JAMES TATE, JR. V. BEVERLY NEYLAND, No. 11-17580 (9th Cir. 2012)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 22 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS JAMES S. TATE, Jr., M.D., Plaintiff Appellant, v. BEVERLY NEYLAND, M.D.; STATE OF NEVADA BOARD OF MEDICAL EXAMINERS; MICHAEL FISCHER; DONNA A. RUTHE; SUE LOWDEN, Defendants Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 11-17580 D.C. No. 2:11-cv-01613-JCM-VCF MEMORANDUM * Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding Argued and Submitted June 11, 2012 San Francisco, California Before: FERNANDEZ, GOULD, and BEA, Circuit Judges. Dr. James S. Tate, Jr., appeals the district court s dismissal of his 42 U.S.C. § 1983 action against the members of the State of Nevada Board of Medical * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Examiners (Board Members),1 and against the Board itself.2 We affirm. Tate asserts that the district court erred when it dismissed on Younger3 abstention grounds. Younger abstention applies when important state interests are implicated in ongoing state proceedings, the plaintiff has an adequate opportunity to raise federal questions therein and federal court action would effectively enjoin the state proceedings. Potrero Hills Landfill, Inc. v. Cnty. of Solano, 657 F.3d 876, 882 (9th Cir. 2011). Those conditions were met here. The state proceedings were judicial in nature;4 they were ongoing;5 they surely did involve very important state 1 The Board Members are: Dr. Beverly Neyland, Dr. Michael Fischer, Donna Ruthe, and Sue Lowden. 2 Neither the district court nor the parties have drawn a distinction between the Board Members and the Board in this case. 3 Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). 4 See Buckwalter v. Nev. Bd. of Med. Exam rs, __ F.3d __, __, No. 11-15742, slip op. 6539, 6550 (9th Cir. June 8, 2012); Mishler v. Clift, 191 F.3d 998, 1007 08 (9th Cir. 1999); see also Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass n, 457 U.S. 423, 433 34, 102 S. Ct. 2515, 2522, 73 L. Ed. 2d 116 (1982). 5 The state administrative proceeding had started almost two years earlier. See Fresh Int l Corp. v. Agric. Labor Relations Bd., 805 F.2d 1353, 1357 (9th Cir. 1986). Also, the state court proceeding to review the administrative decision was filed before the district court action was filed, and the latter was certainly embryonic at best. Id. at 1358. 2 interests;6 Tate had an adequate opportunity to raise his federal claims therein, and had done so;7 and a determination that the statute or procedure or both were unconstitutional would certainly interfere with the state action.8 Because damages are not sought, dismissal is the proper remedy,9 but, of course, that is without prejudice because it is not a decision on the merits.10 Thus, the district court did not err. AFFIRMED. 6 It cannot be doubted that enforcing provisions designed to assure the quality of a learned profession s treatment of the public is an important and vital state interest. See, e.g., Middlesex, 457 U.S. at 434 35, 102 S. Ct. at 2522 23 (legal profession); cf. Buckwalter, __ F.3d at __, No. 11-15742, slip op. at 6559 60 (need to ensure quality health care); Olsen v. Idaho Bd. of Med., 363 F.3d 916, 924 (9th Cir. 2004) (need to ensure quality health care); Baffert v. Cal. Horse Racing Bd., 332 F.3d 613, 618 (9th Cir. 2003) (need to ensure quality of horse racing); Mishler, 191 F.3d at 1005 (need to ensure quality health care). 7 Tate could, and did, raise his constitutional claims in the state court proceedings. See Ohio Civil Rights Comm n v. Dayton Christian Sch., Inc., 477 U.S. 619, 629, 106 S. Ct. 2718, 2724, 91 L. Ed. 2d 512 (1986); Gilbertson v. Albright, 381 F.3d 965, 983 (9th Cir. 2004) (en banc); Kenneally v. Lungren, 967 F.2d 329, 332 (9th Cir. 1992); Nev. State Bd. of Nursing v. Merkley, 940 P.2d 144, 147 (Nev. 1997) (per curiam); see also Nev. Rev. Stat. § 233B.135(3)(a). 8 A federal district court ruling could certainly have the effect of interfering with the state court proceeding. See Gilbertson, 381 F.3d at 968; see also Samuels v. Mackell, 401 U.S. 66, 73 74, 91 S. Ct. 764, 768, 27 L. Ed. 2d 688 (1971). 9 See Gilbertson, 381 F.3d at 984. 10 See Woodfeathers, Inc. v. Wash. Cnty., 180 F.3d 1017, 1022 (9th Cir. 1999). 3

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