Demery v. Kupperman
| Decision Date | 22 June 1984 |
| Docket Number | No. 82-5710,82-5710 |
| Citation | 735 F.2d 1139 |
| Parties | Leroy W. DEMERY, M.D., Plaintiff-Appellant, v. Lawrence KUPPERMAN, Deputy Attorney General of the State of California; Robert Rowland, Executive Secretary of the Board of Medical Quality Assurance and Joseph Cosentino, M.D., Medical Consultant to the Board of Medical Quality Assurance, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Leroy W. Demery, M.D., pro se.
Paul T. Hammerness, Asst. Atty. Gen., Los Angeles, Cal., for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before HUG and REINHARDT, Circuit Judges, and PANNER, * District Judge.
Dr. Demery appeals the dismissal of his complaints against the California Deputy Attorney General and the Executive Secretary and the Chief Medical Consultant of the California Board of Medical Quality Assurance (BMQA). The complaint alleged that the defendants conspired to deprive Dr. Demery of his civil rights. The alleged conspiracy occurred in connection with administrative proceedings that resulted in the conditional revocation by the BMQA of Dr. Demery's license to practice medicine.
The district court dismissed both complaints on immunity grounds. Dismissal of the complaint against the Deputy Attorney General was based on the prosecutor's absolute immunity from civil rights damage suits challenging quasi-judicial actions. The complaint against the other two defendants was dismissed on eleventh amendment grounds. We affirm the dismissal of the complaint against the Deputy Attorney General but reverse the dismissal of the complaint against the other two defendants.
In 1977, the BMQA held hearings to determine whether to discipline Dr. Demery. Dr. Demery was accused of prescribing dangerous drugs without a prior good faith examination of the patient, a violation of After the hearing, the BMQA issued an order revoking Dr. Demery's medical license. The BMQA stayed its order and ordered that Dr. Demery be placed on probation for five years upon completing a six-month medical education course and passing an oral examination. Dr. Demery alleges that the BMQA subsequently waived the requirement that he complete the medical education course. He claims that, relying on the waiver, he allowed the time for appealing the BMQA's order to pass. He claims further that Deputy Attorney General Kupperman issued a verbal opinion revoking the waiver but failed to notify him of the revocation.
California Business and Professional Code section 2399.5, Cal.Bus. & Prof.Code Sec. 2399.5 (West 1974) (repealed 1980), and of prescribing controlled substances not in the regular practice of his profession, a violation of California Health and Safety Code section 11154, Cal.Health & Safety Code Sec. 11154 (West 1975) (amended 1982). Dr. Demery claims that the charges against him were based on, and that the outcome of the BMQA hearings was influenced by, the perjured testimony of state agents. He claims that the perjured testimony was wilfully induced by Deputy Attorney General Kupperman.
After the time for appealing the BMQA's order had passed, defendants Rowland and Cosentino proceeded to enforce the allegedly waived provisions of the BMQA's order. Dr. Demery was also subsequently convicted criminally of prescribing controlled substances without a prior good faith examination. He was sentenced to a period of incarceration. 1
In 1981, Dr. Demery initiated this action under 42 U.S.C. Sec. 1983 (1976). He alleged that, by inducing the state agents to testify falsely, defendant Kupperman deprived him of his right to a fair hearing. He also alleged that defendant Kupperman, by revoking the waiver and failing to notify Dr. Demery of the revocation, and defendants Rowland and Cosentino, by wrongfully enforcing the waived provisions after the time for appeal had passed, conspired to deny him his right to an appeal and his right to practice medicine. Dr. Demery asked that the district court award him five million dollars in damages and order the defendants to "take whatever steps are necessary to have the [BMQA] vacate the administrative order relating to [Dr. Demery] and immediately restore his license to practice medicine."
The district court dismissed the complaint against defendant Kupperman on the ground that, because the complaint alleged acts Kupperman would have performed in his capacity as a prosecutor, Kupperman was "cloaked with absolute immunity from this type of suit." The court also dismissed the complaint against defendants Rowland and Cosentino, holding that, because California law required California to pay whatever damages the court awarded Dr. Demery, Dr. Demery's suit was barred by the eleventh amendment. 2 We affirm the dismissal of Dr. Demery's complaint against defendant Kupperman, but reverse the dismissal of the complaint against defendants Rowland and Cosentino.
Dr. Demery alleges that defendant Kupperman deprived him of his civil rights by (a) wilfully inducing certain investigative agents to commit perjury, and (b) failing to notify Dr. Demery that he was revoking the BMQA's waiver of certain requirements contained in the BMQA's order of With regard to the prayer for equitable relief, the complaint against Kupperman was properly dismissed. Dr. Demery does not contend, and it does not appear, that Deputy Attorneys General have any role whatever in the issuance or vacation of BMQA orders or in the revocation or restoration of medical licenses. See Cal. Const. art. V, Sec. 13 (describing powers of Attorney General); Cal.Bus. & Prof.Code Secs. 2000-22 (West 1984) (). The Attorney General simply acts as legal counsel to the board in judicial and administrative proceedings against it. See Cal.Bus. & Prof.Code Sec. 2020 (West 1984).
August 31, 1977. He seeks both damages and equitable relief.
With regard to the prayer for damages, Dr. Demery argues that, because the conduct that allegedly gave rise to the civil rights violations was administrative or investigative, not quasi-judicial, in nature, the district court erred in finding Kupperman absolutely immune. We agree with the district court that Kupperman was absolutely immune from this type of suit.
In enacting section 1983, Congress did not abrogate the common-law immunity that state officials traditionally enjoyed. See Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). The contours of prosecutors' immunity from section 1983 suits were outlined by the Supreme Court in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) and Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). In Imbler, the Court held that prosecutors, both state and federal, are absolutely immune from section 1983 damage suits challenging conduct "intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S. at 430, 96 S.Ct. at 995. It expressly declined to "consider whether like or similar reasons require immunity for those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate." Id. at 430-31, 96 S.Ct. at 994-95. The Court thus left standing the Ninth Circuit rule, enunciated in Robichaud v. Ronan, 351 F.2d 533 (9th Cir.1965), that a prosecutor is absolutely immune when he acts in a "quasi-judicial capacity," but that he enjoys only a qualified immunity "[i]f he acts in the role of a policeman." Id. at 536.
In Imbler, the Court recognized that the line between "administrative" or "investigative" acts and "quasi-judicial" acts is not always a clear one. It noted that some of the duties of a prosecutor in his role as an advocate for the state involve actions that may also be denominated "administrative" or "investigative." 424 U.S. at 430-31 & n. 33, 96 S.Ct. at 995 & n. 33. It declined, however, to lay down rules for determining which such duties would give rise to absolute prosecutorial immunity. We recently undertook that task in Freeman ex rel. the Sanctuary v. Hittle, 708 F.2d 442 (9th Cir.1983) (per curiam) and Ybarra v. Rose, 723 F.2d 675 (9th Cir.1984). In those cases, we held that that absolute prosecutorial immunity attaches to the actions of a prosecutor if those actions were performed as part of the prosecutor's preparation of his case, even if they can be characterized as "investigative" or "administrative." Freeman, 708 F.2d at 443 ("investigative" acts); Ybarra, 723 F.2d at 679 ("administrative" acts).
In Butz v. Economou, the Supreme Court held that officials performing the functions of a prosecutor in administrative proceedings are entitled to the absolute prosecutorial immunity described in Imbler. Butz, 438 U.S. at 511-12, 98 S.Ct. at 2913-14. Although Butz involved federal administrative officials, we have held that the Imbler immunity also applies to state administrative officials who perform functions analogous to those of a prosecutor. Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir.), cert. denied, 454 U.S. 1102, 102 S.Ct. 678, 70 L.Ed.2d 644 (1981).
The first of Dr. Demery's claims against Kupperman is squarely controlled by the Supreme Court's holdings in Imbler and Butz, as refined by our holdings in Freeman- Dr. Demery next complains of Kupperman's failure to notify him of the revocation of the waiver of the medical course requirement. Because that failure did not occur in connection with the preparation of the case, our holdings in Freeman and Ybarra do not in terms control. We believe, however, that the principles that underlie the doctrine of absolute prosecutorial immunity require a holding that prosecutors are absolutely immune from civil suits alleging wrongdoing with regard to post-litigation as well as pre-litigation handling of a case.
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