Michalowski v. Head (Full Text)

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 1 of 20

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

CV-10-278-B-W

ELLEN MICHALOWSKI,

Plaintiff,

ANNE L. HEAD, et al.,

Defendants.

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ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER

Tragically, Ellen Michalowski, M.D. has had a profound prescriptive drug

problem. Because of her addiction, the Maine Board of Licensure in Medicine

(Board) initiated proceedings to determine whether to impose disciplinary action on

her medical license. Concerned that the Board has exhibited bias and will rule

against her, Dr. Michalowski seeks a temporary restraining order (TRO) to enjoin

the Board from proceeding with a pending adjudicatory hearing. Based on Younger

v. Harris, 401 U.S. 37 (1971), the Court concludes it must abstain from interfering

in an ongoing state administrative proceeding and denies Dr. Michalowski’s motion

for a TRO.

STATEMENT OF FACTS

The Motion and Response

On July 7, 2010, Ellen Michalowski, M.D. filed a Complaint against Anne L.

Head, Commissioner of the Department of Professional and Financial Regulation of

the state of Maine, the Board, and Janet Mills, Attorney General of the state of

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Maine. Compl. for Decl. J. and Injunctive Relief (Docket # 1) (Compl.). The same

day Dr. Michalowski filed a motion for TRO. Mot. for Temporary Restraining Order

(Docket # 4) (Mot. for TRO). On July 9, 2010, the state Defendants filed a response.

State Defs.’ Obj. to Mot. for Temporary Restraining Order (Docket # 6) (State Defs.’

Obj.).

The Doctor’s Complaint

Dr. Michalowski, a Board Certified specialist in Obstetrics and Gynecology,

had practiced medicine in Presque Isle, Maine. 1 Her sad story begins with a skiing

accident when she was a teenager in which she tore her medial cartilage. Her

therapeutic course has been marked by increasing, unremitting knee pain, multiple

unsuccessful surgeries, including a failed total knee replacement, and finally a

descent into severe addiction to prescriptive pain killers.

On April 10, 2007, Dr. Michalowski entered into a Consent Agreement with

the Board restricting her ability to obtain prescriptive medication to only one

approved physician and to one pharmacy, and to limit her primary care physician to

one doctor. She also consented to multiple other provisions, including counseling.

Between July 2007 and July 2008, however, Dr. Michalowski violated the Consent

Agreement by improperly obtaining and abusing prescriptive drugs, including self-

prescribing.

Finally, in August, 2008, Dr. Michalowski’s ruinously expensive efforts to

receive drug abuse treatment bore fruit, and after an intensive course of in-patient

therapy at the Sierra Tucson Treatment Center, she became and has remained

1 The Court derived these facts largely from the allegations in Dr. Michalowski’s Complaint.
2

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clean and sober. On August 28, 2008, Dr. Michalowski voluntarily agreed to a

suspension of her medical license and she has not practiced medicine since. Despite

successful completion of the drug abuse therapy program, continued participation in

Alcoholics Anonymous and Caduceus (a support group of recovering medical

providers), and passing multiple random drug tests, the Board presented Dr.

Michalowski with a Second Consent Agreement, which stipulated that she could not

practice medicine for four years and during that interval could not reapply for her

license. When Dr. Michalowski refused to sign the Second Consent Agreement, the

Board prosecuted her for unprofessional conduct between July 2007 and July 2008.

The Board held its first hearing on April 13, 2010 with James E. Smith acting as

the hearing officer. The evidence was not completed and the hearing was continued

to be completed on July 13, 2010.

On July 7, 2010, Dr. Michalowski filed suit, seeking a TRO and preliminary

and permanent injunctions against the Board to enjoin it from further adjudicatory

hearings against her and seeking a declaratory judgment that its prosecution and

enforcement of disciplinary action on her medical license are unlawful and violate

due process. 2

2 The Court first became aware of this controversy on Thursday, July 8 and held a telephone
conference with counsel the afternoon of Friday, July 9, 2010. The Court attended to previously
scheduled matters during the rest of the day on Friday. The administrative hearing is scheduled to
recommence on Tuesday, July 13, 2010. The Court is issuing this Order on Monday, July 12, 2010 in
order to address whether the impending hearing can proceed forward. However, the parties,
particularly Dr. Michalowski, placed severe time constraints on the Court. The Court has done its
level best, but they should appreciate “the temporal constraints under which the district court
labored” in arriving at this decision. Bl(a)ck Tea Soc’y v. City of Boston, 378 F.3d 8, 15 (1st Cir.
2004).

The State has not raised laches as a basis for denial of the motion for TRO, and the Court
does not rest its decision on Dr. Michalowski’s late filing. Here, the Board held the first part of the
3

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The State Administrative Regulatory Process and Dr.
Michalowski

Dr. Michalowski’s case before the Board began on January 11, 2005 when the

Board issued her a letter of guidance. On April 10, 2007, the Board and Dr.

Michalowski entered into the Consent Agreement. However, subsequently the

Board learned from Northern Maine Medical Center that Dr. Michalowski “had

been issuing prescriptions to a pharmacy in New Brunswick, Canada for narcotic

medication for a fictitious patient, and picking up the narcotic medication herself.”

Defs.’ Obj. Attach. 2 Interim Consent Agreement for Discipline and Modification of

Medical Licensure at 2. On August 26, 2008 and September 9, 2008, Dr.

Michalowski and the Board entered into an Interim Consent Agreement in which

Dr. Michalowski agreed to the temporary suspension of her license to practice

medicine “prior to the Board’s ultimate disposition of this new information

regarding Dr. Michalowski’s alleged self-prescribing of narcotic medication.” Id. at

3. On February 5, 2010, the Board placed Dr. Michalowski on formal notice that it

intended to hold the first session of the adjudicatory proceeding on April 13, 2010.

Defs.’ Obj. Attach. 3 Notice of Adjudicatory Hearing regarding the summary

suspension of your Maine medical license and the complaint of the Maine Board of

Licensure in Medicine.

administrative hearing on April 13, 2010, and the controversy between Dr. Michalowski and the
Board has persisted for years. Yet, Dr. Michalowski waited until the Thursday before the scheduled
completion of the hearing to file a motion for TRO. Cases where courts have denied equitable relief
based on a plaintiff’s delay have been more egregious than the facts in this case. Allens
Creek/Corbetts Glen Preservation Group, Inc. v. Caldera, 88 F. Supp. 2d 77, 83-84 (W.D.N.Y. 2000),
aff’d 242 F.3d 364 (2d Cir. 2001). Nevertheless, unwarranted delay in moving for injunctive relief
“undercuts the sense of urgency that ordinarily accompanies a motion for preliminary relief and
suggests that there is, in fact, no irreparable injury.” Citibank, N.A. v. Citytrust, 756 F.2d 273, 277
(2d Cir. 1985) (citation omitted).

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II. DISCUSSION

In assessing whether to grant a request for injunctive relief, a court is

required to weigh a “familiar four-part test”:

(1) the likelihood of success on the merits; (2) the potential for irreparable
harm if the injunction is denied; (3) the balance of relevant impositions, i.e.,
the hardship to the nonmovant if enjoined as contrasted with the hardship to
the movant if no injunction issues; and, (4) the effect (if any) of the court’s
ruling on the public interest.

Iantosca v. Step Plan Servs., 604 F.3d 24, 29 n.5 (1st Cir. 2010) (citations omitted).

To determine whether to issue a TRO, a court applies the same four-factor analysis

used to evaluate a motion for preliminary injunction. Northwest Bypass Group v. U.

S. Army Corps of Eng’rs, 453 F. Supp. 2d 333, 337 (D.N.H. 2006); see Merrill Lynch,

Pierce, Fenner & Smith, Inc. v. Bishop, 839 F. Supp. 68, 70 (D. Me. 1993).

Likelihood of Success on the Merits: Younger Abstention

“The sine qua non of this four-part inquiry is likelihood of success on the

merits: if the moving party cannot demonstrate that he is likely to succeed in his

quest, the remaining factors become matters of idle curiosity.” New Comm Wireless

Servs., v. Sprintcom, Inc., 287 F.3d 1, 9 (1st Cir. 2002); Ross-Simons of Warwick,

Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996) (describing “likelihood of

success” as the “main bearing wall of the four-factor framework”). The State

Defendants persuasively contend that it is unlikely that Dr. Michalowski will be

successful on the merits of her law suit in this Court because her claim is barred by

the Younger abstention doctrine.

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Named after the seminal 1971 case Younger v. Harris, the Younger

abstention doctrine arises “from strong policies counseling against the exercise of . .

. jurisdiction where particular kinds of state proceedings have already been

commenced.” Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S.

619, 626 (1986). “In the absence of extraordinary circumstances, interests in comity

and the respect for state processes demand that federal courts should abstain from

interfering with ongoing state judicial proceedings.” Esso Standard Oil Co. v.

Lopez-Freytes, 522 F.3d 136, 143 (1st Cir. 2008) (Esso II). “Although initially

applied to protect state criminal prosecutions against interference, the Younger

doctrine has been extended to ‘coercive’ civil cases involving the state and to

comparable state administrative proceedings that are quasi-judicial in character

and implicate important state interests.” Maymo-Melendez v. Alvarez-Ramirez, 364

F.3d 27, 31 (1st Cir. 2004).

Younger abstention is mandatory, not discretionary, see Rio Grande Cmty.

Health Ctr., Inc. v. Rullan, 397 F.3d 56, 68 (1st Cir. 2005), when the federal lawsuit

would interfere:

(1) with an ongoing state judicial proceeding; (2) that implicates an
(3) that provides an adequate
interest; and
important state
opportunity
for
the
federal plaintiff
to advance his
federal
constitutional challenge.

Rossi v. Gemma, 489 F.3d 26, 34-35 (1st Cir. 2007). Abstention may be

inappropriate only in certain “extraordinary circumstances”:

Extraordinary circumstances include those situations in which ‘core
constitutional valued are threatened during an ongoing state
proceeding and there is a showing of irreparable harm that is both

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great and immediate.’ Maymo-Melendez, 364 F.3d at 37 (internal
quotation marks omitted). Among those extraordinary circumstances
are cases in which extreme bias completely renders a state adjudicator
incompetent and inflicts irreparable harm upon the petitioner.
(citations omitted).

Esso II, 522 F.3d at 143; Christian Action Network v. State of Maine, 679 F. Supp.

2d 140, (D. Me. 2010) (stating that “[e]xtraordinary circumstances include bad faith,

harassment and extreme bias; great and immediate irreparable harm to core

constitutional values”).

Ongoing State Judicial Proceeding

Established by 5 M.R.S.A. § 12004-A(24), the Board “consists of 9 individuals

who are residents of [the] State [of Maine], appointed by the Governor.” 32

M.R.S.A. § 3263. The Board consists of three representatives of the public and six

graduates of a legally chartered medical college or university who have been

actively engaged in the practice of their profession in the state of Maine

continuously for 5 years prior to appointment. Id. As with other occupational and

professional regulatory boards, the “sole purpose” of the Board is “to protect the

public health and welfare” by “ensuring that the public is served by competent and

honest practitioners and . . . by examining, licensing, regulating and disciplining

practitioners of those regulated professions.” 10 M.R.S.A. § 8008.

The Board is statutorily authorized to “suspend or revoke a license” for the

following grounds:

Habitual substance abuse that has resulted or is foreseeably likely to
result in the licensee performing services in a manner that endangers
the health or safety of patients.

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32 M.R.S.A. § 3282-A(2)(B).

Prescribing narcotic . . . drugs listed as controlled substances by the
Drug Enforcement Administration for other than accepted therapeutic
purposes.

32 M.R.S.A. § 3282-A(2)(J). Maine law contemplates a graduating process,

beginning with an informal conference with the licensee and culminating with a

formal hearing. 32 M.R.S.A. § 3282-A(2).

If the Board concludes that “modification or nonrenewal of the license is in

order, the [Board] shall hold an adjudicatory hearing in accordance with Title 5,

chapter 375, subchapter 4.” 32 M.R.S.A. § 3282-A(1)(C); see 5 M.R.S.A. § 10003.

The Board’s hearing is an “adjudicatory proceeding” under Maine’s Administrative

Procedures Act. 5 M.R.S.A. § 8002(1) (defining an “adjudicatory proceeding” as “any

proceeding before an agency in which the legal rights, duties or privileges of specific

persons are required by constitutional law or statute to be determined after an

opportunity for hearing”). Maine law mandates that an adjudicatory hearing

provide for a panoply of procedural and substantive rights. 5 M.R.S.A. § 9056(2)

(right to present evidence and arguments on all issues, to call and cross-examine

witnesses, to make oral cross-examination of any person present and testifying); 5

M.R.S.A. § 9057 (evidence is admitted if it is the kind of evidence upon reasonable

persons are accustomed to rely in the conduct of serious affairs, all witnesses shall

be sworn); 5 M.R.S.A. § 9059 (proceedings must be recorded); 5 M.R.S.A. § 9060

(parties may request the issuance of subpoenas to secure witnesses or documents); 5

M.R.S.A. § 9061 (a decision must be in writing and must contain findings of fact).

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Finally an aggrieved party “shall be entitled to juridical review thereof in the

Superior Court.” 5 M.R.S.A. § 11001(2).

A state medical board’s disciplinary proceeding falls within the meaning of an

ongoing judicial proceeding for purposes of Younger abstention. Gibson v. Berryhill,

411 U.S. 564, 576-77 (1973) (stating that “it is apparent from Geiger [v. Jenkins, 401

U.S. 985 (1971)] that administrative proceedings looking toward the revocation of a

license to practice medicine may in proper circumstances command the respect due

court proceedings”); Doe v. Connecticut Dep’t of Health Servs., 75 F.3d 81, 85 (2d Cir.

1996); Selkin v. State Bd. for Professional Medical Conduct, 63 F. Supp. 2d 397, 402

(S.D.N.Y 1999) (stating that there is “clear precedent to support the conclusion that

the concerns of comity and federalism expressed in Younger warrant abstention

where state disciplinary proceedings contemplating the revocation of a physician’s

medical license are ongoing”). The First Circuit has applied the Younger abstention

doctrine to appeals pending in state courts from decisions of state medical and

psychology registration boards. Bettencourt v. Bd. of Registration in Medicine, 904

F.2d 772, 778 (1st Cir. 1990) (applying Younger to an appeal from the

Massachusetts Board of Registration in Medicine pending in the Supreme Judicial

Court of Massachusetts); Coggeshall v. Mass. Bd. of Registration of Psychologists,

604 F.3d 658 (1st Cir. 2010). As Dr. Michalowski has the right to appeal any

decision of the Board to the state of Maine Superior and Supreme Courts, the

principles would appear to apply with equal force to an earlier state administrative

proceeding. Finally, Younger abstention has been held to apply to similar

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professional disciplinary proceedings. Middlesex County Ethic Comm. v. Garden

State Bar Ass’n, 457 U.S. 423, 437 (1982) (abstention warranted where lawyer

sought to enjoin ongoing state disciplinary proceedings against him and where

lawyer had right to appeal administrative decision to state courts). The Court

concludes that the pending disciplinary proceeding before the Board of Licensure in

Medicine is an ongoing state judicial proceeding for Younger abstention purposes. 3

Important State Interest

In Middlesex, the United States Supreme Court recognized that the state of

New Jersey had an “important state obligation to regulate persons who are

authorized to practice law.” Middlesex, 457 U.S. at 432-33. In Bettencourt, the

First Circuit quickly concluded that the regulation of the practice of medicine is an

important state interest. Bettencourt, 904 F.2d at 778 (stating that “the issues at

stake — involving the enforcement of proper standards of medical licensure —

obviously implicate important state interests”). The Court readily concludes that

the Board of Licensure in Medicine’s disciplinary proceeding against Dr.

Michalowski implicates important state interests under Younger.

Adequate Opportunity

The Maine Administrative Procedures Act allows for judicial review of the

Board’s decision. 5 M.R.S.A. § 11001(2). As such, Dr. Michalowski has an adequate

opportunity to raise federal constitutional challenges in state court judicial review.

Bettencourt, 904 F.2d at 778; see Ohio Civil Rights Comm’n, 477 U.S. at 629 (stating

3 Bradley v. Board of Psychologists , AP-09-2 (Me. Super. Ct., Ken. Cty., May 19, 2009) (Jabar, J.) demonstrates
that state courts are capable of handling the legal arguments Dr. Michalowski has presented this Court.
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that “it is sufficient under [Middlesex] that constitutional claims may be raised in

state-court judicial review of the administrative proceeding”). The Court concludes

that Dr. Michalowski has an adequate opportunity in state court to raise the issues

that she is attempting to raise before this Court. Mallinckrodt LLC v. Littell, 616 F.

Supp. 2d 128, 140 (D. Me. 2009).

Bias

As all three Younger abstention elements are satisfied, abstention is

mandatory unless an exception applies. Id. at 140. In Gibson, the Supreme Court

carved out an exception for Younger abstention when the state board was

“incompetent by reason of bias.” Gibson, 411 U.S. at 577. As the First Circuit has

explained, however, the bias exception applies only in “extraordinary circumstances

. . . in which extreme bias completely renders a state adjudicator incompetent and

inflicts irreparable harm upon the petitioner.” Esso II, 522 F.3d at 143. Further,

the burden shifts to Dr. Michalowski to show that “extraordinary circumstances” in

her case should lead the court not to abstain. Christian Action, 679 F. Supp. 2d at

148. In Perez v. Ledesma, the United States Supreme Court offered one example in

the criminal context: “Only in cases of proven harassment or prosecutions

undertaken by state officials in bad faith without hope of obtaining a valid

conviction and perhaps in other extraordinary circumstances where irreparable

injury can be shown is federal injunctive relief against pending state prosecutions

appropriate.” 401 U.S. 82, 85 (1971).

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In an effort to demonstrate such bias, Dr. Michalowski points to the

following: (1) Assistant Attorney General (AAG) Dennis Smith generally provides

legal counsel to the Board, but assumed the role of prosecutor before the Board

against Dr. Michalowski; (2) during the April 13, 2010 hearing, Dr. Dreher, a

member of the Board, requested clarification about at least two legal issues from

AAG Smith, who was prosecuting the case against Dr. Michalowski; (3) during the

same hearing, Cheryl Clukey, another Board member, questioned Dr. Michalowski

about differences between her testimony and the Board’s investigator’s notes,

stating that the investigator was efficient, organized and kept impeccable notes,

and implying that Dr. Michalowski was not credible; (4) when Dr. Michalowski’s

counsel objected to the Board investigator’s testimony that certain prescriptions

were narcotics, Dr. Nyberg, a Board member, called the objection ridiculous; and, (5)

the Board’s Executive Director Randall Manning, although a non-voting member of

the Board, advised the Northern Maine Medical Center before the hearing that it is

unlikely Dr. Michalowski will ever get her medical license back. Mot. for TRO at 8.

The Court concludes that these examples, taken separately or together, do

not amount to the type of extreme structural or actual bias that would justify

federal intervention in a pending state proceeding. Dr. Michalowski alleges

structural bias because AAG Smith generally provides counsel to the same Board

before whom he is now prosecuting Dr. Michalowski. However, as the Office of

Attorney General is required by law to provide legal representation to state

agencies, 5 M.R.S.A. § 191, the Maine Supreme Judicial Court has described the

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role of state attorney general as “unique.” Superintendent of Ins. v. Attorney Gen.,

558 A.2d 1197, 1202 (Me. 1989). Here, as AAG’s role shifted from counsel to

prosecutor, the Board ensured the fairness of the proceeding by hiring a separate

attorney, James E. Smith, and charging him with the duties of a Hearing Officer.

As Attorney James E. Smith informed the Board at the outset, he served “as the

Board’s attorney and legal advisor.” State Defs.’ Obj. Attach. 4 at 4:13-14 (Tr. of

Adjudicatory Hearing). The Court is not convinced that with the introduction of an

independent hearing officer, the continued participation of the Board’s regular

counsel as prosecutor constitutes structural bias or overcomes the presumption that

state administrators are people “of conscience and intellectual discipline.”

Mallinckrodt, 616 F. Supp. 2d at 141-43 (quoting United States v. Morgan, 313 U.S.

409, 421 (1941)); Fisher v. Iowa Bd. of Optometry Exam’rs, 510 N.W.2d 873, 877

(Iowa 1994) (describing a similar situation as “neither unlawful nor uncommon”).

Dr. Michalowski asserts that Dr. Dreher, a Board member, made an inquiry

to AAG Smith about a legal issue and contends that Dr. Dreher’s question is

evidence of actual bias. The Court disagrees. The transcript that Dr. Michalowski

provided does not corroborate her allegations. At the very outset of the hearing, Dr.

Dreher asked for clarification about an issue of law and prefaced his inquiry by

saying that he did not “know if I can ask that of anybody here.” State Defs.’ Obj.

Attach. 4 at 5:7-9 (Tr. of Adjudicatory Hearing). Hearing Officer Smith told him to

ask the question and then “we’ll see.” Id. 5:10-11. Hearing Officer Smith, not AAG

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Smith, was the one who responded. Id. 5:16-17. If it exists, the factual predicate

for Dr. Michalowski’s contention is not before the Court.

Regarding her complaint about Ms. Clukey, Dr. Michalowski attached to her

motion an excerpt of four pages of her testimony before the Board at the April 13,

2010 hearing. Reviewing the transcript, the dialogue is dense, and the Court has

the sense of walking into the middle of a conversation. The relevant portion of the

except appears to begin with Ms. Clukey asking Dr. Michalowski about a Dr. Moore;

Ms. Clukey says that Dr. Moore came to Dr. Michalowski and said “she was very

uncomfortable with what she did and had asked you to self report yourself?” Aff. of

Dr. Ellen Michalowski Attach. 2 at 3:21-25, 4:1 (Tr. of Adjudicatory Hearing)

(Docket # 3) (Michalowski Aff.). Dr. Michalowski responds that she had already

“talked to Dr. Wood at that time, and she had already reported to someone before I

could even get – – before I even got home from South Carolina.” Id. at 4:2-5. Ms.

Clukey responds that “that’s not what I read in here.” Id. at 4:6. She explains:

See this is in direct contradiction to what you have told us. And I
picked – – I mean, my ears just perked right up that you had told her
about the consent agreement, you told her about your history with the
Board, but in reading this, that’s not true. That she found out from
another doctor.

Id. at 4:21-25; 5:1. Ms. Clukey goes on:

My question is that you had stated to us that you – – that Dr. Moore
was clear that you had communicated to her clearly about your history
with us and that you – – the issue with the consent agreement. And I
don’t find it here, and Maria Macdonald who was the investigator
who’s always been very thorough . . . and efficient and organized and
impeccable in her information that she interviews people for, is saying
that Dr. Moore said that this did not happen?

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Id. at 5:25, 6:1-10. Presumably referring to Ms. Macdonald’s notes, Dr. Michalowski

responded that the notes say that Dr. Moore called in a prescription for Percocet,

which Dr. Michalowski explained would have been against the law. Id. at 6:11-17.

Dr. Michalowski then pointed out that Dr. Moore had obtained a medical license in

Maine without revealing that she had an addiction to alcohol, had been treated for

it, and was under a consent agreement in the state of Georgia. Id. at 6:17-22. Dr.

Michalowski explained that it was Dr. Moore’s problems in Georgia that had

initiated their conversation. Id. at 6:20-21. Dr. Michalowski further explained that

the reason Dr. Moore may not have mentioned this fact to Ms. Macdonald, the

Board investigator, was that she “was trying to protect herself.” Id. at 7:4-5.

Maine law provides that the Board’s hearings are not subject to the Maine

Rules of Evidence; instead “evidence is admitted if it is the kind of evidence upon

reasonable persons are accustomed to rely in the conduct of serious affairs.” 5

M.R.S.A. § 9057. If an investigator’s notes appear to be meticulous, it is reasonable

to inquire whether the witness knows why the entry does not appear. As it turns

out, Dr. Michalowski had an explanation for why Dr. Moore might not have told Ms.

Macdonald that Dr. Michalowski had told her that she had made a report to the

Board since the overall context of the Michalowski – Moore conversation included

an allegation that Dr. Moore herself had an addiction problem and had not reported

it to the Maine Board.

It appears that Ms. Macdonald’s investigative notes were before the Board at

the hearing, so Ms. Clukey’s questions gave Dr. Michalowski an opportunity to

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explain why the substance of a conversation that Dr. Michalowski had had with Dr.

Moore did not appear in the investigator’s notes. Dr. Michalowski offered an

explanation. The Court is unsure why asking for and receiving an explanation

displays bias.

Dr. Michalowski’s real complaint is that Ms. Clukey seemed to support Ms.

Macdonald’s credibility as an investigator. It would, however, be strange if a Board

member had not gained an impression of a Board investigator’s credibility and

competence. 4 To express confidence in the professionalism of an investigator is not

to display bias against the witness. It is to put a point to the question to which Dr.

Michalowski offered a rational explanation.

Dr. Michalowski’s complaint about Dr. Nyberg is wholly unconvincing.

During the testimony, a witness offered the opinion that certain medicines were

narcotics. Michalowski Aff. Attach. 3 at 3:1-11 (Tr. of Adjudicatory Hearing). Dr.

Michalowski’s counsel objected on the ground that the witness had not been

qualified to render such an opinion. Id. at 3:15-17. The Hearing Officer asked

whether there was a dispute as to whether the two medications – Endocet and

Percocet – were narcotics. Id. at 3:20-21. The ensuing exchange led Dr. Nyberg to

comment “That’s ridiculous.” Id. at 4:7. As Hearing Officer Smith observed,

“You’ve got a Board of doctors sitting here and I’m getting comments from them

that . . . basically are saying they know Percocet and Endocet are narcotics.” Id. at

4:10-14. Although counsel’s objection on foundational grounds to a lay witness’s

4 Presumably, Ms. Clukey had an opinion of Ms. Macdonald’s competence whether or not she voiced
her impression.

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testimony about the narcotic properties of a prescriptive drug may have been well

taken before a jury, the Board of Licensure in Medicine is not comprised of lay

people. By law, it is comprised of a certain number of physician members, and on

April 13, 2010, the transcript reveals that four physicians were participating as

Board Members. Quibbling about whether a lay witness had sufficient expertise to

identify particular drugs as narcotics when the doctor members of the Board know

from their own training and expertise whether the drugs were in fact narcotics

could well be undiplomatically termed “ridiculous” from the perspectives of the

physician and non-physician members.

The final assertion of bias is that Randall Manning, the Executive Director of

the Board, told the Northern Maine Medical Center that Dr. Michalowski would

probably never get her license back. Michalowski Aff. ¶ 39. Mr. Manning’s

statement sounds much worse that it is. Mr. Manning is a non-voting member of

the Board, and he is not listed as a participating member of the Board at the April

13, 2010 hearing. As Executive Director, Mr. Manning is required to “assist the

board in carrying out its administrative duties and responsibilities. . . .” 32

M.R.S.A. § 3269(16). As earlier noted, the “sole purpose” of the Board is “to protect

the public health and welfare” by “ensuring that the public is served by competent

and honest practitioners and . . . by examining, licensing, regulating and

disciplining practitioners of those regulated professions.” 10 M.R.S.A. § 8008.

It is reasonable to assume that the Northern Maine Medical Center has been

properly concerned about whether Dr. Michalowski, a member of its medical staff,

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 18 of 20

was likely to return to practice OB/GYN in northern Maine; if not, the NMMC

would have to address contingencies. Mr. Manning’s statement to the Northern

Maine Medical Center was his frank appraisal of the prospect of Dr. Michalowski’s

return to NMMC as a member of the medical staff. There is no evidence the

Executive Director’s prediction was motivated by bias against Dr. Michalowski and

further there is no suggestion that Mr. Manning has any role in the pending

disciplinary proceeding.

In sum, Dr. Michalowski’s evidence of bias has not nearly risen to the level of

bias that would justify application of an exception to the Younger abstention

doctrine.5

The Court need go no further. It must abstain. Dr. Michalowski has failed to

prove the sine qua non of her claim for a TRO, a likelihood of success on the merits.

This alone is a sufficient ground to deny her motion for TRO. In excess of caution,

however, the Court will briefly touch on the other criteria.

Irreparable Harm

Dr. Michalowski’s main claim of irreparable harm is that she will be denied

due process in violation of the United States Constitution. Mot. for TRO at 15.

However, Dr. Michalowski is free to raise constitutional issues before the Board. 5

M.R.S.A. § 9056(2) (stating that parties to adjudicatory proceedings have “the right

5 The allegations of bias in Dr. Michalowski’s case pale beside Esso II, where the First Circuit
concluded that there was “a strong appearance of bias and, additionally, undisputed evidence of
actual bias in these proceedings.” Esso II, 552 F.3d at 148. In Esso II, the Puerto Rican
Environmental Quality Board (EQB) voted to fine Esso $76 million for 550 gallons of spilled fuel. Id.
at 140. The fine was to fund the EQB’s budget from which the hearing officers were going to be paid.
Id. at 146-47. Further the Puerto Rican Senate had threatened criminal prosecution of EQB officials
for failure to timely respond to the spill. Id. at 147.
18

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to present evidence and arguments on all issues”) (emphasis supplied). If Dr.

Michalowski receives an unfavorable ruling from the Board, she has the right to

appeal the decision to the Superior court and, if necessary, to the Maine Supreme

Judicial Court. 5 M.R.S.A. § 11001(1); 5 M.R.S.A. § 11008. The Superior and

Supreme Courts are empowered to address Dr. Michalowski’s federal claims.

Mallinckrodt, 616 F. Supp. 2d at 140.

It is true that if the Board publicly disciplines Dr. Michalowski, her name

and professional reputation will be severely harmed and perhaps irreparably so.

However, it is also true, as Dr. Michalowski has complained, that the earlier

consented-to actions affected her name and professional reputation, and therefore

the damage, though significant, would be incremental. Further, it is always true

that whenever the Board publicly disciplines a physician, there is a degree of

irreparable damage to the doctor’s name and reputation, but this alone cannot

justify the issuance of an injunction.

This factor slightly favors Dr. Michalowski.

Balance of Harms

Dr. Michalowski argues that there will be no harm to the State Defendants if

the July 13, 2010 hearing is enjoined since she is not now practicing medicine.

Although the State Defendants have said that the July 13, 2010 hearing has been

difficult to schedule, the State Defendants’ main point is that federal interference

with an ongoing state administrative proceeding is itself “the exact sort of harm

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 20 of 20

that Younger abstention seeks to avoid.” State Defs.’ Obj. at 12. This factor slightly

favors Dr. Michalowski.

Public Interest

The Board’s effort to protect the public by disciplinary proceedings against a

physician with a history of drug addiction clearly favors the public interest. This

factor strongly favors the State Defendants.

III. CONCLUSION

The Court concludes that the Younger abstention elements have been clearly

satisfied and abstention is mandatory. The Court also concludes that Dr.

Michalowski failed to sustain her burden to establish that the “extraordinary

circumstances” exception applies.

The Court DENIES Ellen Michalowski, M.D.’s Motion for Temporary

Restraining Order (Docket # 4).

SO ORDERED.

Dated this 12th day of July, 2010

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE