`File Name: 20a0480n.06
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`No. 19-2347
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`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
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`VERNON PROCTOR,
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` Plaintiff-Appellant,
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`v.
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`KAREN KRZANOWSKI; DESMOND
`MITCHELL,
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` Defendants-Appellees.
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`ON APPEAL FROM THE
`UNITED STATES COURT
`FOR THE WESTERN
`DISTRICT OF MICHIGAN
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`BEFORE: GIBBONS, GRIFFIN, and THAPAR, Circuit Judges.
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`JULIA SMITH GIBBONS, Circuit Judge. Michigan citizens can apply for a license to
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`possess and use medical marihuana. That application must include a certification from a physician
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`that the patient has a debilitating medical condition. Vernon Proctor, a Michigan physician,
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`frequently issued these certifications to patients. But in 2016, a dispute between Proctor and
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`Michigan’s Department of Licensing and Regulatory Affairs (“LARA” or the “Department”) over
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`LARA’s means of verifying physician certifications led LARA to temporarily reject all
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`applications bearing Proctor’s certification. Proctor now brings 42 U.S.C. § 1983 claims against
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`two LARA employees, Karen Krzanowski and Desmond Mitchell, alleging their blanket rejections
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`of applications accompanied by his certification violated his Fourteenth Amendment due process
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`rights. Krzanowski and Mitchell claim qualified immunity.
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`No. 19-2347, Proctor v. Krzanowski, et al.
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`Proctor contends that he has a constitutionally protected interest in helping others procure
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`a substance banned by federal law. But that right—doubtful, at best—is far from clearly
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`established. Accordingly, we affirm the district court’s decision dismissing Proctor’s complaint.
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`I.
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`In 2008, Michigan voters passed a ballot initiative legalizing medical marihuana. Mich.
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`Comp. Laws § 333.26422. LARA is responsible for granting or denying Michigan residents a
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`registry identification card (“registry card”) entitling them to medical marihuana. See id.
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`§ 333.26423(m). A patient seeking a registry card must submit a written certification from a
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`physician, with whom the patient has a bona fide physician-patient relationship, averring both that
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`the patient suffers from a debilitating medical condition and that, based on an in-person assessment
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`and review of the patient’s medical records, the physician believes that use of medical marihuana
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`will treat or alleviate the patient’s symptoms. Id. §§ 333.26426(a)(1), 333.26423(q). For purposes
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`of the act, a physician is “an individual licensed as a physician” under Michigan law. Id.
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`§ 333.26423(i); see also id. § 333.17001(1)(f).
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`LARA must verify the information in the application and approve or deny the application
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`within fifteen days. Id. § 333.26426(c). Department rules permit LARA employees to verify
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`physician certifications by phone, email, or mail. Mich. Admin. Code r. 333.109(d). LARA may
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`deny an application if the application is incomplete, contains information that cannot be verified,
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`or includes falsified information. Mich. Comp. Laws § 333.26426(c). Department rules further
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`specify that the Department “shall deny an application” if “any information provided by the
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`. . . physician was falsified, fraudulent, incomplete, or cannot be verified.” Mich. Admin. Code r.
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`333.113(4)(c).
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`2
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`No. 19-2347, Proctor v. Krzanowski, et al.
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`In February 2016, Krzanowski became the manager of LARA’s Medical Marihuana
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`Section. Shortly thereafter, LARA employees began calling Proctor’s office to verify patient
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`certifications, providing only the patient’s name and date of birth. Proctor asked that LARA
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`employees instead put their requests in writing. But Mitchell, another LARA employee, refused
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`Proctor’s request. Proctor also requested that LARA employees provide the date Proctor issued
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`the certification, as LARA employees had occasionally done before. But LARA employees told
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`Proctor that they were barred from providing him the date of the certification.
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`In June 2016, Proctor learned from patients as well as colleagues at another clinic that
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`LARA would not accept applications accompanied by his certifications. Proctor called
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`Krzanowski who confirmed that LARA would no longer be accepting applications accompanied
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`by certifications from Proctor, allegedly because Proctor was not complying with LARA’s
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`verification process. When Proctor explained that he needed LARA to provide him the date of the
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`certification to verify the certification, Krzanowski told him LARA could not provide that
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`information.
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`In 2019, Proctor filed suit alleging that Krzanowski and Mitchell had violated his
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`Fourteenth Amendment Due Process rights by “restricting [his medical] license without prior
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`notice” or “post-deprivation process.” DE 1, Compl., Page ID 6–8. Krzanowski and Mitchell
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`moved to dismiss the complaint, arguing both that Proctor had failed to allege a constitutionally
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`protected interest and that they were entitled to qualified immunity. The district court granted
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`Krzanowski’s and Mitchell’s motion to dismiss, agreeing that Proctor had alleged no clearly
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`established constitutionally protected property or liberty interest.1 Proctor timely appealed.
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`1 In response to Krzanowski’s and Mitchell’s motion to dismiss, Proctor moved to amend his complaint. The district
`court denied Proctor’s motion to amend as futile, noting that it offered almost no new information and that the new
`information it did offer only further supported allegations from the first complaint the district court accepted as true
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`3
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`No. 19-2347, Proctor v. Krzanowski, et al.
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`II.
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`Proctor’s complaint alleges that Krzanowski and Mitchell issued a blanket rejection of
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`applications accompanied by his certifications, regardless of whether they could verify the
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`certification, without providing Proctor notice or a post-deprivation hearing. Proctor argues that,
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`because the blanket rejection of his certifications infringed his liberty interest in practicing
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`medicine and his property interest in his medical license, the lack of notice or post-deprivation
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`hearing violates his Fourteenth Amendment due process rights. Krzanowski and Mitchell respond
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`that they violated no clearly established constitutionally protected liberty or property interest of
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`Proctor’s. We agree.
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`An individual defendant in a 42 U.S.C. § 1983 suit is immune from liability for civil
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`damages where her “conduct does not violate clearly established statutory or constitutional rights
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`of which a reasonable person would have known.” Waeschle v. Dragovic, 576 F.3d 539, 543 (6th
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`Cir. 2009) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). To overcome this immunity,
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`Proctor must show both that Krzanowski and Mitchell (1) violated a constitutional right and (2)
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`that the right violated was clearly established. Hearring v. Sliwowski, 712 F.3d 275, 279 (6th Cir.
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`2013).
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`We have “discretion to decide the order in which to engage these two prongs.” Tolan v.
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`Cotton, 572 U.S. 650, 656 (2014). Because determining whether a constitutional violation has
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`occurred “is an uncomfortable exercise where . . . the answer . . . may depend on a kaleidoscope
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`of facts not yet fully developed,” it is often appropriate to begin with the “clearly established”
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`prong at the pleading stage. Pearson, 555 U.S. at 239 (first omission in original) (citation omitted).
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`Similarly, when briefing on a constitutional question is inadequate, skipping to the clearly
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`when deciding the motion to dismiss. Proctor does not argue on appeal that the district court erred in denying his
`motion to amend.
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`4
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`No. 19-2347, Proctor v. Krzanowski, et al.
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`established prong is advisable. Id. We think that guidance is applicable here and proceed directly
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`to the clearly established prong.
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`A right is clearly established when it is “sufficiently clear that a reasonable official would
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`understand that his or her conduct violates that right,” Waeschle, 576 F.3d at 544 (quoting Durham
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`v. Nu’Man, 97 F.3d 862, 866 (6th Cir. 1996)), “in light of the specific context of the case,” Binay
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`v. Bettendorf, 601 F.3d 640, 651 (6th Cir. 2010) (quoting Scott v. Harris, 550 U.S. 372, 377
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`(2007)). And while Proctor need not find a case directly on point, his asserted right must be defined
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`“not as a broad general proposition” but rather as a “particularized” principle. Reichle v. Howards,
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`566 U.S. 658, 665 (2012) (first quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per
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`curiam), then quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). We look to decisions of
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`this court, the United States Supreme Court, and the Michigan Supreme Court to determine
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`whether Proctor’s right was clearly established. Waeschle, 576 F.3d at 544.
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`To prevail on his procedural due process claim, Proctor must show that “(1) he had a life,
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`liberty, or property interest protected by the Due Process Clause; (2) he was deprived of this
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`protected interest; and (3) the state did not afford him adequate procedural rights prior to depriving
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`him of the property interest.” EJS Props., LLC v. City of Toledo, 698 F.3d 845, 855 (6th Cir. 2012)
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`(quoting Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006)). Thus, at the
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`outset, Proctor must point to a clearly established property or liberty interest infringed by
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`Krzanowski and Mitchell. See Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 519 (6th Cir.
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`2007).
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`First, Proctor argues that Krzanowski and Mitchell infringed his constitutionally protected
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`liberty interest to follow a chosen profession by issuing a blanket rejection of his certifications.
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`The state infringes an individual’s liberty interest when it “distinctly alter[s] or extinguishe[s]” a
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`5
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`No. 19-2347, Proctor v. Krzanowski, et al.
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`previously recognized right or privilege. Paul v. Davis, 424 U.S. 693, 711 (1976). But while the
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`Fourteenth Amendment “includes some generalized due process right to choose one’s field of
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`private employment, [that rights is] nevertheless subject to reasonable government regulation.”
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`Conn v. Gabbert, 526 U.S. 286, 291–92 (1999). Supreme Court cases finding a cognizable liberty
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`right “all deal with a complete prohibition of the right to engage in a calling,” not a “brief
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`interruption” of the right. Id. at 292.
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`Those general principles do not clearly establish Proctor’s claimed right. Whatever
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`deprivation Proctor suffered from LARA rejecting applications bearing his certifications, it is far
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`short of a full deprivation of his right to practice medicine. Because a right is only clearly
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`established when it has been defined as a “particularized” principle, Reichle, 566 U.S. at 665,
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`Proctor must point to case law establishing that isolated restrictions on the practice of medicine
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`infringe a liberty interest. Proctor contends that Greene v. McElroy, 360 U.S. 474 (1959), does so.
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`But, consistent with the cases cited above, Greene found that the plaintiff’s liberty interest was
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`infringed when his security clearance was revoked, causing him to lose his current job and
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`rendering him unlikely to find future employment. Id. at 495. Greene is not sufficiently
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`particularized to establish the liberty interest Proctor claims.
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`Second, Proctor argues that Krzanowski’s and Mitchell’s rejection of his certifications
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`infringed his property interest in his medical license. A property interests exists when a person
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`has a “legitimate claim of entitlement” created by substantive limits on the state discretion to deny
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`a right or privilege enshrined in state law. Experimental Holdings, 503 F.3d at 519 (quoting Bd.
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`of Regents v. Roth, 408 U.S. 564, 577 (1972)). While state law defines the underlying substantive
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`interest, whether that interest “rises to the level of a ‘legitimate claim of entitlement’ protected by
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`the Due Process Clause” is a matter of federal constitutional law. Memphis Light, Gas & Water
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`6
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`No. 19-2347, Proctor v. Krzanowski, et al.
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`Div. v. Craft, 436 U.S. 1, 9 (1978) (quoting Roth, 408 U.S. at 577). Both the “‘weight’ of the
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`individual’s interest,” and “whether the nature of the interest is one within the contemplation of
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`the ‘liberty or property’ language of the Fourteenth Amendment” are relevant. Morrissey v.
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`Brewer, 408 U.S. 471, 481 (1972) (citing Fuentes v. Shevin, 407 U.S. 67 (1972)).
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`It is true, of course, that that a physician possesses a property interest in her medical license.
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`See Bell v. Burson, 402 U.S. 535, 539 (1971) (“Suspension of issued licenses [] involves state
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`action that adjudicates important interests of the licensees. In such cases the licenses are not to be
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`taken away without that procedural due process required by the Fourteenth Amendment.”). But
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`for purposes of qualified immunity, we must define the right at issue with particularity. Reichle,
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`566 U.S. at 665. Here, Proctor claims a property interest in not being restricted from using his
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`medical license to issue certifications to patients seeking a medical marihuana registry card.
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`That right is far from clearly established. As Krzanowski and Mitchell point out, the
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`“‘contour’ of the [right to] professional licensing and medical marihuana has not been made clear
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`in the federal realm.” CA6 R. 19, Appellee Br., Page ID 34. Federal district courts have
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`consistently rejected claims that state laws permitting medical marihuana possession can create a
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`constitutionally protected property interest in medical marihuana or medical marihuana patient
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`cards.2 See Hoover v. Mich. Dep’t of Licensing & Regulatory Affairs, No. 19-cv-11656, 2020 WL
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`230136, at *8–10 (E.D. Mich. Jan. 15, 2020) (collecting cases). Thus, if in 2016 Krzanowski and
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`Mitchell had surveyed the limited legal landscape of Fourteenth Amendment protections for
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`medical marihuana, they would have found only decisions declaring that the nature of the property
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`interest (in possessing a substance deemed contraband by federal law) disentitled the interest to
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`2 Proctor argues that federal law’s treatment of marihuana is irrelevant to this case, noting that the Fourth Amendment
`protects against unlawful search and seizure even of those storing contraband. But the comparison to the Fourth
`Amendment is inapposite. That certain guarantees of privacy happen to protect some who possess marihuana does
`not establish Proctor’s property interest in helping another acquire marihuana.
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`7
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`No. 19-2347, Proctor v. Krzanowski, et al.
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`Fourteenth Amendment protections. See id. This is true even though state law imposed
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`substantive restrictions on when medical marihuana licenses could be denied—traditionally an
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`indicator of constitutionally protected property interests. Krzanowski and Mitchell would
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`understandably believe that if the “nature” of the patient’s interest in a medical marihuana registry
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`card disentitled the interest to constitutional protection, the same would be true of the nature of
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`Proctor’s interest in helping patients obtain a registry card. Similarly, Krzanowski and Mitchell
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`might reasonably believe that a physician’s interest in providing a medical certification required
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`for obtaining that patient card is not sufficiently weighty to warrant constitutional protection.
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`Against a backdrop of federal district court cases declining to recognize a constitutionally
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`protected property interest in medical marihuana registry cards, it could not have been obvious to
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`Krzanowski and Mitchell that Proctor had a constitutionally protected interest participating in a
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`process to assist others to obtain a medical marihuana patient registry card.
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`Proctor says that Greene and Moody v. Michigan Gaming Control Board, 790 F.3d 669
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`(6th Cir. 2015), clearly establish his property interest in not having his license restricted. But for
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`myriad reasons they do not. First, in both cases the plaintiff’s license was not merely restricted,
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`but rather “revoked,” Greene, 360 U.S. at 478, or suspended for multiple years, Moody, 790 F.3d
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`at 672 n.3, rendering the plaintiff unable to use his license at all. Here, at worst, Proctor remained
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`free to use his medical license for any purpose except issuing certifications to patients seeking
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`registry cards. Second, neither of those cases involve a use of license to help another procure a
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`substance banned by federal law. We have often said that a right must be clear “in light of the
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`specific context of the case.” Binay, 601 F.3d at 651 (citation omitted). The property interest in a
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`license recognized in Greene and Moody would not be clear in the context of using a license to
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`help another obtain medical marihuana.
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`8
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`No. 19-2347, Proctor v. Krzanowski, et al.
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`Finally, Proctor argues that any consideration of qualified immunity is inappropriate.
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`First, Proctor argues that Krzanowski and Mitchell are not entitled to qualified immunity because
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`they were not exercising discretion. This argument fails. Discretionary acts “are those which
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`involve significant decision-making that entails personal deliberation, decision and judgment.”
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`Davis v. Holly, 835 F.2d 1175, 1178 (6th Cir. 1987) (quoting Ross v. Consumers Power Co., 363
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`N.W.2d 641, 647 (Mich. 1984)). Krzanowski’s and Mitchell’s verification decisions and their
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`decision to refuse all application bearing Proctor’s certification were reached as a result of their
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`“deliberation . . . and judgment.” Id. (citation omitted).
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`Alternatively, Proctor contends that qualified immunity generally should not be
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`countenanced until the summary judgment stage of trial. That is true enough. Guertin v. Michigan,
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`912 F.3d 907, 917 (6th Cir. 2019). But “certain immunity questions can still be resolved at the
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`pleading stage.” Kaminski v. Coulter, 865 F.3d 339, 344 (6th Cir. 2017). Unlike the more common
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`qualified immunity cases involving conduct of law enforcement officials, here, we are not faced
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`with a highly fact dependent analysis. It is difficult to imagine what Proctor could find in discovery
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`that could change the outcome. Given that the Supreme Court frequently “stresse[s] the
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`importance of resolving immunity questions at the earliest possible stage in litigation,” Pearson,
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`555 U.S. at 232 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)), it is appropriate
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`to address qualified immunity now.
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`III.
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`Because Proctor can point to no clearly established liberty or property interest violated by
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`Krzanowski and Mitchell, Krzanowski and Mitchell are entitled to qualified immunity.
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`Accordingly, we affirm the district court’s dismissal of Proctor’s complaint.
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`9
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