-Pacific Consumer Products LP v. Four-U-Packaging, Inc., 701 F.3d 1093, 1098 (6th Cir. 2012); see also Stryker Corp. v. National Union Fire Ins. Co., 681 F.3d 819, 824-25 (6th Cir. 2012).
It appears that only the first requirement for issue preclusion is at issue here. Defendants argue the precise issue raised in plaintiffs' instant complaint, i.e., whether ALJ Summers retaliated against TCH by revoking Mr. Dunlap's pro hac vice privilege after he demanded that she grant TCH's CON application,
TCH only partially responds to the argument made by the defendants. Inexplicably, TCH's memorandum in opposition to defendants' motion focuses only on the finding made by ALJ Summers that Mr. Dunlap's conduct was a violation of Tennessee Code Annotated § 39-14-112 (extortion), [Doc. 73 at 22-24]. That finding was not affirmed by the Davidson County Chancery Court and, therefore, not considered by the Court of Appeals. TCH totally ignores, however, the clear findings of the ALJ of serious misconduct on the part of Mr. Dunlap which go far beyond the single finding by the ALJ that Mr. Dunlap was guilty of extortion. Although he makes a conclusory argument that the "ALJ's ejection... was without basis," [id. at 23], he will not now be permitted to relitigate that issue, since he has had a full and fair opportunity to litigate it in the prior state proceedings and those proceedings have now resulted in a final judgment against TCH on the merits. The Court therefore agrees with the defendants that TCH is bound by the state court's ruling that Mr. Dunlap's pro hac vice privilege was revoked, not in retaliation "for properly advancing his clients' rights under the ADA," [id. at 22]
Even if the Court did not give preclusive effect to the state court judgment, defendants would still be entitled to summary judgment on TCH's rehabilitation claims. Although there is some temporal connection between Mr. Dunlap's letters demanding that the CON be granted and revocation of his pro hac vice privileges, TCH makes no other effort to show that there was a causal connection between the protected activity, i.e., the request that the CON be granted, and the adverse action, i.e., the revocation of Mr. Dunlap's pro hac vice privilege. TCH argues only in conclusory fashion that ALJ Summers's order "makes a panoply of baseless allegations and findings against Mr. Dunlap (including felony extortion carrying a 12-year prison sentence)." [Doc. 68 at 5]. Mr. Dunlap splits hairs, shifts blame, is willfully blind to the obvious, and uses inflammatory language, all in an apparent attempt to mask his own misconduct. He will not be allowed to do so. Whether or not he was guilty of felony extortion,
In Count 8 of plaintiffs' complaint, they appear to assert a claim under the federal and state due process clauses, arguing that Summers, TAPD, and TDOS have denied TCH "the CON it rightfully deserves and has expended time and financial resources, has lost the opportunity to conduct its business and provide a much-needed service at the proposed location, and expended additional attorney's fees." [Doc. 1 at ¶ 277]. Further, the complaint alleges that the individual plaintiffs have likewise been deprived of due process by "having to drive thousands of additional miles and expend hundreds of additional hours of drive time to receive MMT treatment at distant OTP clinics." [Id. at 279]. As noted above, neither party fully addresses Count 8.
Both the United States Constitution and the Constitution of Tennessee contain substantially similar limitations on the power of government entities to deprive persons of their life, liberty, and property. Section 1 of the Fourteenth Amendment provides, in part, that a state shall not "deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. Article I, § 8 of the Constitution of Tennessee states that "No man shall be ... disseized of his freehold, liberties or privileges, or... deprived of his life, liberty or property, but by the judgment of his peers or the law of the land." TENN. CONST., art. I, § 8. Tennessee courts have repeatedly stated that the procedural due process protections in both provisions are essentially the same. See Bailey v. Blount County Bd. of Ed., 303 S.W.3d 216, 230 (Tenn. 2010); see also White House v. Whitley, 979 S.W.2d 262, 269 (Tenn. 1998). Due process does not require all the structural safeguards in administrative and civil judicatory proceedings that are generally expected in criminal proceedings. Hayne v. Metropolitan Nashville Bd. of Public Ed., 380 S.W.3d 715, 735 (Tenn. 2012) (citing 2 Richard J. Pierce, Jr., Administrative Law Treatise, § 9.9, at 679 (4th ed. 2002)). It is unclear to the Court whether plaintiffs assert a procedural due process claim or a substantive due process claim.
Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir. 1991) (emphasis in original) (quoting Collins v. Nagle, 892 F.2d 489, 497 (6th Cir. 1989)). Under the first method, the plaintiff would have to allege and prove that the fundamental elements of procedural due process — notice
Defendants have moved for summary judgment on all counts, even though they discuss Count 8 only in a footnote in their memorandum. A movant for summary judgment is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. 2548. Moreover, "the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). The non-moving party is under an affirmative duty to point out specific facts in the record as it has been established which create a genuine issue of material fact. Fulson v. City of Columbus, 801 F.Supp. 1, 4 (S.D. Ohio, 1992). Given the plaintiffs' failure to respond to defendants' motion for summary judgment as to Count 8, it arguably should be granted on the basis of plaintiffs' failure to point out specific facts in the record which create a genuine issue of material fact.
To the extent, however, that a grant summary judgment at this point on Count 8 could be viewed as a sua sponte grant of summary judgment, the Court hereby gives notice of its intent to grant summary judgment as to Count 8 unless the plaintiffs show cause, not later than fourteen (14) days from the date of the entry of this memorandum and order, as to why summary judgment should not be granted. Defendants will then have ten (10) days to respond to plaintiffs' filing, if any. See Kistner v. Califano, 579 F.2d 1004 (6th Cir. 1978) (It is the clearly established rule that a district court must afford the party against whom sua sponte summary judgment is to be entered ten-days notice and an adequate opportunity to respond). Plaintiffs are given notice that their failure to show cause will result in summary dismissal of Count 8 of their complaint.
For the reasons set forth above, defendants' motion for summary judgment, [Doc
So ordered.
Tenn. Code Ann. § 68-11-1607(c)(3). Although plaintiffs allege in their complaint that § 68-11-1607(c)(3) "is discriminatory and facially invalid under the ADA and the Rehabilitation Act," they seek no relief related to the statute in their complaint in this case.
Tenn. Sup.Ct. R. 8, RPC 3.3.
It is professional misconduct for a lawyer to:
Tenn. Sup.Ct. R. 8, RPC 8.4.
