Dover v. Haley

• Decision Date: 26 November 2013
• Docket Number: 3:13-CV-01360-BR
• Court: U.S. District Court — District of Oregon
• Parties: ERIC A. DOVER, Plaintiff, v. KATHLEEN HALEY, JD, et al., Defendants.

ERIC A. DOVER, Plaintiff, v. KATHLEEN HALEY, JD, et al., Defendants.

3:13-CV-01360-BR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

DATED: November 26, 2013

OPINION AND ORDER

ERIC A. DOVER

Plaintiff, Pro Se

ELLEN ROSENBLUM

Attorney General

MARC ABRAMS

Assistant Attorney General

Attorneys for Defendants

BROWN, Judge.

This matter comes before the Court on Defendants' Motion (#38) to Dismiss or for Summary Judgment. For the reasons that follow, the Court GRANTS Defendants' Motion to Dismiss and DENIES as moot Defendants' Motion for Summary Judgment.

BACKGROUND

The following facts are taken from Plaintiff's Complaint and the document attached to the Declaration of Marc Abrams.¹

On October 30, 2009, the Oregon Medical Board (OMB) issued a Complaint and Notice of Proposed Disciplinary Action to Plaintiff Eric Dover.

On September 21 and 22, 2010, a hearing was held before an Administrative Law Judge (ALJ). Plaintiff was represented by an attorney. Plaintiff testified, called a witness, and questioned the witnesses called by the OMB.

At some point the ALJ issued Findings and Recommendation in which he found Plaintiff "engaged in unprofessional conduct and repeated negligence, and . . . violated a[n OMB] order." Abrams Decl., Ex. A at 20. The ALJ proposed a number of sanctions against Plaintiff including revocation of Plaintiff's medicallicense with the revocation to be held in abeyance, suspension from the practice of medicine for two years, and a civil penalty. Id.

On January 14, 2011, the OMB issued a final order in which it adopted the ALJ's findings. The OMB, however, declined to adopt the ALJ's proposed sanctions on the ground that Plaintiff's "refusal to accept responsibility for his conduct, his refusal to comply with a[n OMB] order, and his continued defiant attitude make [Plaintiff] a poor candidate for rehabilitation." Id. Thus, the OMB, among other things, revoked Plaintiff's license to practice medicine in Oregon. Id. at 20-21. The OMB advised Plaintiff that he could appeal the OMB's final order by filing a petition with the Oregon Court of Appeals within 60 days pursuant to Oregon Revised Statute § 183.480, et seq. Plaintiff did not appeal the OMB's final order.

On August 7, 2013, Plaintiff filed a pro se Complaint in this Court pursuant to 42 U.S.C. § 1983 against 33 named individuals, the OMB, and 50 John and Jane Does. Plaintiff alleges numerous violations of various Articles and Amendments to the United States Constitution and seeks damages as well as an order enjoining Defendants "retroactively from maintaining [the OMB] decision," reinstatement of Plaintiff's license to practice medicine in the State of Oregon, and a declaration that the Oregon statute under which the OMB may revoke a license topractice medicine is unconstitutional.

On August 26, 2013, Defendants filed a Motion to Dismiss or for Summary Judgment.² On October 2, 2013, Plaintiff filed a Response to Defendants' Motion. On October 4, 2013, Defendants filed a Reply. On October 9, 2013, Plaintiff submitted two letters to the Court in further response to Defendants' Motion. The Court permitted Defendants to file a Surreply no later than October 18, 2013. Defendants declined to file a Surreply, and the Court took this matter under advisement on October 18, 2013.

STANDARDS

I. Dismissal for lack of jurisdiction pursuant to Rule 12(b)(1).

Plaintiff has the burden to establish that the court has subject-matter jurisdiction. Robinson v. Geithner, 359 F. App'x 726, 728 (9^th Cir. 2009). See also Ass'n of Am. Med. Coll. v. United States, 217 F.3d 770 (9^th Cir. 2000).

When deciding a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), the court may consider affidavits and other evidence supporting or attacking the complaint's jurisdictional allegations. Rivas v. Napolitano, 714F.3d 1108, 1114 n.1 (9^th Cir. 2013). The court may permit discovery to determine whether it has jurisdiction. Laub v. United States Dep't of Interior, 342 F.3d 1080, 1093 (9^th Cir. 2003). When a defendant's motion to dismiss for lack of jurisdiction "is based on written materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Mavrix Photo, Inc. v. Brand Tech., Inc. , 647 F.3d 1218, 1223 (9^th Cir. 2011)(citation omitted).

II. Summary Judgment.

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Washington Mut. Ins. v. United States, 636 F.3d 1207, 1216 (9^th Cir. 2011). See also Fed. R. Civ. P. 56(a). The moving party must show the absence of a dispute as to a material fact. Rivera v. Philip Morris, Inc. , 395 F.3d 1142, 1146 (9^th Cir. 2005). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine dispute as to a material fact for trial. Id. "This burden is not a light one. . . . The non-moving party must do more than show there is some 'metaphysical doubt' as to the material facts at issue." In re Oracle Corp. Sec. Litig. , 627 F.3d 376, 387 (9^th Cir. 2010) (citation omitted).

A dispute as to a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Villiarimo v. Aloha Island Air, Inc. , 281 F.3d 1054, 1061 (9^th Cir. 2002)(quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). The court must draw all reasonable inferences in favor of the nonmoving party. Sluimer v. Verity, Inc. , 606 F.3d 584, 587 (9^th Cir. 2010). "Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues." Easter v. Am. W. Fin. , 381 F.3d 948, 957 (9^th Cir. 2004)(citation omitted). A "mere disagreement or bald assertion" that a genuine dispute as to a material fact exists "will not preclude the grant of summary judgment." Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011) (citing Harper v. Wallingford, 877 F.2d 728, 731 (9^th Cir. 1989)). When the nonmoving party's claims are factually implausible, that party must "come forward with more persuasive evidence than otherwise would be necessary." LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9^th Cir. 2009)(citation omitted).

The substantive law governing a claim or a defense determines whether a fact is material. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9^th Cir. 2006). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Id.

DISCUSSION

Defendants move to dismiss Plaintiff's Complaint on the grounds that (1) Defendants are statutorily immune from this action, (2) they are entitled to absolute immunity under common law as to Plaintiff's claims, (3) this matter is barred by the Rooker-Feldman doctrine, (4) Plaintiff's claims are untimely, (5) Plaintiff's claims against Defendant John Kroger for supervisory responsibility fail, and (6) Defendants are entitled to qualified immunity.

I. Defendants are immune from suit.

The named Defendants fall into four categories:

(1) Members of the OMB including Joseph Thaler, Linda Johnson, Ralph Yates, Roger McKimmy, Donald Girard, George Koval, Ramiro Gaiten, Douglas Kirkpatrick, Lewis Neace, Patricia Smith, Gary LeClair, Sarojoini Budden, Clifford Deveny, Keith White, Kent Williamson III, Nathalie Johnson, Shirin Sukumar, Clifford Mah, Michael Mastrangelo, and Angelo Turner;

(2) Staff of the OMB including Kathleen Haley, Nicole Krishnaswami, Jim Peck, Phillip Parshley, James Calvert, Jay Drum, Gary Stafford, and Eric Brown;

(3) ALJ Rick Barber; and

(4) Attorneys with the Oregon Department of Justice

including John Kroger and Warren Foote.

A. Statutory immunity.

Oregon Revised Statute § 677.335 provides:

(1) Members of the Oregon Medical Board, members of its administrative and investigative staff, medical consultants, and its attorneys acting as prosecutors or counsel shall have the same privilege and immunities from civil and criminal proceedings arising by reason of official actions as prosecuting and judicial officers of the state.

(2) No person who has made a complaint as to the conduct of a licensee of the board or who has given information or testimony relative to a proposed or pending proceeding for misconduct against the licensee of the board, shall be answerable for any such act in any proceeding except for perjury committed by the person.

Defendants, with the exception of ALJ Rick Barber, are members of the OMB, part of the OMB's administrative and investigative staff, or attorneys representing OMB (the OMB Defendants). The OMB Defendants, therefore, are immune from Plaintiff's claims, all of which arise out of the OMB Defendants' official actions as prosecuting and judicial officers. See, e.g., Read v. Haley, No. 3:12-cv-02021-MO, 2013 WL 1562938, at *7 (D. Or. Apr. 10, 2013)("The members of the Oregon Medical Board are expressly mentioned in the statute, Mr. Foote acted as counsel for the Board at the ALJ hearing, and the unknown employees of the Oregon Medical Board are presumably either administrative or investigative staff. Moreover, [the plaintiff's] . . . claim clearly arises out of these defendants'official actions. Consequently, they all fall within Or. Rev. Stat. § 677.335(1), and they are all entitled to immunity.").

Accordingly, the Court grants Defendants' Motion to Dismiss Plaintiff's claims as to all Defendants other than ALJ Barber on the grounds of statutory immunity under § 677.335.

B. Absolute immunity.

Defendants also contend Plaintiff's claims are barred by common-law absolute immunity.

The Supreme Court has consistently accorded absolute immunity "to judges and prosecutors functioning in their official capacity" to ensure judicial officers are "free to act upon [their] own convictions, without apprehension of personal...