John W. Wang, M.d., Plaintiff, Appellant, v. New Hampshire Board of Registration in Medicine, et al.,defendants, Appellees, 55 F.3d 698 (1st Cir. 1995)

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US Court of Appeals for the First Circuit - 55 F.3d 698 (1st Cir. 1995)

Heard Jan. 11, 1995. Decided June 6, 1995


Vincent C. Martina, for appellant.

Daniel J. Mullen, Sr. Asst. Atty. Gen., with whom Jeffrey R. Howard, Atty. Gen., was on brief, for defendants.

CYR and BOUDIN, Circuit Judges, and KEETON,*  District Judge.

CYR, Circuit Judge.


John W. Wang, M.D., appeals from a district court judgment dismissing his claims for monetary and equitable relief relating to certain disciplinary proceedings conducted by the New Hampshire Board of Registration in Medicine, which culminated in the revocation of his license to practice medicine in New Hampshire. We affirm the district court judgment.

* BACKGROUND

Wang practiced medicine for approximately sixteen years under a medical license issued by the Commonwealth of Massachusetts in 1967, then moved to New Hampshire in 1983 and resumed the practice of medicine under a newly-obtained New Hampshire medical license. On March 16, 1988, the Board of Registration in Medicine for the Commonwealth of Massachusetts ("Massachusetts Board") revoked Wang's medical license for professional misconduct.1  In light of the Massachusetts Board action against Wang, the New Hampshire Board of Registration in Medicine ("New Hampshire Board" or "Board") issued an order on July 20, 1988, suspending his New Hampshire medical license pursuant to the New Hampshire reciprocal revocation statute,2  and allowing him until August 26 to request an administrative hearing.

Wang promptly obtained preliminary injunctive relief from a New Hampshire superior court, enjoining the suspension order pending a revocation hearing before the New Hampshire Board. The Board in turn withdrew its suspension order and, on August 11, 1988, ordered that Wang show cause why his New Hampshire license ought not be revoked on the ground that he had never informed the Board of the license revocation order issued by the Massachusetts Board. On October 5, 1988, the New Hampshire Board decided to investigate Wang's New Hampshire medical practice.

Pending investigation by the New Hampshire Board, Wang appealed the Massachusetts Board license revocation order to the Massachusetts Supreme Judicial Court ("SJC"). Contemporaneously, Wang sought--and on February 23, 1989, obtained--a second New Hampshire superior court order, enjoining the New Hampshire Board from pursuing "any hearing the result of which might be revocation of [Wang's] New Hampshire license based on the action of the Massachusetts Board ... until such time as the matter in Massachusetts has been finally adjudicated in the [SJC]." Two months later--on reconsideration--the New Hampshire superior court vacated its injunction for lack of jurisdiction. The following week, the SJC upheld the Massachusetts Board license revocation order.

On May 22, 1989, counsel was appointed by the New Hampshire Board to investigate Wang's New Hampshire medical practice. The investigation took over two years, followed by hearings commencing in July and ending in October, 1991. The Board found that--in and of itself--the unprofessional conduct which had prompted the Massachusetts Board to revoke Wang's medical license warranted revocation of his New Hampshire license. Further, the Board found that Wang's unreasonable withholding of information from the Board during its investigation into his New Hampshire medical practice, and his failure even to demonstrate an attempt to address the professional deficiencies in his Massachusetts practice, combined "not only [to] justify, but [to] require reciprocal license revocation in New Hampshire." On March 5, 1992, the Board issued its written decision and order revoking Wang's New Hampshire medical license.

Wang appealed the revocation decision to the New Hampshire Supreme Court, claiming deprivations of his due process rights under state and federal law, including alleged violations of the Board's own rules, regulations and enabling statutes, and asserting conflicts of interest and unfair prejudice on the part of Board members and its counsel. On August 26, 1992, the New Hampshire Supreme Court summarily affirmed the license revocation order, finding the New Hampshire Board decision neither unjust nor unreasonable, and that the appeal presented no substantial question of law.

Meanwhile, on November 22, 1991, before the New Hampshire Board's license revocation order ever issued, Wang had commenced the present action against the Board, its members and counsel, in the United States District Court for the District of New Hampshire. The federal complaint under 42 U.S.C. § 1983 asserted claims for monetary relief and for temporary and permanent injunctive relief enjoining further disciplinary action by the Board; a judicial declaration that the Board's actions were fundamentally unfair and violative of Wang's right to due process of law; and an award of attorney fees against Board members and its counsel in their individual capacities. The federal district court stayed its proceedings pending a decision by the New Hampshire Supreme Court.

All defendants moved to dismiss the federal action shortly after the New Hampshire Supreme Court summarily affirmed the New Hampshire Board's license revocation order. The district court dismissed the claims for monetary relief against the Board and its members, in their official capacities, on Eleventh Amendment immunity grounds. Later, the claims for monetary relief against Board members and its counsel, in their individual capacities, were dismissed on grounds of absolute immunity. Finally, on July 12, 1994, the district court entered summary judgment on the claims for injunctive relief against the Board, finding that it lacked subject matter jurisdiction to review the New Hampshire Supreme Court decision. Wang appealed.

II

DISCUSSION

On appeal, Wang contends that the district court erred in dismissing his claims for monetary relief against the Board and its members in their official capacities; in sustaining the absolute immunity claims interposed by Board members and its counsel, acting in their individual capacities, in that these defendants had exceeded their respective adjudicative and prosecutorial roles and would be entitled, at most, to qualified immunity under New Hampshire law; and in ruling that it lacked subject matter jurisdiction to afford prospective injunctive relief.

1. The Board and Board Members (Official Capacities)

As it is well settled "that neither a state agency nor a state official acting in his official capacity may be sued for damages in a section 1983 action," Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991) (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45 (1989)), cert. denied, 502 U.S. 1063, 112 S. Ct. 948, 117 L. Ed. 2d 117 (1992); see also Kaimowitz v. Board of Trustees, Univ. of Ill., 951 F.2d 765, 767 (7th Cir. 1991) (finding that, as neither the state nor its "alter ego" (state university) is a "person" for section 1983 purposes, neither is subject to suit under section 1983), we affirm the dismissal of the claims for monetary relief against the Board and its members acting in their official capacities.

2. Board Members and Board Counsel (Individual Capacities)

Immunity claims in section 1983 actions are governed by federal law. Martinez v. California, 444 U.S. 277, 284 n. 8, 100 S. Ct. 553, 558 n. 8, 62 L. Ed. 2d 481 (1980). Wang nonetheless contends that the Board members and its counsel, in their individual capacities, were entitled, at most, to "good faith" immunity (under New Hampshire law) from monetary liability under section 1983. As we discern no material distinction between the quasi-judicial and prosecutorial functions performed by these defendants in behalf of the New Hampshire Board, and those performed by their Massachusetts Board counterparts, the district court order dismissing these "individual capacity" claims was entirely proper. See Bettencourt v. Board of Registration in Medicine, 904 F.2d 772, 782-85 (1st Cir. 1990).

The Massachusetts Board members and its professional staff were held absolutely immune from suit in their individual capacities under section 1983, on the ground that these officials serve in quasi-judicial capacities "functionally comparable" to those performed by a state court judge. Id. at 783. As with the Massachusetts Board, New Hampshire Board members weigh evidence and make factual determinations, N.H.Rev.Stat.Ann. Sec. 329:17(VI), determine sanctions, see id. Sec. 329:17(VII), and issue written decisions in disciplinary actions. See id. Sec. 329:18(III).4 

Although Wang attempts to differentiate between the two administrative tribunals on the ground that the New Hampshire Board assumed an "inquisitorial or investigative role" in this case by instigating and prosecuting the charges against him, the attempted distinction is without legal significance. State officials performing prosecutorial functions--including their decisions to initiate administrative proceedings aimed at legal sanctions--are entitled to absolute immunity as well. See Butz v. Economou, 438 U.S. 478, 515, 98 S. Ct. 2894, 2915, 57 L. Ed. 2d 895 (1978); see also Horwitz v. Board of Medical Examiners, 822 F.2d 1508, 1515 (10th Cir.) (describing Colorado medical board officials' adjudicatory and prosecutorial role), cert. denied, 484 U.S. 964, 108 S. Ct. 453, 98 L. Ed. 2d 394 (1987). Thus, New Hampshire Board counsel, like the Massachusetts Board professional staff, see Bettencourt, 904 F.2d at 785, is absolutely immune from suit, in his individual capacity, based on his participation in particular cases before the Board. See id.

Wang next argues that the New Hampshire Board members and its counsel were imbued with such "overwhelming malice and bad faith" that due process was not to be had at their hands. The allegation of malice and bad faith is founded principally on the New Hampshire superior court decision--preliminarily enjoining further Board action--entered on February 23, 1989, and vacated for lack of subject matter jurisdiction two months later.5 

Even assuming a level of malice and bad faith sufficient to poison the New Hampshire Board proceedings--contrary to the record evidence, as well as the New Hampshire Supreme Court decision--the Board members and its counsel nonetheless would be absolutely immune from suit, in their individual capacities, on section 1983 claims arising out of their respective judicial, quasi-judicial and/or prosecutorial functions, even though they acted "maliciously and corruptly." Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 1218, 18 L. Ed. 2d 288 (1967); Imbler v. Pachtman, 424 U.S. 409, 424, 96 S. Ct. 984, 992, 47 L. Ed. 2d 128 (1976) (extending absolute immunity under section 1983 to prosecutors acting in quasi-judicial capacity). Nor does Wang claim that his medical license was revoked by the Board in the "clear absence of all jurisdiction." Stump v. Sparkman, 435 U.S. 349, 357, 98 S. Ct. 1099, 1105, 55 L. Ed. 2d 331 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L. Ed. 646 (1871)); see also Ricci v. Key Bancshares of Maine, Inc., 768 F.2d 456, 462 (1st Cir. 1985) ("The conduct in question need only be more or less connected to 'the general matters committed by law to [the Board's] control or supervision' and not 'manifestly or palpably beyond [the Board's] authority.' ") (quoting Spalding v. Vilas, 161 U.S. 483, 498, 16 S. Ct. 631, 637, 40 L. Ed. 780 (1896)).

Lastly, Wang contends that absolute immunity cannot insulate Board members and its counsel from suit, since the challenged disciplinary action was taken pursuant to a New Hampshire reciprocal revocation statute, see N.H.Rev.Stat.Ann. Sec. 329:17-c (1984), unconstitutional on its face. He reasons that though our decision in Bettencourt might support absolute immunity for medical board members and its counsel, provided their actions were taken under adequate procedural safeguards, Bettencourt does not immunize such officials from suit in their individual capacities for official actions summarily taken under a reciprocal revocation statute simply on the ground that another jurisdiction has revoked the respondent's license.

We decline the invitation to provide an advisory opinion on a claim for which there is no evidentiary support in the appellate record. See United States Nat'l Bank of Or. v. Independent Ins. Agents of Am., Inc., --- U.S. ----, ----, 113 S. Ct. 2173, 2178, 124 L. Ed. 2d 402 (1993) (" 'The exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy,' and 'a federal court [lacks] the power to render advisory opinions.' ") (citations omitted); State of R.I. v. Narragansett Indian Tribe, 19 F.3d 685, 705 (1st Cir.), cert. denied, --- U.S. ----, 115 S. Ct. 298, 130 L. Ed. 2d 211 (1994) (same). Wang concedes that the final license revocation order issued by the New Hampshire Board was not the product of a summary proceeding. Considering that almost three years elapsed between the commencement of the disciplinary investigation and the entry of the revocation order, we believe the concession is well founded. Moreover, the Board conducted several hearings at which Wang and his attorney appeared; the proceedings were transcribed; the Board issued a written decision; and Wang was afforded--and utilized to the fullest--the right to appeal the final Board order to the New Hampshire Supreme Court. We find no basis in fact or law for the claim that the procedural safeguards accorded Wang by the New Hampshire Board differed in any significant respect from those the Massachusetts Board afforded the respondent in Bettencourt. See 904 F.2d at 783.

Finally, Wang challenges the summary judgment entered against him on the claim for permanent injunctive relief against the Board.6  In particular, he attacks the federal district court ruling that this claim is "inextricably intertwined" with the New Hampshire Supreme Court decision disallowing his appeal from the New Hampshire Board's license revocation order and, consequently, that the district court lacked subject matter jurisdiction to enjoin the present claim. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S. Ct. 149, 150, 68 L. Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S. Ct. 1303, 1311-12, 75 L. Ed. 2d 206 (1983). Wang argued to the New Hampshire Supreme Court that the procedure by which his medical license was revoked failed to afford him due process of law. The New Hampshire Supreme Court rejected his claim, and its decision was reviewable only by the United States Supreme Court. See Feldman, 460 U.S. at 482, 103 S. Ct. at 1314-15.

Wang frivolously argues, nonetheless, that the Rooker- Feldman doctrine does not bar the constitutional claims asserted below in support of his request for permanent injunctive relief against further disciplinary proceedings by the Board, because unlike the plaintiffs in Feldman, there is no other forum available to him. He is wrong.

Wang raised the due process claim before the New Hampshire Supreme Court, albeit unsuccessfully, and may not obtain review of its decision in federal district court on any pretext. Schneider v. Colegio de Abogados de P.R., 917 F.2d 620, 628 (1st Cir. 1990) ("[L]ower federal courts have no jurisdiction to hear appeals from state court decisions, even if the state judgment is challenged as unconstitutional."), cert. denied, 502 U.S. 1029, 112 S. Ct. 865, 116 L. Ed. 2d 772 (1992) (emphasis added). Constitutional claims presented to a United States district court, and found to be "inextricably intertwined" with state court proceedings, impermissibly invite the federal district court, "in essence," to review a final state court decision. Feldman, 460 U.S. at 482 n. 16, 103 S. Ct. at 1315. Lower federal courts are without subject matter jurisdiction to sit in direct review of state court decisions. Id. (citing Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 296, 90 S. Ct. 1739, 1747-48, 26 L. Ed. 2d 234 (1970)).

III

CONCLUSION

The district court judgment dismissing all claims must be affirmed.

Affirmed.

 *

Of the District of Massachusetts, sitting by designation

 1

The charges and findings appear in Wang v. Board of Registration in Medicine, 405 Mass. 15, 537 N.E.2d 1216 (1989)

 2

The reciprocal revocation statute, N.H.Rev.Stat.Ann. Sec. 329:17-c (1984), in effect at the time provided:

The board may summarily deny a license to, or revoke or restrict the license of, any person who has been subjected to disciplinary action related to professional conduct by the competent authority of any other jurisdiction.

 3

Rule 12(b) (1) dismissals for lack of subject matter jurisdiction are reviewed de novo, Hogar Agua y Vida en el Desierto, Inc. v. Suarez-Medina, 36 F.3d 177, 181 (1st Cir. 1994), crediting all well-pleaded allegations and drawing all reasonable inferences favorably to the plaintiff. Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995)

 4

The New Hampshire Board is empowered to conduct disciplinary proceedings, and discipline licensees in appropriate cases, N.H.Rev.Stat.Ann. Secs. 329:2(II) (b), 329:17(I), (VI), and to appoint legal counsel and "such other assistants as may be required" in performing its administrative responsibilities, id. Sec. 329:2(II) (c). It may initiate disciplinary proceedings on its own motion or upon a written complaint alleging professional misconduct. See id. Sec. 329:17(I), (VI). It may reprimand; limit, suspend or revoke medical licenses; assess administrative fines; and order treatment, counseling, continuing medical education and medical practice supervision. Id. Sec. 329:17(VII). Appeals from its disciplinary rulings are taken to the New Hampshire Supreme Court, id. Sec. 329:17(VIII), under the procedures set forth in N.H.Rev.Stat.Ann. ch. 541

The Massachusetts Board adjudicatory proceedings are conducted by a hearing officer, see Bettencourt, 904 F.2d at 773, who makes all evidentiary and procedural rulings, and issues a "tentative decision" which the Massachusetts Board reviews, together with any objection filed by the respondent physician, before issuing its "final decision." See id. at 773-74. The Massachusetts Board accords "substantial deference" to all credibility determinations by the hearing officer, but may reject or revise any finding based on conflicting evidence. Id. Legal rulings are reviewed de novo. Id. Appeals from Massachusetts Board decisions are taken to the SJC, which may set aside or modify board decisions on a finding that substantial rights have been prejudiced. Id. at 774.

 5

In its February 23, 1989, order enjoining the Board disciplinary proceedings, the superior court found that Wang had not been accorded due process, in that the Board had prejudged the outcome of its proceedings. Further, the superior court faulted the multiple roles assumed by Assistant Attorney General Douglas Jones, as Board counsel and prosecutor. "Under such circumstances there could not be even the appearance of fairness," the court said

On appeal, Wang relies heavily on these superior court findings for his claim that the Board proceedings were devoid of due process. But the superior court findings are without legal effect since the superior court lacked subject matter jurisdiction and its findings were implicitly rejected by the New Hampshire Supreme Court decision affirming the Board's final revocation order.

 6

Summary judgment rulings are reviewed de novo to determine whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Simon v. FDIC, 48 F.3d 53, 56 (1st Cir. 1995)