                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0672n.06

                                          No. 17-1499
                                                                                     FILED
                                                                                Dec 04, 2017
                          UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

VERNON EUGENE PROCTOR, M.D.                             )
       Plaintiff-Appellant,                             )

v.                                                      )
                                                                ON APPEAL FROM THE
BOARD      OF MEDICINE;    BOARD        OF )                    UNITED STATES DISTRICT
PHARMACY; DEPARTMENT OF LICENSING & )                           COURT FOR THE WESTERN
REGULATORY AFFAIRS, (Bureau of Professional                     DISTRICT OF MICHIGAN
Licensing)                                  )
       Defendants-Appellees.                            )


BEFORE:        NORRIS, ROGERS, and THAPAR, Circuit Judges.

       ROGERS, Circuit Judge. The Michigan Department of Licensing and Regulatory Affairs

(“DLRA”) and the state Boards of Medicine and Pharmacy (collectively, “Boards”) requested

that Dr. Vernon Proctor turn over a number of patient records and records regarding his

controlled substance recordkeeping as part of an investigation into whether Proctor was violating

the Michigan Public Health Code, M.C.L §§ 333.1101 et seq. Proctor complied with the

investigators’ requests, but when these records were introduced as evidence against him at a

disciplinary licensing hearing, he filed suit seeking to enjoin the use of the patient records at

future disciplinary hearings. According to Proctor, the patient records he supplied are within the

definition of drug abuse treatment records whose confidentiality is protected by 42 U.S.C.

§ 290dd-2 and 42 C.F.R. § 2.1 et seq. Proctor specifically alleged that the “Department of

Licensing and Regulatory Affairs,” the “Board of Medicine,” and the “Board of Pharmacy”
No. 17-1499, Proctor v. Bd. of Med., et al.


violated federal law by allowing their expert witness to review the records and by introducing

redacted copies of the records into evidence at disciplinary hearings without patient consent or a

court order. Proctor did not identify any state officials or board members in his complaint. The

district court correctly dismissed Proctor’s action as barred by the Eleventh Amendment.

       The DLRA and Boards began investigating Proctor after receiving allegations that he was

violating the Michigan Public Health Code, M.C.L. §§ 333.1101 et seq.              The DLRA’s

investigator sent Proctor a letter on June 13, 2012, requesting that he provide certain patients’

medical records. The investigator sent a second letter to Proctor on September 25, 2012,

requesting additional records pertaining to his controlled substance recordkeeping. Neither of

these requests contained patient consents or a court order.

       In response to the investigator’s inquiries Proctor produced several patient medical

records to the DLRA. The DLRA then retained Dr. Phillip Rodgers to provide an expert review

of the patient records that Proctor supplied. The DLRA filed administrative complaints against

Proctor’s medical license and against his controlled substances license.        At a subsequent

administrative hearing, the DLRA introduced some of the patient records Proctor had provided

investigators; elicited testimony from Rodgers based on his review of the records; and introduced

reports from the Michigan Automated Prescription System showing Proctor’s controlled

substance prescriptions during the relevant time period. According to the DLRA, the evidence

was redacted to remove patient identifying information, and the Bureau used patients’ initials in

the complaints to protect their confidentiality.      The administrative tribunal admitted the

Prescription System report and certain patient records into evidence.

       Proctor then filed a complaint in the district court seeking to enjoin the DLRA and

Boards from further use or disclosure of the patient records he had provided investigators. Many
No. 17-1499, Proctor v. Bd. of Med., et al.


of these records, according to Proctor, were within the definition of drug abuse treatment records

protected by 42 U.S.C. § 290dd-2 and 42 C.F.R. § 2.1 et seq, which impose criminal penalties on

individuals who fail to protect the confidentiality of this type of patient medical information.

       The district court denied Proctor’s request for a TRO, and subsequently denied Proctor’s

motion for a preliminary injunction. The administrative tribunal conducted a second hearing, at

which the DLRA re-introduced redacted patient records that were not admitted during the earlier

hearing, and this time the tribunal admitted the records.

       The DLRA and Boards then filed a motion to dismiss Proctor’s court complaint for lack

of jurisdiction, Fed. R. Civ. P. 12(b)(1), and for failure to state a claim upon which relief could

be granted, Fed. R. Civ. P. 12(b)(6). The district court granted the DLRA’s motion to dismiss,

holding that Proctor’s action was barred the Eleventh Amendment. The court reasoned that

Proctor named only state departments and agencies as defendants in his complaint, which are

protected by Eleventh Amendment immunity, and that Proctor failed to demonstrate that his

claims fell within any recognized exception to sovereign immunity. The district court’s dismissal

was proper.

       Proctor’s claim is barred by the Eleventh Amendment and no exception to sovereign

immunity applies in this case. The Eleventh amendment provides:

               The judicial power of the United States shall not be construed to
               extend to any suit in law or equity, commenced or prosecuted
               against one of the United States by Citizens of another State, or by
               Citizens of Subjects of a Foreign State.

U.S. Const. amend. XI. “This immunity is far reaching. It bars all suits, whether for injunctive,

declaratory or monetary relief, against the state and its departments by citizens of another state,

foreigners or its own citizens.” Thiokol Corp. v. Dep’t of Treasury, 987 F.2d 376, 381 (6th Cir.

1993) (internal citation omitted) (emphasis added). The only defendants named in Proctors
No. 17-1499, Proctor v. Bd. of Med., et al.


complaint, the DLRA and the Boards, are clearly agencies or departments of the State of

Michigan. See, e.g., Williams v. Michigan Bd. of Dentistry, 39 Fed. Appx. 147, 148–49 (6th Cir.

2002); Studstill El v. Michigan Dep’t of State, 691 Fed. Appx. 820, 822 (6th Cir. 2017);

Michigan Corrections Org. v. Michigan Dep’t of Corrections, 774 F.3d 895, 899 (6th Cir. 2014);

Thiokol Corp., 987 F.2d at 382. Therefore, they are entitled to immunity under the Eleventh

Amendment.

       “There are three exceptions to a state’s sovereign immunity: (1) when the state has

consented to suit; (2) when the exception set forth in Ex parte Young, 209 U.S. 123 (1908)

applies; and (3) when Congress has clearly and expressly abrogated the state’s immunity.”

Puckett v. Lexington-Fayette Urban Cty. Gov’t, 833 F.3d 590, 598 (6th Cir. 2016). Proctor

concedes that the first and third of these exceptions are not applicable. His arguments that the Ex

parte Young exception to sovereign immunity applies are without merit.

       Proctor’s claim does not fall with the exception to sovereign immunity announced in Ex

parte Young because he failed to sue a state official in his or her official capacity. Under Ex

parte Young, the Eleventh Amendment “does not preclude relief against state officials in their

official capacity for prospective injunctive or declaratory relief.” Thiokol, 987 F.2d at 381

(emphasis added). While Proctor only seeks prospective injunctive relief, the prospective relief

prong is a necessary, but not sufficient, condition for escaping Eleventh Amendment immunity

via Ex parte Young. “Under the doctrine developed in Ex parte Young and its progeny, a suit

that claims that a state official’s actions violate the constitution or federal law is not deemed a

suit against the state, and so barred by sovereign immunity, so long as the state official is the

named defendant and the relief sought is only equitable and prospective.” Westside Mothers v.

Haveman, 289 F.3d 852, 860–61 (6th Cir. 2002) (emphasis added). Proctor’s desire to expand
No. 17-1499, Proctor v. Bd. of Med., et al.


the well-established fiction of Ex parte Young, which treats suits against state officers as “not a

suit against the state,” Ex parte Young, 209 U.S. at 154, by treating a suit against state

departments as “not a suit against the state” is contrary to binding Supreme Court and Sixth

Circuit precedent. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100

(1984); Thiokol, 987 F.2d at 381.

       Moreover, Proctor’s claim that his suit evades the Eleventh Amendment because there is

no “single individual state official” for him to name is without merit. Proctor has not identified

any precedent that allows plaintiffs to sue multi-member state boards or agencies as entities in

lieu of individual members in their official capacities. That is likely because no such precedent

exists, because it would be contrary to the requirement that plaintiffs sue “state officers” in their

“official capacities.” Moreover, Proctor was not required to name a “single individual state

official.” In Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, the Supreme Court held

that Verizon could proceed against individual commissioners (plural) of the Maryland Public

Service Commission in their official capacities, pursuant to Ex parte Young. 535 U.S. 635, 645–

46 (2002).    By failing to sue a state official, Proctor simply did not comport with the

requirements for avoiding Eleventh Amendment sovereign immunity under Ex parte Young.

       The judgment of the district court is affirmed.
