Dover v. Haley et al

Filing 62

OPINION AND ORDER: The Court GRANTS in part and DENIES in part Defendants' Motion 38 to Dismiss or for Summary Judgment as follows: GRANTS Defendants' Motion (#38-1) to Dismiss and DENIES as moot Defendants' Motion (#38-2) for Summary Judgment. Accordingly, the Court DISMISSES this matter with prejudice. See 14-page opinion and order attached. Signed on 11/26/2013 by Judge Anna J. Brown. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ERIC A. DOVER,
Plaintiff,
v.
KATHLEEN HALEY, JD, et al.,
Defendants.

ERIC A. DOVER
1615 Cloverleaf Rd.
Lake Oswego, OR 97034
Plaintiff, Pro Se
ELLEN ROSENBLUM
Attorney General
MARC ABRAMS
Assistant Attorney General
1515 S.W. Fifth Avenue
Suite 410
Portland, OR 97201
[phone]
Attorneys for Defendants

1 - OPINION AND ORDER

3:13-CV-01360-BR
OPINION AND ORDER

BROWN, Judge.
This matter comes before the Court on Defendants’ Motion
(#38) to Dismiss or for Summary Judgment.

For the reasons that

follow, the Court GRANTS Defendants’ Motion to Dismiss and DENIES
as moot Defendants’ Motion for Summary Judgment.

BACKGROUND
The following facts are taken from Plaintiff’s Complaint and
the document attached to the Declaration of Marc Abrams.1
On October 30, 2009, the Oregon Medical Board (OMB) issued a
Complaint and Notice of Proposed Disciplinary Action to Plaintiff
Eric Dover.
On September 21 and 22, 2010, a hearing was held before an
Administrative Law Judge (ALJ).
attorney.

Plaintiff was represented by an

Plaintiff testified, called a witness, and questioned

the witnesses called by the OMB.
At some point the ALJ issued Findings and Recommendation in
which he found Plaintiff “engaged in unprofessional conduct and
repeated negligence, and . . . violated a[n OMB] order.”
Decl., Ex. A at 20.

Abrams

The ALJ proposed a number of sanctions

against Plaintiff including revocation of Plaintiff’s medical

1

The Court takes judicial notice of the document attached
to the Abrams’ Declaration because it is a published government
order.
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license with the revocation to be held in abeyance, suspension
from the practice of medicine for two years, and a civil penalty.
Id.
On January 14, 2011, the OMB issued a final order in which
it adopted the ALJ’s findings.

The OMB, however, declined to

adopt the ALJ’s proposed sanctions on the ground that Plaintiff’s
“refusal to accept responsibility for his conduct, his refusal to
comply with a[n OMB] order, and his continued defiant attitude
make [Plaintiff] a poor candidate for rehabilitation.”

Id.

Thus, the OMB, among other things, revoked Plaintiff’s license to
practice medicine in Oregon.

Id. at 20-21.

The OMB advised

Plaintiff that he could appeal the OMB’s final order by filing a
petition with the Oregon Court of Appeals within 60 days pursuant
to Oregon Revised Statute § 183.480, et seq.

Plaintiff did not

appeal the OMB’s final order.
On August 7, 2013, Plaintiff filed a pro se Complaint in
this Court pursuant to 42 U.S.C. § 1983 against 33 named
individuals, the OMB, and 50 John and Jane Does.

Plaintiff

alleges numerous violations of various Articles and Amendments to
the United States Constitution and seeks damages as well as an
order enjoining Defendants “retroactively from maintaining [the
OMB] decision,” reinstatement of Plaintiff’s license to practice
medicine in the State of Oregon, and a declaration that the
Oregon statute under which the OMB may revoke a license to

3 - OPINION AND ORDER

practice medicine is unconstitutional.
On August 26, 2013, Defendants filed a Motion to Dismiss or
for Summary Judgment.2

On October 2, 2013, Plaintiff filed a

Response to Defendants’ Motion.
filed a Reply.

On October 4, 2013, Defendants

On October 9, 2013, Plaintiff submitted two

letters to the Court in further response to Defendants’ Motion.
The Court permitted Defendants to file a Surreply no later than
October 18, 2013.

Defendants declined to file a Surreply, and

the Court took this matter under advisement on October 18, 2013.

STANDARDS
I.

Dismissal for lack of jurisdiction pursuant to Rule
12(b)(1).
Plaintiff has the burden to establish that the court has

subject-matter jurisdiction.
726, 728 (9th Cir. 2009).

Robinson v. Geithner, 359 F. App'x

See also Ass'n of Am. Med. Coll. v.

United States, 217 F.3d 770 (9th Cir. 2000).
When deciding a motion to dismiss for lack of subject-matter
jurisdiction under Rule 12(b)(1), the court may consider
affidavits and other evidence supporting or attacking the
complaint's jurisdictional allegations.

2

Rivas v. Napolitano, 714

On August 29, 2013, the Court issued a Summary Judgment
Advice Notice to Plaintiff advising him that if he did not submit
evidence in opposition to Defendants’ Motion for Summary
Judgment, summary judgment would be entered against him if it was
appropriate.
4 - OPINION AND ORDER

F.3d 1108, 1114 n.1 (9th Cir. 2013).

The court may permit

discovery to determine whether it has jurisdiction.

Laub v.

United States Dep't of Interior, 342 F.3d 1080, 1093 (9th Cir.
2003).

When a defendant's motion to dismiss for lack of

jurisdiction "is based on written materials rather than an
evidentiary hearing, the plaintiff need only make a prima facie
showing of jurisdictional facts to withstand the motion to
dismiss."

Mavrix Photo, Inc. v. Brand Tech., Inc., 647 F.3d

1218, 1223 (9th Cir. 2011)(citation omitted).
II.

Summary Judgment.
Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).

See also Fed. R.

The moving party must show the absence of a

dispute as to a material fact.

Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005).

In response to a properly

supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
. . .

Id.

"This burden is not a light one.

The non-moving party must do more than show there is some

'metaphysical doubt' as to the material facts at issue."

In re

Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
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A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."

Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citation omitted).

A “mere

disagreement or bald assertion” that a genuine dispute as to a
material fact exists “will not preclude the grant of summary
judgment.”

Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-

1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).

When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."

LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.

Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
6 - OPINION AND ORDER

Id.

DISCUSSION
Defendants move to dismiss Plaintiff’s Complaint on the
grounds that (1) Defendants are statutorily immune from this
action, (2) they are entitled to absolute immunity under common
law as to Plaintiff’s claims, (3) this matter is barred by the
Rooker-Feldman doctrine, (4) Plaintiff’s claims are untimely,
(5) Plaintiff’s claims against Defendant John Kroger for
supervisory responsibility fail, and (6) Defendants are entitled
to qualified immunity.
I.

Defendants are immune from suit.
The named Defendants fall into four categories:
(1)

Members of the OMB including Joseph Thaler, Linda
Johnson, Ralph Yates, Roger McKimmy, Donald Girard,
George Koval, Ramiro Gaiten, Douglas Kirkpatrick, Lewis
Neace, Patricia Smith, Gary LeClair, Sarojoini Budden,
Clifford Deveny, Keith White, Kent Williamson III,
Nathalie Johnson, Shirin Sukumar, Clifford Mah, Michael
Mastrangelo, and Angelo Turner;

(2)

Staff of the OMB including Kathleen Haley, Nicole
Krishnaswami, Jim Peck, Phillip Parshley, James
Calvert, Jay Drum, Gary Stafford, and Eric Brown;

(3)

ALJ Rick Barber; and

(4)

Attorneys with the Oregon Department of Justice

7 - OPINION AND ORDER

including John Kroger and Warren Foote.
A.

Statutory immunity.
Oregon Revised Statute § 677.335 provides:
(1) Members of the Oregon Medical Board, members
of its administrative and investigative staff,
medical consultants, and its attorneys acting as
prosecutors or counsel shall have the same
privilege and immunities from civil and criminal
proceedings arising by reason of official actions
as prosecuting and judicial officers of the state.
(2) No person who has made a complaint as to the
conduct of a licensee of the board or who has
given information or testimony relative to a
proposed or pending proceeding for misconduct
against the licensee of the board, shall be
answerable for any such act in any proceeding
except for perjury committed by the person.
Defendants, with the exception of ALJ Rick Barber, are

members of the OMB, part of the OMB’s administrative and
investigative staff, or attorneys representing OMB (the OMB
Defendants).

The OMB Defendants, therefore, are immune from

Plaintiff’s claims, all of which arise out of the OMB Defendants’
official actions as prosecuting and judicial officers.

See,

e.g., Read v. Haley, No. 3:12–cv–02021–MO, 2013 WL 1562938, at *7
(D. Or. Apr. 10, 2013)(“The members of the Oregon Medical Board
are expressly mentioned in the statute, Mr. Foote acted as
counsel for the Board at the ALJ hearing, and the unknown
employees of the Oregon Medical Board are presumably either
administrative or investigative staff.

Moreover, [the

plaintiff’s] . . . claim clearly arises out of these defendants'

8 - OPINION AND ORDER

official actions.

Consequently, they all fall within Or. Rev.

Stat. § 677.335(1), and they are all entitled to immunity.”).
Accordingly, the Court grants Defendants’ Motion to
Dismiss Plaintiff’s claims as to all Defendants other than ALJ
Barber on the grounds of statutory immunity under § 677.335.
B.

Absolute immunity.
Defendants also contend Plaintiff’s claims are barred

by common-law absolute immunity.
The Supreme Court has consistently accorded absolute
immunity “to judges and prosecutors functioning in their official
capacity” to ensure judicial officers are “free to act upon
[their] own convictions, without apprehension of personal
consequences.”

See Stump v. Sparkman, 435 U.S. 349, 364 (1978)

and Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).

See also

Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.
2004)(“Recognizing these considerations, courts have extended the
protections of absolute immunity to qualifying state officials
sued under 42 U.S.C. § 1983.”).
Absolute immunity may also be extended to state
officials who are not traditionally regarded as judges or
prosecutors if the functions they perform are similar to those
performed by judges or prosecutors.

See Butz v. Economou, 438

U.S. 478, 513–17 (1978) and Mishler v. Clift, 191 F.3d 998, 1002
(9th Cir. 1999).
9 - OPINION AND ORDER

Under certain circumstances, absolute immunity is
also extended to agency representatives performing
functions analogous to those of a prosecutor or a
judge. Such immunity assures the independent
functioning of executive officials acting in a
quasi-judicial capacity, thereby ensuring that
they can exercise their adjudicative discretion
without fear of intimidation or harassment.
Olsen, 363 F.3d at 923 (citation omitted).

The Ninth Circuit,

district courts in the Ninth Circuit, and other circuit courts
have concluded members of state medical boards are entitled to
absolute immunity under common law for their quasi-judicial and
quasi-prosecutorial acts.

See, e.g., Olsen, 363 F.3d at 925–26;

Gambee v. Cornelius (Gambee II), No. 10–6265–AA, 2011 WL 1311782,
at *3 (D. Or. Apr. 1, 2011); Wang v. New Hampshire Bd. of
Registration in Med., 55 F.3d 698 (1st Cir. 1995); Watts v.
Burkhart, 978 F.2d 269 (6th Cir. 1992); Horowitz v. State Bd. of
Med. Exam’rs, 822 F.2d 1508 (10th Cir. 1987).
Courts have also concluded OMB members and staff are
absolutely immune from suit under common law for alleged dueprocess and equal-protection violations in the revocation
process.

Gambee II, 2011 WL 1311782, at *6.

For example, the

Ninth Circuit held in Olson that members of the Idaho State
Medical Board, the Board of Professional Development, their
staff, and legal counsel were entitled to absolute immunity from
suit by the plaintiff under § 1983 because their actions were
“procedural steps involved in the eventual decision denying [the
Plaintiff] her license requirement” and “such acts are
10 - OPINION AND ORDER

inextricably intertwined with [the defendants’] statutorily
assigned adjudicative functions.”

363 F.3d at 928.

Finally, courts also have concluded ALJs are accorded
absolutely immunity for their judicial acts.

See, e.g., Butz,

438 U.S. at 513-14; Read, 2013 WL 1562938, at *7.
The Court, therefore, concludes Defendants all of whom
are members of the OMB; staff, investigators for, or attorneys of
the OMB; or ALJs and who engaged in quasi-judicial and quasiprosecutorial acts are absolutely immune from suit.

Accordingly,

the Court grants Defendants’ Motion to Dismiss on the additional
grounds that all Defendants are absolutely immune from
Plaintiff’s claims under common law.
II.

Rooker-Feldman Doctrine.
Defendants also assert Plaintiff’s claims are precluded by

the Rooker-Feldman Doctrine, which prohibits federal courts from
reviewing final determinations of state courts.

See Worldwide

Church of God v. McNair, 805 F.2d 888, 890 (9th Cir. 1986).3
Under the Rooker-Feldman Doctrine, federal district courts lack
jurisdiction over cases in which a plaintiff seeks review of

3

Administrative proceedings that are quasi-judicial and
result in a final order like the proceedings in this matter can
properly form the basis for Rooker-Feldman preclusion. See,
e.g., Aiona v. Judiciary of State of Hawaii, 17 F.3d 1244, 1250
n.10 (9th Cir. 1994); Murray v. Dep’t of Consumer and Bus. Svcs.,
No. CV–09–1292–HU, 2010 WL 3604675, at *9-10 (D. Or. Aug. 12,
2010); Lawrence v. Bd. of Election Comm’rs of the City of
Chicago, 524 F. Supp. 2d 1011, 1017 (N.D. Ill. 2007).
11 - OPINION AND ORDER

state-court judgments.

AmerisourceBergen Corp. v. Roden, 495

F.3d 1143, 1153 (9th Cir. 2007)(citing Henrichs v. Valley View
Dev., 474 F.3d 609, 613 (9th Cir. 2007)).

The doctrine bars a

federal court's direct review of issues actually decided by state
courts as well as "claim[s] that 'amount[] to nothing more than
an impermissible collateral attack on prior state court
decisions'” and are "inextricably intertwined with the forbidden
appeal."

Ignacio v. Judges of U.S. Court of Appeals for Ninth

Circuit, 453 F.3d 1160, 1166 (9th Cir. 2006)(quoting Branson v.
Nott, 62 F.3d 287, 291 (9th Cir. 1995), and citing Noel v. Hall,
341 F.3d 1148, 1157 (9th Cir. 2003)).
The Rooker-Feldman Doctrine applies even when the challenge
to the state-court decision involves federal constitutional
issues, including those anchored in federally-protected rights to
due process and equal protection.

Bates v. Jones, 131 F.3d 843,

856 (9th Cir. 1997)(citing McNair, 805 F.2d at 891).
Rooker-Feldman is a jurisdictional doctrine rather than a
res judicata doctrine.
(9th Cir. 2006).

Elwood v. Drescher, 456 F.3d 943, 948

In Robinson v. Ariyoshi the court explained:

[T]he res judicata requirement of full and fair
opportunity to litigate and the Feldman
'inextricably intertwined' barrier are two sides
of the same coin. Under the rubric of either
'jurisdiction' or 'res judicata,' the crux of the
question is whether there has already been actual
consideration of and a decision on the issue
presented. If consideration and decision have
been accomplished, action in federal court is an
impermissible 'appeal' from the state court
12 - OPINION AND ORDER

decision. If no consideration has been given, or
any decision on the matter is ambiguous, it is
unlikely that the issues presented to the state
high court and to the federal court are so
'inextricably intertwined' that the federal court
cannot take jurisdiction. Nor is it likely that
there will have been a full enough and fair enough
opportunity for litigation to warrant the claim
preclusive effect of res judicata.
753 F.2d 1468, 1472 (9th Cir. 1985), vacated on other grounds by
477 U.S. 902 (1986).
Plaintiff requests this Court to review and to reverse the
decision of the OMB revoking his medical license, and, therefore,
the Rooker-Feldman Doctrine applies.

Accordingly, the Court

grants Defendants’ Motion to Dismiss Plaintiff’s claims on the
ground that it lacks jurisdiction pursuant to the Rooker-Feldman
doctrine.
Because the Court concludes Defendants are immune from suit
and this Court lacks jurisdiction over Plaintiff’s requests for
injunctive and declaratory relief under the Rooker-Feldman
Doctrine, the Court declines to address Defendants’ other bases
for dismissal of this action.

CONCLUSION
For these reasons, the Court GRANTS in part and DENIES in
part Defendants’ Motion (#38) to Dismiss or for Summary Judgment
as follows:

GRANTS Defendants’ Motion (#38-1) to Dismiss and

DENIES as moot Defendants’ Motion (#38-2) for Summary Judgment.
13 - OPINION AND ORDER

Accordingly, the Court DISMISSES this matter with prejudice.
IT IS SO ORDERED.
DATED this 26th day of November, 2013.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

14 - OPINION AND ORDER