HAMID SAFARI V. KAISER FOUNDATION HEALTH PLAN, No. 12-16245 (9th Cir. 2014)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS SEP 30 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HAMID SAFARI, M.D. and MARK FAHLEN, M.D., No. 12-16245 D.C. No. 3:11-cv-05371-JSW Plaintiffs - Appellants, MEMORANDUM* v. KAISER FOUNDATION HEALTH PLAN; et al., Defendants - Appellees. Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding Submitted September 12, 2014** San Francisco, California Before: BEA, IKUTA, and HURWITZ, Circuit Judges. Plaintiffs appeal the district court s decision granting defendants motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Plaintiffs bring an as- * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). applied challenge and a facial challenge under 42 U.S.C. § 1983 to the peer-review process that a California health care provider must conduct before revoking a doctor s privileges to practice medicine at the provider s facilities. Plaintiffs claim the peer-review process violates the Due Process Clause of the Fourteenth Amendment. Both the plaintiffs as-applied and facial challenges are foreclosed by Pinhas v. Summit Health, Ltd., 894 F.2d 1024 (9th Cir. 1989). First, the peer-review process has not changed materially since Pinhas because California Business & Professions Code § 809, et seq. merely codified the common law that existed when Pinhas was decided. See El-Attar v. Hollywood Presbyterian Med. Ctr., 301 P.3d 1146, 1151 (Cal. 2013) ( [T]he peer review statute, like the common law fair procedure doctrine that preceded it, establishes minimum protections for physicians subject to adverse action in the peer review system. (internal quotations omitted)). Pinhas s holding is therefore still valid. As a result, defendants were not state actors when they conducted peer review and revoked plaintiffs privileges to practice medicine at defendants facilities. See Pinhas, 894 F.2d at 1034. Second, as Pinas remains valid, plaintiffs incorrectly named defendants, who are private parties, in a facial challenge to the peer-review statutes. Id. at 1034 35. AFFIRMED.
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