United States District Court, S.D. California
December 23, 2005.
DR. ROBERT F. STERNER, JR., INDIVIDUALLY AND ON BEHALF OF OTHER PATIENTS, Plaintiff,
UNITED STATES DRUG ENFORCEMENT AGENCY ("DEA"); ET AL., Defendants.
The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION TO
DISMISS [DOC. NO. 25]
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.
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.
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).
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.
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,
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
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
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
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
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
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
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.
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.
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
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.
IT IS SO ORDERED.
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