The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PAUL THOMAS, MD, Case No. 3:22-cv-944-JR
Plaintiff, ORDER
v.
KATHLEEN HARDER, et al.,
Defendants.
Michael H. Simon, District Judge.
United States Magistrate Judge Jolie A. Russo issued Findings and Recommendation
(F&R) in this case on October 11, 2022. Judge Russo recommended that this Court grant
Defendants’ motion to dismiss.
Under the Federal Magistrates Act (Act), the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
§ 636(b)(1). If a party objects to a magistrate judge’s findings and recommendations, “the court
shall make a de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3). For those
portions of a magistrate judge’s findings and recommendations to which neither party has
objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140,
152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require a
district judge to review a magistrate’s report to which no objections are filed.”); United States. v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review
de novo magistrate judge’s findings and recommendations if objection is made, “but not
otherwise”). Although in the absence of objections no review is required, the Act “does not
preclude further review by the district judge[] sua sponte . . . under a de novo or any other
standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ.
P. 72(b) recommend that “[w]hen no timely objection is filed,” the Court review the magistrate
judge’s recommendations for “clear error on the face of the record.”
Plaintiff timely filed an objection, to which Defendants responded by incorporating by
reference their briefing on the motion to dismiss before Judge Russo. Plaintiff raises several
objections. The Court addresses each in turn.
1. Absolute Immunity of OMB Members
Plaintiff’s first objection is that the F&R erroneously recommended that Defendants are
entitled to absolute immunity. Plaintiff argues that Defendant members of the Oregon Medical
Board (OMB) acted outside their statutory authority because they did not comply with the
procedures established under Oregon Revised Statutes (ORS) § 677.200 when invoking the
emergency temporary license revocation authority of ORS § 677.205(3). Thus, asserts Plaintiff,
under Chalkboard, Inc. v. Brandt, 902 F.2d 1375 (9th Cir. 1990), the members of the OMB are
not entitled to absolute immunity.
“The prime categories of executive officials that are entitled to absolute immunity are
those whose functions parallel the functions of judges and prosecutors.” Id. at 1378. When
considering absolute immunity for state actors outside of judges and prosecutors, a court must
consider whether the “officials were placed, under state law, in the functions equivalent to those
of judge or prosecutor.” Id. Oregon has a statute that provides absolute immunity to the OMB
and its investigators and staff. ORS 677.335(1) (“Members of the Oregon Medical Board,
members of its administrative and investigative staff, medical consultants, and its attorneys
acting as prosecutors or counsel shall have the same privilege and immunities from civil and
criminal proceedings arising by reason of official actions as prosecuting and judicial officers of
the state.”).
Oregon also has a statutory framework for OMB proceedings and license suspensions.
Within that framework, ORS § 677.205 requires that the OMB may only temporarily suspend a
license without a hearing if it is done “simultaneously with the commencement of proceedings
under ORS 677.200.” The Court declines to adopt the portion of the F&R discussing ORS
§§ 677.200 and 677.205.
The OMB may only temporarily suspend a license without a hearing if it is done at the
same time as commencing proceedings under ORS 677.200. Those proceedings must be
“substantially in accord” with: “(1) A written complaint of some person, not excluding members
or employees of the Oregon Medical Board, shall be verified and filed with the board;” and
“(2) A hearing shall be given to the accused in accordance with ORS chapter 183 as a contested
case.” The hearing need not be “simultaneous” with the temporary suspension because ORS
§ 677.205 expressly allows a temporary suspension without a hearing. Thus, the only logical way
to read the two statutes together is that the OMB may temporarily suspend a license without a
hearing so long as it is simultaneous with the proceedings commencing by having a written
complaint of some person being verified and filed with the OMB.1
The OMB temporarily suspended Plaintiff’s medical license on December 3, 2020.
Plaintiff alleges that a notice of disciplinary proceeding or complaint against him was not filed
by the OMB until April 22, 2021, months after his temporary suspension. ORS § 677.205,
however, does not require that the complaint against Plaintiff be filed by the OMB to initiate the
“proceedings.” Indeed, the complaint must be filed “with” the OMB not “by” the OMB. The
statute allows members and employees of the OMB to file the complaint, but does not require it.
For example, if a patient files a complaint with the OMB, and that complaint is verified, the
OMB may, under the terms of the statute, temporarily suspend a medical license if the OMB
determines that the practitioner poses an immediate danger to the public. Thus, the mere fact that
the OMB did not issue its notice of disciplinary proceedings to Plaintiff until April 22, 2021,
does not mean that no complaint was filed and verified against Plaintiff before that date. Indeed,
Plaintiff’s allegations show that there was a complaint by someone else.
Plaintiff alleges that on July 23, 2020, the OMB notified Plaintiff that it was investigating
a complaint lodged against Plaintiff regarding his research into vaccinated versus unvaccinated
children. Am. Compl. ¶ 77. Plaintiff also alleges that the “answer” Plaintiff provided to the OMB
regarding that complaint “did not comport with the Board’s dogmatic opinion.” Id. ¶ 81. Plaintiff
further alleges that he issued a “peer-reviewed paper” about how much healthier unvaccinated
children are compared to vaccinated children, and that a few days after that paper became
available online, the OMB investigator “reviewed the case” with the investigative committee and
1 Defendants argue that Plaintiff’s contention that a complaint must be “filed” is “patently
false.” Plaintiff’s contention, however, derives directly from ORS § 677.200(1), which requires
that a complaint be “filed with the board.”
the investigative committee sent the “case” to the OMB, who then temporarily suspended
Plaintiff’s license. Id. Based on Plaintiff’s allegations, it appears to have been the July 23, 2020
complaint, investigation, and “case” that served as the basis for his suspension.
Even assuming no complaint was filed with the OMB as that term is used in ORS
§ 677.200 until the OMB itself issued its disciplinary notice to Plaintiff in April 2021, that does
not resolve whether the OMB members are entitled to absolute immunity. That would simply
mean that OMB members, who plainly have the statutory authority to temporarily suspend
Plaintiff’s medical license, would have failed to follow the proper procedures in doing so.
Plaintiff argues that under Chalkboard, the members then would not be entitled to absolute
immunity. Chalkboard, however, did not involve agency personnel who had statutory authority
but failed to follow the proper procedures to execute that authority. In Chalkboard, the Ninth
Circuit concluded that state law authorized only prosecutors to seek an injunction in court to
summarily close day care centers and that Department of Health Services (DHS) personnel were
not authorized to summarily close day care centers. Id. at 1379. Thus, the DHS personnel were
not entitled to absolute immunity because they did not have authority “under state law, in the
functions equivalent to those of judge or prosecutor with regard to [the day care center’s]
summary closure.” Id. at 1378.
Here, however, Chalkboard does not apply to Plaintiff’s claims. U.S. District Judge Ann
Aiken reached the same result when she dismissed similar claims in a different case. Judge
Aiken explained:
Plaintiff’s reliance on Chalkboard, Inc. v. Brandt, 902 F.2d 1375
(9th Cir. 1990), for the proposition that defendants’ actions are not
within the scope of immunity because they violated state law, is
misplaced. In Chalkboard, the court determined that an Arizona
agency did not have statutory authority to carry out an emergency
closure of a day care center; that power was held by another
agency. Id. at 1378-79. The lack of agency authority in
Chalkboard is not present in this case. Plaintiff does not dispute
that the Board is authorized to investigate and discipline physicians
or that it can effect emergency license suspensions. Thus,
plaintiff’s allegations are unlike those in Chalkboard; he simply
alleges that the Board failed to properly adhere to its procedures in
exercising its authority under Oregon law. As defendants note,
plaintiff’s various arguments that defendants skipped important
steps in the process or omitted information from documents are not
relevant to the absolute immunity inquiry. The acts of the Board in
their exercise of statutory authority “are no less judicial or
prosecutorial because they may have been committed in error.”
Mishler [v. Clift], 191 F.3d [998,] 1006 [9th Cir. 1999] (citing
Stump v. Sparkman, 435 U.S. 349, 359 (1978)).
Gambee v. Cornelius, 2011 WL 1311782, at *5 (D. Or. Apr. 1, 2011).
Plaintiff also objects that the F&R does not go through the factors from Butz v.
Economou, 438 U.S. 478 (1978), arguing that whether the OMB is subject to absolute immunity
requires a court to analyze those factors in each case for each act taken. The F&R cited many
cases that had found medical boards, including the OMB, making disciplinary decisions were
entitled to absolute immunity. The Court disagrees that the F&R was required separately to
analyze the Butz factors. The argument Plaintiff makes in his objection is a rehash of his
argument that the OMB failed to follow the proper procedures, was thus outside its statutory
authority, and therefore not entitled to absolute immunity under the Butz factors. Gambee, cited
by the F&R, however, analyzed the Butz factors and addressed similar arguments.
2. Absolute Immunity for non-OMB Members
Plaintiff argues that Defendants Eric Brown, Jason Boemmels, and David Farris, who are
not members of the OMB, are not entitled to absolute immunity because they did not serve in the
role equivalent to judges or prosecutors. Plaintiff asserts that the F&R incorrectly treated all
Defendants together in applying absolute immunity.
Defendants Brown and Boemmels were investigators for the OMB, and Defendant Farris
is alleged to have been their supervisor. The Ninth Circuit generally does not apply absolutely
immunity to investigatory conduct, but only to judicial or prosecutorial conduct. See Hardwick v.
Cnty. of Orange, 844 F.3d 1112, 1115 (9th Cir. 2017) Garmon v. Cnty. of Los Angeles, 828 F.3d
837, 842-43 (9th Cir. 2016); Slater v. Clarke, 700 F.3d 1200, 1203 (9th Cir. 2012).
As noted above, however, Oregon has by statute imbued OMB investigators and staff
with absolute immunity. ORS 677.335(1). Judges in this district court have applied this statute to
provide absolute immunity to employees other than OMB members. See, e.g., Dover v.
Haley, 2013 WL 6190165, at *3 (D. Or. Nov. 26, 2013), aff’d, 616 F. App’x 295 (9th Cir. 2015);
Read v. Haley, 2013 WL 1562938, at *7 (D. Or. Apr.10, 2013). Thus, all Defendants are entitled
to absolute immunity.
Plaintiff also objects to the F&R’s conclusion that the Amended Complaint fails to state a
claim against Brown, Boemmels, and Farris. Plaintiff argues that the F&R fails to accept as true
the allegations in the Amended Complaint. For Farris, Plaintiff asserts that supervisory liability
is actionable under § 1983 and that Plaintiff adequately alleged such liability. “A defendant may
be held liable as a supervisor under § 1983 ‘if there exists either (1) his or her personal
involvement in the constitutional deprivation, or (2) a sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional violation.’” Starr v. Baca, 652 F.3d 1202,
1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). The requisite
showing can be established by demonstrating that the supervisor: (1) set in motion a series of
acts by others or knowingly refused to terminate a series of acts by others, which the supervisor
knew or reasonably should have known would cause others to inflict constitutional injury; (2)
had his or her own culpable action or inaction in the training, supervision, or control of his or her
subordinates; (3) acquiesced in the constitutional deprivation by subordinates; or (4) engaged in
conduct that shows reckless or callous indifference to the rights of others. Id. at 1207-08; see
also Felarca v. Birgeneau, 891 F.3d 809, 820 (9th Cir. 2018) (“The requisite causal connection
can be established by setting in motion a series of acts by others, or by knowingly refusing to
terminate a series of acts by others, which the supervisor knew or reasonably should have known
would cause others to inflict a constitutional injury.” (citing Starr, 652 F.3d at 1207-08)). “A
plaintiff must allege facts, not simply conclusions, that show that an individual was personally
involved in the deprivation of [the plaintiff’s] civil rights.” Barren v. Harrington, 152 F.3d 1193,
1194 (9th Cir. 1998).
Plaintiff does not sufficiently allege facts supporting Farris’s supervisory liability.
Plaintiff simply alleges that Farris participated in, directed, or knew of and failed to prevent the
“fabrication of evidence” that led to Plaintiff’s alleged deprivation of rights. Plaintiff improperly
alleges “simply conclusions” and his supervisory claims fail. Barren, 152 F.3d at 1194.
For Brown and Boemmels, Plaintiff asserts that the facts alleged in Paragraphs 96-112
regarding the alleged deficiencies in the Board’s disciplinary findings are facts that apply to
Brown and Boemmels. The Amended Complaint, however, alleges these facts specifically
against only “the Board.” The facts alleged against Brown and Boemmels are that they “wrote
false and misleading allegations” against Plaintiff and that they did not interview the individuals
cited in their report but instead relied on “second-hand information.” Am. Compl. ¶¶ 149-51.
In the analogous criminal context, the Ninth Circuit has held that for a claim of
fabrication of evidence, a plaintiff “must, at a minimum, point to evidence that supports at least
one of the following two propositions: “(1) Defendants continued their investigation . . . despite
the fact that they knew or should have known that [the plaintiff] was innocent; or (2) Defendants
used investigative techniques that were so coercive and abusive that they knew or should have
known that those techniques would yield false information.” Devereaux v. Abbey, 263 F.3d 1070,
1076 (9th Cir. 2001) (emphasis in original). Plaintiff does not allege sufficient facts to state a
claim based on a fabrication of evidence.
3. Vagueness
Plaintiff objects that in the F&R’s discussion of whether the statutes governing the
procedures on medical licensing are unconstitutionally vague, the F&R does not accept
Plaintiff’s alleged facts as true. Plaintiff recites alleged facts that the F&R purportedly should
have accepted, relating to the dangers of childhood vaccinations and the positive results of not
vaccinating children.
It is unclear whether Plaintiff is bringing a facial or an as applied vagueness challenge.
The alleged facts would not be relevant to a facial challenge but might be relevant to an as
applied challenge. The Amended Complaint appears to allege an as applied challenge—asserting
that a person of reasonable intelligence could not ascertain that Plaintiff’s specific conduct was
forbidden by the statutes. Plaintiff’s response to Defendants’ motion to dismiss argues a facial
challenge, namely that the statutes do not provide any standard by which any person could
ascertain any understandable standard of regulation and that the statutes allow too much
discretion by the OMB.
“[A] challenged statute enjoys a presumption of constitutionality.” Forbes v.
Napolitano, 236 F.3d 1009, 1012 (9th Cir. 2000). “A law is unconstitutionally vague if it does
not give ‘a person of ordinary intelligence fair notice of what is prohibited’ or if it is ‘so
standardless that it authorizes or encourages seriously discriminatory enforcement.’” Tingley v.
Ferguson, 47 F.4th 1055, 1089 (9th Cir. 2022) (quoting United States v. Williams, 553 U.S. 285,
304 (2008)). “For facial vagueness challenges, [courts] tolerate uncertainty at the margins; the
law just needs to be clear in the vast majority of its intended applications.” Id. For as-applied
challenges, courts “consider whether a statute is vague as applied to the particular facts at issue.”
Holder v. Humanitarian L. Project, 561 U.S. 1, 18 (2010).
For both types of challenges, the Court adopts the F&R’s discussion regarding the text of
the statutes and case law interpreting similar statutes. That is sufficient to defeat a facial
challenge. The statutes are not vague “in the vast majority” of their intended applications.
Tingley, 47 F.4th at 1089.
For an as-applied challenge, even accepting Plaintiff’s well-pleaded factual allegations as
true, the statutes still are not unconstitutionally vague. Plaintiff alleges that over the course of his
medical career he came to disagree with the recommended vaccine schedule and that he believes
children are healthier when they are not vaccinated. Plaintiff, however, does not allege that he
does not understand that the vaccine schedule is recommended and is considered the standard of
care by the medical profession or the OMB. Indeed, he alleges the opposite, that the OMB and
the medical profession refuse to consider that altering the recommended vaccine schedule
allegedly provides better outcomes for children. His allegations show that he understands that the
statutes require that he perform under the standard of care and that he understands what the OMB
and the medical profession consider to be the standard of care; he just does not agree with the
current standard of care. That he does not agree with the current standard of care, however, does
not render the statutes vague.
4. Qualified Immunity
Plaintiff objects that the F&R misapplied qualified immunity. The F&R stated that
Plaintiff alleges that Defendants violated Plaintiff’s rights by investigating and disciplining him
and that Defendants are statutory authorized to do so. The F&R noted that Plaintiff alleges
Defendants fabricated evidence, but that such allegations are conclusory and may be disregarded.
Thus, all that is left is that Defendants investigated and disciplined Plaintiff. The F&R, therefore,
recommended granting qualified immunity because no binding precedent held such conduct
unlawful.
Plaintiff argues that simply because Defendants are statutorily authorized to investigate
and discipline doctors does not mean that can do so unlawfully. The F&R (and this Court),
however, rejected Plaintiff’s conclusory allegations that Defendants fabricated evidence. That
leaves only an investigation and disciplinary action with which Plaintiff disagrees and for which
Plaintiff alleges he has scientific evidence to dispute. Plaintiff’s disagreement with his
investigation, however, does not render Defendants’ conduct constitutionally deficient or not
subject to qualified immunity.
5. Conclusion
The Court ADOPTS IN PART the Findings and Recommendation, ECF 11, as
supplemented herein. The Court GRANTS Defendants’ motion to dismiss, ECF 6. Plaintiff is not
automatically granted leave to amend because, the Court dismisses his claims, among other
reasons, based on absolute and qualified immunity. Plaintiff may file a motion for leave to
amend within 30 days if Plaintiff believes he has a basis on which to file a Second Amended
Complaint.
IT IS SO ORDERED.
DATED this 8th day of February, 2023.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge