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Biggar v. Oregon Board of Optometry

United States District Court, D. Oregon, Portland Division

June 26, 2018

DAVID BIGGAR, Plaintiff,



         This matter comes before me on a Motion for Summary Judgment [93] filed by the Oregon Board of Optometry ("the Board"), several Board members, and the executive director of the Board (together the "OBO Defendants"). No. party requested oral argument. For the reasons below, I GRANT in part the OBO Defendants' Motion for Summary Judgment, and, with only state law claims remaining, REMAND this case to Multnomah County Circuit Court.


         I. Undisputed factual background

         A. Events of Fall 2015-March 2016

         Pro se plaintiff Dr. David Biggar has been an optometrist since 2006. Abrams Decl. [94] Ex. A (hereinafter "Biggar Depo.") at 9-10. In 2012, he opened Eyes of Oregon LLC, with an office in Lake Oswego and an office in Tillamook. Biggar Depo. at 9-10. In 2015, Dr. Biggar and his wife divorced, and she retained custody of their children. Biggar Depo. at 73. In the months after the divorce, Dr. Biggar cried in front of patients and physically collapsed at the office. Biggar Depo., Ex. 110. Dr. Biggar stopped practicing optometry temporarily for about three months in Fall 2015 and checked himself into a mental health facility for five days in November 2015. Biggar Depo. at 73.

         Dr. Joan Miller, an optometrist, former friend of Dr. Biggar, and previous defendant in this lawsuit, became concerned in early 2016 about Dr. Biggar's conduct. From January to March 2016, Dr. Biggar told Dr. Miller he wanted to have his organs harvested and thereby commit suicide, sent threatening emails to a prospective buyer of his clinic, Dr. Kim Clark, and failed to complete treatment records. Biggar Depo. at 72-73; id, Ex. 107. In light of this conduct, Dr. Miller reported Dr. Biggar in an email to the Board on March 23, 2016.

         Dr. Biggar's colleague, Dr. Scott Iburg, also reported Dr. Biggar to the Board on March 28, 2016, detailing Dr. Biggar's suicidal thoughts, his threats to hit or kill Dr. Clark, an incident in which Dr. Biggar screamed and swore at an employee while a patient was in the office, and harassing emails Dr. Biggar sent after Dr. Iburg resigned. Biggar Depo., Ex. 110. Dr. Iburg forwarded the Board an email on March 24 in which Dr. Biggar stated, "Alot [sic] of guys would have picked up a machine gun and gone dancing at the mall by now." Biggar Depo., Ex. 109. Dr. Iburg supplemented his report on March 29, 2016, to express his concerns that Dr. Biggar was not properly completing glaucoma charts. Biggar Depo., Ex. 111.

         B. March 2016 Board Actions

         On March 30, 2016, the Board met at a specially called meeting to discuss the allegations against Dr. Biggar. Sneed Decl. [95] ¶ 2. For this meeting, the Board gave notice to the general public and specific notice to a list of people who previously requested notice of specially called meetings. Sneed Decl. [95] ¶ 3. The Board directed its Executive Director, Defendant Shelley Sneed, to communicate with Dr. Biggar to obtain further information, but did not make any final decisions at the time. Sneed Decl. [95] ¶ 2.

         Ms. Sneed then wrote two letters to Dr. Biggar on March 31, 2016. The first letter (Letter A) stated that because of "reports of inability to practice and making threats of harm to yourself and others, the Oregon Board of Optometry has opened an investigation into your fitness to practice." Biggar Depo., Ex. 112. Letter A also gave Dr. Biggar 48 hours to sign an Interim Consent Order by which he would have to agree to "stop practicing optometry until [his] mental health [was] assessed, a treatment plan [was] written by a professional, and [he] show[ed] a willingness and commitment to follow the treatment plan." Biggar Depo., Ex. 112. Otherwise, Letter A warned, the Board would undertake an emergency suspension of his Oregon optometry license. Biggar Depo., Ex. 112.

         The second letter (Letter B) did not mention the Interim Consent Order or an emergency suspension. Biggar Depo., Ex. 113. Letter B requested Dr. Biggar send information about certain glaucoma records within 21 days of the letter. Biggar Depo., Ex. 113. Letter B also stated that Dr. Biggar would not hear from the Board right away, as the next Board meeting was not until May 6. Biggar Depo., Ex. 113.

         Dr. Biggar declined to sign the Interim Consent Order included in Letter A, but did meet with Dr. Les Goldmann, a clinical psychologist, to have his mental health assessed. After a three-hour evaluation on April 1, Dr. Goldmann issued a report on April 4, stating that it was his opinion, "based upon the seriousness of the complaints, Dr. Biggar's inconsistent reporting as well as his lack of insight," that Dr. Biggar was not fit to practice optometry, at least in the "very short term." Biggar Depo., Ex. 114 at 7.

         C. April 2016 Emergency Orders

         The next day, the Board issued an Order of Emergency Suspension (Emergency Order), detailing the allegations against Dr. Biggar and prohibiting him from practicing optometry until further notice from the Board. Biggar Depo., Ex. 115. Some of these specific allegations included Dr. Biggar's use of profanity in the office, his collapse in September 2015, and his failure to properly complete glaucoma charts. Biggar Depo., Ex. 118.

         The Emergency Order stated that Dr. Biggar had a right to demand a hearing in front of an administrative law judge:

Licensee has a right to demand that a hearing be held as soon as practicable to contest the emergency suspension order. Such a request must be made in writing and must be received in the Board's office no more than 90 days after the effective date of this order. If not so received, Licensee's right to a hearing under ORS chapter 183 will be waived. . . . Licensee may mail a request for hearing to Oregon Board of Optometry, 1500 Liberty St SE, Suite 210, Salem, OR 97302 or fax a request to 503.399.0705.

         Biggar Depo., Ex. 115 at 4-5. The Emergency Order also warned Dr. Biggar: "[i]f you request a hearing, but later withdraw your request for hearing, fail to appear at the hearing, or notify the Board or the administrative law judge that you do not intend to appear at the hearing, you will have waived your right to a hearing." Biggar Depo., Ex. 115 at 5. On April 15, the Board issued an Amended Emergency Order, which added a sentence requesting that Dr. Biggar pay the costs of the disciplinary proceedings but otherwise did not alter the content from the original Emergency Order. Biggar Depo., Ex. 117.

         Dr. Biggar responded on April 5 via email to Ms. Sneed and others, proposing several plans for his reinstatement. In the alternative, he wrote, "I would welcome an emergency in- person meeting with the Board[']s Legal Counsel, myself, and my own legal representation, at your office in Salem, if this is convenient for your team, and prior to April 6 @ 9am." Biggar Depo., Ex. 116. Although Dr. Biggar's operative Complaint alleges he asked for a hearing on April 13 on the phone and in an email, these allegations do not appear in the record. Other than the April 5 email, Dr. Biggar testified that he does not recall asking for a hearing in writing. Biggar Depo. at 155.

         D. May 2016 Consent Order and Aftermath

         Dr. Biggar signed a Consent Order on May 5, 2016, after advice from legal counsel. Biggar Depo., Ex. 118. The Consent Order required Dr. Biggar to seek mental health treatment and suspended him from practice until cleared by a mental health professional. Biggar Depo., Ex. 118. It also stated: "Licensee, aware of his right to a hearing and judicial review, does hereby waive those rights and agrees to the entry of this Consent Order." Biggar Depo., Ex. 118 at 2. Finally, the Consent Order noted, "[t]he Emergency Order is withdrawn and this Consent Order replaces all previous Board orders, including the Emergency Order." Biggar Depo., Ex. 118 at 5. After signing the Consent Order, Dr. Biggar did not attend the Board meeting scheduled on May 6, 2016. Biggar Depo. at 152-53. Dr. Biggar complied with the Consent Order and was allowed to resume practice on June 20, 2016. Biggar Depo. at 166-67.

         On May 24, 2016, Dr. Biggar, via counsel, asked Ms. Sneed to take down the Amended Emergency Order from the Board website. Sneed Decl. [95] ¶ 8. Ms. Sneed replied that she had no authority to do so, but that the Board would address the issue at the next meeting. Sneed Decl. [95] ¶ 8. The Board then did so at a September 6, 2016 meeting, and voted to take down the Amended Emergency Order. Sneed Decl. [95] ¶ 9. Additionally, at the September 2016 Board meeting, the Board voted to require Dr. Biggar to complete 18 hours of glaucoma education by his license renewal date of November 1, 2017. Biggar Depo., Ex. 119.

         Dr. Biggar's Lake Oswego practice closed in May 2017, and the Tillamook practice closed in October 2017. Biggar Depo. at 45. Dr. Biggar did not complete the required 18 hours of glaucoma education and let his license lapse on November 1, 2017. Biggar Depo. At 179. Although it appears Dr. Biggar's license had expired, the Board also suspended his license on November 13, 2017 for failure to complete the required classes. Sneed Decl. [95], Ex. C.

         II. Procedural History

         Dr. Biggar filed this suit in state court in March 2017 and Defendants removed to this court in May 2017. Notice of Removal [1]. In his Third Amended Complaint (TAC) (filed in November 2017 when he was still represented by counsel), Dr. Biggar alleges nine claims for relief against the Board and nine individual defendants: Ms. Sneed, six board members (Webber, Lynch, Cardenal, ...

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