Gilbert v. Ben-Asher, BEN-ASHER

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore SNEED, FARRIS and FERNANDEZ; PER CURIAM
Citation900 F.2d 1407
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.
Decision Date16 April 1990
Docket NumberNo. 89-15019,BEN-ASHER

Page 1407

900 F.2d 1407
David Bruce GILBERT, M.D., Plaintiff-Appellant,
v.
M. David BEN-ASHER; 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.
No. 89-15019.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted March 12, 1990.
Decided April 16, 1990.

Page 1408

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.

Page 1409

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

Page 1410

the federal claims alleged pursuant to 42 U.S.C. Secs. 1983 and 1985 (1982) and...

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36 practice notes
  • U.S. v. One 1988 Prevost Liberty Motor Home, Civil Action No. H-93-0980.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • December 3, 1996
    ...nothing therein bars the United States, which was not a signatory to the agreement, from bringing this action. See Gilbert v. Ben-Asher, 900 F.2d 1407, 1410 (9th Cir.), cert. denied, 498 U.S. 865, 111 S.Ct. 177, 112 L.Ed.2d 141 The fact that Sheehan was granted a discharge from bankruptcy o......
  • Redeye II, LLC v. MorrisAnderson & Assocs. Ltd. (In re Swift Air, L.L.C.), No: CV-20-00855-PHX-JAT
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • December 1, 2020
    ...any ground supported by the record." In re Bullion Reserve of N. Am. , 922 F.2d 544, 546 (9th Cir. 1991) (quoting Gilbert v. Ben-Asher , 900 F.2d 1407, 1410 (9th Cir. 1990) ). "The appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, wheth......
  • In re Nardone, Case No. 05-21490-JBR (Bankr.Mass. 7/7/2008), Case No. 05-21490-JBR.
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts
    • July 7, 2008
    ...See also In re Berr, 172 B.R. 299, 306 (9th Cir. B.A.P. 1994); In re Lacy, 947 F.2d 1276 (5th Cir. 1991); Gilbert v. Ben-Asher, 900 F.2d 1407 (9th Cir.), cert. denied 498 U.S. 865, 111 S.Ct. 177, 112 L.Ed.2d 141 (1990); Klingman v. Levinson, 831 F.2d 1292 (7th Cir. 1987); In re Halpern, 810......
  • In re Ciprofloxacin Hydrochloride Antitrust Lit., No. 1:00MDL1383DGT.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 31, 2005
    ...sounding in tort,' ... and is contrary to Congress' preemptive regulation in the area of patent law." Id. (quoting Gilbert v. Ben-Asher, 900 F.2d 1407, 1411 (9th The allegations of Count V differ from the state law claim for unfair competition that was not preempted by federal law in Dow. T......
  • Request a trial to view additional results
36 cases
  • U.S. v. One 1988 Prevost Liberty Motor Home, Civil Action No. H-93-0980.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • December 3, 1996
    ...nothing therein bars the United States, which was not a signatory to the agreement, from bringing this action. See Gilbert v. Ben-Asher, 900 F.2d 1407, 1410 (9th Cir.), cert. denied, 498 U.S. 865, 111 S.Ct. 177, 112 L.Ed.2d 141 The fact that Sheehan was granted a discharge from bankruptcy o......
  • Redeye II, LLC v. MorrisAnderson & Assocs. Ltd. (In re Swift Air, L.L.C.), No: CV-20-00855-PHX-JAT
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • December 1, 2020
    ...any ground supported by the record." In re Bullion Reserve of N. Am. , 922 F.2d 544, 546 (9th Cir. 1991) (quoting Gilbert v. Ben-Asher , 900 F.2d 1407, 1410 (9th Cir. 1990) ). "The appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, wheth......
  • In re Nardone, Case No. 05-21490-JBR (Bankr.Mass. 7/7/2008), Case No. 05-21490-JBR.
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts
    • July 7, 2008
    ...See also In re Berr, 172 B.R. 299, 306 (9th Cir. B.A.P. 1994); In re Lacy, 947 F.2d 1276 (5th Cir. 1991); Gilbert v. Ben-Asher, 900 F.2d 1407 (9th Cir.), cert. denied 498 U.S. 865, 111 S.Ct. 177, 112 L.Ed.2d 141 (1990); Klingman v. Levinson, 831 F.2d 1292 (7th Cir. 1987); In re Halpern, 810......
  • In re Ciprofloxacin Hydrochloride Antitrust Lit., No. 1:00MDL1383DGT.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 31, 2005
    ...sounding in tort,' ... and is contrary to Congress' preemptive regulation in the area of patent law." Id. (quoting Gilbert v. Ben-Asher, 900 F.2d 1407, 1411 (9th The allegations of Count V differ from the state law claim for unfair competition that was not preempted by federal law in Dow. T......
  • Request a trial to view additional results

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