Indiana Board of Pharmacy v. Paul J Elmer

FILED Jun 08 2023, 10:21 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE Theodore E. Rokita David F. McNamar Attorney General of Indiana McNamar & Associates, P.C. Westfield, Indiana Benjamin M.L. Jones Section Chief, Civil Appeals Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Indiana Board of Pharmacy, June 8, 2023 Donna S. Wall, Steven Court of Appeals Case No. Anderson, Del Fanning, Winnie 22A-PL-1811 Landis, Mark Smosma, and Matt Appeal from the Marion Superior Balla, Court Appellants-Respondents/Defendants, The Hon. Patrick J. Dietrick, Judge v. Trial Court Cause No. 49D12-2001-PL-104 Paul J. Elmer, Appellee-Petitioner/Plaintiff.

Opinion on Rehearing by Judge Bradford Judges Robb and Pyle concur.

Bradford, Judge. Court of Appeals of Indiana | Opinion on Rehearing 22A-PL-1811 | June 8, 2023 Page 1 of 4 [1] On January 2, 2020, after the Indiana Board of Pharmacy (“the Board”)

revoked Paul Elmer’s expired pharmacist’s license, he brought suit against it

and its members (collectively, “Appellants”), alleging that the Board had lacked

the statutory authority to revoke an already-expired license and that Appellants

had violated his fundamental rights pursuant to 42 U.S.C. § 1983 (“Section

1983”). On January 31, 2020, the trial court granted the parties’ joint motion to

bifurcate the state-law claim from the federal claim. See Ind. Bd. of Pharm. v.

Elmer, 171 N.E.3d 1045, 1048 (Ind. Ct. App. 2021), trans. denied. Elmer’s

judicial-review action was resolved in his favor. See id. at 1052. Thereafter, the

Section 1983 claim proceeded, with the trial court eventually entering judgment

in Elmer’s favor and awarding him attorney’s fees. Appellants appealed, and,

on March 30, 2023, we issued our original opinion, in which we reversed and

remanded with instructions to enter judgment in favor of Appellants and to

vacate the award of attorney’s fees to Elmer. Today, we grant Elmer’s petition

for rehearing for the limited purpose of clarifying that his claims made pursuant

to Section 1983 against the Board members in their official capacities (as

opposed to their individual capacities) are encompassed by our original

disposition. [2] In our original opinion, we concluded, inter alia, that the Board members

enjoyed absolute quasi-judicial immunity from a Section 1983 suit in their

individual capacities; Elmer, however, is correct that this immunity does not

extend to them in their official capacities, in which he also sued them. See, e.g.,

Melton v. Ind. Athletic Trainers Bd., 156 N.E.3d 633, 651 (Ind. Ct. App. 2020)

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(“[I]mmunity defenses are not available to officials sued in their official

capacities[.]”), trans. denied. Under certain circumstances, a plaintiff may obtain

prospective relief from state officials acting in their official capacities. See Ross

v. Ind. State Bd. of Nursing, 790 N.E.2d 110, 117 (Ind. Ct. App. 2003) (noting

that, pursuant to Section 1983, “a state official cannot be sued in his official

capacity for retrospective relief but can be sued for prospective relief”) (emphasis

added). A plaintiff bringing an official-capacity suit against state officials,

however, must allege an ongoing violation of federal law. See Melton, 156

N.E.3d at 651. This Elmer cannot do. When Elmer’s judicial-review claim

terminated in his favor,1 he was no longer able to state a claim pursuant to

Section 1983 because any violation of federal law that might have occurred

ceased when Elmer won his judicial-review action, i.e., the illegal “revocation”

of his expired license was over. This inability to allege an ongoing violation of

federal law fatally undercut Elmer’s Section 1983 claim against the Board

members in their official capacities. [3] For the same reason, prospective relief can no longer be given to Elmer, also

serving to render his claim moot. A request for injunctive relief is moot when

no relief is possible or if the relief sought has already occurred. See, e.g., Medley

v. Lemmon, 994 N.E.2d 1177, 1183 (Ind. Ct. App. 2013) (request for injunctive

relief regarding visitation restrictions became moot when those restrictions

1 See Ind. Bd. of Pharm. v. Elmer, 171 N.E.3d 1045, 1052 (Ind. Ct. App. 2021) (“We conclude that the applicable statutes do not authorize the Board to revoke an expired, invalid license.”), trans. denied.

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expired), trans. denied. The resolution of Elmer’s judicial-review claim in his

favor gave him all the relief to which he was entitled. [4] Because any violation of Elmer’s fundamental rights that may have occurred

ceased when he prevailed in the judicial-review action, his Section 1983 claim

against the Board members in their official capacities became untenable and

moot.2 The trial court therefore erred in entering judgment in favor of Elmer on

his Section 1983 claim against the Board members in their official capacities.

Because we have already ordered that the trial court enter judgment in favor of

all Appellants (which includes the Board members in their official capacities),

our original disposition of the case is unaffected by this opinion on rehearing.

Robb, J., and Pyle, J., concur.

2 While Indiana courts recognize an exception to the mootness doctrine for matters of “great public interest which [are] likely to recur[,]” T.W. v. St. Vincent Hosp. & Health Care Ctr., Inc., 121 N.E.3d 1039, 1042 (Ind. 2019), Elmer does not claim that his case qualifies for this exception.

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