Gambee v. Cornelius et al

Filing 27

ORDER: Granting Defendant's Motion to Dismiss 5 and Denying as moot Plaintiff's Motion for Extension of Time to File Response/Reply 14 . Signed on 03/31/2011 by Chief Judge Ann L. Aiken. (lg) Modified on 4/1/2011 to add 14 (lg).

Gambee v. Cornelius et al

Doc. 27

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JOHN EDWIN GAMBEE, M.D.,
Plaintiff, vs. LISA A. CORNELIUS, D.P.M.; DONALD GIRARD, M.D.; LINDA B. JOHNSON, M.D.; DOUGLAS B. KIRKPATRICK, M.D.; GEORGE KOVAL, M.D.; ROGER McK~MMY, M.D.; LANCE NEACE, D.O.; KEITH WHITE, M.D.; KENT WILLIAMSON, M.D. and RALPH YATES, D.O., Defendants. Civil No. 10-6265-AA OPINION AND ORDER

William G. Wheatley Jaqua & Wheatley 825 E. Park Street Eugene, OR 97401 Attorney for Plaintiff John R. Kroger Attorney General Marc Abrams Senior Assistant Attorney General Oregon Department of Justice 1162 Court Street NE Salem, OR 97301 Attorneys for Defendants 1 - OPINION AND ORDER

Dockets.Justia.com

AIKEN, Chief Judge: Plaintiff John Gambee filed suit against individual members of the Oregon Medical Board alleging violations of his constitutional due process and equal protection rights pursuant to 42 1983.

u.s.c.

§

He seeks relief in the form of economic and non-economic puni ti ve damages, and attorney fees under 42 u. S. C.
§

damages, 1988. to

All defendants move to dismiss plaintiff's claims pursuant R. Civ. P. 12 (b) (6) based on the theory of absolute of

Fed.

immunity.

In the alterna.tive,

defendants

request dismissal

plaintiff's equal protection claim on the ground that no relief can be granted and summary judgment on plaintiff's due process claim on the ground that there is no genuine issue of material fact and that defendants are entitled to judgment as a matter of law. For the

reasons given below, defendants' motion to dismiss is GRANTED based on defendants' absolute immunity under
I. BACKGROUND
§

1983. 1

The complaint. the

following

summary

of

events

lS

based

on

plaintiff's

The allegations are construed in plaintiff's favor for of resol ving defendants' Ass'n, motion to 998 dismiss. (9th Cir.

purposes

Daniels-Hall v. 2010 )

Nat'l Educ.

629 F.3d 992,

1Because I dismiss the claims against defendants based on their absolute immunity, I do not address the merits of plaintiff's claims. 2 - OPINION AND ORDER

Plaintiff is a cine." Pl. ' s

self

s
<.II

practitioner of "a 8. Plaintiff's

ernative career in

Compl.,

Oregon began in 1975, Oregon Medical Boa from 1979 until 1994, "repeatedly demonstrat[ing] waters in his practice the proposed modal In 677.190, 1996, which the (Boa

was licensed to ). He practiced
c

ne by in Oregon Board for

s license was revo

a willingness to.move into uncharted regard to the scienti ic merits of

"

. ' s Compl.,

<.II

10. 2 Rev. Stat.
§

slature enacted Or. "the use of an a itself constitute Board]."
§

medical

treatment shall not [proscribable by After enactment of of his license practice medi Order. 3

ss
Stat.
§

conduct

Or.

Rev.

677.190(1)(b). nstatement his right to

677.190, plaintiff appli Board. Plaintiff re

in Oregon in April 1997, subject to a Stipulated

2Plaintiff all s that his disagreements stem from his non-t I methods of treat conditions. See PI.'s Compl., <.II<.II 8, 15, 18.

the Board ,thyroid

3Based on events surrounding the revocat application process, a iff sued the s court alleging civil violations under 42 U.S.C. § 1983, among other claims. . 474 (D. Or. ~~~~~~~~~~, 971 F. 1997) n Gambee I, the court summary judgement on p iff's § 1983 claims based on t absolute immunity of the Board members "for acts pe relation to license revocat proceedings" and based on "qualified immunity for acts outs those edings." Id. at 479-80. According to plaintiff's , the case eventually settled. 3 - OPINION AND ORDER

On January 15, 2004, 1997 Stipulated Order. to perform The certain

Board issued an order fied blood Stipulated tests when dia sm. ing her During si an red and

plaintiff

treating patients potentially suffering from hypot In January 2010, t Board began investi

plaintiff had violat the investigation, r

2004 Modified Stipulated Order. Board (ISO) requested that plaintiff

Interim Stipulated pending the signed the
0

further restricti investigat

s practices The aintiff

outcome of the
r

2010. iff h a Complaint al tions Plaintiff Procedures

On May II, 2010, the Board served pia and Notice of that he violated t requested a Act.4 On Sept license was 2010, the Plaintiff s r 2, 2010, the Board notif
r

s

sciplinary Action bas 2004 Modified Stipulated rsuant to Oregon's Administrat

r.

pia

iff that his

effective immediately. issued an Order of al

On September 8,

Suspension (OES).
s

s

that

violated

his

constitutional due process rights by

rtue of the following acts:

a. By P restrictions on and P ntiff's ability to practice "alternative medicine" authorized by ORS 677.190, through t ISO and the OES.

4The rt to the resolut

s have not provided ion to the court as of this contested case hearing.

4 - OPINION AND ORDER

b. ling to provide aintiff with a proper ring be re September 2, 2010 license suspension based on the pretext that there was "imminent r to the public's a or sa y." Plainti 's 1 e on September 2, 2010 issuing or s any emergency s sion r to the suspension as required by OAR 137-003-0560. iling to include in OES any: [(a)] fi of the c acts or omissions of the licensee that olate Ie laws and rules are the grounds the sion; (b) reasons specified acts or· omissions ously endanger the public's health or sa Yi and/or (c) rence to the sect of the statutes or rules involved. using the "emergency" suspension to impair Plaintiff's lity to prepare for ring in the Contested

su se re e.

Pl. ' s

.,

:II

23.

iff's

allegations

under

his

equal

protection claim are similar to those under his due Pl.'s Compl., :II 38.
II. STANDARD

ss claim.

r Fed. R. Civ. P. 12(b) (6), a complaint is construed in favor of the plaintiff, and its factual allegat true. Daniels-Hall v. Nat'l Educ. Ass'n, "[F]or a compl 629 F. are taken as 992, 998 (9th

r. 2010). non-

to survive a motion to dismiss, the and reasonable ferences from entitling the

usory

'factual content,'

content, must be plaus iff to relief." 962, 969 (9th Cir. 2009).

ly suggestive of a cIa

"A claim has fac

1

aus

ility when

plaintiff pleads

1 content that allows the court to draw

5 - OPINION AND ORDER

the

reasonable

inference
u

that

the

defendant Iqbal,

is

liable Ct.

for

the 1949

misconduct alleged. (2009) . supported
" [0]

Ashcroft v.

129 S.

1937,

nce a claim has been stated adequately, showing any set
U

it may be with the

by

of

facts

consistent

allegations in the complaint.

Bell Atlantic Corp. v. Twombly, 550

u.s. 544, 563 (2007). "[G]enerally the scope of review on a motion
to dismiss
u

for

failure

to

state

a

claim

is

limited

to

the

Complaint.

Daniels-Hall, 629 F.3d at 998.
III. DISCUSSION

Defendants argue that they are entitled to absolute immunity for the acts they performed pursuant
o~

to

their

roles

as

Board

members.

In support

their motion to dismiss and partial motion

for summary judgment, defendants submitted an affidavit and seven attached dismiss exhibits. on the issue Gi ven of that I grant defendants' I do not motion to

absolute

immunity,

consider

reference to these documents necessary. While 42 U.S.C.
§

1983 does not explicitly provide immunity

for government actors, the Supreme Court has consistently accorded absolute immunity "to judges and prosecutors functioning in their official capacityU in order to ensure that judicial officers are "free to act upon [their] own convictions, without apprehension of personal consequences .... F.3d 916, 922 (9th Cir.
u

Olsen v. Idaho State Bd. of Med., 363 2004) (internal citations omitted).

Absolute immunity may also be extended to state officials who are

6 - OPINION AND ORDER

not

traditionally

regarded

as

judges

or

prosecutors

if

the

functions they perform are similar to those performed by judges or prosecutors. Butz v. Economou, 438 u.s. 478, 513-17 (1978); 363

Mishler v. Clift, 191 F.3d 998, F.3d at 923.

1002

(9th Cir. 1999); Olsen,

Whether the court should extend absolute immunity depends on six factors characteristic of the judicial process that were

outlined by the Supreme Court in Butz. 363 F.3d at 923. These factors are:

438 u.S. at 512; see Olsen,

(a) the need to assure that the individual can perform his 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) the [agency 's] insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal. Olsen, 363 F.3d at 923 (internal citations omitted). Once the court determines that the official's function meets the Butz standard for absolute immunity, the court analyzes whether the actions at issue in the case "are judicial or closely

associated with the judicial process." Only acts closely associated with

Mishler, 191 F.3d at 1007. the judicial process, Id. not at

administrative acts, 1008-09 were

are entitled to absol'ute immunity.

(acts occurring during the disciplinary hearing process to immunity, but the administrative act of

entitled

corresponding with another state medical board was not); Olsen, 363 F.3d at 928 ("procedural steps involved in the eventual decision

7 - OPINION AND ORDER

denying

[plaintiff]

her license reinstatement" were entitled to

immunity, but issuance of a billing statement was not).
A.

Functional Test/Butz Factors Courts in the Ninth Circuit and this district have concluded

that

members

of

state medical

boards

are

entitled to

absolute

immunity for quasi-judicial or quasi-prosecutorial acts based on the Butz factors. 1007; Gambee v. Olsen, 363 F.3d at 925-26; Mishler, 191 F.3d at Williams, 971
F.

Supp. 474,

477

(D.

Or.

1997)

(Gambee I). of state

These cases are in accord with other courts' analyses boards. Med., See Wang 698 v. (1st New Cir. Hampshire 1995); Bd. of
v.

medical in

Registration Burkhart, 978

55 F.3d

Watts

F.2d 269

(6th Cir.

1992)

(en banc)

(Tennessee);

Bettencourt v. Bd. of Registration in Med., 904 F.2d 772 (1st Cir. 1990) (Massachusetts); Horowitz v. State Bd. of Med. Examiners, 822 (Colorado).5

F.2d 1508 (10th Cir. 1987)

Likewise, consideration of the Butz factors here compels the conclusion that the defendants' actions meet the st.andard for

absolute immunity.
1. Ensuring Performance of Functions Without Harassment

The Board is a state agency that is charged with protecting the health and welfare of residents by regulating, licensing, and

5Notably, the Oregon legislature has afforded Board members with the same immunity from suit as prosecutors and judges, based on their official actions. Or. Rev. Stat. § 677.335(1).

8 - OPINION AND ORDER

disciplining investi Stat. discipl that are s 677.205,

practitioners, rings with re 677.208, 677.265.

including to licensing. Board's

conducting Or. Rev. powers to

potentially suspend a likely to stimulate Mishler, the Board numerous 191 can

's license "are acts damages actions" by

disgruntl therefore activit address s

physicians. ensures that

F.3d at conduct

1005. these

Immunity important ly

without fear of harassment, strong public interest

in order to quality health care.

Olsen, 363 F.3d at 924.6

Board performs its duties under a comprehens scheme Procedures Act 677.087 677.990. of or p revo contest Hear
t

statutory

tion to the (APA).

sions of Oregon's Administrat
§§

See Or. Rev. Stat.

183.310 183.750,

§§

For example, Boa

statutes regulating

ice

in Oregon give t
1

authority to suspend, revoke,
§

ions

on a

licenses. I e, the

677.205(2). must
§

Be a

or

suspending

agency

conduct

case hearing pursuant to the APA. s take place in ce of Administrat of an administrat Hearings. Id.

677.208(1). judge from

§§

183.615(1),

iff's argument is he who has harassed by rs of the Board is ite. Whether'p iff was harassed or not does not a ct the court's rison of the ions of judges and prosecutors with those of agencies.
6

9

OPINION AND ORDER

183.625(2).

Physicians
t

unity to retain counsel and hearing. Id.
§

respond and present Although the of evidence, rules and cross-examinat Administrat fully and fairly. Administrat party and written orders must supported by must cant
§ §

183.417(1).

judge is not bound by formal rules evance, documentary evidence, rally y. Or. Rev. Stat.
§

183.450.

s must ensure that the record is developed 183.417(8). s present a proposed order to

law j

agency, whi r

the agency can modify, but only with a its reasons. Id.
§

183.650(2).

based on consideration of the whole record and be tantial wr ten dence. Id.
§

183.450(5).

The order

ndings of fact and conclusions of law. any person aggrieved by an order
§

183.470(2). cial

rtantly, ew.

seek j Erne

Or. Rev. Stat.

183.480(1). to the

y ,suspensions

in cases of immediate danger

public do not long as Board procedures. with t

re a pre-suspensiGn contested case hearing as simultaneously initiates Id.
§

the

contes

case complies

677.205(3).

This

APA provision that generally allows eme

suspension ic health or contested case Or. Admin. R.

of licenses in cases of "serious danger to sa hear
y"

and grants

licensees a Id.
§

right

to

in response.

183.430(2); see

137 003-0560.

10- OPINION AND ORDER

Thus,

the

of procedural safeguards on Board action statutes reduces the need 191 F.3d at 1005-06;
==~~,

provided by Ore actions. 25. Plaintiff a actions is ir

damages 363 F.3d at 924

s

that

the to

critical properly

issue with defendants' follow
e

failure

se

procedural s, not the

safeguards. manner in the cr i

However,

"[iJt is the avai

they are exercised in a inquiry .... " Mishler, 191 F.

r case, at 1006.

that is

Through t are suff ly

above procedural sa insulated from outsi

, members of the Boa pol ical pressures.

Moreover, as in both Mishler and Olsen, members pro ss who are not health professionals
§

Board includes public or related to health

Is.

Or. Rev. Stat. sk that the

677.235. will rna

The two public members decisions based on

lessen
f

Board

ial self-interest.

Olsen, 363 F.

at 925 (citing Mishler,

191 F.3d at 1007).

the controls

court subs

is

unaware

of

the

extent

that

Board

adjudications, upon judicial review s r. Or. Rev. Stat.
§

Court of Appeals applies a licensee aggrieved by a Board r, contested case heari

by 183.482.

that are required when

11

OPINION AND ORDER

disciplines licensees are sufficiently adversarial in nature. party in a contested case by counsel, issues, and
he~ring

A

has the right to representation

the right to present evidence and arguments on the the right Id. to
§§

cross-examine

witnesses

and

present

rebuttal evidence.

183.417(1), 183.450(3)

Finally, the

Court of Appeals, through judicial review, has authority to correct any errors. In sum, Id.
§§

183.480, 183.482.

after evaluating Oregon's administrative scheme in I conclude that the Board functions in a

light of these factors,

sufficiently judicial and prosecutorial capacity to entitle them to absolute immunity. B. Scope of Immunity The court must next analyze whether the specific actions by the Board in this case are "judicial or closely associated with the judicial process." F.3d at 1007). As Olsen, in 363 F.3d at 926 each of (citing Mishler, 191

Olsen,

plaintiff's

allegations

against defendants - their use of stipulated orders, the timing and contents of the emergency suspension, and generally, their power to effect revocations or suspensions - are "directly related to [the Board's] adjudicatory function and the ultimate resolution of the disciplinary dispute at issue." for suing defendants arise out Id. at 928. of their Plaintiff's reasons contributions to the

Board's disciplinary efforts. Plaintiff's reliance on Chalkboard, Inc. v. Brandt, 902 F.2d

12- OPINION AND ORDER

1375 (9th Cir. 1990), for the proposition that defendants' actions are not within the scope of immunity because they violated state law, is misplaced. In Chalkboard, the court determined that an

Arizona agency did not have statutory authority to carry out an emergency closure of a day care center; another agency. Id. at 1378-79. that power was held by

The lack of agency authority in Plaintiff does not dispute and discipline

Chalkboard is not present in this case. that the Board is authorized to

investigate

physicians or that it can effect emergency license suspensions. Thus, plaintiff's allegations
ar~

unlike those in Chalkboard; he

simply alleges that the Board failed to properly adhere to its procedures defendants in exercising its authority various under Oregon that law. As

note,

plaintiff's

arguments

defendants

skipped important steps in the process or omitted information from documents are not relevant to the absolute immunity inquiry. The

acts of the Board in their exercise of statutory authority "are no less judicial or prosecutorial because they may have been committed in error." Mishler, 191 F.3d at 1006 (citing Stump v. Sparkman,

435 u.S. 349, 359 (1978)) Therefore, because defendants are entitled to absolute

immuni ty for their roles

in disciplining plaintiff,

defendants'

motion to dismiss is granted. 7

7The court notes that plaintiff's decision to file suit in federal court shows why absolute immunity shields defendants from

13- OPINION AND·ORDER

IV. CONCLUSION
Plaintiff's
u.S.C.
§.
88

and equal protection claims under 42 Therefore, defendants'

1983

1 as a matter of law. on iff's

motion to GRANTED. re to

grounds of absolute immunity (doc. #5) is motion to extend time for plaintiff's

s' motion for partial summary judgment (doc.

#14) is DENIED as moot. IT IS SO ORDERED. s

~ay of
March

2011.

Ann Aiken
United States District Chief Judge

suit.

PI

ntiff engaged in the "very strate is intended to counteract [by maker rather than the decis [ 363 F.3d at 929 (quoting
1127, 1136 (9th Cir. 1999)).

solute

14- OPINION AND ORDER