NOT RECOMMENDED FOR PUBLICATION File Name: 23a0365n.06
No. 22-2095
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Aug 09, 2023 JOHN DOE, M.D., ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN BOARD OF REGENTS OF THE UNIVERSITY ) DISTRICT OF MICHIGAN OF MICHIGAN; MARIE LOZON, M.D.; JUSTIN ) DIMICK, M.D., ) OPINION ) Defendants-Appellees. ) )
Before: MOORE, ROGERS, and GRIFFIN, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Plaintiff John Doe, M.D., is a physician at
the University of Michigan Health System (“UMHS”). After UMHS initiated disciplinary
proceedings against Doe, UMHS suspended his clinical privileges indefinitely and reduced his
salary. Doe filed this lawsuit, claiming that he was deprived of his liberty and property interests
without due process in violation of the Fourteenth Amendment. He sought monetary damages, as
well as an injunction requiring the defendants to reinstate his clinical privileges and refrain from
reporting his suspension to the National Practitioner Data Bank (“NPDB”). Defendants filed
motions to dismiss, arguing that the Eleventh Amendment barred Doe’s claims against the Board
of Regents, the Board is not a person subject to suit under 42 U.S.C. § 1983, Doe failed to state a
claim for a Fourteenth Amendment violation, and even if he had, the individual defendants were
protected by qualified immunity. Doe sought permission to amend his complaint. The district No. 22-2095, Doe v. Bd. of Regents of the Univ. of Mich. et al.
court granted the motions to dismiss and denied the motion to amend the complaint. Doe appealed.
We AFFIRM the district court.
I. FACTS AND PROCEDURAL HISTORY1
John Doe is a physician at UMHS. R. 1 (Compl. ¶¶ 4, 12) (Page ID #2, 4). He is also a
tenured professor of surgery at the University of Michigan Medical School. Id. ¶ 12 (Page ID #4).
During his employment with UMHS, Doe spoke several times with UMHS leadership to “report
concerning administrative practices, particularly related to transparency and accountability.” Id.
¶ 38 (Page ID #10). Doe alleges that after he spoke out, UMHS initiated disciplinary proceedings
against him for “three recent non-event matters.” Id. ¶ 39 (Page ID #10). UMHS then suspended
Doe’s clinical privileges indefinitely and advised that it would report this to the State of Michigan
Board of Medicine and to the NPDB. Id. ¶ 40 (Page ID #11). Doe contends that those three
matters were investigated and determined to be “non-issues,” before the UMHS Office of Clinical
Affairs reopened the investigations. Id. ¶ 41–42 (Page ID #11).
The first incident concerned Doe’s supervision over a fellow during a surgery, the second
concerned a surgical procedure with increased bleeding, and the third concerned “Dr. Doe sharing
a video that had offensive language to colleagues.” R. 38-1 (Amended Compl. ¶ 49) (Page ID
#948). Following these incidents, UMHS suspended Dr. Doe’s clinical privileges and reported the
suspension to the State of Michigan Board of Medicine and to the NPDB. R. 1 (Compl. ¶ 40)
(Page ID #11). Approximately nine months later, Doe filed this lawsuit against the Board of
1 The Board of Regents filed a motion to strike Doe’s reply brief for including a plethora of facts that were not presented to the district court. The reply brief contains numerous facts that are not in the record below. The panel has disregarded any facts not included in the district court record, and we therefore deny the motion to strike as moot. See Simmons v. Middle Tenn. State Univ., No. 95-6111, 1997 WL 400105, at *1 (6th Cir. Jul. 11, 1997) (per curiam).
2 No. 22-2095, Doe v. Bd. of Regents of the Univ. of Mich. et al.
Regents of the University of Michigan, Marie Lozon, M.D., and Justin Dimick, M.D, claiming that
he was suspended from his clinical privileges and had his salary reduced without due process. Id.
He alleged a Fourteenth Amendment claim for deprivation of procedural due process as well as
state-law claims for breach of contract, breach of fiduciary and public duties, intentional infliction
of emotional distress, and retaliation. Id. ¶¶ 100–65 (Page ID #21–31).
The Board of Regents filed a motion to dismiss, arguing, among other things, that the
Eleventh Amendment barred Doe’s claims against the Board of Regents. R. 14 (Bd. of Regents
Mot. to Dismiss at 3) (Page ID #288). The individual defendants also filed a motion to dismiss,
arguing that Doe failed to state a claim for a Fourteenth Amendment violation and that the
individual defendants were protected by qualified immunity. R. 15 (Individual Defs.’ Mot. to
Dismiss at 8, 11) (Page ID #504, 507). Doe filed responses to both motions to dismiss and filed a
motion to amend his complaint. R. 34 (Resp. to Bd. of Regents’s Mot. to Dismiss at 1) (Page ID
#827); R. 35 (Resp. to Individual Defs.’ Mot to Dismiss at 1) (Page ID #865); R. 38 (Mot. for
Leave to Amend Compl. at 1) (Page ID #920). His response to the individual defendants’ motion
failed to address the qualified immunity issue. R. 35 (Resp. to Individual Defs.’ Mot. to Dismiss
at 1–22) (Page ID #872–93). The district court granted both motions to dismiss, concluding that
the Board of Regents was protected by sovereign immunity and that the individual defendants were
protected by qualified immunity. R. 61 (Dist. Ct. Order at 6–10) (Page ID #1457–61). It also
denied Doe’s motion to amend his complaint, concluding that Doe’s proposed amendment was
futile. R. 61 (Dist. Ct. Order at 21) (Page ID #1472). Doe timely filed a notice of appeal. R. 68
(Notice of Appeal at 1) (Page ID #1526).
3 No. 22-2095, Doe v. Bd. of Regents of the Univ. of Mich. et al.
II. ANALYSIS
A. Claims Against the Board of Regents
The Eleventh Amendment “bar[s] a citizen from suing his own State under the federal-
question head of jurisdiction.” Alden v. Maine, 527 U.S. 706, 727 (1999). A plaintiff may
overcome this immunity when Congress has abrogated the state’s immunity or when the state
consents to the suit. See Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527
U.S. 627, 635 (1999); Sossamon v. Texas, 563 U.S. 277, 284 (2011). Eleventh Amendment
immunity applies only to “arms of the state,” rather than “state instrumentalities . . . properly . . .
characterized as political subdivisions” of the state. Lowe v. Hamilton Cnty. Dep’t of Job & Fam.
Servs., 610 F.3d 321, 325 (6th Cir. 2010). This bar also applies to claims for injunctive relief.
Alabama v. Pugh, 438 U.S. 781, 781–82 (1978) (per curiam).
This court has previously held that the Board of Regents of the University of Michigan is
entitled to Eleventh Amendment immunity. Est. of Ritter v. Univ. of Mich., 851 F.2d 846, 851 (6th
Cir. 1988). This court has approvingly cited that decision as recently as 2015. Kreipke v. Wayne
State Univ., 807 F.3d 768
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NOT RECOMMENDED FOR PUBLICATION File Name: 23a0365n.06
No. 22-2095
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Aug 09, 2023 JOHN DOE, M.D., ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN BOARD OF REGENTS OF THE UNIVERSITY ) DISTRICT OF MICHIGAN OF MICHIGAN; MARIE LOZON, M.D.; JUSTIN ) DIMICK, M.D., ) OPINION ) Defendants-Appellees. ) )
Before: MOORE, ROGERS, and GRIFFIN, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Plaintiff John Doe, M.D., is a physician at
the University of Michigan Health System (“UMHS”). After UMHS initiated disciplinary
proceedings against Doe, UMHS suspended his clinical privileges indefinitely and reduced his
salary. Doe filed this lawsuit, claiming that he was deprived of his liberty and property interests
without due process in violation of the Fourteenth Amendment. He sought monetary damages, as
well as an injunction requiring the defendants to reinstate his clinical privileges and refrain from
reporting his suspension to the National Practitioner Data Bank (“NPDB”). Defendants filed
motions to dismiss, arguing that the Eleventh Amendment barred Doe’s claims against the Board
of Regents, the Board is not a person subject to suit under 42 U.S.C. § 1983, Doe failed to state a
claim for a Fourteenth Amendment violation, and even if he had, the individual defendants were
protected by qualified immunity. Doe sought permission to amend his complaint. The district No. 22-2095, Doe v. Bd. of Regents of the Univ. of Mich. et al.
court granted the motions to dismiss and denied the motion to amend the complaint. Doe appealed.
We AFFIRM the district court.
I. FACTS AND PROCEDURAL HISTORY1
John Doe is a physician at UMHS. R. 1 (Compl. ¶¶ 4, 12) (Page ID #2, 4). He is also a
tenured professor of surgery at the University of Michigan Medical School. Id. ¶ 12 (Page ID #4).
During his employment with UMHS, Doe spoke several times with UMHS leadership to “report
concerning administrative practices, particularly related to transparency and accountability.” Id.
¶ 38 (Page ID #10). Doe alleges that after he spoke out, UMHS initiated disciplinary proceedings
against him for “three recent non-event matters.” Id. ¶ 39 (Page ID #10). UMHS then suspended
Doe’s clinical privileges indefinitely and advised that it would report this to the State of Michigan
Board of Medicine and to the NPDB. Id. ¶ 40 (Page ID #11). Doe contends that those three
matters were investigated and determined to be “non-issues,” before the UMHS Office of Clinical
Affairs reopened the investigations. Id. ¶ 41–42 (Page ID #11).
The first incident concerned Doe’s supervision over a fellow during a surgery, the second
concerned a surgical procedure with increased bleeding, and the third concerned “Dr. Doe sharing
a video that had offensive language to colleagues.” R. 38-1 (Amended Compl. ¶ 49) (Page ID
#948). Following these incidents, UMHS suspended Dr. Doe’s clinical privileges and reported the
suspension to the State of Michigan Board of Medicine and to the NPDB. R. 1 (Compl. ¶ 40)
(Page ID #11). Approximately nine months later, Doe filed this lawsuit against the Board of
1 The Board of Regents filed a motion to strike Doe’s reply brief for including a plethora of facts that were not presented to the district court. The reply brief contains numerous facts that are not in the record below. The panel has disregarded any facts not included in the district court record, and we therefore deny the motion to strike as moot. See Simmons v. Middle Tenn. State Univ., No. 95-6111, 1997 WL 400105, at *1 (6th Cir. Jul. 11, 1997) (per curiam).
2 No. 22-2095, Doe v. Bd. of Regents of the Univ. of Mich. et al.
Regents of the University of Michigan, Marie Lozon, M.D., and Justin Dimick, M.D, claiming that
he was suspended from his clinical privileges and had his salary reduced without due process. Id.
He alleged a Fourteenth Amendment claim for deprivation of procedural due process as well as
state-law claims for breach of contract, breach of fiduciary and public duties, intentional infliction
of emotional distress, and retaliation. Id. ¶¶ 100–65 (Page ID #21–31).
The Board of Regents filed a motion to dismiss, arguing, among other things, that the
Eleventh Amendment barred Doe’s claims against the Board of Regents. R. 14 (Bd. of Regents
Mot. to Dismiss at 3) (Page ID #288). The individual defendants also filed a motion to dismiss,
arguing that Doe failed to state a claim for a Fourteenth Amendment violation and that the
individual defendants were protected by qualified immunity. R. 15 (Individual Defs.’ Mot. to
Dismiss at 8, 11) (Page ID #504, 507). Doe filed responses to both motions to dismiss and filed a
motion to amend his complaint. R. 34 (Resp. to Bd. of Regents’s Mot. to Dismiss at 1) (Page ID
#827); R. 35 (Resp. to Individual Defs.’ Mot to Dismiss at 1) (Page ID #865); R. 38 (Mot. for
Leave to Amend Compl. at 1) (Page ID #920). His response to the individual defendants’ motion
failed to address the qualified immunity issue. R. 35 (Resp. to Individual Defs.’ Mot. to Dismiss
at 1–22) (Page ID #872–93). The district court granted both motions to dismiss, concluding that
the Board of Regents was protected by sovereign immunity and that the individual defendants were
protected by qualified immunity. R. 61 (Dist. Ct. Order at 6–10) (Page ID #1457–61). It also
denied Doe’s motion to amend his complaint, concluding that Doe’s proposed amendment was
futile. R. 61 (Dist. Ct. Order at 21) (Page ID #1472). Doe timely filed a notice of appeal. R. 68
(Notice of Appeal at 1) (Page ID #1526).
3 No. 22-2095, Doe v. Bd. of Regents of the Univ. of Mich. et al.
II. ANALYSIS
A. Claims Against the Board of Regents
The Eleventh Amendment “bar[s] a citizen from suing his own State under the federal-
question head of jurisdiction.” Alden v. Maine, 527 U.S. 706, 727 (1999). A plaintiff may
overcome this immunity when Congress has abrogated the state’s immunity or when the state
consents to the suit. See Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527
U.S. 627, 635 (1999); Sossamon v. Texas, 563 U.S. 277, 284 (2011). Eleventh Amendment
immunity applies only to “arms of the state,” rather than “state instrumentalities . . . properly . . .
characterized as political subdivisions” of the state. Lowe v. Hamilton Cnty. Dep’t of Job & Fam.
Servs., 610 F.3d 321, 325 (6th Cir. 2010). This bar also applies to claims for injunctive relief.
Alabama v. Pugh, 438 U.S. 781, 781–82 (1978) (per curiam).
This court has previously held that the Board of Regents of the University of Michigan is
entitled to Eleventh Amendment immunity. Est. of Ritter v. Univ. of Mich., 851 F.2d 846, 851 (6th
Cir. 1988). This court has approvingly cited that decision as recently as 2015. Kreipke v. Wayne
State Univ., 807 F.3d 768, 775–76 (6th Cir. 2015). A prior published opinion is binding unless an
inconsistent decision by the Supreme Court renders modification necessary or the court overrules
the prior decision. RLR Invs., LLC v. City of Pigeon Forge, 4 F.4th 380, 390 (6th Cir. 2021). The
Board of Regents of the University of Michigan is therefore shielded from liability by the Eleventh
Amendment.
B. Claims Against the Individual Defendants
Doe also sued Doctors Marie Lozon and Justin Dimick individually. R. 1 (Compl. at 1)
(Page ID #1). The individual defendants argued in their motion to dismiss that they were protected
4 No. 22-2095, Doe v. Bd. of Regents of the Univ. of Mich. et al.
by qualified immunity, which shields government employees from liability under § 1983 “insofar
as their conduct does not violate clearly established . . . constitutional rights of which a reasonable
person would have known.” Hearring v. Sliwowski, 712 F.3d 275, 279 (6th Cir. 2013) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (ellipses in original)). Doe failed to make any
argument in the district court that the individual defendants were not protected by qualified
immunity. The district court therefore concluded that he had forfeited the issue and granted
qualified immunity. R. 61 (Dist. Ct. Order at 9) (Page ID #1460). Arguments not raised before
the district court are forfeited on appeal. Johnson v. Ford Motor Co., 13 F.4th 493, 503 (6th Cir.
2021). We affirm the district court’s grant of qualified immunity on this basis.
Doe also brought an Ex parte Young injunctive claim. But “[o]ne prerequisite for the Ex
parte Young exception to apply is that the claimant must explicitly allege that a state official acted
in her official capacity.” Morgan v. Bd. of Pro. Resp. of the Sup. Ct. of Tenn., 63 F.4th 510, 517
(6th Cir. 2023). And a state’s Eleventh Amendment immunity “cannot be abrogated by the
plaintiff’s simply leaving the capacity of the state actor unsaid in the complaint, to be guessed by
the court and defendant.” Id. Doe’s complaint does not specify that he is suing Drs. Lozon and
Dimick in their official capacities, and therefore we affirm the district court’s dismissal of the Ex
parte Young claims, though on different grounds.
C. Motion for Leave to Amend Complaint
We “review[] a denial of leave to amend a pleading for abuse of discretion, unless the
district court denied leave based ‘on the legal conclusion that an amended complaint could not
withstand a motion to dismiss.’” Doe v. Mich. State Univ., 989 F.3d 418, 424 (6th Cir. 2021)
(quoting Boulton v. Swanson, 795 F.3d 526, 537 (6th Cir. 2015)). The district court denied the
5 No. 22-2095, Doe v. Bd. of Regents of the Univ. of Mich. et al.
motion for leave to amend because the “Plaintiff’s proposed amendments would not save his
Complaint from dismissal.” R. 61 (Dist. Ct. Order at 21) (Page ID #1472). Doe attempted to
amend his complaint to add allegations against another defendant, Michael Mulholland, M.D. R.
38-1 (Proposed Amended Compl. ¶ 7) (Page ID #938). He also wished to add factual allegations
that UMHS had offered him an increased compensation package to retain him as an employee, id.
¶¶ 39–45 (Page ID #946–47), and to add information about the “non-event issues” originally
mentioned in his initial complaint, id. ¶ 49 (Page ID #947–48). He additionally sought to add more
information about the revocation of his clinical privileges. Id. ¶ 109–29 (Page ID #958–61). None
of these proposed changes, however, addressed the primary problems with his complaint: he did
not plead facts that overcome the immunity defenses of either the Board of Regents or the
individual defendants. We therefore affirm the district court’s denial of the motion for leave to
amend the complaint.
III. CONCLUSION
The Board of Regents is protected by Eleventh Amendment immunity, and Doe forfeited
any argument that the individual defendants were not protected by qualified immunity. His
injunctive claim against Drs. Lozon and Dimick fails because he neglected to state that he was
suing the individual defendants in their official capacities. The proposed amendments to the
complaint would not have overcome any of these issues. We therefore AFFIRM the judgment of
the district court.