Pfeiffer v. Hartford Fire Ins. Co.

• Decision Date: 05 April 1991
• Docket Number: No. 90-1012,90-1012
• Parties: Richard E. PFEIFFER, M.D., F.A.C.O.G., Plaintiff-Appellant, v. HARTFORD FIRE INSURANCE COMPANY; Memorial Hospital; J.R. Brusenhan; Samuel Downing, M.D.; and Penrose Hospital, Defendants, and Robert Brittain, M.D.; Colorado State Attorney General; its agents Ann Sayvetz, David Burlage, and William Richardson, Defendants-Appellees. Tenth Circuit
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1484

929 F.2d 1484

Richard E. PFEIFFER, M.D., F.A.C.O.G., Plaintiff-Appellant, v. HARTFORD FIRE INSURANCE COMPANY; Memorial Hospital; J.R.

Brusenhan; Samuel Downing, M.D.; and Penrose

Hospital, Defendants,

and

Robert Brittain, M.D.; Colorado State Attorney General;

its agents Ann Sayvetz, David Burlage, and William

Richardson, Defendants-Appellees.

No. 90-1012.

United States Court of Appeals,

Tenth Circuit.

April 5, 1991.

Ann E. Devine, Washington, D.C., for plaintiff-appellant.

Richard B. Caschette and John R. Mann of Cooper & Kelley, P.C., Denver, Colo., for Robert Brittain, M.D.

F. Michael Ludwig and Clifton J. Latiolais, Jr. of Wood, Ris & Hames, P.C., Denver, Colo., for Colorado State Atty. Gen., Ann Sayvetz, David Burlage, and William Richardson.

Before LOGAN, MOORE and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

This appeal arises out of an action filed by appellant Richard E. Pfeiffer against his medical malpractice insurer, the Colorado Attorney General, several Colorado assistant attorneys general and others in connection with disciplinary proceedings brought against him by the Colorado State Board of Medical Examiners. The principal issues on appeal concern the district court's refusal to remand this action to state court after Pfeiffer attempted to add nondiverse defendants to his complaint, its decision on summary judgment that the Colorado assistant attorneys general were absolutely immune from liability under section 1983 and the possible application of the statute of limitations as an additional bar to Pfeiffer's claims against these individual state defendants. We affirm in part and reverse in part.

Background

The following facts are undisputed unless otherwise noted:

Appellant Pfeiffer is a medical doctor who, at the times relevant to this proceeding, practiced in the area of obstetrics and gynecology in Colorado Springs. In 1979, defendant Memorial Hospital suspended Pfeiffer's staff privileges because of his refusal to treat an indigent patient. During this same period, three of Dr. Pfeiffer's patients accused him of sexual misconduct during the course of their care. Both of these incidents came to the attention of the Colorado State Board of Medical Examiners (Board), and led it to initiate a complaint of unprofessional conduct against Dr. Pfeiffer on October 24, 1979. As required by C.R.S. Sec. 12-36-118(4)(1985), this complaint was referred to an inquiry panel of the Board ¹ for investigation after Pfeiffer was notified of the complaint and given an opportunity to respond to it. Rec.Vol. I, Doc. 151, Ex. C.

The Board's inquiry panel apparently completed its investigation in early 1980 because on January 17, 1980, the Board voted to refer the matter to the Colorado Attorney General's office for preparation of a formal complaint seeking disciplinary action against Pfeiffer. Id., Ex. E; see C.R.S. Sec. 12-36-118(4)(c)(IV). Ann Sayvetz, then a state assistant attorney general, began working on Pfeiffer's case in October, 1980. Rec.Vol. I, Doc. 151, Ex. E. William Richardson and David Burlage, also both assistant attorneys general, first became involved in the matter in January 1981 and October 1982, respectively. Id.

In or before December of 1980, Sayvetz and the Board learned that Penrose Hospital had recently taken disciplinary action against Pfeiffer in connection with one of his patient's delivery of a stillborn child. See Rec.Vol. I, Doc. 162, Ex. 7. In response to this information, Sayvetz briefly discussed the incident by telephone with the hospital's Director of Medical Affairs and wrote him a letter informing him that a Board investigator would be contacting the hospital for additional information. Id. On March 12, 1981, the Board voted to add the Penrose incident to the formal complaint being prepared by the Attorney General's office. Rec.Vol. I, Doc. 151, Ex. D.

Sometime after the Attorney General's office began preparation of this complaint, Pfeiffer requested that all Board proceedings against him be kept confidential until, at minimum, the Board had heard and decided his case. Coe v. District Court, 676 F.2d 411, 413, 415 (10th Cir.1982). The Board's hearing panel agreed to this request on the condition that Pfeiffer surrender his license to practice medicine in Colorado pending the outcome of the proceedings. Pfeiffer rejected this offer and, using a fictitious name, filed an action for injunctive and declaratory relief in federal district court to restrain the Board from publicizing the charges against him. Id. On March 4, 1982, the district court dismissed Pfeiffer's complaint on the ground that Pfeiffer could not proceed under a fictitious name. Pfeiffer then petitioned this court for a writ of mandamus or prohibition. On April 21, 1982, we denied that petition upon determining that Pfeiffer had no due process or other right to compel the Board to conduct its proceedings against him in secret. Id. at 417.

On May 10, 1982, shortly after this resolution of the confidentiality issue, the Board filed the formal complaint against Pfeiffer that had been prepared by the Colorado Attorney General's office. Rec.Vol. I, Doc. 151, Ex. A. The complaint charged Pfeiffer with professional misconduct in violation of the Colorado Medical Practices Act in connection with both the Memorial and Penrose Hospital incidents and the three reported incidents of sexual relations with patients.

Sometime during this period, Pfeiffer alleges that the individual state attorneys granted newspaper reporters access to their files on his case, resulting in the publication of the formal charges against him. Rec.Vol. I, Doc. 61, p 28. Although there is no evidence in the record indicating when this alleged "press leak" happened, the parties appear to agree that it occurred in May 1982, after our decision in Coe but before the Board formally filed charges against Pfeiffer. Opening Brief at 10-11; State Defendants's Answer Brief at 29. Pfeiffer also alleges that the individual state attorneys later released discovery materials to the press during the Board's proceedings.

The Board conducted public hearings on the Pfeiffer charges between October 1982 and August 1983. In an order dated January 24, 1984, it concluded the matter by dismissing all charges other than that relating to the stillbirth at Penrose Hospital. Rec.Vol. I, Doc. 162, Ex. 14. With respect to that incident, the Board found that Pfeiffer's actions leading up to the stillbirth violated C.R.S. Sec. 12-36-117(1)(p) because they constituted two or more acts or omissions that failed to meet generally accepted standards of medical practice. Rec.Vol. I, Doc. 162, Ex. 14 at 25. On appeal the Colorado Court of Appeals set aside the Board's determination upon finding that Pfeiffer's misconduct was actually a "single course of conduct" that did not violate the Colorado Medical Practices Act's "two or more acts or omissions" standard. People v. Pfeiffer, 725 P.2d 19, 21 (Colo.App.1986).

In August, 1985, Pfeiffer filed this action in the Colorado District Court for Arapahoe County against his medical malpractice insurer, defendant Hartford Fire Insurance Company, for its alleged misconduct in defending him before the Board. Hartford removed this action to the United States District Court for the District of Colorado on the basis of complete diversity of citizenship between the parties. Pfeiffer responded by amending his complaint to assert state common law tort and/or federal civil rights claims based on 42 U.S.C. Sec. 1983 against Colorado residents: Memorial and Penrose Hospitals; the Colorado Attorney General; three assistant attorneys general, Ann Sayvetz, William Richardson and David Burlage (individual state attorneys); and several doctors, including Dr. Robert Brittain, who allegedly participated in the Board's investigation and prosecution of Pfeiffer. ²

The district court next entertained a flurry of motions to dismiss and for summary judgment from the new defendants. These motions ultimately led the court to dismiss Pfeiffer's section 1983 claims against the hospitals and private doctors for failure to allege the necessary state action and to dismiss his state law claims against these nondiverse defendants for failure to state a claim within the jurisdiction of the district court. Pfeiffer v. Hartford Fire Ins. Co., No. 85-M-2136, Order of Dismissal As To Certain Defendants (July 17, 1987). The court then dismissed the state common law tort claims against the individual state attorneys due to Pfeiffer's failure to file notice of his intent to sue as required by Colorado's Governmental Immunity Act, C.R.S. Sec. 24-10-109 (1988). Pfeiffer v. Hartford Fire Ins. Co., No. 85-M-2136, Memorandum Opinion and Order (Feb. 18, 1988). The district court next granted summary judgment to the Colorado Attorney General on all claims against him as a result of his immunity from suit in federal court under the Eleventh Amendment. Pfeiffer v. Hartford Fire Ins. Co., No. 85-M-2136, Memorandum Opinion and Order at 3 (June 20, 1988) (Summary Judgment Order). Finally, the court granted summary judgment to the individual state attorneys on the remaining section 1983 claim on the ground that Pfeiffer had failed to present any evidence that the actions he challenged fell outside the protective ambit of absolute prosecutorial immunity. Id. at 4.

Before granting the individual state attorneys summary judgment on the basis of prosecutorial immunity, the district court also considered these defendants' motion to dismiss Pfeiffer's section 1983 claim on statute of limitations grounds. See Pfeiffer v. Hartford Fire Ins. Co., No. 85-M-2136, Memorandum Opinion and Order on Statute of Limitations (Oct. 8, 1987) (Statute of Limitations Order). The court found that the statute of limitations for this claim was six years based on its conclusions that: the applicable statute of limitations for section 1983 actions at the time Pfeiffer's claim arose...