Gilbert v. Ben-Asher, BEN-ASHER

Citation900 F.2d 1407
Decision Date16 April 1990
Docket NumberNo. 89-15019,BEN-ASHER,89-15019
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
PartiesDavid Bruce GILBERT, M.D., Plaintiff-Appellant, v. M. David; J. Scott Alexander; James E. Brady, Jr.; W. Albert Brewer; Douglas N. Cerf; Richard L. Dexter; Arnold H. Dysterheft; Albert Eckstein; Michael R. Geyser; William B. Helme; Arthur N. Lindberg; Richard T. McDonald; Anna Margaret Osborn; Phillip Z. Saba; Mario P. Valdez, Defendants-Appellees.

David Bruce Gilbert, Payson, Ariz., pro se.

Clifford J. Roth, Johnston Maynard Grant & Parker, Phoenix, Ariz., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before SNEED, FARRIS and FERNANDEZ, Circuit Judges.

PER CURIAM:

David Bruce Gilbert brought this suit against a number of persons 1 acting on behalf of the Arizona Board of Medical Examiners (BOMEX), for various claims arising out of the revocation of his license to practice medicine. Gilbert alleges violations of his federal civil rights under 42 U.S.C. Secs. 1983 and 1985, intentional interference with contractual relations, intentional infliction of emotional distress, abuse of process, and defamation. The district court awarded summary judgment to BOMEX. We affirm.

I. FACTS AND PROCEEDINGS BELOW

For twenty-five years, Gilbert practiced medicine in the state of Arizona. On March 13, 1980, an administrative complaint was filed alleging that Gilbert lacked sufficient medical competence and that his continued practice of medicine endangered the health of his patients and the public. An administrative law judge heard evidence regarding twenty-five surgical cases involving Gilbert before entering his findings, conclusions, and recommendations on April 12, 1981. He ruled that Gilbert was markedly deficient in diagnosing and preparing patients for surgery and that his conduct constituted medical incompetency 2 and unprofessional conduct 3 as defined in Arizona Revised Statutes Annotated. He recommended that Gilbert be subjected to censure, probation, suspension of license, or revocation of license, or "any combination of these."

Following the administrative law judge's report, BOMEX reviewed Gilbert's records in executive session and heard additional allegations of misconduct by Gilbert. On September 10, 1981, BOMEX unanimously voted to suspend Gilbert's license to practice medicine pending a formal hearing. At that hearing, held on April 3, 1982, a different administrative law judge concluded that Gilbert's conduct in three additional cases lacked medical competence. He recommended that BOMEX place Gilbert on probation. A formal hearing ensued, and BOMEX revoked Gilbert's license on June 23, 1982.

Gilbert failed to seek judicial review of this revocation, as permitted under sections 12-901 through 12-914 of the Arizona code. Ariz.Rev.Stat.Ann. Secs. 12-901-914 (1982). This failure barred judicial review of the revocation order. 4 Nonetheless, Gilbert sought reinstatement of his license in mid-August 1985. BOMEX, in an open session meeting on September 14, 1985, concluded that Gilbert's application did not meet the relevant statutory requirements. Gilbert was informed of this decision approximately five weeks later.

Accompanied by his attorney, Jack J. Rappeport, Gilbert attended a hearing that he had requested to review the decision denying his reinstatement. On or about December 4, 1985, BOMEX turned down Gilbert's appeal, concluding that Gilbert's application for reinstatement failed to meet the requirements of Ariz.Rev.Stat.Ann. Sec. 32-1422(A)(4) (Supp.1989) 5 because of Gilbert's convictions on felony counts for income tax evasion, his conviction on a misdemeanor count of practicing medicine without a license, and his failure to file income tax returns. On this occasion, Gilbert appealed under Ariz.Rev.Stat.Ann. Sec. 12-904 (1982). Once more he failed to remove the obstacle to the resumption of his practice. He agreed to dismiss his objections with prejudice.

In July 1986, Gilbert applied for a medical license for the second time. After another open meeting, a formal report by BOMEX, and a hearing, at which his counsel, Rappeport, was again present, BOMEX voted 7-0 to deny Gilbert's application. It entered findings of fact and conclusions of law on November 21, 1986. Upon appellant's motion for rehearing, BOMEX held another hearing on April 9, 1987, and this time voted 10-0 (with one abstention) to deny Gilbert's application for a license.

As these administrative proceedings unfolded, Gilbert was engaged in litigation in state court against some of the appellees-defendants named in this federal action. In the state case, the district judge heard appellant's claims alleging violations of 42 U.S.C. Secs. 1983 and 1985, interference with contractual relations, and intentional infliction of emotional distress. The court dismissed the federal civil rights claims with prejudice, granted the defendants' motion for summary judgment, and awarded defendants $76,665.50 in attorneys' fees, plus over $12,000 in taxable and nontaxable costs. The court also levied sanctions of $50,000 in attorneys' fees and $5,000 in nontaxable costs against Gilbert's attorney, Rappeport, for filing a "frivolous" suit. In a lengthy opinion, the Arizona Court of Appeals affirmed. Gilbert v. Board of Medical Examiners, 155 Ariz. 169, 745 P.2d 617 (Ct.App.1987), review denied, Dec. 8, 1987.

While the state case was pending, Gilbert filed a similar complaint in federal court on February 21, 1984. The appeal of that suit is before us. Because of the similarity between the cases, the federal district court entered an order staying action in this case on November 20, 1984. After the resolution of the state case, appellees moved for summary judgment in this suit. The district court granted the motion on December 21, 1988. BOMEX urged the court to base its order on principles of res judicata or collateral estoppel, because the Arizona state court had already decided many of the claims and issues raised in this lawsuit. The court rejected this reasoning and reached the merits on each claim, but nevertheless granted appellees' motion for summary judgment. Gilbert appeals these rulings.

II. JURISDICTION

The district court had subject matter jurisdiction under 28 U.S.C. Sec. 1331 (1982) for

the federal claims alleged pursuant to 42 U.S.C. Secs. 1983 and 1985 (1982) and pendent jurisdiction over the state law claims under United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). Our appellate jurisdiction emanates from 28 U.S.C. Sec. 1291 (1982).

III. ANALYSIS

We review de novo a grant of summary judgment, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), and may base our ruling on any grounds supported by the record, Jackson v. Southern Calif. Gas Co., 881 F.2d 638, 643 (9th Cir.1989).

A.

The doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion) serve two objectives. They limit to one the number of times a defendant can be vexed by the same claim or issue and they promote efficiency in the judicial system by putting an end to litigation. Congress has authorized the federal courts to give the same "full faith and credit" to judicial proceedings of the states "as they have by law or usage in the courts of such State, Territory or Possession from which they are taken." 28 U.S.C. Sec. 1738 (1982). The Supreme Court has interpreted this provision to mean that federal courts must give such preclusive effect to state judgments as would the state courts. See, e.g., Marrese v. American Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380-81, 105 S.Ct. 1327, 1331-32, 84 L.Ed.2d 274 (1985).

As a general matter, only persons who were parties to the prior action may be bound by the findings and conclusions of that action. Restatement (Second) of Judgments Secs. 17, 34(3) (1982); see generally 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Secs. 4448-49 (1981 & Supp.1990). The claims adjudicated are precluded from being adjudicated again. The appellees in this suit who were also defendants in the state court action may therefore invoke res judicata to bar Gilbert's claims for intentional interference with contractual relations, intentional infliction of emotional distress, and relief under sections 1983 and 1985. 6

For those appellees who were not defendants in the state court action, the doctrine of collateral estoppel, defensively employed, bars Gilbert's litigation of the issues that underlie these claims. Relitigation of such issues is precluded. Under Arizona law, "a party precluded from litigating an issue under the traditional rule, is also precluded from doing so with another, provided there was full and fair opportunity to litigate the issue in the first action." Wetzel v. Arizona State Real Estate Dep't, 151 Ariz. 330, 333, 727 P.2d 825, 828 (Ct.App.1986), cert. denied, 482 U.S. 914, 107 S.Ct. 3186, 96 L.Ed.2d 674 (1987). "Defensive use of the doctrine occurs when a party defending a claim asserts a previous judgment to which it was not a party to preclude litigation by an opponent who was a party to the prior determination." Id. (citing Food for Health Co. v. 3839 Joint Venture, 129 Ariz. 103, 106-07, 628 P.2d 986, 990 (Ct.App.1981)).

B.

These doctrines preclude Gilbert from litigating the vast majority of the claims of his case in this federal action. Both civil rights claims, for example, are precluded under Arizona law because he agreed to dismiss them with prejudice in the state lawsuit. Arizona law permits a judgment by stipulation to "be conclusive ... if the parties have entered an agreement manifesting such intention." Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573, 716 P.2d 28, 30 (1986) (en banc). Moreover, it is axiomatic that a stipulation with prejudice determines the parties' rights and...

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