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Agee v. Sebelius

November 2, 2009

LAWRENCE C. AGEE PLAINTIFF,
v.
KATHLEEN SEBELIUS,*FN1 SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

This case presents the sad personal story of Plaintiff Lawrence C. Agee, proceeding pro se throughout, who practiced medicine in Vermont until Defendant Fletcher Allen Health Care, Inc. ("FAHC") notified the National Practitioners Data Bank in 1999 and 2000 of its decisions to suspend his hospital privileges because of concerns about his fitness to practice medicine. The reports were mandated and privileged under state and federal law. Nonetheless, Plaintiff has resorted to courts in Vermont, California and, now, Washington, D.C., to get his name off the "federal blacklist" at the National Practitioners Data Bank. See Pl.'s Mem. in Opp'n to Def. FAHC's Mot. to Dismiss ("Pl.'s Mem.") [Dkt. # 13] at 1. His current First Amended Complaint includes defendants in addition to FAHC and this opinion does not address those defendants. As to FAHC, however, it is clear that the Court does not have personal jurisdiction over FAHC. The allegations in the First Amended Complaint against FAHC will be dismissed.

I. FACTS

Plaintiff was a medical doctor licensed to engage in private practice in the State of Vermont. He says that he used FAHC as a hospital once between May 1997 and December 1999. Pl.'s Mem. at 3. In early 1998, FAHC was notified of concerns about Plaintiff's mental condition and his ability to practice safely. See FAHC's Mem. in Supp. of Mot. to Dismiss ("FAHC Mem.") [Dkt. ## 2 & 11],*fn2 Ex. A (Complaint, D. Vt., May 24, 2000) ¶¶ 13, C; Id. Ex. B (Magistrate Judge's Report and Recommendation, Sept. 17, 2001) at 12. Members of FAHC's surgical credentials team met with Plaintiff and recommended that he undergo psychological testing and/or counseling as a condition of continued hospital privileges. Id., Ex. B at 14-15. When Plaintiff did not undergo such testing or counseling, FAHC revoked his privileges. Id. at 15. Pursuant to a statutorily mandated duty, see 42 U.S.C. § 11101, et seq., FAHC then reported its actions to the National Practitioners Data Bank. FAHC Mem., Ex. B at 15. After this report was filed, Plaintiff lost his license to practice medicine in both Vermont and California. Id. at 16.

The current First Amended Complaint is the seventh*fn3 in a series of complaints filed against FAHC and its various personnel in state and federal courts. Although the named defendants might vary, all of these lawsuits have revolved around the same core of operative facts outlined in the preceding paragraph.

Plaintiff's first complaint was filed on May 24, 2000, in U.S. District Court for the District of Vermont, suing FAHC, Copley Hospital, Robert Grunert, M.D., and Chris Fukuda, M.D. See FAHC Mem., Ex. A. A Magistrate Judge issued a report and recommendation on September 17, 2001, recommending that the case be dismissed in its entirety against FAHC. Id., Ex. B. District Court Judge William K. Sessions adopted the report and recommendation on October 9, 2001, and dismissed the claims against FAHC entirely. Id., Ex. C (Oct. 9, 2001 Order).

Plaintiff filed a second complaint against several defendants, including two FAHC employees, Dr. Steven Shackford and Ms. Debbie Douglas, on August 24, 2001. Id., Ex. D. The allegations concerning the facts outlined above were virtually the same. Defendants Shackford and Douglas moved to dismiss. After Plaintiff failed to oppose, the District Court dismissed the action on January 10, 2002. See id., Ex. E (Order of Dismissal).

Presumably seeking to practice medicine in the other State in which he was licensed, Plaintiff then went to California. When he could not practice there either, he filed a third complaint in the Eastern District of California on September 24, 2001. See id., Ex. F. This suit named the California Medical Board, the Vermont Medical Board, the National Practitioners Data Bank, FAHC, and Green Mount Urology as defendants. FAHC moved to dismiss, based on the prior decision of Judge Sessions. FAHC's motion was granted by order entered on June 25, 2002, because Plaintiff failed to file or appear in opposition. See id., Ex. H.

Plaintiff filed his fourth complaint against FAHC in Vermont on November 13, 2002. See id.., Ex. I. While various additional defendants were named, the operative facts remained the same and FAHC filed a motion to dismiss and requested an order enjoining Plaintiff from filing any additional complaints arising from the same set of operative facts. The motion to dismiss was granted on March 5, 2003, and the motion for injunctive relief was denied as moot because a similar order had recently been entered in another case filed by Mr. Agee. See id., Ex. J.*fn4

Plaintiff's fifth complaint against FAHC was filed in California on February 17, 2006. See id., Ex. L. In addition to FAHC and various of its staff, this complaint named two federal judges, a former Supreme Court Judge of the State of Vermont and his wife, a current Vermont judge, a number of Vermont doctors and lawyers, various news organizations, the Vermont Medical Board, the Vermont Family Court, and other individuals. See id. FAHC filed a motion to dismiss on March 1, 2006, Plaintiff did not respond or object, a Magistrate Judge issued a report and recommendation to dismiss the complaint on May 26, 2006, and the District Court adopted that report and recommendation on August 3, 2006. See id. Exs. M (Magistrate Judge's Findings & Recommendations) & N (District Court's Order).

On September 22, 2006, in response to a foreclosure action in Vermont State Court, Plaintiff filed a third-party sixth complaint that named FAHC. See id., Ex. O. FAHC filed a motion to dismiss based on prior litigation and on February 16, 2007, the Chittenden Superior Court issued an order granting the motion. See id., Ex. P.

During the course of these lawsuits against FAHC, not to mention multiple other defendants, Plaintiff has alleged claims for defamation (five times, in various forms); restriction of trade; intentional infliction of emotional distress (three times); harassment; slander (twice); wrongful termination of medical license, employment (twice) and DEA certificate; violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., (twice); emotional distress; violation of confidentiality provisions of the Medical Information Act (in Vermont and California); libel (twice); retaliation; tortious interference with business contracts (twice); false light invasion of privacy; public disclosure of private facts; conspiracy to restrict trade; conspiracy to commit fraud; unfair business practices; violation of Vermont right to property; violation of "Article I Right to Property;" racketeering; unjust enrichment; deprivation of constitutional rights under 42 U.S.C. § 1983; conspiracy to deprive persons of their constitutional rights; neglect to prevent civil rights violation; obstruction of justice, and conspiracy to deprive persons of equal protection of the laws under 42 U.S.C. § 1985. FAHC Mem. at 6. Each of these claims has relied on the fact pattern outlined in the first paragraph of this section.

The First Amended Complaint before this Court states five counts against FAHC:

(1) violation of Fifth Amendment due process liberty and property rights; (2) defamation; (3) violation of Privacy Act, 5 U.S.C. ยง 552a(b); (4) false light; and (5) ongoing ...


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