The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 4 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL THOMAS, MD, No. 23-35456
Plaintiff-Appellant, D.C. No. 3:22-cv-00944-JR
v.
MEMORANDUM*
KATHLEEN HARDER, MD; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Jolie A. Russo, Magistrate Judge, Presiding
Argued and Submitted August 21, 2024
Portland, Oregon
Before: CHRISTEN, NGUYEN, and HURWITZ, Circuit Judges.
Plaintiff Paul Thomas, M.D., appeals the district court’s orders granting
Defendants’ motion to dismiss the operative complaint and denying leave to
amend. Because the parties are familiar with the facts, we do not recount them
here. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review the
district court’s dismissal de novo and its denial of leave to amend for abuse of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
discretion. Garmon v. County of Los Angeles, 828 F.3d 837, 842 (9th Cir. 2016).
We affirm.
1. The absolute immunity that is “generally accorded to judges and
prosecutors functioning in their official capacities” may also “extend[] to agency
representatives performing functions analogous to those of a prosecutor or judge.”
Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922-23 (9th Cir. 2004). To assess
whether a function is comparable to that of a judge, and thus entitled to absolute
immunity, we consider six nonexclusive factors. Buckwalter v. Nev. Bd. of Med.
Exam’rs, 678 F.3d 737, 740 (9th Cir. 2012).1 This inquiry focuses on the “nature
of the function performed, not the identity of the actor who performed it.” Id.
(quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)).
We have repeatedly concluded that members of state medical boards are
entitled to absolute immunity for actions undertaken in connection with
disciplinary proceedings. See Olsen, 363 F.3d at 924-26; Buckwalter, 678 F.3d at
741-46; Mishler v. Clift, 191 F.3d 998, 1003-09 (9th Cir. 1999). Having analyzed
the facts and circumstances of this case in light of the Butz factors, we reach the
1
These Butz factors include: “(a) the need to assure that the individual can perform
his functions without harassment or intimidation; (b) the presence of safeguards
that reduce the need for private damages actions as a means of controlling
unconstitutional conduct; (c) insulation from political influence; (d) the importance
of precedent; (e) the adversary nature of the process; and (f) the correctability of
error on appeal.” Cleavinger v. Saxner, 474 U.S. 193, 202 (1985) (citing Butz v.
Economou, 438 U.S. 478, 512 (1978)).
2
same conclusion here about the members of the Oregon Medical Board (OMB).
Dr. Thomas argues that even if the Butz factors favor a finding of absolute
immunity, OMB members are not entitled to absolute immunity because they
violated state law, Or. Rev. Stat. § 677.205(3), by issuing an emergency
suspension before formally filing a verified complaint. See Chalkboard, Inc. v.
Brandt, 902 F.2d 1375, 1379 (9th Cir. 1989). But unlike in Chalkboard, where
Arizona executive officials lacked any authority to impose summary suspensions
of day care centers, the OMB indisputably possesses the authority to suspend
medical licenses on an emergency basis. See Or. Rev. Stat. § 677.205(3). Even if
the OMB did not follow the proper procedures under state law—a question we do
not decide—its actions “are no less judicial . . . because they may have been
committed in error.” Mishler, 191 F.3d at 1006.2
2. We next consider whether Dr. Thomas alleged sufficient facts to state
a claim against the OMB’s staff members. “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
2
We similarly reject Dr. Thomas’s argument that the OMB violated state law
because it lacked evidence that his practice of medicine was “an immediate danger
to the public,” Or. Rev. Stat. § 677.205(3). The OMB’s exercise of a judicial
function renders the OMB members absolutely immune even if that “exercise of
authority is flawed by the commission of grave procedural errors.” Mishler, 191
F.3d at 1006 (quoting Stump v. Sparkman, 435 U.S. 349, 359 (1978)).
3
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Here, the amended complaint does not allege any facts in support of the
conclusory assertion that OMB staff investigators Boemmels and Brown “wrote
false and misleading allegations.” Nor does the amended complaint elaborate on
how Boemmels and Brown engaged in the “[f]abrication of evidence.” Similarly,
with respect to supervisory liability, the amended complaint summarily concludes
that OMB Medical Director Farris either “participated in or directed the fabrication
of evidence” or “failed to act to prevent it,” but advances no facts in support of
these assertions. These conclusory allegations do not suffice to state a plausible
claim for relief. See Iqbal, 556 U.S. at 678.
3. The district court did not abuse its discretion by denying Dr. Thomas
leave to amend in order to allege additional facts concerning the OMB staff
members. “Futility of amendment can, by itself, justify the denial of a motion for
leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Based on
the allegations advanced in Dr. Thomas’s proposed Second Amended Complaint
(SAC), we conclude that amendment would be futile because the staff members are
entitled to qualified immunity.
Qualified immunity protects public officials from § 1983 liability unless a
plaintiff shows “(1) that the official violated a statutory or constitutional right, and
(2) that the right was ‘clearly established’ at the time of the challenged conduct.”
4
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citation omitted). To assess
qualified immunity at the motion to dismiss stage, “we consider whether the
complaint alleges sufficient facts, taken as true, to support the claim that the
officials’ conduct violated clearly established constitutional rights.” Keates v.
Koile, 883 F.3d 1228, 1235 (9th Cir. 2018). Here, the proposed SAC fails to
adequately allege a constitutional violation. The SAC repeatedly concludes that
the OMB staff members fabricated evidence, or supervised the fabrication of
evidence, but it lacks sufficient factual allegations to support a claim to relief. See
Iqbal, 556 U.S. at 678. Moreover, even if Dr. Thomas had alleged a plausible
constitutional violation, he identifies no precedent that clearly establishes “the
violative nature of [this] particular conduct . . . in light of the specific context of
the case.” Mullenix v. Luna, 577 U.S. 7, 13 (2015) (per curiam) (citations
omitted).
AFFIRMED.
5