Buckwalter v. Nev. Bd. of Med. Examiners

• Decision Date: 08 June 2012
• Docket Number: No. 11–15742.,11–15742.
• Citation: 2012 Daily Journal D.A.R. 5376,678 F.3d 737,12 Cal. Daily Op. Serv. 4563
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Kevin Ray BUCKWALTER, Plaintiff–Appellant, v. State of NEVADA BOARD OF MEDICAL EXAMINERS; Sohail U. Anjum; Javaid Anwar; S. Daniel McBride; Van Heffner; Edward Cousineau, Defendants–Appellees.

678 F.3d 737

12 Cal. Daily Op. Serv. 4563

2012 Daily Journal D.A.R. 5376

Kevin Ray BUCKWALTER, Plaintiff–Appellant,

v.State of NEVADA BOARD OF MEDICAL EXAMINERS; Sohail U. Anjum; Javaid Anwar; S. Daniel McBride; Van Heffner; Edward Cousineau, Defendants–Appellees.

No. 11–15742.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 16, 2012.

Filed April 26, 2012.

As Amended on Denial of Rehearing En Banc June 8, 2012.

Jacob Hafter and Michael Naethe, Law Office of Jacob L. Hafter & Associates, Las Vegas, NV, for the plaintiff-appellant.

Frank Gilmore and Michael E. Sullivan, Robison Belaustegui Sharp & Low, Reno, NV, for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada, Kent J. Dawson, District Judge, Presiding. D.C. No. 2:10–cv–02034–KJD.

Before: BETTY B. FLETCHER, JOHN T. NOONAN, and RICHARD A. PAEZ, Circuit Judges.

OPINION

PAEZ, Circuit Judge:

Kevin Ray Buckwalter, M.D., appeals the district court's dismissal of claims he brought against the members of the Nevada State Board of Medical Examiners (“Board Members”), in their individual capacities, under 42 U.S.C. § 1983. Buckwalter alleged that the Board Members deprived him of his constitutional rights when, in an ex parte emergency proceeding, they summarily suspended his authority to prescribe medication. The issues presented for review are (1) whether the Board Members are entitled to absolute immunity from liability for the exercise of their summary authority, and (2) whether Younger abstention proscribes the federal courts from hearing Buckwalter's case while the state proceedings are pending.

We hold that the Board Members are absolutely immune from Buckwalter's claims for money damages, and that Younger abstention bars Buckwalter's claims for equitable relief. We therefore affirm.

I. Background

Dr. Buckwalter has been a licensed physician in Nevada since 1997. In 2006, the Nevada State Board of Medical Examiners (“the Board”) began to investigate citizen complaints that Dr. Buckwalter was overprescribing narcotic analgesics. The Board's Investigative Committee ordered a peer review of the results of the investigation to determine whether Buckwalter's conduct as a physician was consistent with prevailing professional standards. Two peer reviewers concluded that in several instances, Buckwalter's conduct fell below the minimum standard of care.

Edward Cousineau, the Board's Executive Director, filed a formal administrative complaint with the Board. The complaint charged Buckwalter with three counts of wrongdoing and alleged that he was an imminent threat to the health and safety of his patients and the public in general. On that basis, Cousineau asked the Board to summarily suspend Buckwalter's authority to prescribe or administer controlled substances.

On November 12, 2008, the Board convened an emergency telephone meeting to review the complaint and summary suspension request. Buckwalter was not notified of the charges against him or offered an opportunity to participate in the meeting. In the meeting, the Board Members concluded that there was sufficient evidence that Buckwalter posed a danger to public welfare to justify the summary suspension of his authority to prescribe, administer, and dispense controlled substances in Nevada. The Board Members also scheduled a full hearing on the administrative complaint for March 18, 2009, as well as a prehearing conference for early February. The Board immediately notified Buckwalter of the summary suspension and the hearing schedule.

In the months following the summary suspension, the parties worked to reach a settlement. On the eve of the hearing date, Buckwalter and the Board entered into a joint stipulation to vacate the hearing in anticipation of a finalized settlement. Ultimately, however, the full Board voted to reject the proposed settlement. Buckwalter did not withdraw from the stipulation or demand that a hearing be reset, opting instead to attempt to reach a new settlement that would pass muster with the Board.

The parties never reached a mutually satisfactory agreement, and in November 2010 Buckwalter commenced this action under 42 U.S.C. § 1983 in the District of Nevada, charging the Board and its members with depriving him of constitutional due process. The complaint alleged that the Board Members denied Buckwalter due process first by summarily suspending his prescribing privileges, and second by failing to promptly conduct a postdeprivation hearing following the summary suspension.

The district court dismissed all of Buckwalter's claims, holding that they were barred by absolute immunity and, in the alternative, that Younger abstention precluded a federal court from hearing the case. Buckwalter timely appealed.

II. Standard of Review

“Whether a public official is entitled to absolute immunity is a question of law that is reviewed de novo.” Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir.2008) (quoting Goldstein v. City of Long Beach, 481 F.3d 1170, 1172 (9th Cir.2007)). “We review de novo the district court's decision to abstain under the Younger doctrine.” Potrero Hills Landfill, Inc. v. Cnty. of Solano, 657 F.3d 876, 881 (9th Cir.2011).

We also review de novo a district court's order dismissing a complaint under Federal Rule of Civil Procedure 12(b)(6). See Cervantes v. United States, 330 F.3d 1186, 1187(9th Cir.2003). We assume that Buckwalter's allegations of fact are true and analyze them in the light most favorable to his claims. See id.

III. Discussion

A. Absolute immunity.

State and federal executive officials ¹ are absolutely immune from § 1983 suits if they perform “ ‘special functions' which, because of their similarity to functions that would have been immune when Congress enacted § 1983, deserve absolute protection from damages liability.” Buckley v. Fitzsimmons, 509 U.S. 259, 268–69, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) (quoting Butz v. Economou, 438 U.S. 478, 508, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978)).

It is the “nature of the function performed, not the identity of the actor who performed it,” that determines whether an official is cloaked by absolute immunity. Id. at 269, 113 S.Ct. 2606. The paradigmatic functions giving rise to absolute immunity are those of judges and prosecutors. See Tamas v. Dep't of Soc. & Health Servs., 630 F.3d 833, 841–42 (9th Cir.2010) (quoting Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004)). Absolute immunity is also accorded to officials of government agencies “performing certain functions analogous to those of a prosecutor” or a judge. Butz, 438 U.S. at 515, 98 S.Ct. 2894.

To determine whether a particular state officer's role is “functionally comparable” to that of a judge, we consider six nonexclusive factors, decocted from Butz, that indicate a judicial function:

“(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) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal.”

Cleavinger v. Saxner, 474 U.S. 193, 202, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985) (citing Butz, 438 U.S. at 512, 98 S.Ct. 2894). If, upon applying these “Butz factors,” we determine that an official was functioning in a judicial or quasi-judicial capacity when he undertook the act giving rise to the § 1983 suit, then absolute immunity protects him from liability. Id. An official cannot be subjected to responsibility in a civil action, “however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff.” Id. at 199–200, 106 S.Ct. 496(quoting Bradley v. Fisher, 80 U.S. 335, 347, 13 Wall. 335, 20 L.Ed. 646 (1872)).

We have previously held that members of state medical boards are “functionally comparable to judges” and thus “entitled to absolute immunity for their quasi-judicial acts.” Mishler v. Clift, 191 F.3d 998, 1007 (9th Cir.1999). But that does not settle this case: the protection of absolute immunity reaches “only those actions that are judicial or closely associated with the judicial process.” Id. (quoting Buckley, 509 U.S. at 273, 113 S.Ct. 2606). And Buckwalter contends that two acts by the Board Members were nonjudicial and therefore outside the ambit of absolute immunity: (1) their summary suspension of his prescribing privileges and (2) their failure to provide him a prompt postdeprivation hearing. We consider each act in turn.

1. The summary suspension.

In Mishler, we held that absolute immunity applies to “acts occurring during the disciplinary hearing process.” Id. at 1008. Buckwalter argues that when the Board Members exercise their emergency summary suspension authority, they should not enjoy the same immunity that they do when they conduct formal disciplinary hearings.

Determining whether Mishler 's rationale extends to a prehearing summary suspension requires us briefly to review the operation of the two Nevada statutes that define the Board's disciplinary authority, as those statutes appeared in 2008: Chapter 630 of the Nevada Revised Statutes, and the Nevada Administrative Procedure Act, Nevada Revised Statutes § 233B. ²

Chapter 630 specifies that once the Board receives a complaint about a physician, an investigative committee reviews it to determine whether is has a reasonable basis. SeeNev.Rev.Stat. § 630.311. If the investigation substantiates the complaint, the Board may bring formal charges against the physician and set a hearing date. Id. § 630.339. Physicians facing discipline must receive notice of the charges, the hearing date, and any possible sanctions; they are also entitled to representation by counsel and the right to present evidence on any relevant issue. See id.; id. § 233B.121.

Section 127 of the Nevada...