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United States District Court, S.D. California

December 23, 2005.


The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge

Now before the Court is Defendants' Tamelah Carew, David Herrick, Kristin Stafford, the Medical Board of California, Dave Thornton, Patricia Stillwell, Nancy M. Edwards, Mark A. Kalish, M.D., Joseph F. Kennedy, M.D. and Ronald L. Moy, M.D. (collectively "State Defendants") motion to dismiss. Based upon a careful review of the pleadings and all relevant exhibits submitted by the parties, and for the reasons set forth below, this Court DENIES IN PART and GRANTS IN PART State Defendants' motion to dismiss.


  I. Factual Background

  Plaintiff Robert Sterner ("Plaintiff") is a licensed physician practicing medicine in the State of California since 1984. Plaintiff maintains two medical offices in El Cajon and San Diego. In 2001, Dr. Sterner began to issue recommendations for medical marijuana to some of his patients. Plaintiff is the former employer of Defendants Carew, Herrick and Stafford. Defendant Stafford left her office manager position in March 2003. Defendants Carew and Herrick were terminated in May 2003.

  On or about May 23, 2003, Defendant Carew approached Defendant DEA Agent Brasich with information regarding Plaintiff's income and the reporting of his finances. Based on this information, Defendant Brasich drafted a report recommending investigation of Plaintiff. Brasich forwarded this report to Defendant State Medical Board on June 16, 2003. Brasich also approached Defendant Toussaint to commence an Internal Revenue Service ("IRS") investigation of Plaintiff.

  On or about August 8, 2003, Defendant Stillwell and three other Medical Board investigators interviewed Plaintiff at his medical office in El Cajon. Plaintiff met with the investigators and answered their questions. Plaintiff also allowed them to examine the office, as well as his drug dispensing records and invoices. According to Plaintiff, the investigators found nothing to raise concerns over his practice, nor had any patient filed a complaint of malpractice, mistreatment or other complaint. On August 26, 2003, Defendant Stillwell served an investigational subpoena ordering him to appear and testify before Defendants Stillwell and Kennedy. Plaintiff, with counsel, met with the Defendants on November 14, 2003.

  On November 20, 2003, the IRS and Defendant IRS Special Agent Darline Toussaint, sought, and received, five separate search warrants to search Plaintiff's medical offices, home, storage facilities and safe deposit box. The IRS and Defendant Toussaint searched these locations on November 24, 2003. The IRS seized, in addition to business and tax records authorized by the warrant, records and treatment histories for each of Plaintiff's patients. On July 28, 2004, the federal grand jury's investigation of Plaintiff ended with no criminal charges filed.

  Approximately one year after Plaintiff met with Defendants Stillwell and Kennedy of the State Medical Board, the Medical Board filed a petition on December 2, 2004, for an order to compel psychiatric examination of Plaintiff, as well as submit to blood and urine tests.

  2. Procedural History Plaintiff individually, and on behalf of his patients (collectively "Plaintiffs"), filed the instant complaint on February 1, 2005. The Honorable Jeffrey T. Miller extended the answer deadline for federal defendants on March 15 and April 5, 2005. See Doc. Nos. 15 and 18. Plaintiffs and State Defendants also stipulated to Plaintiffs not seeking a default judgment within thirty days of service of the complaint. See Doc. No. 19.

  On May 5, 2005, Defendant Toussaint, joined by the DEA, moved to disclose the grand jury material in Plaintiff's investigation. See Doc. Nos. 22 and 24. Plaintiff filed a response on May 23, 2005. Doc. No. 28. Defendant Toussaint filed a reply on June 1, 2005. Plaintiff subsequently filed a motion for protective order, and for leave to file pleadings and documents under seal on June 21, 2005. See Doc. No. 37. Defendants DEA and Toussaint, joined by State Defendants, filed a response on July 12, July 18, and July 26, 2005, respectively. See Doc. Nos. 36, 38 and 41. The motions to disclose grand jury material and for protective order were heard by Magistrate Judge Battaglia on July 29, 2005. See Doc. No. 47. Judge Battaglia granted Defendants' motion for disclosure of grand jury material and Plaintiffs' motion for protective order. Id. Judge Battaglia also granted Defendant DEA's motion for extension of time to respond to the complaint. Id.

  The instant motion was filed by State Defendants on May 12, 2005. Doc. No. 25. Plaintiffs filed an opposition on June 16, 2005. Doc. No. 33. The State Defendants filed a reply on July 11, 2005. Doc. No. 35. This case was transferred to this Court on July 27, 2005. Doc. No. 44. On September 29, 2005, this motion was taken under submission without an oral hearing pursuant to Civ. LR 7.1 (d.1). See Doc. No. 58.


  1. Legal Standard

  A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal of a claim under this Rule is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Navarro, 250 F.3d at 732. Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see also Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law."). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. However, motions to dismiss are generally disfavored and rarely granted. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997).

  In reviewing a motion to dismiss under Rule 12(b)(6), the Court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions cast in the form of factual allegations need not be taken as true. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

  2. Analysis

  State Defendants move to dismiss this case based on: 1) lack of standing to assert the case on behalf of his patients; 2) Eleventh Amendment; 3) Defendants Carew, Herrick and Stafford are not public employees, and are protected under the Noerr-Pennington doctrine; and 4) Defendants Thornton, Stillwell, Edwards, Kalish, Kennedy and Moy have absolute immunity, barring personal liability for any damages claimed. See Doc. No. 26.

  A. Standing

  Plaintiff asserts that the doctor-patient privilege endows on Plaintiff, as custodian of his patient's private medical records, the right and duty to assert the privacy rights of his patients. Id. Plaintiff also relies on a "First Amendment right to injunctive relief on behalf of his patients pursuant to Conant v. Walters." Id. at 3-4 (emphasis in original). Defendants reply that under Conant, plaintiff's class was narrowly defined to include only patients seeking injunctive relief against the federal defendants. Doc. No. 35 at 2. Defendants also contend that including all of Plaintiff's patients in the suit requires Plaintiff to certify the class pursuant to Rule 23 of the Federal Rules of Civil Procedure. Id. A federal court's judicial power is limited to "cases" or "controversies." U.S. Const., Art. III § 2. A necessary element of Article III's "case" or "controversy" requirement is that a litigant must have "`standing' to challenge the action sought to be adjudicated in the lawsuit." Valley Forge College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982); LSO, Ltd. v. Stroh, 205 F.3d 1146, 1152 (9th Cir. 2000). The "irreducible constitutional minimum" of Article III standing has three elements. LSO, 205 F.3d at 1152 (internal quotations omitted). First, plaintiff must have suffered "an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual and imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and quotations omitted). Second, plaintiff must show a causal connection between the injury and the conduct complained of; i.e., "the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court." Id. (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976)) (alterations in original). Third, it must be "likely," and not merely "speculative," that the plaintiff's injury will be redressed by a favorable decision. Id. at 561.

  The court's standing analysis, however, does not end here. The court can also impose "prudential limitations" on the class of persons seeking federal jurisdiction, including requiring that a litigant can only assert his own legal rights, and not the rights of a third party. See, e.g., United States v. Raines, 362 U.S. 17, 22-23 (1960); Retired Chicago Police Ass'n v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996). "This rule flows from a concern that third parties will not adequately represent the individuals whose rights they seek to vindicate." Retired Chicago Police Ass'n, 76 F.3d at 862. Thus, in determining whether a party can assert a cause of action on behalf of others, a reviewing court must ask two questions: 1) whether the litigants have suffered an injury in fact sufficient to rise to an Article III controversy; and 2) whether, as a prudential matter, the plaintiff properly represents the interest of any other individual in the complaint. See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 n. 3 (1989); Singleton v. Wulff, 428 U.S. 106, 112 (1976). The complaint lists several allegations resulting from the seizure of Plaintiff Sterner's patient treatment history records. Cplt. at 16. Plaintiff Sterner alleges that, in violation of the search warrant, Defendant Toussaint seized entire patient files even when the medical files could be easily separated from payment records. Id. The complaint seeks injunctive relief barring Defendants from use or dissemination of "any patient information and/or patient identities" for violating Plaintiffs' first amendment rights (see Cplt. at 15), as well as "Plaintiff Sterner's patients clearly established right to privacy." See Cplt. at 21.

  Plaintiff argues that the physician-patient privilege endows him with standing to pursue this action on behalf of his patients. Doc. No. 33 at 3. Although federal law does not recognize a physician-patient privilege, see Hutton v. Martinez, 219 F.R.D. 164, 166 (N.D.Cal. 2003), courts have consistently acknowledged the right of a physician, as a custodian of records, to assert the privacy rights of his patients. In In re Search Warrant, 810 F.2d 67 (3d Cir. 1987), physician plaintiff sought to assert his patient's rights to privacy when medical records were seized from his office pursuant to a search warrant issued as part of an insurance fraud investigation. Id. at 70. In finding a physician has standing to assert the privacy rights of his patients, the court first recognized that "`[a]s a practical matter, the absence of notice . . . of the subpoena means that no other person other than [the movant] would be likely to raise the privacy claim,'" and therefore the physician would be the "proper proponent to assert this claim on behalf of his patients." Id. at 71, quoting United States v. Westinghouse Elec. Corp., 638 F.2d 570, 574 (3d Cir. 1980). The Court also found, due to a substantial stake a physician has in the outcome, the level of adverseness high enough to overcome any prudential concerns. Id. at 71 n. 3. In Pagano v. Oroville Hospital, 145 F.R.D. 683 (E.D. Cal. 1993) (overturned on other grounds), the court also recognized a physician's duty, as custodians of their patients' medical records, to assert the privacy rights of their patients. Id. at 696. Citing several California state cases, the court found that physicians "must be permitted to speak" for their absent patients where a physician's rights are coincident with their patients. Id., citing Wood v. Superior Court (Bd. of Medical Qual.), 166 Cal.App.3d 1138, 1145 (1985).

  This Court finds these cases persuasive, and agrees that a physician, as a custodian of his patient's records, has standing to assert privacy rights on behalf of his patients. State Defendants argue that under Conant, only patients affected by a First Amendment right should be identified and named in the instant matter. The Court finds that, although Plaintiffs are asserting a First Amendment right, they are also asserting a right to informational privacy, which the Ninth Circuit has consistently applied to avoid disclosure of personal information. See In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999). Taking the facts asserted here as true, the information Plaintiffs seek to protect is highly personal and, in light of the Government's primary interest in financial matters and accounting, outweighs any interest that the Government may have. State Defendant's arguments regarding Plaintiffs' lack of standing is accordingly rejected, and the motion to dismiss DENIED.

  B. Eleventh Amendment Immunity

  State Defendants next argue that Plaintiffs' suit is barred "against Defendant State of California (by and through the Medical Board of California)" by the Eleventh Amendment and Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). See Doc. No. 26 at 3. The Eleventh Amendment prohibits damage actions against state officials acting in their official capacities. Will, 491 U.S. at 71 n. 10. However, the Eleventh Amendment "does not bar actions against state officers in their official capacities if the plaintiffs seek only a declaratory judgment or injunctive relief." Chaloux v. Killeen, 886 F.2d 247, 252 (9th Cir. 1989) (internal quotations omitted); Pennhurst, 465 U.S. at 104-06. "It is well established that the Eleventh Amendment does not bar a federal court from granting prospective injunctive relief against an officer of the state who acts outside the bounds of his authority." Porter v. Bd. of Trustees, Manhattan Beach Unified Sch. Dist., 307 F.3d 1064, 1074 (9th Cir. 2002) (quoting Cerrato v. San Francisco Community College Dist., 26 F.3d 968, 973 (9th Cir. 1994); Ex parte Young, 209 U.S. 123, 159-60 (1908)).

  In addition, the Eleventh Amendment does not bar actions against state officials who, "under color of state law, subjects [plaintiff] to `the deprivation of any rights, privileges, or immunities secured [him] by the Constitution and laws.'" Demery, 735 F.2d at 1146, quoting 42 U.S.C. § 1983 (1976). "As the Supreme Court has emphasized, a state official who violates federal law `is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.'" Id., citing Scheuer v. Rhodes, 416 U.S. 232, 237 (1974) (emphasis in original).

  There appears to be no disagreement between the parties that the Eleventh Amendment bars damages claims against the individual defendants in their official capacities. Plaintiff Sterner argues, however, that he seeks damages against the individual defendants in their personal, not official, capacity, and that he seeks prospective injunctive relief under Ex parte Young. As stated above, the Eleventh Amendment does not provide immunity to state officials against suits brought when acting in their personal capacity. Moreover, case law precedent has clearly established plaintiff's right to injunctive relief against state officials who violate federal law. Accordingly, insofar as defendants move to dismiss prospective injunctive relief and damages claims against the individual defendants in their personal capacities, the motion to dismiss is DENIED. Defendants' motion to dismiss individual defendants in their official capacities is GRANTED.

  C. Private Individuals Under Color of State Law

  State Defendants next contend that because Defendants Carew, Herrick and Stafford are not alleged as acting under color of state law, they cannot be liable under 42 U.S.C. section 1983. See Doc. No. 26 at 3. Defendants also argue that even if Defendants acted under color of state law, they are barred by the Noerr-Pennington doctrine.

  Plaintiff rebuts by pointing out numerous references in his complaint that speak to Defendants Carew, Herrick and Stafford's role as co-conspirators with state and federal officials. Plaintiff contends that Defendants Carew, Herrick and Stafford specifically "confabulate[d] and assisted both the IRS and the Medical Board to provide a pretext for seizing patient records and ordering Dr. Sterner to submit to psychiatric, blood and urine tests." Doc. No. 33 at 6. Moreover, Plaintiff points out that the Noerr-Pennington doctrine is inapplicable to the facts at hand because State Defendants are not associations seeking protection for speech that would normally give rise to an antitrust violation. Id. at 5. State Defendants in their reply maintain that the Defendants' actions were not sufficiently connected with the alleged state action to allow suit under section 1983. Doc. No. 35 at 3-4.

  The parties do not disagree that section 1983 requires a party to act under the color of state law, nor do they disagree that a private individual, if sufficiently connected to the official act complained of, would be liable under 42 U.S.C. section 1983. Defendants argue instead that the complaint is void of any facts that sufficiently connect Defendants Carew, Herrick and Stafford to the state act. An action under section 1983 does not require defendants be an officer of the state. Although there is a presumption that private conduct is not actionable under section 1983, a private person can be found liable if he "is a willful participant in joint activity with the State or its agents." United States v. Price, 383 U.S. 787, 794 (1966); see also Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) ("Private persons, jointly engaged with state officials in the challenged action, are acting see `under color' of law for purposes of § 1983 actions."), citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970). The Ninth Circuit has found joint activity "where a private party is a willful participant in joint action with the state or its agents," including where conspiracy or a substantial degree of cooperation between the private and state actors is shown. Collins v. Womancare, 878 F.2d 1145, 1154 (9th Cir. 1989). "The joint action inquiry focuses on whether the state has `so far insinuated itself into a position of interdependence with [the private entity] that it must be recognized as a joint participant in the challenged activity . . .'" Id., citing Gorenc v. Salt River Project Agricultural Improvement and Power Dist., 869 F.2d 503, 507 (9th Cir. 1989).

  Taking the facts asserted in the complaint as true, this Court finds Defendants' arguments unpersuasive. As Plaintiff points out in his opposition, there are numerous passages in the complaint that sufficiently allege Defendants Carew, Herrick and Stafford acted with state and federal officials in violation of Plaintiff's First and Fourth Amendment rights. For example, in paragraphs 44-45 and 47-50 of the complaint, Plaintiff Sterner details the information given by Defendants Carew, Herrick and Stafford that formed the basis of the investigations against Plaintiff Sterner. The information included Plaintiff's alleged income tax violations, his alleged misuse of controlled substances, as well as alleged unethical behavior. Plaintiff alleges that after approaching federal Defendant Brasich with this information, Defendant Carew was told by Defendant Brasich to repeat this information to federal Defendant Toussaint in order to commence an initial Internal Revenue Service investigation of Plaintiff. Cplt. at 17. Defendant Brasich then contacted State Defendant medical board, and encouraged the medical board to initiate proceedings against Plaintiff. In response, Defendant Stillwell further interviewed Defendants Carew, Herrick and Stafford regarding the alleged information. Id. Finally, Plaintiff alleges that Defendants Carew, Herrick and Stafford "coordinated their efforts in an obvious attempt . . . to seek revenge against their former employer." Id. at 19-20. Taken together, this Court finds Plaintiff alleges sufficient facts that bind Defendants Carew, Herrick and Stafford with state and federal officials in order to initiate and investigate state and federal claims against Plaintiff. Defendants Carew, Herrick and Stafford were willing participants in Defendant Brasich's alleged scheme, and responded in a coordinated manner at Defendant Brasich's behest, providing allegedly false information to federal and state defendants. As such, Defendants acted "under color" of law in violation of section 1983.

  State Defendants' arguments regarding the Noerr-Pennington doctrine is also not persuasive. The Noerr-Pennington doctrine shields competitors from anti-trust liability when lobbying or engaging legitimate government or administrative avenues, even when their actions are anti-competitive. See City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 379-380 (1991). Because Defendants Carew, Herrick and Stafford are not engaged in commercial activities or anti-competitive behavior, any free speech rights that may be available to them would not be protected under the Noerr-Pennington doctrine. Accordingly, the motion to dismiss is DENIED.

  D. Absolute Immunity

  State Defendants contend that Defendants Thornton, Stillwell, Edwards, Kalish, Kennedy and Moy all hold absolute immunity, barring personal liability for damages as a result of their alleged actions. See Doc. No. 26 at 4. Plaintiff argues that absolute immunity does not attach in the instant case because Defendants were performing investigatorial, instead of prosecutorial or quasi-judicial tasks where absolute immunity privileges may apply. Government officials may be immunized from liability for damages depending upon the role of the individual official in the state act. Antoine v. Byers & Anderson, 508 U.S. 429 (1993). Because of the wide-reaching scope afforded to defendants, courts have been "sparing in its recognition of claims to absolute official immunity." Forrester v. White, 484 U.S. 219, 224 (1988). As a result, a presumption is made when asserting immunity that the privilege is qualified, rather than absolute. Burns v. Reed, 500 U.S. 478, 486-487 (1991). Qualified immunity bars liability for damages only if the state official's "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). An official claiming immunity bears the burden of showing that such immunity is "justified by overriding considerations of public policy." Forrester, 484 U.S. at 224.

  The courts use a functional approach to determine if immunity should attach to the state official's actions. Mishler v. Clift, 191 F.3d 998, 1002 (9th Cir. 1999). The court first examines whether the function performed by the state actor "is similar to a function that would have been entitled to absolute immunity when Congress enacted § 1983." Id. "It is the `nature of the function performed, not the identity of the actor who performed it,' that is critical to this inquiry." Id. Generally, adjudicatory and prosecutorial roles are afforded absolute immunity from liability, reflecting the long-standing principle that "a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself." Olsen v. Idaho Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004), quoting Bradley v. Fisher, 13 Wall. 335, 347 (1871).


The essential rationale is that, without protection from retaliatory suits, a judge would lose "that independence without which no judiciary can be either respectable or useful. A prosecutor's entitlement to absolute immunity flows from the performance of activities that are intimately associated with the judicial process.
Mishler, 191 F.3d at 1003 (citations omitted).

  In Mishler, the Ninth Circuit squarely addressed whether or not medical board members are absolutely immune from personal liability for actions involving discipline or revocation of physicians. Citing Butz v. Economou, 438 U.S. 478 (1978), the court reviewed several factors in determining whether the medical boards were entitled to absolute immunity, including: 1) the need to ensure the performance of their functions without harassment; 2) whether safeguards were available that would reduce the need for private damages actions; 3) whether there was insulation from political influence; 4) whether the board's decisions were treated as precedential; 5) the adversarial nature of the process; and 6) the ability to correct any errors on appeal. Mishler, 191 F.3d at 1003. The court specifically found that although the medical board members' tasks "do not have all of the attributes of a federal hearing officer, they are functionally comparable to judges and prosecutors." Id. at 1007; see also Olsen v. Idaho State Board of Medicine, 363 F.3d 916, 928-929 (9th Cir. 2004). The court, therefore, found that the state medical board members were entitled to absolute immunity. Id.

  This Court, following Ninth Circuit precedent, agrees that the Butz factors weigh in favor of applying absolute immunity to members of the State of California medical board. As was found in Mishler and Olsen, the medical board must function without harassment in order to further its goals of protecting the public. See Mishler, 191 F.3d at 1005 (disciplinary actions "are likely to stimulate numerous damages actions."). In addition, as the Ninth Circuit found in Mishler and Olsen, the California medical board is governed by statutory regulations, through both the California Code of Regulations and California Business and Professions Code, that provide sufficient safeguards which reduce the need for private damages actions. See Yoonesi v. Albany Med. Ctr., 352 F.Supp.2d 1096, 1101 (C.D. Cal. 2005). The Board is also sufficiently insulated from political influence and pressures, being appointed by the Governor of California and confirmed by the State Senate for four year terms, and its members are removable only for cause. Id. at 1101-1102. The remaining Butz factors regarding precedential status of the hearings, the adversarial nature of the Board hearings and the ability to correct errors by the Board also favor bestowing absolute immunity on medical board members.

  Absolute immunity, however, is not afforded to all actions by the medical board. The Ninth Circuit in Mishler limited the scope of absolute immunity granted to the medical board members to "actions that are judicial or closely associated with the judicial process." 191 F.3d at 1007. For example, the Ninth Circuit noted that administrative duties related to responding to inquiries from other medical boards are not entitled to absolute immunity. Id. at 1008. The court contrasted this ministerial task with the act of "signing the disciplinary complaint [against the physician] under penalty of perjury," which the court found was entitled to absolute immunity. Id.


Filing charges and initiating prosecution are functions that are integral to a prosecutor's work. Because "[e]xposing the prosecutor to liability for the initial phase of his prosecutorial work could interfere with his exercise of independent judgment," absolute immunity protects these acts.
Id., citing Kalina v. Fletcher, 522 U.S. 118, 128 (1997). The court distinguished the task of signing the disciplinary complaint with a prosecutor's act of "personally attesting to the truth of the facts in a certification for determination of probable cause," which the Supreme court found was akin to a witnesses' task, and not required of a prosecutor. Id. at 1008, quoting Kalina, 522 U.S. at 129; see also Ostrzenski v. Siegel, 177 F.3d 245, 250-51 (4th Cir. 1999) ("[A] physician requested by the Board to conduct a peer review performs a function analogous to a prosecutor reviewing evidence to determine whether charges should be brought."). In contrast, investigatory work that is done outside of the quasi-judicial duties of the medical board is not bestowed absolute immunity protection. See Buckley, 509 U.S. at 272 ("A prosecutor's administrative duties and those investigatory functions that do not relate to advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.").

  a. Defendants Thornton and Moy

  Plaintiff's complaint refers to Defendants Thornton and Moy as members of the medical board. See Cplt. at 5-6. Specifically, Defendant Thornton is the Executive Director of the medical board and Defendant Moy is a member of the board who "signed and issued the Psychiatric Exam Order on behalf of the Med Board."*fn1 Id. Plaintiff argues that, unlike the medical board members in Mishler and Olsen, Defendants Thornton and Moy were performing "`detective/police type investigative work' — not quasi-judicial" functions. See Doc. No. 33 at 10.

  This Court disagrees with Plaintiff's assessment. Defendants Thornton and Moy, as members of the medical board, were performing quasi judicial-like functions associated with the initiation of disciplinary proceedings against Plaintiff when they reviewed and issued an order to compel psychiatric examination of plaintiff. See Moses v. Parwatikar, 813 F.2d 891 (8th Cir. 1987); Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984). Like the medical board members in Mishler, Defendants Thornton and Moy exercised their independent judgment after review of the facts presented to them. Even if their conclusions were incorrect or flawed, these quasi-judicial actions are entitled to absolute immunity. The motion to dismiss regarding damages claims against Defendants Thornton and Moy are therefore GRANTED.

  b. Defendants Kalish and Kennedy

  Defendants Kalish and Kennedy are alleged in the complaint as being engaged by the medical board to provide an opinion or recommendation regarding the psychiatric exam order. See Cplt. at 6. Defendants contend that, as advisors to the board, they are likewise entitled to absolute immunity. See Doc. No. 26 at 7. Plaintiff argues that Defendants were performing investigatory, not quasi-judicial or prosecutorial functions.

  Using a functional approach, several courts have found that consultants or advisors to grand juries seeking indictments are protected by absolute immunity if their work helps the grand jury perform their quasi-judicial function. See Baez v. Hennesy, 853 F.2d 73, 75 (2d Cir. 1988); Fields v. Soloff, 920 F.2d 1114, 1120 (2d Cir. 1990). In Bettencourt v. Bd. of Registration in Med. of Commonwealth of Mass., 904 F.2d 772 (1st Cir. 1990), the court found that legal consultants to the medical board were akin to law clerks participating in a decision on a case. Id. at 785. The court concluded that consultants advising the board on related matters should also be entitled to absolute immunity. Id. This Court finds this reasoning persuasive. The consultants acting as advisors to the board perform quasi-judicial functions by assisting the board in initiating disciplinary actions against member physicians. Therefore, like medical board members, consultants and advisors to administrative boards are entitled to absolute immunity for quasi-judicial or prosecutorial functions performed at the request of the board. Accordingly, Defendants Kalish and Kennedy are entitled to absolute immunity against any damages claims.

  c. Defendants Stillwell and Edwards

  Plaintiff's complaint refers to Defendants Stillwell and Edwards as investigators for the medical board. See Cplt. at 5-6. Unlike adjudicatory or prosecutorial duties, investigatory functions are not accorded absolute immunity. See Buckley, 509 U.S. at 273. Prosecutors, for example, are entitled to qualified immunity, not absolute immunity, for investigative work normally conducted by a detective or police officer. Genzler v. Longanbach, 410 F.3d 610, 636 (9th Cir. 2005), citing Kalina, 522 U.S. at 126. In Genzler, the Ninth Circuit denied absolute immunity to prosecutors when the prosecutors and police officers performed "essentially the same investigatory functions." Id. at 637.


The question is whether a prosecutor's investigation is of the type normally done by police, in which case prosecutors enjoy only qualified immunity, or whether an investigation is bound up with the judicial process, thus affording prosecutors the heightened protection of absolute immunity.
Id. at 638.

  Here, the complaint alleges Defendants Stillwell and Edwards performed "police-type" investigative work and prepared a report which the board members reviewed and relied on to support their Order compelling psychiatric examination of Plaintiff Sterner. Therefore, for the reasons stated above, Defendants' motion to dismiss is DENIED in regards to Defendants Stillwell and Edwards.

  d. Conclusion

  Accordingly, for the reasons stated above, the damages claims against Defendants Thornton, Moy, Kalish and Kennedy are hereby DISMISSED. The motion to dismiss against Defendants Stillwell and Edwards is DENIED. CONCLUSION AND ORDER

  For the reasons set forth above, IT IS HEREBY ORDERED that State Defendants' motion to dismiss [Doc. No. 25] is GRANTED IN PART and DENIED IN PART as follows:

1. Defendants' motion to dismiss the complaint based on standing is DENIED;
2. Defendant State of California's motion to dismiss against prospective injunctive relief and against individuals in their personal capacity is DENIED;
3. Defendant State of California's motion to dismiss against individuals in their official capacity is GRANTED;
4. Defendants Carew, Herrick and Stafford's motion to dismiss is DENIED;
5. Defendants Thornton, Moy, Kalish and Kennedy's motion to dismiss for damages based on absolute immunity is GRANTED; and
6. Defendants Stillwell and Edwards motion to dismiss for damages is DENIED.

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