Hoke v. BD. OF MEDICAL EXAMINERS OF STATE OF NC

• Decision Date: 23 February 1978
• Docket Number: No. C-C-75-001.,C-C-75-001.
• Court: U.S. District Court — Western District of North Carolina
• Parties: Harold R. HOKE, M.D., Plaintiff, v. BOARD OF MEDICAL EXAMINERS OF the STATE OF NORTH CAROLINA, Dr. Joseph W. Hooper, Jr., Dr. Bryant L. Galusha, Dr. C. T. Partrick, Dr. Jack Powell, Dr. Charles B. Wilkerson, Jr., Bryant D. Paris, Jr., Dr. Frank Edmondson, Dr. J. Jerome Pence, Dr. David S. Citron, Dr. E. Wilson Staub, Dr. Vernon W. Taylor, Jr., their agents, assigns, successors in interest, and those acting in concert with them, all Individually and in their official capacities, Defendants.

445 F. Supp. 1313

Harold R. HOKE, M.D., Plaintiff, v. BOARD OF MEDICAL EXAMINERS OF the STATE OF NORTH CAROLINA, Dr. Joseph W. Hooper, Jr., Dr. Bryant L. Galusha, Dr. C. T. Partrick, Dr. Jack Powell, Dr. Charles B. Wilkerson, Jr., Bryant D. Paris, Jr., Dr. Frank Edmondson, Dr. J. Jerome Pence, Dr. David S. Citron, Dr. E. Wilson Staub, Dr. Vernon W. Taylor, Jr., their agents, assigns, successors in interest, and those acting in concert with them, all Individually and in their official capacities, Defendants.

No. C-C-75-001.

United States District Court, W. D. North Carolina, Charlotte Division.

February 23, 1978.

William H. Elam, Gary A. Davis, Mraz, Casstevens & Davis, Charlotte, N. C., for plaintiff.

Harry C. Hewson, Jones, Hewson & Woolard, Charlotte, N. C., John H. Anderson, Jr., Smith, Anderson, Blount & Mitchell, Raleigh, N. C., for defendants.

ORDER

McMILLAN, District Judge.

This case is before the court on defendants' motion for dismissal of all damages claims and for summary judgment on the remaining portions of the complaint which seek injunctive and declaratory relief. A hearing was conducted on December 13, 1977, and the parties were given until January 20, 1978, to file such further briefs or evidence as they wished. The motions are now ready for decision.

A. THE DAMAGES CLAIMS

The Board of Medical Examiners is an agency of the State of North Carolina. See N.C.G.S. §§ 90-1 et seq. Defendants correctly contend, therefore, that the Board is not a "person" within the meaning of 42 U.S.C. § 1983 and cannot be subject to a suit for damages. Huntley v. North Carolina State Board of Education, 493 F.2d 1016 (4th Cir. 1974); Alabama Optometric Association v. Alabama State Board of Health, 379 F.Supp. 1332 (M.D.Ala.1974); cf. Mazzuco v. State Board of Medical Examiners, 31 N.C.App. 47, 228 S.E.2d 529 (1976), cert. denied, 291 N.C. 323, 230 S.E.2d 676 (1977). Although plaintiff alternatively seeks to sue the Board directly under the Fourteenth Amendment, see Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), this claim must also fail. Such a suit is barred by the Eleventh Amendment. Jagnandan v. Giles, 538 F.2d 1166 (5th Cir. 1976), cert. denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083, 45 U.S.L.W. 3822 (1977); Mauclet v. Nyquist, 406 F.Supp. 1233 (W.D.N.Y. and E.D. N.Y.1976) (three-judge court), aff'd 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977); cf. Hallmark Clinic v. North Carolina Dept. of Human Resources, 519 F.2d 1315, 1318 (4th Cir. 1975). The Board has not waived its immunity. Accordingly, the damages claim against the Board itself will be dismissed.

As to the claim of immunity from damages made by the individual Board members, both parties agree that there is no basis for distinguishing between an action brought under 42 U.S.C. § 1983 and one grounded directly on the Fourteenth Amendment. The immunity from suit of judicial and quasi-judicial officers derives from the common law; it is not something peculiar to § 1983 or to any other constitutional, statutory or common law cause of action. Bethea v. Reid, 445 F.2d 1163 (3d Cir. 1971).

Where the parties vigorously disagree is on the entitlement of the individual Board members to invoke a judicial or quasi-judicial immunity. Such a claim of immunity depends not on the title of the officer but on whether the alleged conduct which gives rise to the complaint involved the performance of a judicial or quasi-judicial function. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); McCray v. Maryland, 456 F.2d 1 (4th Cir. 1972); cf. Pope v. Chew, 521 F.2d 400 (4th Cir. 1975) (state parole board members have quasi-judicial immunity in considering parole applications); Ginger v. Circuit Court for the County of Wayne, 372 F.2d 621 (6th Cir. 1967) (members of state bar grievance committee and state judges have immunity for actions taken in disciplinary proceedings); Moity v. Louisiana State Bar Association, 414 F.Supp. 180, 184 n. 17 (E.D.La.), aff'd 537 F.2d 1141 (5th Cir. 1976) (state bar association entitled to quasi-judicial immunity when passing upon applications for admission to the bar). Plaintiff's contention that only "traditional officers of the court," such as judges, prosecutors and grand jurors, can invoke the immunity must be rejected.

In disciplinary actions under N.C. G.S. § 90-14 the Board of Medical Examiners performs a tripartite function as investigator, prosecutor and adjudicator. Plaintiff's contention that the combination of these three functions in a single body deprives him of due process of law has been rejected by the decision of the three-judge panel in this case. Hoke v. Board of Medical Examiners, 395 F.Supp. 357 (W.D.N.C. 1975), relying on Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 45 L.Ed.2d 712 (1975). Although this merger of roles has been held not to offend due process, it does complicate the decision of defendants' immunity claims.

In Imbler v. Pachtman the Court recognized that there would be some circumstances where a prosecutor acting in an administrative or investigative capacity would not be entitled to the absolute immunity which attaches to his performance of more strictly prosecutorial duties. 424 U.S. 430, 431 n. 33, 96 S.Ct. 984, 47 L.Ed.2d 128; see also Helstoski v. Goldstein, 552 F.2d 564 (3d. Cir. 1977); Briggs v. Goodwin, 186 U.S.App.D.C. ___, 569 F.2d 10 (1977); Weathers v. Ebert, 505 F.2d 514, 517 (4th Cir. 1974).

The Court recognized that drawing a line between protected and non-protected activities would be difficult, but it left no doubt that the decision to initiate a prosecution was clearly within the scope of the prosecutor's role as a quasi-judicial officer.

Plaintiff bases his liability claim against the individual Board members on the following sequence of events. The court has drawn upon plaintiff's own version of the story as stated in briefs and oral argument on the present motion.

In response to newspaper reports in the Charlotte Observer, Dr. Joseph Hooper, then president of the Board, and possibly also Dr. Frank Edmondson, then secretary of the Board, requested on behalf of the full Board that Mr. John H. Anderson, the Board's attorney, undertake an investigation to determine whether charges should be brought against plaintiff. Mr. Anderson had served as the Board's attorney for over twenty years and had frequently conducted preliminary investigations on information received by the Board. The request made was a general one: Anderson was to "find out whatever he could" about the statements made in the press. At the time the newspaper articles appeared plaintiff had two suits pending in this court, one against Presbyterian Hospital of Charlotte and the other against Charlotte Memorial Hospital.

It is plaintiff's claim that Anderson conducted a biased and one-sided investigation, ignoring or refusing to inquire into the existence of evidence which would rebut charges made against plaintiff. Plaintiff complains that Anderson made no effort to speak with him or make a first-hand investigation of his clinic. The investigation was primarily based on newspaper reports, conversations with former employees of plaintiff, and an examination of affidavits and documents filed in the suit involving Charlotte Memorial Hospital.

Discovery has turned up no evidence to date which suggests that individual Board members participated in the investigation other than by reading the original articles which appeared in the newspapers. The members of the Board relied entirely on the report by Anderson and on charges made in the press. Several of them stated in deposition that they had always had full confidence in Anderson and had seen no reason to doubt his word in the case involving plaintiff.

Some time in the late summer of 1974, on the basis of Anderson's oral report to the Board, the Board voted to prefer charges covering all the alleged incidents about which Anderson had gathered information. Formal charges were drafted by Anderson and by Dr. Hooper and were served on plaintiff; no formal vote was taken on the final draft as a whole or on specific charges. An additional charge was added in the fall of 1974 based on a subsequent report from Anderson concerning a pending misdemeanor prosecution against plaintiff.

It is alleged that the decision to investigate was in part prompted by a letter from the president of the Mecklenburg County Medical Society to the Board's executive secretary concerning plaintiff's fitness to practice medicine. One Board member (Dr. Galusha) recalled this letter, but several others did not. Plaintiff also contends that his attorney in the case against Presbyterian Hospital was informed by the hospital's lawyer that if he persisted with the suit he would probably have his license revoked by the Board. Again, however, discovery has failed to turn up any evidence that this statement emanated from or reflected the views of any of the Board members themselves. The attorney for the hospital had no formal association with the Board, and there is no evidence that he had discussed the Presbyterian case with any individual Board members.

Finally, plaintiff claims that Anderson's investigation was necessarily suspect because his law firm was contemporaneously representing a defendant in another lawsuit filed by plaintiff in the Eastern District of North Carolina and because Anderson's firm also occasionally represented clients at the request of the insurance company which provided coverage for Presbyterian and Charlotte Memorial Hospitals. None of the Board members examined in deposition confessed any knowledge of Anderson's supposed conflicts.

The Board's decision to prefer charges is indistinguishable from a prosecutor's decision to initiate a criminal proceeding or a grand jury's decision to return a criminal indictment. For this reason the court concludes that the individual Board members are not...