Washburn v. United States Department of Justice

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 10 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
PHILIP WASHBURN, M.D.,
Plaintiff-Appellant,
v. No. 03-4058
(D.C. No. 2:01-CV-268-PGC)
UNITED STATES DEPARTMENT (D. Utah)
OF JUSTICE; UNITED STATES
DRUG ENFORCEMENT
ADMINISTRATION; DIVISION OF
OCCUPATIONAL AND
PROFESSIONAL LICENSING,
hereinafter known as D.O.P.L.;
J. CRAIG JACKSON, Director
D.O.P.L.; DAVID BANCROFT,
agent, D.O.P.L.; UTAH COUNTY
ATTORNEYS OFFICE; CRAIG R.
MADSEN, Criminal Division Chief;
UTAH COUNTY; THE CITY OF
PROVO, Utah; UTAH COUNTY
NARCOTICS ENFORCEMENT
TEAM, N.E.T.; RUSSELL
BILLINGS, Officer; D. JENSEN,
Officer, Utah County N.E.T.;
JERRY L. HARPER, Officer, Utah
County N.E.T.; LEE FOX, Officer,
Utah County N.E.T.; PATTY
JOHNSON, Officer, Utah County
N.E.T.; UTAH DEPARTMENT OF
COMMERCE, Division of
Occupational and Professional
Licensing; W. DON ROGERS;
GREGG WILLIAMS, DEA; SCOTT
MEADOWS, DEA; MICHAEL A.
DEMARTE, DEA; DONALD W.
MENDRALA, DEA; ROBERT
JOHNSON, DEA; UTAH
ATTORNEY GENERALS OFFICE;
R. PAUL ALLRED, Assistant
Attorney General,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL , HENRY , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff Philip Washburn, M.D., proceeding pro se, appeals from an order
of the district court dismissing some of his claims against various defendants and
granting summary judgment to defendants on the remaining claims. We affirm. 1
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
Although we recognize that appellant is proceeding pro se, he failed to
attach copies of the magistrate judge’s report and recommendation and the district
court’s final orders as required by 10th Cir. R. 28.2(A)(1). We admonish
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Dr. Washburn was investigated by the state licensing board as well as the
state narcotics taskforce regarding his prescription practices. The investigations
revealed that he had been overprescribing controlled substances and was not
following proper medical guidelines. As a result, Dr. Washburn signed a
stipulation in which he voluntarily surrendered his controlled substances license
and agreed that he would not reapply for another one. In the process,
Dr. Washburn stated that he was signing the stipulation voluntarily and that the
stipulation, once approved, would be the final settlement of the matter.
Upon receipt of that agreement, the federal Drug Enforcement Agency
(DEA) informed Dr. Washburn that his DEA Certificate of Registration was
subject to revocation. Dr. Washburn agreed to voluntarily surrender his
registration. Later, the Utah County Attorney’s Office decided not to criminally
prosecute Dr. Washburn.
Approximately three years later, Dr. Washburn filed this action in federal
district court in which he alleged his rights under the Fourth, Fifth, Seventh, and
Fourteenth Amendments had been violated. He alleged defendants had made false
and defamatory statements about him, permitted “unpriviledged” publication to
third parties, harmed his reputation in the community, and exposed him to
appellees’ counsel for not complying with Rule 28.2(B) which requires that the
appellees’ brief include these rulings if the appellant fails to include them in his
brief.
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contempt and ridicule. Dr. Washburn alleged he had lost his ability to practice
medicine, lost the respect of the community and the medical profession, and had
lost his ability to earn a living. He sought over 90 million dollars in damages and
reinstatement of his controlled substance license, as well as a public explanation
and apology.
Adopting the magistrate judge’s report and recommendation, the district
court dismissed Dr. Washburn’s claims (1) under 42 U.S.C. §§ 1985(3) and 1986
for lack of jurisdiction; (2) against the Utah County Narcotics Enforcement Team
and the county attorneys as not proper defendants before the court; (3) against the
Department of Justice and the DEA as improper defendants in Bivens 2 actions;
and (4) against the DEA individual defendants as barred by the statute of
limitations. The court granted summary judgment in favor of (1) the Provo City
and Utah County defendants as those claims were barred by the statute of
limitations; (2) the Utah state defendants as the state, its agencies, and the
individual state defendants in their official capacities were improper defendants
in a 42 U.S.C. § 1983 action; and (3) the state defendants in their individual
capacities as protected by qualified immunity. The court noted that the remaining
defendants had not been served and were not parties to the action.
2
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics ,
403 U.S. 388 (1971) .
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On appeal, Dr. Washburn argues that the magistrate judge did not have
authority to rule on d ispositive motions as he did not agree to have the magistrate
judge manage his case. He contends that only a jury can determine whether
constitutional violations occurred and whether the defense of immunity applies.
He contests the district court’s order dismissing some of his claims for lack of
jurisdiction, noting, for the first time, that he is a Native American.
Dr. Washburn argues that the district court erred in granting the county’s motion
to dismiss because the county can sue and be sued. He contends that he did not
file this case as a Bivens action, but as a breach of contract action and therefore,
it was timely. Dr. Washburn argues that evidence was illegally seized to be used
against him in a criminal prosecution, thus violating his right against
self-incrimination.
“We review the district court’s ruling as to defendant’s motion to dismiss
de novo.” Steele v. United States, 19 F.3d 531, 532 (10th Cir. 1994). “We
review a grant of summary judgment de novo and apply the same legal standard
used by the district court under Fed. R. Civ. P. 56(c).” Timmons v. White,
314 F.3d 1229, 1232 (10th Cir. 2003). Our review is limited to those issues to
which Dr. Washburn objected in his response to the magistrate judge’s report and
recommendation. See Powell v. Ray , 301 F.3d 1200, 1202 n.3 (10th Cir. 2002),
cert. denied , 538 U.S. 927 (2003).
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Upon review of the record and the parties’ briefs, we AFFIRM the
judgment of the district court for substantially the reasons stated in the magistrate
judge’s report and recommendation of February 5, 2003, as adopted by the district
court in its orders of February 24, 2003 and March 3, 2003. The mandate shall
issue forthwith.
Entered for the Court
Michael R. Murphy
Circuit Judge
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