Unpublished Disposition, 867 F.2d 612 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 867 F.2d 612 (9th Cir. 1989)

Leroy W. DEMERY, M.D., Plaintiff-Appellant,v.Robert ROWLAND; Joseph Consentino, Defendants-Appellees.

No. 87-5772.

United States Court of Appeals, Ninth Circuit.

Submitted*  Dec. 16, 1988.Decided Jan. 23, 1989.

Before JAMES R. BROWNING, HUG and BEEZER, Circuit Judges.


Leroy Demery appeals the district court's grant of a directed verdict in favor of Appellees in this 42 U.S.C. § 1983 action. Demery sued Rowland and Consentino in their official capacities as California state officials on the Board of Medical Quality Assurance (Board) in connection with the Board's revocation of Demery's license to practice medicine. Demery contends that (1) the Board's revocation of his medical license violated Demery's due process rights because it conditioned Demery's right to practice medicine upon the completion of a nonexistent medical education course; (2) the Board had no authority to impose the requirement that he complete such a course; (3) the Board waived the medical course requirement and Consentino arbitrarily reinstated that requirement; (4) the district court erred in admitting evidence of a past conviction, and (5) that the district court was biased against Demery. Finding each of Demery's arguments meritless, we affirm.

A member of the Board accused Demery of improperly prescribing controlled dangerous substances. An administrative law judge found that Demery had improperly prescribed such substances.1  The Board adopted the ALJ's findings and revoked Demery's medical license. The Board stayed the order of revocation and placed Demery on probation subject to completion of a six month medical education course and passing an oral examination testing his medical knowledge.

Demery was notified that a medical education course had been prepared for him and that the Board had approved the course as fulfilling his probation requirements. Demery failed to take the course. Demery later petitioned the Board to modify the terms of his probation by deleting the course requirement because he could not afford the $6500.00 cost of the course. After a hearing the Board declined to modify Demery's probation requirements. Demery did not appeal this decision and this suit followed.

We review the grant of a directed verdict de novo. West America Corp. v. Vaughn-Bassett Furniture Co., Inc., 765 F.2d 932, 934 (9th Cir. 1985). We review the evidence in the light most favorable to the non-moving party. Blanton v. Mobil Oil Corp., 721 F.2d 1207, 1219 (9th Cir. 1983). A directed verdict is proper when the evidence permits only one reasonable conclusion as to the verdict. Peterson v. Kennedy, 771 F.2d 1244, 1256 (9th Cir. 1985).

Contrary to Demery's contention, the record indicates that Consentino found Demery an appropriate course which satisfied the requirements of his probation. The Board clearly had the authority to revoke Demery's license subject to the condition that he complete a medical education course. Cal.Bus. & Prof.Code Secs. 2004, 2227, 2228. Demery's contention that the Board had waived the course requirement has no merit. The record clearly indicates that the requirement was not waived and that Demery knew that it was not waived. Reasonable people could not disagree on the inferences to be drawn from the evidence adduced at trial. Those inferences do not support Demery's action and the district court correctly granted a directed verdict in favor of the Appellees.

Demery next contends that the district judge should have disqualified himself from Demery's case. We review for an abuse of discretion a trial judge's failure to disqualify himself. Herrington v. Sonoma County, 834 F.2d 1488, 1501, modified in unrelated part, 857 F.2d 567 (9th Cir. 1988). A judge must disqualify himself "in any proceeding in which his impartiality might reasonably be questioned," or "where he has a personal bias or prejudice concerning a party." Id.; 28 U.S.C. § 455(a), (b) (1). Neither a party's attack upon a judge's impartiality nor a finding of actual bias can be based upon information and beliefs which the judge acquired while acting in a judicial capacity. Herrington, 834 F.2d at 1502.

Demery's argument that the judge's remarks during the trial indicated that he was biased or prejudiced against Demery are meritless. In this case the judge expressed amazement that Demery would fail to satisfy the course requirement in order to regain his medical license. Such conduct does not meet the above standards. Accordingly, we reject Demery's argument that the district court should have disqualified himself from this case.

Lastly, Demery's argument that evidence of his prior conviction was erroneously admitted under Fed.R.Evid. 609 need not be reached. The analysis of the propriety of the grant of the directed verdict, an inquiry which focuses upon the minimum quantum of evidence required to get Demery's case to the jury, is a question of law completely unrelated to any prejudice which may have resulted from the admission of this evidence.

For the foregoing reasons we affirm the district court.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3


Demery's prescription of such drugs also resulted in a criminal conviction in state court