Duff v. Kentucky Board of Medical Licensure , 472 F. App'x 400 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0741n.06
FILED
No. 11-5919 Jul 10, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
W. REX DUFF, MD, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
KENTUCKY BOARD OF MEDICAL ) DISTRICT OF KENTUCKY
LICENSURE, et al., )
)
Defendants-Appellees. )
BEFORE: ROGERS and GRIFFIN, Circuit Judges; HOOD, District Judge.*
PER CURIAM. W. Rex Duff, M.D., appeals the district court’s order dismissing his
complaint, filed under 42 U.S.C. § 1983.
In May 2003, the Kentucky Board of Medical Licensure issued a complaint against Duff,
charging him with violating Kentucky law by over-prescribing controlled substances to patients in
his bariatric weight loss clinic and by failing to maintain sufficient documentation concerning his
patients. At the same time, the Board issued an emergency order suspending Duff’s medical license.
Following a hearing, a hearing officer affirmed the order of suspension. Duff appealed to the state
trial court, which issued a temporary injunction enjoining enforcement of the emergency order of
suspension. The Kentucky Court of Appeals dissolved the injunction, however, and the Kentucky
Supreme Court affirmed that decision.
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 11-5919
Duff v. Ky. Bd. of Med. Licensure, et al.
In September 2004, an administrative hearing was held concerning the charges against Duff.
The hearing officer recommended that the Board find Duff guilty of violating Kentucky law. In
March 2005, the Board adopted the hearing officer’s recommendations and entered a final order
indefinitely restricting Duff’s license to practice medicine in Kentucky. Duff sought review of the
final order in the trial court, which denied him relief. The Kentucky Court of Appeals remanded the
case to the Board, however, for a determination of whether Duff’s actions concerning several of the
patients at issue violated the law in effect at the time he treated them.
In March 2009, the Board remanded the case to the hearing officer to reevaluate the evidence
in light of the decision of the Court of Appeals. The hearing officer determined that he could not
proceed unless the Board resubmitted the case to its consultants for additional consideration. In June
2009, the Board declined to resubmit the case to its consultants and set aside the order that
indefinitely restricted Duff’s medical license.
In June 2010, Duff filed a § 1983 action against the Board and numerous individuals
associated with it. Duff alleged that the defendants’ actions leading up to the issuance of the
emergency order suspending his medical license and the final order of indefinite restriction denied
him due process and otherwise violated his rights. He sought monetary relief. The defendants
moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), and the district
court dismissed the complaint as untimely. On appeal, Duff argues that his complaint was timely
for two reasons: (1) the defendants engaged in continuing violations of his rights until the final order
restricting his medical license was set aside; and (2) the limitations period did not commence until
June 2009, when the state proceedings concerning his medical license ultimately concluded.
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No. 11-5919
Duff v. Ky. Bd. of Med. Licensure, et al.
We review de novo a district court’s determination that a complaint brought under § 1983
is untimely. McNamara v. City of Rittman, 473 F.3d 633, 636-37 (6th Cir. 2007). We must accept
as true all well-pled factual allegations and construe the complaint liberally in favor of the plaintiff.
Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir. 2006).
The statute of limitations applicable to a § 1983 claim brought in Kentucky is one year.
Dixon v. Clem, 492 F.3d 665, 671 (6th Cir. 2007). Generally, the limitations period commences
when the plaintiff knows or has reason to know of the injury which is the basis of his action. Id.
Because Duff’s claims are based on the defendants’ actions culminating in the final order
restricting his medical license, his claims accrued, at the latest, in March 2005. As a result, his
complaint, filed in 2010, is untimely. Duff cannot rely on the “continuing violations” doctrine
because it applies only when there are continued unlawful acts, not merely continued ill effects from
the original violation. See Kovacic v. Cuyahoga Cnty. Dep’t of Children & Family Servs., 606 F.3d
301, 308 (6th Cir. 2010); Eidson v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 635 (6th Cir.
2007). Duff failed to allege facts demonstrating that the defendants engaged in unlawful acts after
entering the final order restricting his medical license. Additionally, Duff is not entitled to tolling
of the limitations period or a later accrual date for his claims based on his attempts to obtain relief
in state court or the possibility that the district court would have stayed a § 1983 action pending the
outcome of the state proceedings. See Kovacic, 606 F.3d at 308; Eidson, 510 F.3d at 641.
Accordingly, we affirm the district court’s order.
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