Conklin

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

JEREMY CONKLIN, Ca se No. 3:25-cv-01173-AR

Plaintiff, OPINION AND ORDER

v.

OREGON MEDICAL BOARD, an Oregon

State Agency; NICOLE KRISHNASWAMI,

an individual; MICHAEL SEIDEL, an

individual; and WALTER FRASIER, an

individual,

Defendants.

_____________________________________

ARMISTEAD, United States Magistrate Judge

Plaintiff and osteopathic physician Jeremy Conklin, representing himself,1 brings this

lawsuit challenging an ongoing disciplinary investigation by the Oregon Medical Board (OMB).

In addition to suing OMB, Conklin sues OMB executive director Nicole Krishnaswami, and

investigators Michael Seidel and Walter Frasier in (what appears to be) their individual

1 Plaintiff is licensed as an attorney in Washington. (See Compl. at 38, ECF 1 (listing

Conklin’s Washington bar number in his signature); Resp. at 28, ECF 24 (same).)

capacities. Conklin alleges that OMB’s investigation into his conduct at Salem Hospital and

inactivation of his locum tenens license, among other things, denied him due process, violated

the Privileges and Immunities Clause, and violated the Equal Protection Clause. And those

constitutional violations by the defendants resulted, Conklin alleges, in both intentional and

negligent infliction of emotional distress. Defendants move under Federal Rule of Civil

Procedure 12(b)(6) to dismiss all claims. For the reasons discussed below, that motion is

GRANTED.

BACKGROUND

Jeremy Conklin is an osteopathic physician who resides in Washington. In July 2018,

Conklin applied for an Oregon medical license to practice at Providence Medford Medical

Center in Oregon as a locum tenens physician. Conklin worked with a healthcare staffing agency,

CompHealth, to complete his application. Conklin was informed by a CompHealth employee

that, per the OMB, he did not qualify for an active Oregon medical license because he did not

“live or practice within 100 miles of the Oregon border.” (Compl. ¶¶ 8-10, ECF 1.) He did,

however, qualify for a locum tenens license—a temporary license to practice medicine in Oregon

for physicians who reside out of state.2 (Id.)

2 See OAR 847-008-0020 (1) (“Any licensee whose official state of residence is a state

other than Oregon who proposes to practice intermittently within the State shall register and pay

the biennial locum tenens registration fee.”).

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Conklin then applied for an Oregon locum tenens license. During the application process,

Conklin was notified and fined $195 under OAR 847-008-00583 because of incorrect

information on his Oregon license application. (Compl. ¶ 11.) Conklin moved to dismiss that

civil penalty, but that motion was allegedly “ignored” by the OMB. (Id. ¶ 13.) Conklin

eventually paid the fee and successfully obtained a locum tenens license in October 2018. (Id. ¶

15.)

In October 2020, Conklin received a notice from OMB that his license would be changed

to inactive status if he failed to report any locum tenens assignments in Oregon from 2018 to

2019. Conklin asserts that “physicians who are residents of Oregon and have an active Oregon

Medical License” are not required to provide yearly proof of employment. (Id. ¶¶ 16-18.) Before

receiving that notice, Conklin asked OMB why he could not obtain an Oregon medical license

and thus eliminate the need to report his employment every year. (Id. ¶ 19, Ex. EE, ECF 1-2 at

21.)4 Conklin alleges in his complaint that, in response, OMB told him that “because [he] did not

live in Oregon, but intermittently practiced medicine less than 240 days in Oregon every two

3 Under that rule, “omissions or false, misleading, or deceptive statements or information

on any [OMB] application, affidavit or registration is a violation of ORS 677.190” and grounds

for a fine.

4 Conklin relies upon several exhibits attached to his complaint, the validity of which

defendants do not dispute. The court therefore incorporates those exhibits by reference. See

Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1159 (9th Cir. 2012) (“[T]he district court

may but is not required to incorporate documents by reference.”); United States v. Ritchie, 342

F.3d 903, 908 (9th Cir.2003) (explaining that a document “may be incorporated by reference into

a complaint if the plaintiff refers extensively to the document or the document forms the basis of

the plaintiff'’s claim”).

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years,” he was only eligible for a locum tenens license and not an Oregon medical license.5

Conklin then reported his 2018-19 employment, and his license was renewed. (Id. ¶¶ 20-21.)

OMB again issued a notice to Conklin on January 31, 2024, regarding his failure to

timely report any employment in Oregon. (Id. ¶ 22, Ex. FF, ECF 1-2 at 26.) On February 8, 2024,

when Conklin did not respond, he was informed by a letter signed by Krishnaswami that his

license was changed to inactive status. (Id. ¶ 23, Ex. GG, ECF 1-2 at 29.)

Before OMB changed Conklin’s license to inactive status, Conklin took a locum tenens

contract with Salem Hospital in Oregon. Conklin was scheduled for a night shift surgery

assignment starting on June 5, 2023. During that shift, Conklin saw five patients and tried to

schedule each of them for emergency surgeries that evening. Yet Conklin was told by Salem

Hospital staff that there were no available operating rooms or teams to staff operating rooms. (Id.

¶¶ 24-26.) Conklin was able to schedule one of his cases, but Salem Hospital required that

another doctor proctor the operation. The proctor and Conklin disagreed about medical

procedures, and the proctor asked Conklin to leave before the operation was finished. Conklin

alleges that another of his patients died because of a delay of an operation. (Id. ¶¶ 28-29, 31.)

5 OMB’s response, attached to Conklin’s complaint, stated the following:

Physicians who actively practice in Oregon, with a current Oregon practice

address may register the active license at Active status. Physicians who do not live

in Oregon, but who practice intermittently within Oregon for no more than 240

days every two years may register the active license at Locum Tenens status, per

Oregon Administrative Rule (OAR).

(Ex. EE, ECF 1-2 at 22.)

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The next day, Conklin complained to the Salem Health Medical Director and CEO that

the proctor interfered with his treatment of a patient. That same day, Salem Hospital canceled

Conklin’s locum tenens assignment. (Id. ¶¶ 32-33.) Conklin received a notice, dated July 5, 2023,

from OMB regarding a complaint from Salem Hospital, alleging that Conklin provided

medically incompetent care for four patients he treated on the night of June 5 and acted in an

unprofessional and dishonorable manner. (Id. ¶¶ 38-39.) On July 16, Conklin asked OMB to

provide more details about the allegations, which OMB provided. Conklin responded on

December 6, 2023, with a description of his actions. (Id. ¶¶ 16, 47)

Meanwhile, Salem Hospital’s peer review committee reviewed Conklin’s treatment of the

four patients and determined in October 2023 that there were no deficiencies in Conklin’s care

and that he had not behaved dishonorably or unprofessionally. (Id. ¶¶ 42-43.)

OMB continued to pursue its investigation into Conklin’s conduct at Salem Hospital,

however. In June 2024, OMB ordered Conklin to undergo two medical competency

examinations, one in Kansas and one in Colorado. (Id. ¶ 48, Ex. MM, ECF 1-2 at 99-101.)

Conklin was required to schedule both within 30 days and complete the assessment in Colorado

within 150 days and the assessment in Kansas within 90 days. (Id.) The evaluations were to be

undertaken at Conklin’s own expense, which would cost him more than $10,000 plus the cost of

travel, lodging, and lost work. (Id. ¶¶ 48, 69.) Conklin does not allege one way or another if he

replied to the order or completed the evaluations.

On September 5, 2024, OMB requested an in-person interview before OMB’s

Investigative Committee at OMB’s office in downtown Portland on December 5, 2024. (Id. ¶ 49;

Ex. NN, ECF 1-2 at 109.) Conklin responded by saying he would be happy to appear for the

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interview but by Zoom. (Id.) OMB informed Conklin that a virtual interview was not an option.

Conklin (believing that ORS § 677.320—OMB’s basis for the interview request—does not

require an in-person interview) did not appear for the requested interview. (Id. ¶ 49, Ex. NN,

ECF 1-2 at 108.)

On June 3, 2025, OMB sent Conklin a Notice of Proposed Disciplinary Action for

violations of the Medical Act (Notice), including unprofessional or dishonorable conduct, the

inability to safely and skillfully practice medicine, gross and repeated negligence in the practice

of medicine, failure to comply with the order to complete the medical evaluations, and failing to

appear for the December 5 interview in Portland. (Id. ¶ 51, Ex. XX, ECF 1-2 at 140-55.)

Attached to the Notice was a proposed stipulated order for which Conklin would neither admit

nor deny the allegations but OMB would find that he engaged in the alleged conduct, and

Conklin would not practice medicine in Oregon for two years. (Id. at Ex. XX, ECF 1-2 at 162-

63.) Conklin alleges that the allegations in the notice were neither based on the medical records

nor judged against the standard of care. (Id. ¶ 51.)

On July 7, 2025, Conklin filed suit in this court, bringing the following § 1983 claims:

Claim One. All defendants violated his Fourteenth Amendment due

process rights because the July 5, 2023, notice of a complaint did not

provide adequate notice of what he was alleged to have done wrong (Id. ¶¶

54-57), by refusing to provide Conklin procedural safeguards in ordering

him to undergo the medical competency evaluations, including an

unbiased tribunal, explaining why the evaluations were necessary, the

right to cross-examine the witness who furnished information for the

evaluation order, and written findings of fact for why OMB decided it

needed the evaluations. (Id. ¶¶ 58-70.) In addition to damages, Conklin

seeks a declaratory judgment and injunctive relief in which a Special

Master would be appointed to oversee the OMB for 5 years.

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Claim Two. OMB and Krishnaswami, in accordance with OAR 847-008-

0020(4),6 inactivated his locum tenens license on the ground that he had

not reported assignments in Oregon for the previous two years. Because

Oregon physicians are not subject to that requirement, OMB and

Krishnaswami violated the Fourteenth Amendment’s Privileges and

Immunities Clause by treating non-Oregon physicians differently from

Oregon physicians. In addition to damages, he seeks a declaratory

judgment and a permanent injunction that prevents OMB from enforcing

that rule. (Id. ¶¶ 84-104.)

Claim Three. Defendants violated the Fourteenth Amendment’s Equal

Protection Clause and included false allegations in its Notice of Proposed

Disciplinary Action and investigated him and no other treating physician.

(Id. ¶¶ 151-53.) Also alleged is that OMB and Krishnaswami extorted him

in its Notice of Proposed Disciplinary Action by manufacturing false

allegations and offering to settle if Conklin paid a fine of $10,000, in

violation of ORS § 31.230.7 (Id. ¶¶ 147-52.) In addition to seeking money

damages, Conklin seeks a declaratory judgment, a permanent injunction

appointing a special master, and writ of mandamus directing the United

States Department of Justice to investigate OMB.

Claim Four. All defendants violated his Fourteenth Amendment due

process rights when they retaliated against Conklin for asserting that OMB

was violating his constitutional rights by ordering him to undergo medical

competency evaluations. He seeks damages, and declaratory and

injunctive relief.

6 OAR 847-008-0020(4) provides that a

licensee who registers as locum tenens and who does not practice in Oregon

during the biennium, shall be registered as inactive at the time of registration

renewal, and shall be required to reactivate to locum tenens registration status

prior to practicing in Oregon.

7 As part of Claim Three, for the purpose of showing “motive, opportunity, intent, plan,

absence of mistake, and lack of accident” as well as to show that OMB investigates physicians to

make money, Conklin alleges that OMB fined Conklin in 2018 for incorrect information in his

license application without proof that his answer was intentionally false and that, were he to have

a hearing before an ALJ, the ALJ would not be unbiased because any penalty imposed would

paid to the executive branch. (Compl. ¶¶ 156-182.)

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In addition to those § 1983 claims, Conklin brings the following two Oregon common law

claims.

Claim Five. Conklin claims intentional infliction of emotional distress,

alleging that defendants’ actions—intentionally violating his constitutional

rights—were extreme and outrageous conduct, therefore causing him

extreme emotional distress. He seeks damages.

Claim Six. Conklin claims negligent infliction of emotional distress,

alleging that defendants knew or should have known that they were

violating his constitutional rights and retaliating against him, thus causing

him extreme emotional distress. He seeks damages.

In Claims Seven and Eight,8 and his Prayer for Relief, he seeks an assortment of

remedies, including a declaratory judgment that addresses his constitutional claims, also asking

the court to declare that OMB issues licenses to physicians who are non-Oregon residents and

that Oregon cannot recoup costs for hearings requested by applicants and licensees. Conklin also

seeks injunctive relief that essentially appoints a special master to oversee OMB to ensure that it

does not engage in actions similar to those involving him.

When Conklin filed his complaint, he also moved for a preliminary injunction, which

sought, among other things, reactivation of his medical license and a stay of OMB’s investigation

until this case is resolved. (ECF 2.) Judge Immergut denied the motion, concluding that Conklin

had not demonstrated that he was likely to succeed on the merits or to be irreparably harmed

without preliminary relief, or that the balance of equities and public interest favored an

injunction. (Immergut Order at 2, ECF 22.)

8 Conklin labels these claims as the “Sixth Cause of Action” And “Seventh Cause of

Action.”

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On January 20, 2026, Conklin, asserting that OMB’s withholding of evidence

compromised the fairness of the case against him, requested a temporary restraining order to stay

a scheduled contested case hearing before an administrative law judge. (Mot. TRO at 6-14, ECF

31.) This court, having obtained consent for magistrate judge jurisdiction, denied the TRO

request. (Order, ECF 35.) The court held oral argument on defendants’ motion to dismiss on May

27, 2026.

LEGAL STANDARD

A motion to dismiss for failure to state a claim may be granted only when there is no

cognizable legal theory to support the claim or when the complaint lacks sufficient factual

allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,

Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). The court, when assessing a complaint’s factual

sufficiency, must (1) accept plaintiff’s well-pleaded material facts alleged in the complaint as

true and (2) construe factual allegations in the light most favorable to the plaintiff. Wilson v.

Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629

F.3d 992, 998 (9th Cir. 2010).

The court need not, however, credit the plaintiff’s legal conclusions that are couched as

factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). To be entitled to a

presumption of truth, allegations in a complaint “may not simply recite the elements of a cause

of action but must contain sufficient allegations of underlying facts to give fair notice and to

enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th

Cir. 2011).

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A complaint must contain sufficient factual allegations to “plausibly suggest an

entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the

expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Plausibility is not probability, but

plausibility “asks for more than a sheer possibility that a defendant acted unlawfully.” Mashiri v.

Epsten Grinnell & Holmes, 845 F.3d 984, 988 (9th Cir. 2017).

DISCUSSION

A. Sovereign Immunity

Under the Eleventh Amendment, a state is immune from suit in federal court unless (1)

Congress has abrogated the state’s immunity or (2) the state itself has waived it. Va. Office for

Prot. & Advocacy v. Stewart, 563 U.S. 247, 253-54 (2011); Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 100 (1984) (“It is clear, of course, that in the absence of consent a suit

in which the State or one of its agencies or departments is named as the defendant is proscribed

by the Eleventh Amendment.”). That “jurisdictional bar applies regardless of the nature of the

relief sought.” Pennhurst, 465 U.S. at 100.

A state is not a “person” under § 1983 and cannot be held liable for damages. Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 64 (1989) (explaining that congress did not

abrogate Eleventh Amendment sovereign immunity by passing § 1983). That immunity extends

to agents or arms of the state. P. R. Aqueduct & Sewer Auth. v. Metcalf, 506 U.S. 139, 144

(1993). Medical boards are a “state agency” for immunity purposes. Bondick v. Mitchell, 6:22-

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cv-00722-AA. 2023, WL 1103615 *2 (D. Or. 2023) (citing Forster v. County of Santa Barbara,

896 F.2d 1146, 1149 (9th Cir. 1990)).

Conklin does not challenge that OMB is an arm of the state and entitled to sovereign

immunity. (MTD at 6, ECF 18.) Because OMB has not waived immunity nor consented to suit,

OMB is entitled to sovereign immunity and Conklin’s federal and state law claims against OMB

must be dismissed. See Blair v. Toran, 1999 WL 1270802, *23 (D. Or. Dec. 2, 1999), aff’d, 12 F.

App’x 604 (9th Cir. 2001) (“[a]lthough the State of Oregon has consented to be sued in Oregon

courts for torts committed by its employees, officers, or agents while acting within the course

and scope of their employment under the [Oregon Tort Claims Act], it has not consented to be

sued in federal court for those torts”).

The Eleventh Amendment also prohibits damages actions against state officials who are

sued in their official capacity. Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999). If Conklin

seeks damages from the individual defendants in their official capacities, the Eleventh

Amendment bars that remedy.

B. Absolute Immunity

Section 1983 Claims. Although the Eleventh Amendment bars damages actions against

the individuals in their official capacities, it does not prevent seeking damages against them in

their individual capacities. Even so, absolute immunity may prevent, in some circumstances,

recovering damages from the individual defendants. That is because the immunity that judges

enjoy from damages liability for their judicial acts is extended to state officials and agency

representatives sued under § 1983 whose actions are functionally comparable to the actions of a

prosecutor or judge. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 923 (9th Cir. 2004); Burton

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v. Infinity Cap. Mgmt., 862 F.3d 740, 747 (9th Cir. 2017) (“Absolute immunity is not reserved

solely for judges, but extends to nonjudicial officers for all claims relating to the exercise of

judicial functions.”) (citation modified); Miller v. Gammie, 335 F.3d 889, 898 (9th Cir. 2003)

(stating that “[u]nder certain circumstances, absolute immunity is also extended to agency

representatives performing functions analogous to those of a prosecutor or a judge”). “The

justification for absolute immunity is the protection of the judicial process. It shields independent

and impartial adjudication and prevents the ‘deflection of [an officer’s] energies from [the

officer’s] public duties.’” Burton, 862 F.3d at 747 (quoting Burns v. Reed, 500 U.S. 478, 485

(1991)).

Courts apply what are known as the Butz factors9 to determine whether an officer’s

actions are of a judicial nature and entitled to absolute immunity. Buckwalter v. Nev. Bd. of Med.

Exam’rs, 678 F.3d 737, 740 (9th Cir. 2012) (citing Butz v. Economou, 438 U.S. 478, 512 (1978)).

The Ninth Circuit has applied the Butz factors to conclude that Idaho and Nevada medical board

members’ actions were entitled to quasi-judicial immunity for acts occurring during a

disciplinary hearing process. See Olsen, 363 F.3d at 922-24 (board members immune from

9 Those six non-exhaustive factors are

(1) the need to ensure that the individual can perform the individual’s functions

without harassment or intimidation; (2) the presence of safeguards that reduce the

need for private damages actions as a means of controlling unconstitutional

conduct; (3) the insulation from political influence; (4) the importance of

precedent; (5) the adversarial nature of the process; and (6) the correctability of an

error on appeal.. The court then must determine whether the officers’ actions “are

judicial or closely associated.” Mishler, 191 F.3d at 1007.

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decisions and actions revoking and denying the license of a physician assistant); Buckwalter v.

Nev. Bd. of Medical Examiners, 678 F.3d 737, 740-47 (2012) (board members immune for

exercising emergency summary suspension authority of a physician); Mishler v. Clift, 191 F.3d

998 (1999) (board members immune for disciplinary actions against physician).

In this district, judges have provided absolute immunity to OMB employees other than its

board members for conduct related to disciplinary proceedings. LaTulippe v. Or. Med. Bd., 3:24-

cv-00456-SB, 2025 WL 1692418, at *2 (D. Or. June 16, 2025) (“members and staff of the

Oregon Medical Board are entitled to absolute immunity only in their performance of judicial

and prosecutorial functions”); Thomas v. Harder, No. 3:22-cv-00944-JR, 2023 WL 1815197, at

*4 (D. Or. Feb. 8, 2023) (first citing Dover v. Haley, No. 3:13-cv-01360-BR, 2013 WL 6190165,

at *3 (D. Or. Nov. 26, 2013), aff'd, 616 F. App’x 295 (9th Cir. 2015); and then citing Read v.

Haley, No. 3:12-cv-02021-MO, 2013 WL 1562938, at *7 (D. Or. Apr. 10, 2013), aff’d, 650 F.

App’x 492 (9th Cir. 2016), cert. denied, 580 U.S. 933 (2016)), aff’d, 2024 WL 4403868 (9th Cir.

Oct. 4, 2024)). The court agrees with the conclusions of those decisions that OMB staff

members—alleged to have violated § 1983—can be entitled to absolute immunity for actions

related to disciplinary proceedings.

Krishnaswami, Seidel, and Frasier assert that they are entitled to absolute immunity

because their conduct alleged in Conklin’s complaint constituted “the beginning of an

adjudicatory process.” (MTD at 10.) It is Conklin’s position that the actions taken by the

individual defendants were purely investigatory, as only OMB board members may decide

whether to proceed to discipline. (Resp. at 19-20.) Although not cited in his briefing, Conklin

relied on Buckley v. Fitzsimmons, 509 U.S. 259 (1993), at oral argument to support his position.

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When considering whether a prosecutor was entitled to absolute immunity, Buckley drew a

distinction between acts taken in the prosecutor’s role as an advocate and acts that more closely

resemble that of an investigator or detective. 509 U.S. at 273-74. Under Buckley, a prosecutor’s

absolute immunity does not begin the moment charges are filed but extends to preliminary

actions, as long as those actions are taken in “preparation for the initiation of a prosecution.” Id.

at 273 (describing “evaluating evidence and interviewing witnesses” as an example of conduct

worthy of absolute immunity). Absolute immunity does not apply, however, to investigative

functions like “searching for the clues and corroboration that might give [the prosecutor]

probable cause to recommend that a suspect be arrested.” Id. Only qualified immunity is

available in those instances. Id. at 273-74.

At oral argument, Conklin asserted that everything preceding the OMB June 2025 Notice

of a Proposed Disciplinary Action was investigatory, rather than adjudicatory. In his view, the

individual defendants were merely gathering information in an effort to determine whether the

complaint against him had merit, with OMB board members ultimately deciding whether to

pursue a disciplinary proceeding. Defendants responded that Conklin is essentially splitting

hairs, and none of the controlling cases parse the issue as finely as he is attempting here.

Rather than defining the individual defendants’ specific actions as investigatory or

adjudicatory, both parties chose to categorize all their conduct as strictly one or the other. A

review of Conklin’s complaint and attached exhibits attribute the following conduct to each

defendant: Krishnaswami signed the letters notifying Conklin of his civil penalty and that his

locum tenens license had been changed to inactive status, as well as the orders for the

competency evaluations and the notice of the proposed disciplinary action. Seidel provided

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Conklin with notice of the complaint filed against him, and Frasier provided notice of the

competency evaluations and proposed disciplinary orders.

The court concludes that the individual defendants have absolute immunity for conduct

related to the disciplinary proceeding and investigation of Conklin’s shift at Salem Hospital. The

notices and evaluation orders Conklin takes issue with were in furtherance of OMB’s statutory

obligations to investigate and adjudicate the complaint before it. The OMB and its board

members depend on its executive director and investigators to perform its prosecutorial and

quasi-judicial functions. See Olsen, 363 F.3d at 928 (“procedural steps involved in the eventual

decision denying [plaintiff] her license reinstatement” were “acts are inextricably intertwined

with [defendants’] statutorily assigned adjudicative functions and are entitled to the protections

of absolute immunity”); ORS § 677.280 (permitting the OMB to employ “investigators and staff

for the purpose of enforcing the laws relating to this chapter and securing evidence of

violations”).

Oregon law also extends prosecutorial immunity to not just board members, but

administrative and investigative staff. See ORS § 677.335. That statute does not imbue the

individual defendants with absolute immunity against Conklin’s federal claims. See LaTulippe,

2025 WL 1692418, at *5 (“Oregon statutory immunities are not controlling in a Section 1983

case.”) It does, however, reveal that the legislature anticipated OMB staff operating in a

prosecutorial or quasi-judicial role on behalf of board members.

But Claim 2—directed at OMB and Krishnaswani—alleges conduct separate from the

disciplinary investigation. Because that conduct is not adjudicative and unrelated to the

disciplinary proceeding, Krishnaswami does not enjoy absolute immunity for the conduct related

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to the inactivation of Conklin’s locum tenens license or any actions she took concerning

Conklin’s ineligibility for an Oregon medical license.

In sum, with respect to Conklin’s § 1983 claims, all individual defendants have absolute

immunity for damages sought for Claims 1, 3, and 4. But as to Claim 2, Krishnaswami is not

entitled to absolute immunity.

State Law Claims. For claims brought under Oregon law, judges are immune from

personal liability for acts taken in the performance of judicial business unless jurisdiction for

their actions is clearly absent. See Utley v. City of Independence, 240 Or. 384, 386-87 (1965).

That immunity is not only for judges—“[o]ther officials who are performing acts associated with

the judicial process may be protected as well.” Praggastis v. Clackamas County, 305 Or. 419,

427 (1988) (“Judicial immunity is granted or withheld on the basis of the nature of the function

being performed, and not on the basis of the office.”). An official’s actions are judicial or quasi-

judicial for the purpose of extending immunity if they

are functionally comparable to judicial actions or involve decisions normally

performed by judges in their judicial capacity, whether the action depends on

legal opinions or discretionary judgments comparing the facts of a present

situation with general legal questions, and whether the acts in question are

primarily concerned with the official’s role as a judicial or quasi-judicial officer.

Id.; see also Read v. Haley, 3:12-cv-02021-MO, 2013 WL 1562938, at *6 (D. Or. Apr. 10, 2013),

aff'd, 650 F. App'x 492 (9th Cir. 2016). And the Oregon legislature has afforded OMB members

and its administrative and investigate staff the “the same privilege and immunities from civil and

criminal proceedings arising by reason of official actions as prosecuting and judicial officers of

the state.” ORS § 677.335(1).

With that said, for Conklin’s two state law claims—Claims 5 and 6, individual defendants

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have immunity to the extent that they are directed to their actions taken related to the Salem

Hospital disciplinary proceeding. Again, those actions came after Salem Hospital filed its

complaint and were integral to the ensuing disciplinary investigation, which are judicial or quasi-

judicial functions. However, Krishnaswami does not have immunity for Claims 5 and 6 to the

extent they are directed to her actions concerning the inactivation of Conklin’s locum tenens

license or other actions she took with respect to Conklin’s ineligibility for an Oregon medical

license.

C. Qualified Immunity

Claim 2. Although Krishnaswami is not protected by absolute immunity for Claim 2, she

is protected by qualified immunity because Conklin has failed to allege facts sufficient to

demonstrate that her conduct related to the locum tenens inactivation and Conklin’s ineligibility

for an Oregon medical license violated clearly established law.

Qualified immunity protects public officials from liability under § 1983 unless a plaintiff

shows (1) the official violated the plaintiff’s statutory or constitutional right; and (2) the

constitutional right was “clearly established in light of the specific context of the case at the time

of the events in question.” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (internal

quotations omitted). To be clearly established, the right’s contours must be “sufficiently definite

that any reasonable official in [his or her] shoes would have understood that he [or she] was

violating it.” Hardwick v. County of Orange, 844 F.3d 1112, 1117 (9th Cir. 2017) (quoting

Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)). At the motion to dismiss stage, the court

considers “whether the complaint alleges sufficient facts, taken as true, to support the claim that

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the officials’ conduct violated clearly established constitutional rights.” Keates v. Koile, 883 F.3d

1228, 1235 (9th Cir. 2018).

As Judge Immergut observed in her Order denying Conklin’s Motion for a Preliminary

Injunction, application of OAR 846-008-0015 does not violate the Privileges and Immunities

Clause because that rule concerns the requirement that every physician with active registration

status have a practice address—not a residence—within 100 miles of Oregon’s border. Just as

Conklin failed to provide argument or evidence to Judge Immergut that “‘practice address’ is

another term for ‘residence’ or that the ‘practice address’ requirement is enforced differently

between residents and nonresidents,” he fails to do so here. (Immergut Order at 10.) And as to

Conklin’s position that the locum tenens two-year certification requirement violates the

Privileges and Immunities Clause, it remains that Conklin has not alleged that he made any

attempt to reactivate his license or cannot do so. Consequently, the court agrees with Judge

Immergut’s well-reasoned analysis to conclude that he has not plausibly alleged that defendants

violated the Privileges and Immunities Clause.

Conklin also does not allege sufficient facts to show Krishnaswami violated clearly

established law. Claim 2 alleges that Krishnaswami sent Conklin a letter stating that his locum

tenens medical license had been inactivated because he had not reported any assignments in

Oregon in the past two years, as required by OAR 847-008-0020(4). Conklin’s theory that the

rule violates the Privileges and Immunities Clause of the Fourteenth Amendment is a novel

theory for which the Ninth Circuit has not decided is unconstitutional. Even if Claim 2 contained

sufficient factual allegations to make out a constitutional violation, Krishnaswami is entitled to

qualified immunity. The court is not persuaded that the case on which Conklin relies, Supreme

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Court of New Hampshire v. Piper, 470 U.S. 274 (1985), supports his legal theory. In Piper, the

Supreme Court held that the exclusion of a nonresident from admission to the New Hampshire

attorney bar ran afoul of the Clause. That case, however, does not have the specificity required to

put Krishnaswami on notice that sending Conklin the letter that his locum tenens license was

inactivated violated the Clause. See Mullenix v. Luna, 577 U.S. 7, 11, (2015) (per curiam)

(stating that a right is clearly established when it is “sufficiently clear that every reasonable

official would have understood that what he is doing violates that right”).

Indeed, as discussed by Judge Immergut, in-state office requirements that apply equally

to citizens and noncitizens have repeatedly been upheld against Privileges and Immunities

Clause challenges. (Immergut Order at 10, citing Schoenefeld v. Schneiderman, 821 F.3d 273,

286 (2d Cir. 2016) (upholding instate physical office requirement); Kleinsmith v. Shurtleff, 571

F.3d 1033, 1046 (10th Cir. 2009) (upholding “maintain a place within the state” requirement);

Tolchin v. Sup. Ct. of N.J., 111 F.3d 1099, 1113 (3d Cir. 1997) (upholding in-state bona fide

office requirement).

Conklin fails to identify precedent that clearly establishes “the violative nature of

[Krishnaswami’s] particular conduct . . . in light of the specific context of the case,” such that

any reasonable officer would have understood she was violating the Constitution. Mullenix v.

Luna, 577 U.S. 7, 12 (2015) (per curiam) (emphasis and citations omitted); see Moore v.

Garnand, 83 F.4th 743, 753 (9th Cir. 2023) (noting that the plaintiff has the “burden to identify

the clearly established law”). Krishnaswami is entitled to qualified immunity for Claim 2.

Claims 1, 3, and 4. Although the court concludes that the individual defendants are

absolutely immune for actions related to the disciplinary investigation, it also recognizes that

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“[t]he line between investigatory/administrative work, and the work done in preparation for a

prosecutor’s case is not as black and white as most would like.” Flowers v. Seki, 45 F. Supp. 2d

794, 808 (D. Haw. 1998). Accordingly, the court considers whether the individual defendants are

also entitled to qualified immunity on Claims 1, 3, and 4 and concludes that they are.

Claims 1 and 4 assert violations of the Fourteenth Amendment’s Due Process Clause.

Like Judge Immergut, the court notes here that OMB has not issued a final disciplinary decision,

and Conklin has not yet lost his license to practice medicine in Oregon. Thus, no federally

protected liberty or property interest is “immediately at stake.” (Immergut Order at 12-13 (citing

Humenansky v. Minn. Bd. of Med. Exam’rs, 525 N.W.2d 559, 566 (Minn. Ct. App. 1994) (finding

under the Fourteenth Amendment’s Due Process Clause that no protected interest was implicated

by the medical board’s preliminary examination order)).)

Conklin alleges in Claim 1 that OMB violated his due process rights by failing to provide

adequate notice of what he was alleged to have done wrong in the July 2023 notice of a

complaint (sent by Seidel) and by refusing to provide certain procedural safeguards in ordering

him to undergo the medical competency evaluations (sent by Frazier and signed by

Krishnaswami). (Compl. ¶¶ 54-70.)

Claim 1 does not establish a due process claim. To begin with, Conklin takes issue with

the fact that he was not provided with more details or with a copy of the original complaint

lodged against him. (Resp. at 13.) Due process requires notice “reasonably calculated, under all

the circumstances, to apprise interested parties of the pendency of the action and afford them an

opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306,

314 (1950). The July 2023 notice provided Conklin with the alleged charges, the date of the

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incident, the relevant patient names, and the timeline for response. (Ex. JJ, ECF 1-2 at 43.)

Conklin does not advance any argument to explain why that notice is insufficient. Nor does he

identify any binding precedent clearly establishing that such a notice is inadequate.

The evaluation orders also do not amount to a due process violation. Conklin argues that

he has a constitutional right to certain procedural safeguards upon receiving an order to undergo

the competency evaluations—such as the right to cross examine the witness who furnished the

information to OMB and an unbiased tribunal. Conklin cites two cases, but his reliance on each

is misplaced. In Irland v. Iowa Bd. of Med., 939 N.W.2d 85 (2020), the Iowa Board of Medicine

issued a confidential letter to the physician plaintiff that required him to take a competency

evaluation if he wished to resume practicing medicine. The Iowa Supreme Court held that the

letter “imposed conditional discipline without formal action,” in violation of reporting

requirements and an administrative rule granting licensees the right to object to an evaluation

order through a contested hearing. 939 N.W.2d at 91-92. Irland noted that, by imposing formal

discipline in a purportedly “informal” letter, the Board had “circumvented [] due process

safeguards” afforded by Iowa law. Id. at 87.

Judge Immergut observed in in her preliminary injunction order that Irland is readily

distinguishable. For one, Conklin does not point to a comparable Oregon rule or statute granting

licensees the right to object to a competency evaluation order. And for two, Conklin’s failure to

comply would (and presumably did) result in a contested disciplinary hearing, along with

appropriate procedural safeguards. (See Ex. MM, ECF 1-2 at 101 (noting that failure to comply

may result in disciplinary action by the Board).) The court in Irland, however, recognized that

the Board’s letter “effectively prevented [plaintiff] from again practicing medicine without

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meeting the Board’s conditions.” 939 N.W.2d at 91. That is, the Iowa Board imposed discipline

without a formal investigation or the attendant procedural safeguards.

The other case cited by Conklin, Nguyen v. State, Dep’t of Health Med. Quality

Assurance Comm’n, 144 Wash. 2d 516 (2001), is also not helpful. There, the Washington

Supreme Court held that the Due Process Clause requires proof by clear and convincing evidence

in a medical disciplinary hearing. Claim 1 does not concern any actions taken or evidence put

forth by defendants during Conklin’s disciplinary hearing (and could not, because his

disciplinary hearing occurred after he filed this action). In sum, Conklin does not establish a due

process violation. And even assuming he did, Conklin does not point to any binding precedent

demonstrating that the individual defendants’ conduct fan afoul of any clearly established law.

Relatedly, Conklin asserts in Claim 4 that all defendants “retaliated” against him by

ordering the competency evaluations. (Compl. ¶¶ 187-197.) Those allegations are conclusory and

do not plausibly allege a constitutional violation. See Hydrick v. Hunter, 669 F.3d 937, 942 (9th

Cir. 2012) (plaintiff’s conclusory allegations insufficient to establish § 1983 liability and

overcome qualified immunity). The individual defendants are entitled to qualified immunity for

Claims 1 and 4.

Claim 3 alleges that defendants violated the Fourteenth Amendment’s Equal Protection

Clause by investigating Conklin and no other treating physicians. (Id. ¶¶ 151-53.) Also alleged is

that OMB and Krishnaswami violated his due process rights and extorted him by manufacturing

false allegations and offering to settle if Conklin paid a fine of $10,000, in violation of ORS §

31.230. (Id. ¶¶ 147-52.) Those allegations also do not make out a clearly established

constitutional violation. The individual defendants are entitled to qualified immunity for Claim 3.

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The Equal Protection Clause protects individuals from government action that

intentionally treats them differently from others similarly situated if “there is no rational basis for

the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). But

Conklin’s complaint advances no facts about how and in what way the allegedly “similarly

situated” physicians are in fact, similarly situated, beyond merely treating the same patient.

Conklin does not allege, for example, that other physicians received complaints, but OMB

declined to pursue an investigation into them. Conklin did not provide any additional details at

oral argument or in his response or sur-reply to support his claim. Conklin also did not provide,

nor did the court locate, any binding precedent clearly establishing that investigating a treating

physician following a formal complaint, and not every other treating physician, is an equal

protection violation. The individual defendants are protected by qualified immunity for Conklin’s

equal protection claim.

Finally, Conklin’s allegations that OMB manufactured evidence against him are also

inadequate to overcome qualified immunity. Even taking Conklin’s allegations as true, without a

resulting deprivation, false allegations alone do not support a due process claim. See Johnson v.

Warden, 2:23-cv-0908 KJM JDP (PC), 2024 WL 2411723, at *1 (E.D. Cal. May 23, 2024),

reconsideration denied, 2:23-cv-0908 KJM JDP (PC), 2024 WL 3905259 (E.D. Cal. Aug. 22,

2024) (collecting cases); Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017) (observing that

plaintiff failed to state a deliberate fabrication claim because he did not allege a deprivation of

liberty and thus did not state a due process claim based on the same reasoning). Conklin does not

allege that OMB has revoked his license or suspended his ability to practice medicine in

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Oregon.10 Conklin’s complaint does not, and cannot, plausibly allege that defendants violated his

constitutional due process rights by manufacturing allegations against him. Krishnaswami,

Seidel, and Frasier are entitled to qualified immunity for Claim 3.

D. Younger Abstention

Having determined that OMB and the individual defendants are protected by sovereign,

absolute, or qualified immunity from Conklin’s federal claims for damages, the court considers

those claims seeking injunctive relief. Neither absolute nor qualified immunity protects state

officials or state agencies from injunctive relief. Seminole Tribe of Fla. v. Florida, 517 U.S. 44,

73 (1996) (under the Ex parte Young doctrine, the Eleventh Amendment does not bar a “suit

against a state official when that suit seeks ... prospective injunctive relief”); Am. Fire, Theft &

Collision Managers, Inc., 932 F.2d at 818. Younger abstention, however, requires that the court

abstain from adjudicating Conklin’s constitutional claims for injunctive relief.

The Supreme Court in Younger v. Harris, 401 U.S. 37 (1970), reaffirmed the long-

standing principle that federal courts sitting in equity cannot, absent exceptional circumstances,

enjoin pending state criminal proceedings. Younger was later extended to civil enforcement

actions “akin to” criminal proceedings, Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975), and

to suits challenging “the core of the administration of a State’s judicial system,” Juidice v. Vail,

430 U.S. 327, 335 (1977). In civil cases, Younger abstention is appropriate where state court

proceedings (1) are ongoing; (2) are a quasi-criminal enforcement action or involve a state’s

interest in enforcing the orders and judgments of its courts; (3) implicate important state

10 As of the date of oral argument, the disciplinary action remained under advisement with

the ALJ.

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interests; (4) provide an adequate opportunity to raise federal challenges; and (5) would be

enjoined by the federal court action or where the federal proceeding would have the practical

effect of doing so. See Rynearson v. Ferguson, 903 F.3d 920, 924 (9th Cir. 2018) (citing

ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 758 (9th Cir. 2014)).

In Buckwalter, the Ninth Circuit held that, under Younger, the court was prohibited from

enjoining the Nevada medical board’s ongoing proceeding. 678 F.3d at 747 (explaining that,

although qualified immunity did not bar equitable relief, Younger prohibited the injunction of the

medial board’s proceedings). The court concluded that the medical licensing investigation and

disciplinary process was ongoing, involved a significant state interest—the regulation of health

care—and provided adequate opportunity to raise federal questions on appeal. Id.

So too here. Just as in Buckwalter, OMB’s disciplinary proceeding against Conklin is

ongoing, involves the same important state interest of regulating healthcare, and Conklin can

raise federal constitutional challenges through the appeals process. 678 F.3d at 747. The court

must abstain from adjudicating Conklin’s constitutional claims for injunctive relief against the

individual defendants. Accordingly, Conklin’s constitutional claims must be dismissed.

E. State Law Claims

Under ORS § 677.335, the individual defendants are immune from state law actions for

conduct arising out of the disciplinary investigation. That immunity does not extend to

Krishnaswami’s inactivation of Conklin’s locum tenens license, however. Because neither

absolute immunity nor qualified immunity protects Krishnaswami from Conklin’s state tort

claims for intentional infliction of emotional distress and negligent infliction of emotional

distress, the court turns to those claims. For each, Conklin fails to state a claim.

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Intentional Infliction of Emotional Distress (IIED). To assert an IIED claim, a plaintiff

must prove three elements: (1) that the defendant intended to inflict severe emotional distress on

the plaintiff, (2) the defendant’s conduct caused the plaintiff severe emotional distress, and (3)

the defendants conduct was an extraordinary transgression of the bounds of socially tolerable

behaviors. Babick v. Or. Arena Corp., 333 Or. 401, 411 (2002); McGanty v. Staudenraus, 321 Or.

532, 454 (1995). Establishing intent requires, at the motion to dismiss stage, only an allegation

that the defendant acted with the purpose of causing the plaintiff severe emotional distress, not a

showing of the defendant’s knowledge that distress would occur. Babick, 333 Or. at 411. The

infliction of actual mental suffering on the plaintiff must be the deliberate purpose of the

defendant’s conduct, but the defendants may have ulterior objectives as well. Brewer v. Erwin,

287 Or. 435, 457 (1979).

IIED does not provide recovery for temporary annoyance or injured feelings that can

result from friction and rudeness among people in day-to-day life; it provides for recovery for

extraordinary transgressions, such as conduct so offensive as to be “outrageous” or “outrageous

in the extreme.” Hetfeld v. Bostwick, 136 Or. App. 305, 308 (1995). The court must perform a

fact-specific inquiry to determine whether conduct amounts to an extraordinary transgression.

Lanthrope-Olson v. Sept. of Transp., 128 Or. App. 405, 408 (1994).

Here, Krishnaswami’s conduct related to Conklin’s locum tenens license does not come

remotely close to an “extraordinary transgression.” Krishnaswami was merely doing her job of

implementing statutory and administrative rules when she signed the letter informing Conklin

that his medical license was changed to inactive status. The court is hard-pressed to imagine

conduct that is less “outrageous in the extreme.”

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Negligent Infliction of Emotional Distress. Conklin fails to plead a negligent infliction of

emotional distress (NIED) claim. Under Oregon law, a plaintiff who has suffered emotional

distress caused by a defendant’s negligence ordinarily may not recover damages for the

emotional harm without some sort of physical impact. Norwest v. Presbyterian Intercommunity

Hosp., 293 Or. 543, 558-61 (1982). There is no physical impact alleged in this case. Although

there are some limited exceptions to that general rule (violation of a legal interest or an interest

independent from the general duty to avoid foreseeable harm that is so important to the public

that it justifies protection separate from the negligent conduct or a standard of care owed to the

plaintiff that includes guarding against emotional distress, I.K v. Banana Republic, LLC, 317 Or.

App. 249, 254 (2022); Curtis v. MRI Imaging Servs. II, 327 Or. 9, 14-15 (1998)), those

exceptions do not apply here.

Consequently, for conduct not protected by absolute or qualified immunity, or sovereign

immunity, Conklin fails to plausibly allege claims for intentional or negligent infliction of

emotional distress.

F. Injunctive and Declaratory Relief

Finally, Conklin asserts claims for injunctive relief and a declaratory judgment under the

Declaratory Judgment Act, 28 U.S.C. § 2201. But those claims are remedies, not independent

causes of action. See Ajetunmobi v. Clarion Mortg. Cap., Inc., 595 F. App'x 680, 684 (9th Cir.

2014) (“Declaratory and injunctive relief are remedies, not causes of action.”); Stock W., Inc. v.

Confederated Tribes of the Colville Rsrv., 873 F.2d 1221, 1225 (9th Cir. 1989) (Declaratory

Judgment Act “only creates a remedy and is not an independent basis for jurisdiction”);

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Charleston v. Wells Fargo Bank, N.A., 3:17-cv-00595-PK, 2018 WL 648364, at *2 (D. Or. Jan.

31, 2018) (collecting cases).

Because Conklin has failed to adequately plead any of his claims, his claims for

injunctive and declaratory relief must also be dismissed. Cf. Harney v. Associated Materials,

LLC, 3:16-cv-1587-SI, 2018 WL 468303, at *8 (D. Or. Jan. 18, 2018) (denying defendant’s

motion to dismiss claims for declaratory and injunctive relief where plaintiffs stated claims that

“exist[ed] independently” of those claims but noting that requests for declaratory and injunctive

relief are remedies and should be “pleaded as such” in an amended complaint); see also

Countrywide Home Loans, Inc. v. Mortgage Guar. Ins. Corp., 642 F.3d 849, 853 (9th Cir. 2011)

(“The appropriate inquiry for a distinct court in a declaratory Judgment Act case is to determine

whether there are claims in the case that exists independent of any requests for purely declaratory

relief.”).

G. Leave to Amend

The court has a duty to construe unrepresented plaintiffs’ pleadings liberally, affording

them the benefit of any doubt. Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). Thus, pro se

litigants ordinarily are granted liberal leave to amend. See id., (“A district court should not

dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the

deficiencies of the complaint could not be cured by amendment.’”) (quoting Schucker v.

Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988) (per curiam)).

The Ninth Circuit recently declined to extend that leniency to pro se plaintiffs who are

also licensed attorneys, however. See Huffman v. Lindgren, 81 F.4th 1016 (9th Cir. 2023). Pro se

plaintiffs enjoy leeway because they are presumably unskilled in the law and prone to making

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pleading errors. Id. at 1021 (citation omitted). Huffman joined with other circuits in holding that

“that logic does not apply to practicing attorneys.” Id.

Conklin, although he is representing himself, is a licensed attorney in Washington and has

included his active Washington bar number on all his pleadings. The court also observed

Conklin’s advocacy skills at oral argument and cannot conclude that he is an unsophisticated

litigant. Accordingly, the court declines to construe his pleadings with any deference owing to his

pro se status and concludes that any amendment would be futile.

Where, as here, defendants are immune from suit, “dismissal without leave to amend is

proper.” Huffman, 81 F.4th at 1022. As alleged against OMB, Conklin’s § 1983 claims (Claims

1-4) and tort claims (Claims 5 and 6) are dismissed with prejudice and without leave to amend.

As alleged against the individual defendants, Conklin’s § 1983 claims are dismissed with

prejudice and without leave to amend.

As much as Conklin’s tort claims are premised on OMB’s investigation and disciplinary

action, the individual defendants are immune under Oregon law. To the extent those claims are

premised on Krishnaswami’s deactivation of Conklin’s locum tenens license, those claims fail on

their merits and no additional facts could cure those deficiencies. Accordingly, Conklin’s state

law claims must also be dismissed with prejudice and without leave to amend. Because all of

Conklin’s claims are dismissed with prejudice and without leave to amend, his claims for

declaratory and injunctive relief must be dismissed with prejudice as well.

/ / / / /

/ / / / /

/ / / / /

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CONCLUSION

For the above reasons, defendants’ motion to dismiss (ECF 18) is GRANTED. Conklin’s

complaint is dismissed with prejudice and without leave to amend.

DATED: June 12, 2026

United States Magistrate Judge

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