Sullivan v. Carrick
| Citation | 888 F.2d 1 |
| Decision Date | 04 August 1989 |
| Docket Number | No. 88-2059,88-2059 |
| Parties | Daniel F. SULLIVAN, Plaintiff, Appellee, v. Frederick R. CARRICK, Defendant, Appellant. . Heard |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
David S. Peck, Asst. Atty. Gen., Concord, N.H., with whom John P. Arnold, Atty. Gen., Peterborough, N.H., was on brief for defendant, appellant.
Cynthia A. Satter, Hooksett, N.H., with whom Devine, Millimet, Stahl & Branch, Manchester, N.H., was on brief for plaintiff, appellee.
Before BOWNES, TORRUELLA and SELYA, Circuit Judges.
The defendant, Frederick Carrick, appeals from the district court's denial of his motion for summary judgment based on the defenses of absolute and qualified immunity. Our jurisdiction over this appeal is based on the collateral order doctrine of Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) and Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).
We describe the facts in the light most favorable to the nonmovant. See Unwin v. Campbell, 863 F.2d 124, 126 (1st Cir.1988). Both Carrick and Daniel Sullivan, the plaintiff, are licensed chiropractors who practice in New Hampshire. In addition to their private practices, both Sullivan and Carrick are officers in professional organizations. Sullivan is Chairman of the New Hampshire Chiropractic Professional Standards Review Organization. In this capacity, he is often called upon to evaluate the propriety and quality of disputed chiropractic treatment. Sullivan has testified on numerous occasions about treatment provided by Carrick. At times, Sullivan's testimony has been directly contrary to that offered by Carrick, visibly upsetting the latter. Carrick has expressed his animosity towards Sullivan openly, approaching him after one hearing and saying, "I am going to get you for this, you little smurf!"
Carrick is Chairman of the New Hampshire Board of Chiropractic Examiners (the "Board"). The Board investigates complaints against chiropractors. The Board deals with complaints in one of four ways: it can dismiss the complaint summarily, it can conduct an informal hearing, it can administer a private warning, or it can institute and oversee the prosecution of a formal disciplinary hearing. The normal procedure for reviewing a complaint is to appoint an investigator, who is supposed to "contact and question each party individually about the complaint, seeking to determine if grounds exist upon which a hearing should be conducted or some other action taken." Upon completion of the examination, the investigator must submit a written report to the Board containing a recommendation for disposition of the complaint. If the Board so chooses, however, it may act on a complaint directly without taking the intermediate step of appointing an investigator.
On June 10, 1985, Carrick in his official capacity wrote a letter to Sullivan informing him that the Board had scheduled a formal disciplinary hearing regarding a complaint it had received about Sullivan from Ronald Aragona, another chiropractor. Carrick's letter briefly summarized the complaint. Sullivan had apparently rendered second opinions as an independent examiner on three of Aragona's patients. Sullivan essentially opined that the treatment provided by Aragona was therapeutical rather than corrective and that its cost should not be reimbursed under worker's compensation. In his complaint, Aragona alleged that Sullivan's judgment was biased because he had "sold [his] professional services to the insurance industry." App. at 5.
Sullivan states that he was alarmed upon receiving this letter and afraid that the hearing might lead to the revocation of his license. He contacted Edward O'Malley, the Secretary of the Board, for details regarding the pending proceedings. According to Sullivan, O'Malley confirmed that the Board had received a complaint from Aragona, but stated that the Board had not decided what action to take on the complaint. Sullivan then filed the instant lawsuit against Carrick in December 1985, alleging under 42 U.S.C. Sec. 1983 that Carrick had violated his First Amendment rights by unilaterally deciding to hold a formal disciplinary hearing on the complaint against Sullivan in retaliation for the latter's previous testimony. The complaint also stated pendent state claims, including intentional and negligent infliction of emotional distress, and malicious prosecution.
Carrick answered that the Board had been notified of the receipt of a complaint against Sullivan at its April 11, 1985 meeting, and had authorized Carrick to send a notice of a formal disciplinary hearing to Sullivan at its April 18 meeting. Carrick does not dispute, however, that (a) the April 11 meeting minutes indicate that the Board members were not aware of the specific charges in Aragona's complaint and (b) that there is nothing explicit in the minutes of the April 18 meeting, or any other meeting prior to June 10, indicating that the Board had decided to hold a formal disciplinary hearing with respect to the complaint against Sullivan. Furthermore, the audiotape of the critical April 18 meeting has mysteriously disappeared.
Meanwhile, the processing of Aragona's complaint against Sullivan continued. The formal disciplinary hearing that was the subject of the June 10 letter never took place. Instead, at its November 21, 1985 meeting, the Board decided to step back and investigate the complaint further before taking any action. Ronald Lanzara, one of the Board members, was appointed the official investigator for the complaint, to determine if there was a reasonable basis to conduct a formal disciplinary hearing on the complaint. After completing his investigation, Lanzara filed a written report on February 6, 1986. The report questioned Sullivan's professional judgment and diagnoses, and concluded that Sullivan may "indeed be selling his services to a third-party insurance company." The report ended by recommending that the Board conduct a formal disciplinary hearing. At its September 4, 1986 meeting, the Board unanimously voted to adopt Lanzara's recommendation. It then formally authorized Carrick to send Sullivan another notice of hearing. The letter was sent on September 8, and set October 2 as the hearing date. On September 17, Sullivan moved to dismiss the complaint. The Board considered this motion at its October 2 meeting, and granted it in a written opinion issued on October 8, 1986. The reason for the dismissal was unclear; the Board vaguely stated that while it was "very much concerned by the serious nature of the allegations, ... the circumstances surrounding these complaints mandate their dismissal." Thus, no formal disciplinary hearing was ever held concerning the complaints against Sullivan.
With respect to Sullivan's lawsuit, Carrick moved for summary judgment based on absolute immunity. His motion was accompanied by five affidavits. Three of these affidavits were from O'Malley and two other Board members who were present at both the April 11 and 18 Board meetings. They stated that although the minutes do not reflect an official vote, the Board at its April 18 meeting had unanimously authorized Carrick to proceed on all the pending complaints, including the one against Sullivan. The fourth affidavit was from a Board member who was not present at the April 18 meeting. He recalled having discussed with other Board members the Board's request that Carrick schedule a hearing for the complaint against Sullivan. The fifth affidavit was that of Carrick himself, in which he claimed that the Board had authorized him, at its April 11 and 18 meetings, to send out notices of hearing regarding several pending complaints, including that of Sullivan. Carrick also pointed out that his actions had been unanimously ratified by the Board on January 8, 1987.
On August 11, 1987, the district court denied the absolute immunity motion for summary...
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