Pharmacist Handles His Own Lawsuit Against Board of Pharmacy

Pharmacy Times, April 2016 Respiratory Health, Volume 82, Issue 4

When a pharmacist's highly unusual behavior attracts the attention of the board of pharmacy and he is subject to a covert investigation, may he pursue a civil lawsuit against the board without legal counsel to represent him?

ISSUE OF THE CASE

When a pharmacist’s highly unusual behavior attracts the attention of the board of pharmacy and he is subject to a covert investigation leading to a hearing at which he chose not to participate, may he pursue, in federal court, a civil lawsuit against the board without legal counsel to represent him?

FACTS OF THE CASE

A pharmacist in a southern state who was co-owner of a community pharmacy had his license to practice suspended, as was the permit for operation of the pharmacy, following an administrative hearing. That proceeding had been prompted by events that began when a board inspector made an unannounced routine inspection visit to the pharmacy. During the visit, the inspector asked the pharmacist some questions about potential violations of board rules. The pharmacist became, in the words of the court, “angry and belligerent.” He yelled at the representative of the board, slammed his fist on the counter, claimed to be an informant for the FBI and the state police, and refused to let the inspector speak with other pharmacy employees. The inspector feared for her safety and left the pharmacy without completing the inspection. The pharmacist followed the inspector outside, continued yelling, and attempted to open the locked door of the inspector’s state car while she was inside.

To follow up, the board launched a covert investigation, uncovering several violations of state statutes and regulations. It then scheduled an administrative hearing on the matter, providing notification to the pharmacist. He responded by filing a federal lawsuit on his own, without an attorney, known as a pro se proceeding. In that suit, he challenged the constitutionality of the regulatory scheme applicable to pharmacists and pharmacies. The federal trial court dismissed his suit because the matter was not “ripe” (ie, the hearing had not yet occurred). The court told the pharmacist that once a final ruling had been issued by the board, he could seek judicial review in state court.

The hearing was held by the board, and the pharmacist did not attend to participate. Once he received the final order from the board, he filed a new lawsuit in federal court, citing what were, in his view, a substantial number of legal violations by the board. This lawsuit was again filed without the assistance of legal counsel. The complaint that initiated the suit was very long and included a great deal of information that appeared to the court to be copied and pasted into the document. In addition, the court found “copious amounts of colored highlighting and other forms of emphasis,” the meaning of which the court was unable to discern.

Despite those challenges, the court went through the filings and identified several factual allegations undergirding the lawsuit. It divided them into 19 counts. The pharmacist also sought 2 forms of equitable relief: a temporary injunction and a permanent injunction. The board made a motion for dismissal of the lawsuit “for failure to state a claim upon which relief can be granted.”

THE COURT’S RULING

The federal district court dismissed with prejudice 18 of the claims, meaning that they were permanently dismissed. The remaining claim for battery (ie, unconsented to offensive touching) was dismissed without prejudice, meaning the pharmacist was free to pursue that, if he wished, in state court. The requests for the 2 types of injunctions were both denied.

THE COURT’S REASONING

When evaluating the legal filings for a decision on the board’s motion to dismiss, the court pointed out that the decision is to be based on the pleadings alone (ie, the formal written statement filed with the court to support the lawsuit). The requirement is that the plaintiff pharmacist’s claim must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The rules governing proceedings in federal court authorize dismissal of a civil lawsuit for “failure to state a claim upon which relief can be granted.”

The court did give more leeway to the plaintiff proceeding on a pro se basis without an attorney, applying “less stringent standards.” Nonetheless, it found that “there are almost no legally relevant facts anywhere in plaintiff’s complaint.” The court concluded that the 18 allegations it dismissed were “wholly conclusory, incoherent” and failed to set forth in any detail what the defendants had done to violate the plaintiff’s rights. Sometimes a court will grant a plaintiff “leave to amend the complaint,” meaning that it can be revised and resubmitted. The court did not feel that was an appropriate decision in this case.

The court concluded that the allegation of battery was a matter for state courts, not the federal court, so that particular allegation was dismissed without prejudice, maintaining the opportunity for the pharmacist to pursue that in a state-level forum, if desired.

Dr. Fink is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.