Mishler v. Clift, 98-15796
| Decision Date | 15 June 1999 |
| Docket Number | No. 98-15796,No. 98-15918,98-15796,98-15918 |
| Citation | 191 F.3d 998 |
| Parties | (9th Cir. 1999) ALAN J. MISHLER, M.D., Plaintiff-Appellee, v. ROBERT D. CLIFT, M.D., Defendant, and NEVADA STATE BOARD OF MEDICAL EXAMINERS; THEODORE JACOBS, M.D.; ANTHONY J. CARTER, M.D.; M. RONALD AVERY, JR., M.D.; RICHARD BAKER, M.D.; IKRAM U. KHAN, M.D.; KATHLEEN EBNER; EVA G. SIMMONS; LEO A. WILNER, Defendants-Appellants. ALAN J. MISHLER, M.D., Plaintiff-Appellee, v. ROBERT D. CLIFT, M.D., Defendant-Appellant, and NEVADA STATE BOARD OF MEDICAL EXAMINERS; THEODORE JACOBS, M.D.; ANTHONY J. CARTER, M.D.; M. RONALD AVERY, JR., M.D.; RICHARD BAKER, M.D.; IKRAM U. KHAN, M.D.; KATHLEEN EBNER; EVA G. SIMMONS; LEO A. WILNER, Defendants |
| Court | U.S. Court of Appeals — Ninth Circuit |
[Copyrighted Material Omitted] Stephen D. Quinn, Deputy Attorney General, Carson City, Nevada, for appellants Drs. Jacobs, Carter, Avery, Baker, Khan, and Ebner, Simmons, and Wilner; Melissa P. Barnard, Jones Vargas, Reno, Nevada, for appellant Dr. Clift.
David H. Miller, Miller, Lane, Killmer & Greisen, LLP, Denver, Colorado, for the appellee.
Appeal from the United States District Court for the District of Nevada. Edward C. Reed, Jr., District Judge, Presiding. D.C. No. CV-87-00195-ECR.
Before: Thomas G. Nelson, Michael Daly Hawkins, and Susan P. Graber, Circuit Judges.
The issue presented for review in this case is whether the district court erred in denying the Nevada Board of Medical Examiners' motion to dismiss for failure to state a claim based on the grounds of absolute immunity. We hold that while the Board is entitled to absolute immunity for its quasijudicial acts, such protection does not extend to its ministerial acts. Because each of Dr. Mishler's claims in his complaint relies upon both the quasi-judicial acts and ministerial acts, it was not error for the district court to deny the Board's motion. We, therefore, affirm.
This litigation has been ongoing for more than twelve years, and this is the fourth time this case has come up on appeal to the Ninth Circuit. From 1981 to 1985, Dr. Mishler practiced medicine as a neurosurgeon in Nevada. He spoke out against and reported certain improper conduct and practices of other doctors while practicing in Nevada. In 1985, he sought employment in Ohio. In April 1985, the Ohio Board of Medical Examiners ("Ohio Board") contacted the Nevada State Board of Medical Examiners ("Nevada Board") for a letter of verification regarding Mishler's standing to practice medicine in Nevada. At that time there were no disciplinary charges pending against Mishler. The Nevada Board did not respond until September 1985, when it sent a letter stating that Mishler was under investigation in Nevada. As a result, the Ohio Board denied Mishler the opportunity to practice medicine in Ohio.
A year later, in September 1986, the Nevada Board filed charges against Mishler to revoke his license. During the disciplinary proceedings, material evidence was withheld and destroyed by the Nevada Board and hearings were conducted without affording Mishler an opportunity to confront witnesses against him. After the final decision of the board, Mishler pursued administrative remedies in state court. In 1993, the state court proceedings ended when the Nevada Supreme Court reversed all adverse findings against Mishler and dismissed all of the disciplinary charges against him. See Mishler v. State Bd. of Med. Exam'rs, 849 P.2d 291, 297 (Nev. 1993).
In addition to pursuing administrative remedies, Mishler filed a S 1983 action in federal court against the State of Nevada, the Nevada Board and its members ("Board Members") in their official and individual capacities. After various appeals and twelve years of litigation, the only defendants remaining in this suit are the Board Members in their individual capacities.2 Mishler's second amended complaint alleges that the Board Members engaged in allegedly unconstitutional and unlawful conduct when performing the following actions: failing to respond to the Ohio Board verification inquiry; filing false disciplinary charges against him; conducting an "abusive witch hunt";3 withholding and concealing evidence; disseminating confidential materials to other doctors; conducting hearings on a partial record and without allowing him the opportunity to confront witnesses; and revoking his license. Based on this conduct, Mishler's second amended complaint asserts seven claims for relief: (1) violation of the right to free speech -S 1983 claim; (2) violation of the right to petition the government -S 1983 claim; (3) civil malicious prosecution -S 1983 claim; (4) violation of procedural due process -S 1983 claim; (5) restraint of trade -federal and state law claim; (6) intentional interference with contractual relations -state law claim; and (7) conspiracy -state law claim.
At that point in the litigation, Dr. Clift, one of the Board Members, obtained separate counsel. Dr. Clift and the Board Members filed motions to dismiss the second amended complaint for failure to state a claim based on absolute immunity. The district court denied their motions indicating that it was unable to discern the difference between the claim to absolute immunity and the prior claim of qualified immunity on which the Ninth Circuit had already ruled. See Mishler III, 94 F.3d 652. The Board Members moved for reconsideration. The district court granted the motion for reconsideration, acknowledging that it had made a mistake of law regarding its statement on immunity. However, the district court still concluded that it would not dismiss Mishler's complaint because it could not determine, prior to discovery, whether all of the acts of the Board Members were quasi judicial. In addition, the court noted that the defendants "moved to dismiss the entire [complaint] on the ground of absolute immunity" and concluded that "it would be inappropriate to grant such relief if it were to include dismissal of [Mishler's] `ministerial act' claims." Both the Board Members and Dr. Clift appeal the district court's denial of their motions to dismiss for failure to state a claim.
"We review de novo the district court's refusal to grant immunity at the pleading stage in a S 1983 action." Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. See id. The burden of showing that immunity is available is upon the official who seeks it. See id. A complaint should not be dismissed unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. See id.
State and federal executive branch officials charged with constitutional or statutory violations are entitled to absolute immunity under certain limited circumstances. See Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993). A functional approach is used to determine whether an official is entitled to absolute immunity. See id. at 269. Essentially, the court examines the function performed by the official and determines whether it is similar to a function that would have been entitled to absolute immunity when Congress enacted S 1983. See id. at 268-69. It is the "nature of the function performed, not the identity of the actor who performed it," that is critical to this inquiry. See id. at 269."Even when [the court] can identify a common-law tradition of absolute immunity for a given function, [the court should] consider[ ] `whether S 1983's history or purposes nonetheless counsel against recognizing the same immunity in S 1983 actions.' " Id. (quoting Tower v. Glover, 467 U.S. 914, 920 (1984)).
It is well settled that judges and prosecutors are entitled to absolute immunity. See Stump v. Sparkman, 435 U.S. 349, 355 (1978) (judicial immunity); Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) (prosecutorial immunity). Immunity for judges has been an entrenched principle in our legal system for more than a century. See Bradley v. Fisher , 80 U.S. (13 Wall.) 335, 347 (1871). The essential rationale is that, without protection from retaliatory suits, a judge would lose "that independence without which no judiciary can be either respectable or useful." Id. A prosecutor's entitlement to absolute immunity flows from the performance of activities that are intimately associated with the judicial process. See Imbler, 424 U.S. at 430. The Supreme Court has also held that executive branch officials, when participating in a federal administrative agency's adjudicative process, are entitled to absolute immunity because they perform functions comparable to those of judges and prosecutors. See Butz v. Economou, 438 U.S. 478, 512-13 (1978).
The Board Members and Dr. Clift argue that they are entitled to absolute immunity because they perform quasi-judicial and quasi-prosecutorial functions.4 They argue that the function of a state medical board is analogous to a federal administrative agency's adjudication and that, under the reasoning of Butz, the Board Members should be entitled to absolute immunity for their acts.
In Butz, the Supreme Court determined that the role of a hearing examiner in a federal administrative agency was " `functionally comparable' to that of a judge." Id. at 513. The Court noted that an administrative hearing officer can issue subpoenas, rule on evidence, supervise the hearings and make decisions. The Court went on to state that "[m]ore importantly, the process of agency adjudication is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency." Id. The Butz Cou...
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