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Does the Nevada State Board of Medical Examinaers and Its Memers Have Immunity?

This was an interesting case decided by US Courts of Appeals, Ninth Circuit in 2012. Here is the full summary of the case.

United States Court of Appeals, Ninth Circuit decided Board members have absolute immunity from civil liability.


United States Court of Appeals,Ninth Circuit.

Kevin Ray BUCKWALTER, Plaintiff–Appellant, v. State of NEVADA BOARD OFMEDICAL EXAMINERS; Sohail U. Anjum; Javaid Anwar; S. Daniel Mcbride; VanHeffner; Edward Cousineau, Defendants–Appellees.

No. 11–15742.

Decided: April 26, 2012

Kevin Ray Buckwalter, M.D., appeals the district court's dismissal of claims he brought againstthe members of the Nevada State Board of Medical Examiners (“Board Members”), in theirindividual capacities, under 42 U.S.C. § 1983.

Buckwalter alleged that the Board Membersdeprived him of his constitutional rights when, in an ex parte emergency proceeding, theysummarily suspended his authority to prescribe medication. The issues presented for review are

(1) whether the Board Members are entitled to absolute immunity from liability for the exerciseof their summary authority, and

(2) whether Younger abstention proscribes the federal courtsfrom hearing Buckwalter's case while the state proceedings are pending.

We hold that the Board Members are absolutely immune from Buckwalter's claims for money damages, and that Younger abstention bars Buckwalter's claims for equitable relief. We thereforeaffi rm.

I. Background

Dr. Buckwalter has been a licensed physician in Nevada since 1997. In 2006, the Nevada StateBoard of Medical Examiners (“the Board”) began to investigate citizen complaints that Dr.Buckwalter was overprescribing narcotic analgesics. The Board's Investigative Committeeordered a peer review of the results of the investigation to determine whether Buckwalter's conduct as a physician was consistent with prevailing professional standards. Two peerreviewers concluded that in several instances, Buckwalter's conduct fell below the minimumstandard of care.

Edward Cousineau, a Board Member, filed a formal administrative complaint with the Board. The complaint charged Buckwalter with three counts of wrongdoing and alleged that he was animminent threat to the health and safety of his patients and the public in general. On that basis,Cousineau asked the Board to summarily suspend Buckwalter's authority to prescribe oradminister controlled substances.

On November 12, 2008, the Board convened an emergency telephone meeting to review thecomplaint and summary suspension request. Buckwalter was not notified of the charges againsthim or offered an opportunity to participate in the meeting. In the meeting, the Board Membersconcluded that there was suffi cient evidence that Buckwalter posed a danger to public welfare tojustify the summary suspension of his authority to prescribe, administer, and dispense controlledsubstances in Nevada. The Board Members also scheduled a full hearing on the administrativecomplaint for March 18, 2009, as well as a prehearing conference for early February. The Boardimmediately notifi ed Buckwalter of the summary suspension and the hearing schedule.

In the months following the summary suspension, the parties worked to reach a settlement. Onthe eve of the hearing date, Buckwalter and the Board entered into a joint stipulation to vacatethe hearing in anticipation of a fi nalized settlement. Ultimately, however, the full Board voted toreject the proposed settlement. Buckwalter did not withdraw from the stipulation or demand thata hearing be reset, opting instead to attempt to reach a new settlement that would pass musterwith the Board.

The parties never reached a mutually satisfactory agreement, and in November 2010 Buckwaltercommenced this action under 42 U.S.C. § 1983 in the District of Nevada, charging the Board andits members with depriving him of constitutional due process. The complaint alleged that theBoard Members denied Buckwalter due process fi rst by summarily suspending his prescribingprivileges, and second by failing to promptly conduct a post-deprivation hearing following thesummary suspension.

The district court dismissed all of Buckwalter's claims, holding that they were barred by absoluteimmunity and, in the alternative, that Younger abstention precluded a federal court from hearingthe case. Buckwalter timely appealed.

II. Standard of Review

“Whether a public offi cial is entitled to absolute immunity is a question of law that is reviewed denovo.” Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir.2008) (quoting Goldstein v. City of LongBeach, 481 F.3d 1170, 1172(9th Cir.2007)). “We review de novo the district court's decision toabstain under the Younger doctrine.” Potrero Hills Landfi ll, Inc. v. Cnty. of Solano, 657 F.3d 876,881 (9th Cir.2011).

We also review de novo a district court's order dismissing a complaint under Federal Rule of CivilProcedure 12(b)(6). See Cervantes v. United States, 330 F.3d 1186, 1187(9th Cir.2003). Weassume that Buckwalter's allegations of fact are true and analyze them in the light mostfavorable to his claims. See id.

III. Discussion

A. Absolute immunity.

State and federal executive officials are absolutely immune from § 1983 suits if they perform “‘special functions' which, because of their similarity to functions that would have been immunewhen Congress enacted § 1983, deserve absolute protection from damages liability.” Buckley v.Fitzsimmons, 509 U.S. 259, 268–69, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) (quoting Butz v.Economou, 438 U.S. 478, 508, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978)).

It is the “nature of the function performed, not the identity of the actor who performed it,” thatdetermines whether an offi cial is cloaked by absolute immunity. Id. at 269. The paradigmaticfunctions giving rise to absolute immunity are those of judges and prosecutors. See Tamas v.Dep't of Soc. & Health Servs., 630 F.3d 833, 841–42 (9th Cir.2010) (quoting Olsen v. Idaho StateBd. of Med., 363 F.3d 916, 922(9th Cir.2004)). Absolute immunity is also accorded to offi cials ofgovernment agencies “performing certain functions analogous to those of a prosecutor” or ajudge. Butz, 438 U.S. at 515.

To determine whether a particular state offi cer's role is “functionally comparable” to that of ajudge, we consider six nonexclusive factors, decocted from Butz, that indicate a judicial function:

“(a) the need to assure that the individual can perform his functions without harassment orintimidation; (b) the presence of safeguards that reduce the need for private damages actions asa means of controlling unconstitutional conduct; (c) insulation from political infl uence; (d) theimportance of precedent; (e) the adversary nature of the process; and (f) the correctability oferror on appeal.”

Cleavinger v. Saxner, 474 U.S. 193, 202, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985) (citing Butz, 438U.S. at 512). If, upon applying these “Butz factors,” we determine that an offi cial was functioningin a judicial or quasi-judicial capacity when he undertook the act giving rise to the § 1983 suit,then absolute immunity protects him from liability. Id. An offi cial cannot be subjected toresponsibility in a civil action, “however erroneous the act may have been, and however injuriousin its consequences it may have proved to the plaintiff.” Id. at 199–200(quoting Bradley v. Fisher,13 Wall. 335, 80 U.S. 335, 347, 20 L.Ed. 646 (1872)).

We have previously held that members of state medical boards are “functionally comparable tojudges” and thus “entitled to absolute immunity for their quasi-judicial acts.” Mishler v. Clift, 191F.3d 998, 1007 (9th Cir.1999). But that does not settle this case: the protection of absoluteimmunity reaches “only those actions that are judicial or closely associated with the judicialprocess.” Id. (quoting Buckley, 509 U.S. at 273). And Buckwalter contends that two acts by theBoard Members were nonjudicial and therefore outside the ambit of absolute immunity: (1) theirsummary suspension of his prescribing privileges and (2) their failure to provide him a promptpostdeprivation hearing. We consider each act in turn.

1. The summary suspension.

In Mishler, we held that absolute immunity applies to “acts occurring during the disciplinaryhearing process.” Id. at 1008. Buckwalter argues that when the Board Members exercise theiremergency summary suspension authority, they should not enjoy the same immunity that theydo when they conduct formal disciplinary hearings.

Determining whether Mishler's rationale extends to a prehearing summary suspension requiresus briefl y to review the operation of the two Nevada statutes that defi ne the Board's disciplinaryauthority, as those statutes appeared in 2008: Chapter 630 of the Nevada Revised Statutes, andthe Nevada Administrative Procedure Act, Nevada Revised Statutes § 233B. Chapter 630 specifi es that once the Board receives a complaint about a physician, aninvestigative committee reviews it to determine whether is has a reasonable basis. SeeNev.Rev.Stat. § 630.311. If the investigation substantiates the complaint, the Board may bringformal charges against the physician and set a hearing date. Id. § 630.339. Physicians facingdiscipline must receive notice of the charges, the hearing date, and any possible sanctions; theyare also entitled to representation by counsel and the right to present evidence on any relevantissue. See id.; id. § 233B.121.

Section 127 of the Nevada Administrative Procedure Act empowers the Board to summarilysuspend a medical license if “the agency fi nds that public health, safety or welfare imperativelyrequire emergency action, and incorporates a fi nding to that effect in its order.” Id. § 233B.127.Following a summary suspension, however, a formal administrative hearing “must be promptlyinstituted and determined.” Id.

The defendants in Mishler—also members of the Nevada State Board of Medical Examiners-didnot summarily suspend the plaintiff's license; they revoked it after an administrative hearing. See191 F.3d at 1001. We concluded that fi ve of the six Butz factors militated in favor of absolutelyimmunizing the board members from liability for that action. Id. at 1005–07.

First, we noted that an agency whose raison d'etre is to discipline medical professionals is likelyto provoke frequent litigation. See id. at 1005. Given the vital public-welfare interests at stake, thecourt concluded that there was a “ ‘strong need’ to make certain that Board Members [could]perform these disciplinary functions without the threat of harassment or intimidation.” Id.

Second, we opined that it was “diffi cult to dispute” that adequate procedural safeguardstrammeled the Board Members' authority. Id. The “comprehensive umbrella of statutes”governing the Board's conduct created procedural safeguards akin to those available underfederal administrative law. Id. at 1005–06; see also Butz, 438 U.S. at 514(“[T]he AdministrativeProcedure Act contains a number of provisions designed to guarantee the independence ofhearing examiners․ In light of these safeguards, we think that the risk of an unconstitutional actby one presiding at an agency hearing is clearly outweighed by the importance of preserving theindependent judgment of these men and women.”).

Reviewing the third factor—the Board Members' insulation from political infl uence—weconcluded that the Board Members were suffi ciently independent because they were appointedby the governor and removable only for good cause. Id. at 1007.

The fourth Butz factor, the importance of precedent, was the only one that we felt did not weighin favor of absolute immunity. See id. at 1007(“It is unclear from the record to what extent theNevada Board relies on precedent in making its disciplinary decisions.”). The fi fth and sixthfactors, however, buttressed the case that the Board Members were judicial homologues whenperforming their disciplinary functions:

[I]t is clear that the disciplinary process is adversary in nature and that errors made by the Boardare correctable on appeal. Physicians are entitled to representation by counsel and may presentevidence at a formal disciplinary hearing. The decision of the Board must be in writing andcontain the Board's fi ndings and any sanctions. Judicial review of the Nevada Board's decision isavailable. Id. (internal citations omitted).

Viewing the six factors as a totality, we held that the Board Members were functionallycomparable to judges, and that adjudicating license-revocation hearings was a quasi-judicial actfor which they were absolutely immune from liability. Id.

The calculus is obviously somewhat different in the context of emergency summarysuspensions. In Nevada, summary suspension proceedings entail substantially fewer proceduralprotections for physicians: they are nonadversarial (and often ex parte), they employ anindeterminate burden of proof, and they are not subject to the various procedural strictures thatgovern formal disciplinary hearings. And although the Board is required to institute a formalhearing after a summary suspension, Nevada law only requires that it be “promptly instituted”—avague directive that raises the possibility of coercive delays. Nev.Rev.Stat. § 233B.127.

Indeed, Buckwalter's own experience demonstrates the parsimony of the procedural safeguardsbuilt into the summary suspension procedure. He received no notice of the emergency ex partetelephone conference in which his prescribing privileges were suspended. He had no opportunityto contest the charge that he was a danger to the public before the Board Members curtailed hisprofessional authority. And the revocation hearing date the Board scheduled was to have takenplace more than four months after the summary suspension. The Board Members may haveconsidered a four-month wait reasonable. Buckwalter, whose livelihood was at stake,presumably did not.

In spite of these procedural defi ciencies, we are convinced that the Board Members' summarysuspension power is analogous to a judicial function. The Mishler court's application of the Butzfactors to the Board Members' disciplinary hearing authority largely applies to their summarysuspension authority. First, the Board Members' interest in performing their functions free fromharassment is at its apex when a physician poses a serious threat to public safety. See Mishler,191 F.3d at 1005(“In view of the public interest of ensuring quality health care, there is a strongneed to make certain that Board Members can perform these disciplinary functions without thethreat of harassment or intimidation.” (internal quotation marks omitted)). Abrogating absoluteimmunity for summary suspensions could make Board Members hesitant to act quickly anddecisively to protect the public.

Second, though summary suspension proceedings lack the procedural safeguards of formaldisciplinary hearings, state law provides that whenever the Board Members exercise theirsummary suspension power, a formal hearing ineluctably follows. The Board Members'temporary emergency judgment is thus necessarily tested in the crucible of an administrativehearing with a full complement of procedural

(postdeprivation hearing delay of four or fi ve months is suffi ciently prompt to provide dueprocess). We are persuaded that § 233B.127 is a suffi cient restraint on improper use of theBoard's summary powers.

The third factor is the Board Members' insulation from political infl uence. In Mishler, weconcluded that “the structure of the Nevada Board and the procedural requirements of theirdecisionmaking process show that the Board Members are suffi ciently insulated from politicalinfl uence.” 191 F.3d at 1007. Buckwalter argues that the “real world of Nevada politics” beliesthat judgment. He alleges that the Board Members pursued Buckwalter's case and refused tosettle it to burnish the Board's image in the wake of a public scandal involving the reuse ofmedical supplies at an outpatient endoscopy center.

Judicial independence is a structural characteristic, not an empirical one. The question iswhether the conditions of an offi cial's employment tend to promote independent judgment, notwhether a particular decision was affected by the offi cial's cognizance of current events. SeeCleavinger, 474 U.S. at 203–04 (noting that members of a prison disciplinary committee are notindependent because they are “direct subordinates of the warden”); see also Stern v. Marshall,––– U.S. ––––, ––––, 131 S.Ct. 2594, 2609, 180 L.Ed.2d 475 (2011) (explaining that the lifetenure and salary protections of Article III were adopted to create the conditions under whichjudges would be likely to act free from improper infl uence). We have already held that thestructure of the Board shows that its Members are suffi ciently insulated from political infl uence.See Mishler, 191 F.3d at 1007. Even if Buckwalter's claim that a scandal infl uenced the BoardMembers' behavior is true, that fact does not gainsay the Board Members' politicalindependence. After all, “[j]udges do not exist in a vacuum.” Hoptowit v. Ray, 682 F.2d 1237,1261(9th Cir.1982), abrogated on other grounds by Sandin v. O'Connor, 515 U.S. 472, 115 S.Ct.2293, 132 L.Ed.2d 418 (1995).

As was true in Mishler, the fourth Butz factor points in neither direction, because it is unclearwhether the Board Members rely on precedent when they exercise their summary authority. Id.But the last Butz factor, the correctability of errors on appeal, favors absolute immunity: anerroneous summary suspension may be corrected in either the postdeprivation hearing or inNevada state court in a subsequent appeal. See Nev.Rev.Stat. § 630.356(1)( “Any personaggrieved by a fi nal order of the Board is entitled to judicial review of the Board's order.”).

Buckwalter raises two arguments that errors of judgment in the Board Members' exercise of thesummary suspension authority are insuffi ciently correctable. First, he points out that summarysuspension proceedings and postdeprivation hearings involve different questions. In adisciplinary hearing, the Board asks whether a physician's malpractice merits the permanentdeprivation of his license. In a summary suspension hearing, by contrast, it asks whether aphysician is an imminent danger to public safety. For that reason, argues Buckwalter, the Boardmight conduct a disciplinary hearing and fi nd a physician not guilty of the charges in theadministrative complaint without ever addressing the propriety of the summary suspension.

Whatever distinction there is between these inquiries is without a difference. In Buckwalter'scase—and, we suspect, in the mine run of such cases—the allegations of past malpractice werethe basis of the Board's concern about the threat to future patients. (Presumably, a serialmalpractitioner virtually always imperils the public.) Had the disciplinary hearing occurred, theallegations of malpractice might have been proved true, vindicating the Board's decision tosuspend Buckwalter's privileges until he had undergone rehabilitative discipline. Or they mighthave been proved false, nullifying the summary suspension and restoring Buckwalter'sreputation. In either case, the Board would have effectively adjudicated the merits of thesuspension.

Second, Buckwalter argues that the statutory scheme lacks an adequate mechanism forcorrecting errors because Nevada law prohibits a state court from staying a Board order while anappeal is pending. See Nev.Rev.Stat. § 630.356(2). In Buckwalter's view, the fact that he cannotobtain a stay of the summary suspension vitiates the right of appeal.

The unavailability of a stay makes the consequences of an error by the Board more severe, but ithas no bearing on whether the error is ultimately correctable. Nevada may preclude a stay as itsees fi t. See State ex rel. Kassabian v. State Bd. of Med. Exam'rs, 68 Nev. 455, 235 P.2d 327, 332(Nev.1951) (affi rming the right of the legislature to prohibit Nevada courts from staying an orderof the state medical board). What matters for our purposes is that judicial review is available.

Buckwalter urges us to follow DiBlasio v. Novello, 344 F.3d 292 (2d Cir.2003). In DiBlasio, theSecond Circuit refused to extend absolute immunity to employees of the New York StateDepartment of Health who summarily suspended a radiologist's medical license under New YorkPublic Health Law § 230. Id. at 298–302.

DiBlasio is of little use to Buckwalter, however, because the New York statutory schemegoverning summary suspensions is fundamentally different from that of Nevada. New York lawempowers the Commissioner of the State Department of Health to unilaterally suspend aphysician's license following an investigation by the State Board of Professional MedicalConduct. Id. at 297(citing N.Y. Pub. Health Law § 230(12)(a)). The Commissioner alone has thepower to judge when a licensee constitutes an imminent public threat and to issue summarysuspensions. Id. New York law requires a postdeprivation hearing to begin within ten days, butthe Commissioner has the authority either to adopt the hearing committee's recommendation orto leave the summary order in effect pending a fi nal resolution of the case. Id.

The DiBlasio court concluded that, because the statutory scheme arrogated “virtually unfettered”power to the Commissioner to issue summary suspensions, it lacked the procedural safeguardsthat are the hallmark of judicial proceedings. Id. at 299. Moreover, the right to a promptpostdeprivation hearing was rendered hollow by the Commissioner's “free[-dom] to ignore thehearing committee's recommendation.” Id. (“[T]he hearing available under § 230, while providingan avenue for review of the charges themselves, provides no meaningful review of the summarysuspension․”).

The Nevada scheme, of course, is very different. No autarchic commissioner-fi gure may imposesummary suspensions by fi at, and only the state courts may reverse the results of disciplinaryhearings. Consequently, DiBlasio has limited relevance to our analysis. By contrast, when oursister circuits have confronted schemes similar to Nevada's, they have consistently grantedabsolute immunity to board members. See Watts v. Burkhart, 978 F.2d 269, 276–77 (6thCir.1992) (en banc) (holding that members of the Tennessee medical board were absolutelyimmune when they exercised summary suspension authority under a statutory scheme identicalin all relevant respects to Nevada's); see also Wang v. N.H. Bd. of Registration in Med., 55 F.3d698, 700–02 (1st Cir.1995) (granting absolute immunity to the members of New Hampshire'smedical board, who summarily suspended the license of a physician who was subject toprofessional discipline in another state); Horwitz v. State Bd. of Med. Exam'rs, 822 F.2d 1508,1515 (10th Cir.1987) (holding that absolute immunity protected from civil liability members ofthe Colorado Board of Medical Examiners for summarily suspending a podiatrist's license).

We are inclined to agree with these cases. Taken together, the Butz factors indicate that theexercise of summary suspension authority is comparable to a judicial act. This result alsocomports with a common-sense comparison of the Board Members with judges: the BoardMembers' summary suspension power is “directly comparable to the function performed by a judge in deciding whether to issue a temporary restraining order or preliminary injunction.” Watts,978 F.2d at 277. Accordingly, we hold that the Board Members are absolutely immune fromliability for the exercise of that power.

2. Failure to provide a prompt postdeprivation hearing.

Buckwalter additionally argues that the Board Members should not be absolutely immune fromliability for failing to provide him a prompt postdeprivation hearing. Buckwalter points out that tothis day, he has still received no postdeprivation due process. The obvious objection is thatBuckwalter voluntarily stipulated to postpone the hearing that the Board was prepared to affordhim. Buckwalter makes three responses.

First, he again asserts that the hearing was intended to address the merits of the malpracticeclaims, not the merits of the Board Members' judgment that he was an imminent danger to thecitizens of Nevada. He insists that by stipulating to vacate the postdeprivation hearing he did notrelinquish his right to a hearing on the merits of the summary suspension. As we have alreadyexplained, the question of whether the allegations in the administrative complaint were true isintertwined with the question of whether Buckwalter was a threat to public safety. Buckwalterwas entitled to one postdeprivation hearing, not two.

Second, Buckwalter argues that the Board did not “promptly” institute a hearing when itunilaterally set a hearing date more than four months after the deprivation. Buckwalter isconfusing the issue of whether the Board Members are entitled to absolute immunity withwhether the Board Members deprived him of due process. If the Board Members were notimmune from suit, we would face the question of whether the postdeprivation hearing the Boardprovided was suffi ciently prompt to provide due process. See, e.g., Spiegel v. Ryan, 946 F.2d1435, 1442 (9th Cir.1991).

But, having decided that the Board Members are absolutely immune, it is clear that they wereacting in a judicial capacity when they set the hearing date. See Curry v. Castillo (In re Castillo),297 F.3d 940, 951–53 (9th Cir.2002) (holding that the scheduling of hearings by a bankruptcytrustee is a discretionary function protected by absolute immunity). The manner in which theyset the hearing date is therefore irrelevant. See Mishler, 191 F.3d at 1006(“The acts of the NevadaBoard are no less judicial or prosecutorial because they may have been committed in error. It isthe available procedures, not the manner in which they are exercised in a particular case, that isthe critical inquiry․”) (internal citation omitted). Once we have decided that an offi cial enjoysabsolute immunity from liability for a particular statutorily authorized action, any inquiry into theadequacy of the offi cial's performance is foreclosed. See Olsen v. Idaho State Bd. of Med., 363F.3d 916, 928 (9th Cir.2004).

Third, Buckwalter argues that he could not request a hearing because he was forced to continueto negotiate a settlement with the Board, lest he “anger [ ] them and risk[ ] draconian penalties.”The record shows that Buckwalter was free to withdraw from the stipulation at any time. Noevidence suggests that the Board would have refused to reinstate the hearing date. Buckwaltermay now regret the months he spent in fruitless settlement negotiations, but it was his choicenot to proceed to hearing. The Board should not bear the burden of Buckwalter's litigationdecisions.

The Board Members were acting within the scope of their judicial function when they set ahearing date following the summary suspension and when they stipulated with Buckwalter topostpone the hearing. They are absolutely immune from liability for those actions.

B. Younger abstention.

Absolute immunity is not a bar to injunctive or declaratory relief. See Pulliam v. Allen, 466 U.S.522, 541–42, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984). The district court, however, held thatYounger abstention required it to dismiss Buckwalter's equitable claims. We agree.

Younger abstention requires federal courts to abstain from hearing claims for equitable relief aslong as the state proceedings are ongoing, implicate important state interests, and provide anadequate opportunity to raise federal questions. See Middlesex Cnty. Ethics Comm. v. GardenState Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Potrero Hills Landfi ll,657 F.3d at 882.

Buckwalter concedes that the Board's administrative process is ongoing (and that it was ongoingat the time he fi led his complaint). He argues, however, that the administrative hearing will notaddress the merits of the summary suspension. As we have explained above, the Board'sadjudication of the administrative complaint will necessarily resolve the merits of the summarysuspension.

The second Younger factor is not in dispute. It is self-evident that the Board's disciplinaryproceedings implicate the important state interest of ensuring quality health care. See Kenneallyv. Lungren, 967 F.2d 329, 331–32 (9th Cir.1992); see also Gibson v. Berryhill, 411 U.S. 564, 576–77, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973) (“[A]dministrative proceedings looking toward therevocation of a license to practice medicine may in proper circumstances command the respectdue court proceedings․”). And it is equally obvious that to substitute this court's judgment aboutthe merits of the summary suspension for the Board's would interfere with Nevada's authority toregulate physicians practicing within its borders. See Potrero Hills Landfi ll, 657 F.3d at 883 (“Thekey to determining whether comity concerns are implicated in an ongoing state proceeding-andthus whether the second Younger requirement is met-is to ask whether federal court adjudicationwould interfere with the state's ability to carry out its basic executive, judicial, or legislativefunctions.”).

The third factor is satisfi ed by the fact that Nevada courts may entertain federal questions whenthey review the Board's judgments. See, e.g., Minton v. Bd. of Med. Exam'rs, 110 Nev. 1060, 881P.2d 1339, 1354–55 (Nev.1994) (considering a federal due-process challenge to a licenserevocation). Should he lose in the disciplinary hearing, Buckwalter will have an adequateopportunity to raise his federal constitutional challenges on appeal to the Nevada courts. SeeOhio Civil Rights Comm'n v. Dayton Christian Sch., Inc., 477 U.S. 619, 629, 106 S.Ct. 2718, 91L.Ed.2d 512(“[I]t is suffi cient under Middlesex that constitutional claims may be raised in state-court judicial review of the administrative proceeding.” (citation omitted)).

The district court properly abstained from hearing Buckwalter's claims for equitable relief.

IV. Conclusion

We have previously held that the Board Members are functionally comparable to judges. Mishler,191 F.3d at 1007. We now hold that the Board Members' exercise of their summary suspensionauthority is comparable to a judicial act. Hence, the Board Members are entitled to absoluteimmunity. The district court was correct to dismiss Buckwalter's claim for damages.

Younger abstention compels the dismissal of Buckwalter's remaining claims in equity.Buckwalter maintains that the Board exaggerated the risk that his professional conduct posed tothe public and deprived him of his livelihood on fl imsy evidence. Perhaps so. But the properforum to pursue those allegations was in an adversary disciplinary proceeding, which he couldhave demanded at any time but steadfastly elected to postpone. Until the Nevada procedure hasrun its course, we have no role.



1. Buckwalter's suit also names the Nevada State Board of Medical Examiners as a defendant.The Eleventh Amendment proscribes § 1983 claims against the Board itself, whether for damages or injunctive relief. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102,104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Hence, the only issue in this appeal is the liability of theBoard Members in their individual capacities.

Unless we indicate otherwise, subsequent citations refer to the 2008 versions of thesestatutes.

3. In 2009, the legislature amended the statute to require the Board to initiate postdeprivationhearings within 45 days:Proceedings relating to the order of summary suspension must beinstituted and determined within 45 days after the date of the order unless the agency and thelicensee mutually agree in writing to a longer period.Nev.Rev.Stat. § 233B.127(3) (West 2011).

4. As we noted supra at note 3, Nevada has since strengthened the procedural protectionsafforded to physicians in summary suspension proceedings by adopting a bright-line requirement that hearings be instituted within 45 days of the entry of a summary suspensionorder. See Nev.Rev.Stat. § 233B.127(3) (West 2011). Nonetheless, we consider whether the Board Members were entitled to absolute immunity given the dispensation in effect at the timeBuckwalter's privileges were suspended.

Buckwalter also argues, albeit in a footnote, that the prohibition on staying a Board order violates the Nevada state constitution by trenching on the state courts' constitutionallyguaranteed power to issue writs of injunction. See Nev. Const. art. 6, § 1. Because this is anaction for deprivations of federal constitutional rights, we need not address this argument.

While this appeal was percolating, the Board voted unanimously to lift the summary suspension of Buckwalter's prescribing privileges. (He still faces a disciplinary hearing before theBoard on the merits of the administrative complaint.) Buckwalter's prayer for an injunction toterminate the summary suspension is moot. See Aiona v. Judiciary of Haw., 17 F.3d 1244, 1248(9th Cir.1994).We conclude, however, that Buckwalter's case is not moot, for two reasons. First,because the disciplinary hearing has not yet occurred—wherein the facts giving rise to theBoard's judgment that Buckwalter was a threat to public safety will either be proven or rebutted—issuing declaratory relief at this juncture might at least have some salutary effect onBuckwalter's reputation. Id. Second, Buckwalter seeks a separate hearing on whether he posedan imminent threat to the safety of the public. This claim for relief is not moot.

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