James v. State of Nebraska et al

Filing 109

MEMORANDUM AND ORDER - Defendants' motion for summary judgment (Filing No. 84 ) is granted in part and denied in part as set out in this Memorandum and Order. Dr. James' motion for partial summary judgment (Filing No. 92 ) is denied. Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
ELAINE JAMES, M.D.,

)
)
Plaintiff,
)
)
v.
)
)
THE STATE OF NEBRASKA;
)
NEBRASKA BOARD OF MEDICINE & )
SURGERY; JOANN SCHAEFER, M.D.,)
in her personal capacity;
)
HELEN MEEKS, in her personal )
capacity; DAVID DRYBURGH,
)
CARL V. SMITH, M.D.; VONN E. )
ROBERTS, M.D.; LARRY E.
)
BRAGG, M.D.; MICHAEL SITORIUS,)
M.D.; ARTHUR WEAVER, D.O.;
)
MERLE HENKENIUS; KAREN
)
HIGGINS, M.D., in their
)
personal capacities;
)
NEBRASKA DEPARTMENT OF
)
HEALTH AND HUMAN SERVICES,
)
DIVISION OF PUBLIC HEALTH,
)
an agency in the State of
)
Nebraska,
)
)
Defendants.
)
______________________________)

8:09CV112

MEMORANDUM AND ORDER

This matter is before the Court on defendants’ motion
for summary judgment (Filing No. 84) and plaintiff’s motion for
partial summary judgment (Filing No. 92) pursuant to Federal Rule
of Civil Procedure 56.

Plaintiff Elaine James, M.D. (“Dr.

James”) brought this action pursuant to 42 U.S.C. § 1983,
asserting due process and equal protection violations, violations
of the American Disabilities Act, and a state law defamation
claim.

Defendants are ten individuals (Chief Medical Officer

Joann Schaefer, M.D. (“Dr. Schaefer”), Licensure Unit

Administrator Helen Meeks (“Ms. Meeks”), and eight members of the
Nebraska Board of Medicine and Surgery (“Board Members”)) and
three Nebraska state entities (the State of Nebraska, the
Nebraska Board of Medicine and Surgery (the “Board”), and the
Nebraska Department of Health and Human Services (“DHHS”)).
After reviewing the briefs, relevant case law, and evidence, the
Court will grant in part and deny in part defendants’ motion and
will deny Dr. James’ motion.
BACKGROUND AND PROCEDURAL HISTORY
In 2007, the University of Nebraska Medical Center
(“UNMC”) retained Dr. James for a fellowship (Complaint, Filing
No. 1, at 4).

Dr. James filed an application for a temporary

education permit (“TEP”) to practice medicine with DHHS on June
4, 2007.

Dr. James disclosed that she was diagnosed as having

bipolar disorder and neurocardiac syncope, a heart condition
requiring a pacemaker.

On December 27, 2007, DHHS offered Dr.

James a probationary TEP, which DHHS referred to as a
“disciplinary action.”

Dr. James chose to appeal DHHS’s decision

by requesting a hearing with DHHS.
In 2008, at the end of her fellowship at UNMC, Dr.
James applied to DHHS for a full license to practice medicine.
On November 26, 2008, DHHS offered Dr. James a full license on a
disciplinary probationary basis.

Dr. James requested a hearing

with DHHS regarding this decision as well.

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On two occasions, DHHS posted copies on its website of
the minutes from the Board’s meetings referring to the
consideration of Dr. James’ applications.

The meeting minutes

were, for a time, accessible by the public.
On March 26, 2009, before her DHHS appeals hearing, Dr.
James filed a complaint with this Court, in which she alleges
five causes of action: (1) violations of the Americans with
Disabilities Act; (2) due process violations; (3) equal
protection violations; (4) deprivation of civil rights under 42
U.S.C. § 1983; and (5) defamation.
DHHS conducted a hearing on April 14, 2009, regarding
Dr. James’ applications (Ex. 10, Filing No. 93, at 1).

On April

27, 2009, and May 4, 2009, the parties submitted post-hearing
briefs to DHHS in connection with the hearing.
On May 21, 2009, defendants filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of
subject-matter jurisdiction (Filing No. 31).
On August 6, 2009, Dr. Schaefer issued an order
granting Dr. James an unrestricted license to practice medicine
and surgery (“August 6 Order,” Ex. 10, Filing No. 93, at 4).

In

the August 6 Order, Dr. Schaefer found that DHHS did not follow
statutory procedural requirements and that DHHS “did not give
[Dr. James] the due process that was required before they decided
to discipline her.”

Furthermore, Dr. Schaefer stated that DHHS

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applied the wrong standard in deciding to institute a
disciplinary action because Dr. James had not been found “guilty”
of incapacity to practice medicine “as evidenced by a legal
adjudication or determination thereof by other lawful means,” as
required by Nebraska Revised Statute Sections 71-147(7) and 71161.13.1

Dr. Schaefer held that the “most equitable remedy”

would be to grant Dr. James a license to practice medicine and
surgery without limits.

This order reversed DHHS’s decision to

offer the probationary TEP and license and vacated and expunged
DHHS’s disciplinary actions.

Subsequent to the August 6 Order,

on August 12, 2009, defendants filed a suggestion of mootness
with this Court (Filing No. 50, at 1).
On September 4, 2009, Dr. Schaefer issued a new order
(the “September 4 Order”) that “vacated in its entirety” the
August 6 Order (Ex. 11, Filing No. 93, at 3).

In the September 4

Order, the direct quotes cited above from the August 6 Order were
deleted.
On November 17, 2009, this Court granted in part and
denied in part defendants’ suggestion of mootness (Filing No.
54).

In addition, this Court granted in part and denied in part

defendants’ motion to dismiss.

1

Neb. Rev. Stat. §§ 71-147(7) and 71-161.13 were part of
the Uniform Licensing Law at the time of the Board’s actions in
this case. These statutes have since been replaced by the
Uniform Credentialing Act, Neb. Rev. Stat. §§ 38-101 et seq.
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STANDARD OF REVIEW
Summary judgment is appropriate when, viewing the facts
and inferences in the light most favorable to the nonmoving
party, “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”

Fed. R.

Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 321–23
(1986).

“The inquiry performed is the threshold inquiry of

determining whether there is the need for a trial -- whether, in
other words, there are any genuine factual issues that properly
can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.”
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

Anderson v.

“Where the

unresolved issues are primarily legal rather than factual,
summary judgment is particularly appropriate.”

Koehn v. Indian

Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir. 2004).
I.

Absolute Immunity
Whether an official is entitled to absolute immunity

“turns on a number of factors,” namely,
“(a) the need to assure that the
individual can perform his [or her]
functions without harassment or
intimidation; (b) the presence of
safeguards that reduce the need for
private damages actions as a means
of controlling unconstitutional
conduct; (c) insulation from
political influence; (d) the
importance of precedent; (e) the
adversary nature of the process;
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and (f) the correctability of error
on appeal.”
Buser v. Raymond, 476 F.3d 565, 568 (8th Cir. 2007) (quoting
Krueger v. Lyng, 4 F.3d 653, 656 (8th Cir. 1993)); see Butz v.
Economou, 438 U.S. 478, 512 (1978).
A.

Dr. Joann Schaefer, Chief Medical Officer.
Dr. Schaefer’s decision to issue Dr. James’ license

exposed her to the threat of litigation.

The Court finds there

is a need to assure that Dr. Schaefer can make her decisions
“without harassment or intimidation.”

Buser, 476 F.3d at 570.

“If adequate safeguards exist in the hearing process
and the [Chief Medical Officer’s] duties are ‘functionally
comparable’ to that of a judge, such factors weigh in favor of
absolute immunity.”

Id. (quoting Bettencourt v. Bd. of

Registration in Med. of Commonwealth of Mass., 904 F.2d 772, 783
(1st Cir.1990)).

Dr. James was allowed to appeal DHHS’s

decisions at a hearing where she could present evidence and call
witnesses on her behalf.

Dr. Schaefer reviewed the evidence and

rendered a decision based upon the hearing record, making
findings of fact and conclusions of law.

The Court finds that

Dr. Schaefer’s actions were “functionally comparable” to a that
of a judge.
Dr. James claims that Dr. Schaefer’s independence was
compromised because of Dr. Schaefer’s “consultation with agency
representatives outside the presence of the Plaintiff which
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resulted in a change to the original order written” (Plaintiff’s
Brief in Resistance to Defendants’ Motion for Summary Judgment,
Filing No. 101, at 10).

In support of this claim, Dr. James

cites Butz, where the Supreme Court identified restraints that
insured the independence of the agency hearing officer entitled
to absolute immunity:

“[A] hearing examiner [may not] consult

any person or party, including other agency officials, concerning
a fact at issue in the hearing, unless on notice and opportunity
for all parties to participate."
5 U.S.C. § 554(d)(1) (1976 ed.)).

Butz, 438 U.S. at 514 (citing
The Court finds that the

consultation with legal counsel did not destroy the independence
of her decision making.
The Court finds the fact that Dr. Schaefer was
appointed by the governor does not establish that she was subject
to political influence in her decision making.

Finally, the

Court notes that the DHHS hearing process is adversarial, and
that in the case of error by Dr. Schaefer, “[b]oth parties shall
have the right of appeal and the appeal shall be in accordance
with the Administrative Procedures Act.”
71–159 (2003).

Neb. Rev. Stat. §

Thus, the Court finds that a majority of the

Buser factors favor Dr. Schaefer and that she is entitled to
absolute immunity for the

§ 1983 claims against her.

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B.

Helen Meeks, Licensure Unit Administrator.
“[Ms. Meeks is] responsible for making initial

decisions . . . regarding applications for licensure by
physicians and surgeons” (Affidavit of Helen L. Meeks, Exhibit 3,
Filing No. 88, at 1).

Ms. Meeks “extended an offer of a TEP on

probation to Dr. James” (Id. at 2).

Likewise, Ms. Meeks

“ultimately determined that the appropriate decision was to offer
a probationary license” (Id.).

Ms. Meeks’ decisions regarding

licensure, like Dr. Schaefer’s, raise the specter of intimidation
from the threat of litigation.
However, Ms. Meeks did not make her decisions regarding
Dr. James’ TEP and license applications pursuant to the review of
the record of a hearing with witnesses, testimony, and the
presentation of evidence.

Instead, Ms. Meeks made her decisions

based on Dr. James’ application materials, the recommendation of
the Board, and Ms. Meeks’ consultation with legal counsel
(Affidavit of Helen L. Meeks, Exhibit 3, Filing No. 88, at 2).
Thus Ms. Meeks’ duties are not “functionally comparable” to that
of a judge, and she did not engage in an adversarial process such
as a hearing.
Ms. Meeks makes no argument as to her insulation from
political influence.

However, in her affidavit, Ms. Meeks

states, “Dr. James’ applications were processed in the same
fashion as other similar applications” (Second Affidavit of Helen

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L. Meeks, Exhibit 1, Filing No. 98, at 2-3).

Dr. James does not

offer any contrary evidence, aside from speculation, on this
matter.

Thus, it appears that Ms. Meeks’ actions did support the

importance of precedence.

Finally, Ms. Meeks’ decisions with

regard to Dr. James were ultimately reversed by Dr. Schaefer on
appeal.
Based on the foregoing analyses, the Court finds Dr.
Schaefer is entitled to absolute immunity.

The Court further

finds that the second factor requiring adequate safeguards in
conjunction with duties that are functionally comparable to that
of a judge is not met as to Ms. Meeks.

This factor goes to the

heart of the matter of quasi-judicial absolute immunity.
438 U.S. at 514.

Butz,

Because this factor is not satisfied and a

majority of the Buser factors are not met, Ms. Meeks’ role in the
licensure process does not warrant absolute judicial immunity.
C.

Eight Individual Board Members.
“‘Every court of appeals that has addressed the issue

has concluded that members of a state medical disciplinary board
are entitled to absolute quasi-judicial immunity for performing
judicial or prosecutorial functions.’”

Buser, 476 F.3d at 568-69

(quoting Ostrzenski v. Seigel, 177 F.3d 245, 249 (4th Cir.
1999)).

“For example, in Bettencourt, the First Circuit held

that a member of the medical board who weighs evidence, makes
factual and legal determinations, chooses sanctions, writes
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opinions explaining his decisions, serves a set term . . . and
can be removed only for cause is functionally comparable to a
judge.”

Buser, 476 F.3d at 569-70.

Similarly, in another

medical board case, O’Neal v. Miss. Bd. of Nursing, 113 F.3d 62,
66 (5th Cir. 1997), the Fifth Circuit found that
The Board and its members
administer oaths, compel the
attendance of witnesses, allow
parties to present the testimony of
witnesses as well as cross-examine
witnesses who testify against them,
permit parties to be represented by
counsel, and most importantly make
findings of fact and assess
punishments or accolades in
accordance with these findings.
In contrast to disciplinary situations where the
involved board has actual decision making authority, the Board’s
authority in this case is recommendational only.

Because the

Board Members’ duties are admittedly not “functionally
comparable” to that of a judge and the Board Members do not
perform a judicial function, they will not be granted absolute
immunity.
II. Qualified Immunity
“The purpose of qualified immunity is to allow public
officers to carry out their duties as they believe are correct
and consistent with good public policy, rather than acting out of
fear for their own personal financial well being.”
Ward, 306 F.3d 589, 592 (8th Cir. 2002).

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Sparr v.

“Qualified immunity

protects public officials who act in good faith while performing
discretionary duties that they are obligated to undertake.” Kloch
v. Kohl, 545 F.3d 603, 609 (8th Cir. 2008).

“[G]overnment

officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

“A

right is clearly established, for qualified immunity purposes, if
the contours of the right are sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.”

Rush v. Perryman, 579 F.3d 908, 913.

“The

issue is not whether the defendant acted wrongly, but whether
reasonable persons would know they acted in a manner which
deprived another of a known constitutional right.”

Herts v.

Smith, 345 F.3d 581, 585 (8th Cir. 2003).
A.

Equal Protection.
Dr. James states that she was denied equal protection

because the applications for the TEP and the physician license
specifically inquire as to mental illnesses, but not physical
illnesses (Filing No. 101, at 24).

However, the apparent

solution would be to add questions about physical illness, not to
remove questions about mental illness.

Dr. James would still

have been required to disclose her mental illness.
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In short, Dr.

James has not established that “reasonable persons would know
they acted in a manner which deprived another of a known
constitutional right” when Ms. Meeks and the Board Members
considered the mental illness of a physician who applied for a
license.

Herts, 345 F.3d at 585.

Thus Ms. Meeks and the Board

Members will be granted qualified immunity as to the § 1983 equal
protection claims against them.
B.

Due Process.
“[A]ccess to an entire profession is a liberty interest

that cannot be denied without due process of law.”

Greenlee v.

Board of Medicine of District of Columbia, 813 F.Supp. 48, 57
(D.D.C. 1993).

Dr. James claims two major infractions of her due

process rights in her interest in a medical license.
1.

Failure to Comply with Nebraska Statute.

Dr. James

claims that defendants did not follow the procedure provided for
under then Nebraska Revised Statute Section 71-161.13 because her
case was not submitted to a three-physician panel before the
imposition of disciplinary action against her (Filing No. 101, at
20-21).

Dr. James claims that this is a de facto deprivation of

due process, citing, “Thus it has become a truism that some form
of hearing is required before the owner is finally deprived of a
protected property interest.”
U.S. 422, 433 (1982).

Logan v. Zimmerman Brush Co., 455

But here, Dr. James was allowed “some”

form of hearing, on April 14, 2009, before she was not “finally”

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deprived, since her license was issued in August 2009.

“To put

it as plainly as possible, the State may not finally destroy a
property interest without first giving the putative owner an
opportunity to present his claim of entitlement.”
U.S. at 434.

Logan, 455

Dr. James’ interest, whether a liberty or a

property interest, was simply never “finally destroyed.”

She was

issued a medical license and won both her appeals.
Dr. James also argues that a violation of due process
occurred because the stipulated Nebraska procedure was not
followed.

However, in Davis v. Scherer, 468 U.S. 183 (1984), the

United States Supreme Court made it clear that a violation of a
procedural statute, without more, does not abrogate an official’s
qualified immunity under § 1983.

“We acknowledge of course that

officials should conform their conduct to applicable statutes and
regulations.”

Id. at 194.

The Court continued,

The qualified immunity doctrine
recognizes that officials can act
without fear of harassing
litigation only if they reasonably
can anticipate when their conduct
may give rise to liability for
damages and only if unjustified
lawsuits are quickly terminated.
Yet, under appellee’s submission,
officials would be liable in an
indeterminate amount for violation
of any constitutional right . . .
merely because their official
conduct also violated some statute
or regulation. And, in § 1983
suits, the issue whether an
official enjoyed qualified immunity
then might depend upon the meaning
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or purpose of a state
administrative regulation,
questions that federal judges often
may be unable to resolve on summary
judgment.
Id. at 195.

This Court finds that the apparent failure to comply

with the Nebraska statutory three-physician panel requirement
does not dictate the loss of qualified immunity for Ms. Meeks or
for the Board Members.
2.

Inordinate Delay.

Dr. James complains that there

were delays in her application and appeal process.

Defendants

counter that the delay was “due to circumstances largely beyond
the control of the Defendants” (Filing No. 107, at 8).
Defendants filed a chronology of events in the case (Ex. 62,
Filing No. 98).

Dr. James has not filed her own chronology with

which to combat defendants’ view.
While Dr. James emphasizes the two-year delay, she does
not acknowledge that according to defendants’ chronology, Dr.
James’ TEP application was received by DHHS on June 4, 2007, but
supporting documentation was not received until November 13,
2007, over five months later (Id. at 1).

As another example, Dr.

James complains that defendants “failed to rule on the case for
an additional 4 months” after the hearing on April 14, 2009
(Filing No. 94, at 11).

However, Dr. James does not mention that

during that four-month span, “the parties submitted post-hearing

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briefs to DHHS in connection with the hearing.”

(Ex. 10, Filing

No. 93, at 1).
Given the complexity of this case, Dr. James has simply
not established that “reasonable persons would know they acted in
a manner which deprived another of a known constitutional right”
when Ms. Meeks and the Board Members acted at the pace that they
did at any particular step in the proceedings.
at 585.

Herts, 345 F.3d

The Court finds that Ms. Meeks and the Board Members are

entitled to qualified immunity as to the § 1983 due process
claims against them.
C.

Defamation.
Dr. James alleges that the Board Members defamed her by

posting statements about the decisions surrounding Dr. James’
applications on the DHHS website (Complaint, Filing No. 1 para.
57).

However, the Nebraska Uniform Licensing Law of the time

provided,
No member of a professional board
for any profession or occupation
credentialed by the department
pursuant to Chapter 71 . . . shall
be liable in damages to any person
for . . . defamation of character,
breach of any privileged
communication, or otherwise for any
action taken or recommendation made
within the scope of the functions
of such board . . . if the board
member . . . acts without malice
and in the reasonable belief that
such action . . . is warranted by
the facts known to him or her after
a reasonable effort is made to
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obtain the facts on which such
action is taken . . . .
Neb. Rev. Stat. § 71-161.19 (2003).

The Nebraska “Open Meetings

Act” requires that “[t]he minutes of all meetings and evidence
and documentation received or disclosed in open session shall be
public records and open to public inspection during normal
business hours.”

Neb. Rev. Stat. § 84-1413(4) (2007).

The Court

finds that the Board Members are immune from a defamation suit
pursuant to Nebraska Revised Statute § 71-161.19 (2003).
III.

Failure to State a Claim Under the Equal Protection Clause
Because Dr. Schaefer, Ms. Meeks, and the Board Members

were the only remaining defendants for Dr. James’ claim under the
Equal Protection Clause, and they are all immune from suit under
§ 1983, this claim is moot.
IV.

Failure to State a Claim Under the Due Process Clause
Because Dr. Schaefer, Ms. Meeks, and the Board Members

were the only remaining defendants for Dr. James’ claim under the
Due Process Clause, and they are all immune from suit under
§ 1983, this claim is moot.

For the same reason, Dr. James’

motion for partial summary judgment will be denied.
V.

Americans with Disabilities Act
The Americans with Disabilities Act (the “ADA”) states,

“Subject to the provisions of this subchapter, no qualified
individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of
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the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.”
§ 12132.

42 U.S.C.

“Medical licensing clearly falls within the scope of

[the ADA].”

Hason v. Med. Bd. of Cal., 279 F.3d 1167, 1172 (9th

Cir., 2002).

“Although persons with disabilities are generally

entitled to the protection of this part, a person who poses a
significant risk to others will not be ‘qualified,’ if reasonable
modifications to the public entity’s policies, practices, or
procedures will not eliminate that risk.”
A at 553 (2007).

28 C.F.R. Pt. 35, App.

However, “[t]he determination that a person

poses a direct threat to the health or safety of others may not
be based on generalizations or stereotypes about the effects of a
particular disability.
assessment . . . .”

It must be based on an individual

Id.

Defendants claim, “[I]t is clear that [Dr. James] is
not a qualified individual under the ADA because she posed a
potential significant risk to the health and safety of others”
(Filing No. 86, at 12).

Yet defendants do not make an

“individual assessment” of Dr. James by stating what risk she
posed or whether reasonable modifications would eliminate the
risk.
At the same time, in defendants’ brief (Filing No. 97,
at 2), defendants “agree” with Dr. James’ statement,
During the application process for
both her Temporary Educational
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Permit and the full license Dr.
James submitted letters to the
Department of Health and Human
Services licensing specialists from
her treating physicians, as well as
a colleague indicating that in
their opinion she was compliant
with her treatment, stable on her
medications, and had shown no
limitations to safely practice
medicine.
(Filing No. 94, para. 15).

Even if defendants were merely

agreeing that the letters had been submitted, they cite no
contrary evidence that would explain the risk that they feared.
This Court finds that the ADA contemplates the
protection of a disabled physician from discrimination during the
licensing process.

As the moving party, defendants have not

established that Dr. James posed a significant risk that could
not be eliminated by reasonable modification.

Therefore,

defendants have not established that Dr. James is not a qualified
individual under the ADA, and defendants’ motion regarding the
ADA will be denied.

Accordingly,

IT IS ORDERED:
1) Defendants’ motion for summary judgment (Filing No.
84) is granted in part and denied in part:
a) Defendant Dr. Schaefer is
granted absolute immunity as to Dr.
James’ § 1983 claims made against
her;
b) Defendants Ms. Meeks and the
Board Members are granted qualified

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immunity as to Dr. James’ § 1983
claims made against them;
c) Defendant Board Members are
immune from defamation suit by Dr.
James as per Nebraska statute; and
d) Defendants’ motion for summary
judgment as to Dr. James’ American
Disabilities Act claim is denied.
2) Dr. James’ motion for partial summary judgment
(Filing No. 92) is denied.
DATED this 13th day of September, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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