The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-30797
_____________________
DENA LYNNE DAVISTON,
Plaintiff-Appellee,
versus
LOUISIANA STATE BOARD OF
NURSING, ET AL.,
Defendants,
BETTY JO AGUILLARD; KATHLEEN COOPER;
OSWALD FERRY, DR.; MARGARET GRIENER;
SHERRY L. HALEY; MAXINE JOHNSON;
PATSY McCLANAHAN; ENRICA SINGLETON, DR.;
TANNY JO VAN ZILE; VINCENT A.
CULLOTA, DR.; ELI SORKOW, DR.,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(97-CV-1236)
_________________________________________________________________
June 21, 1999
Before KING, Chief Judge, REYNALDO G. GARZA and JOLLY, Circuit
Judges.
E. Grady Jolly:*
This case involves an interlocutory appeal of a denial of
absolute quasi-judicial and qualified immunity, claimed by the
members of the Louisiana State Board of Nursing (the “LSBN”). Dena
Lynne Daviston is a nurse and a recovering alcoholic. She sued the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
LSBN and its individual members (referred to collectively as “the
board members”) for suspending her license. The district court
granted a motion for summary judgment with respect to LSBN, finding
that it was protected by the Eleventh Amendment. The district
court, however, denied the motion with respect to the board
members. The court held, inter alia, that the board members were
not entitled to: (1) absolute quasi-judicial immunity--because the
procedure by which Daviston was suspended was not quasi-judicial in
nature--or (2) qualified immunity--because fact issues remained
with respect to whether the board member’s actions were objectively
reasonable. We reverse the court’s ruling on qualified immunity.
We hold that the board members are entitled to qualified immunity
and reverse for entry of judgment.
I
At the outset, we must observe that the record in this case is
poorly developed. This deficit is further complicated by the
intricate procedural history between Daviston and the LSBN.
Daviston was licensed as a registered nurse in the state of
Louisiana in 1988. In 1993, it became apparent that Daviston had
problems with alcohol abuse.1 As a result, in November of that
year, the LSBN, after a hearing, revoked Daviston’s license for a
minium of one year (1993 order). Although we do not have that
1
Daviston does not contest that she is a recovering alcoholic.
2
order in the record, Daviston’s complaint includes the following
excerpt from the 1993 order:2
1. She shall sign and adhere to a new contract with
Recovering Nurse Program (“RNP”) for a minimum of
one (1) year.
2. If reinstated, she agrees to sign and adhere to a
new contract with RNP for another five (5) years.
3. She requests a hearing for the purpose of
reinstatement at which time the registrant appears
before the Board and shows cause as to why she
should be allowed to practice as a registered
nurse.
4. Further, failure to comply with the RNP contract
shall cause a hearing to be scheduled for
revocation of this registrant’s license.
5. Failure to comply with the RNP contract after
reinstatement shall result in an immediate
suspension of this registrant’s license and shall
cause a hearing to be scheduled for revocation of
this registrant’s license.
On October 14, 1994, Daviston signed a one-year contract with
the RNP (“one-year contract”) setting forth conditions for
reinstatement. In 1995, Daviston applied for reinstatement and, on
November 16, 1995, the LSBN issued an order denying reinstatement
for another year (“1995 order”). This order again conditioned
reinstatement on Daviston adhering to a contract with the RNP.
Daviston appealed the 1995 order denying her reinstatement to
the Nineteenth Judicial District Court in and for the Parish of
East Baton Rouge. That court affirmed the order. Then, on
2
Given the board members’ citation to this passage in their
brief, we presume that they do not challenge that it is an accurate
rendition of the original order.
3
November 13, 1996, Daviston signed a consent order with the LSBN in
which she agreed to a new contract with the RNP (“consent order”).
On the same day, she signed a contract with the RNP (“five-year
contract”).
Pursuant to the five-year agreement, Daviston agreed to submit
to random urinalysis tests for the presence of alcohol. On
December 13, 1996 and January 15, 1997, Daviston tested positive
for the presence of ethanol. On February 6, 1997, the LSBN
suspended Daviston’s license for two years and required her to
attend relapse therapy.
Daviston, however, is an insulin dependent diabetic for whom
urinalysis testing is not reliable. At several points, both before
and after her suspension, Daviston attempted to call this fact to
the attention of LSBN. On March 26, 1997, the LSBN reinstated
Daviston’s license on the basis of a report from its Medical Review
Officer stating that the readings from the two tests were
inconclusive. As far as the record shows, Daviston has continued
her employment uninterrupted.
So, to sum up the proceedings before the LSBN involving
Daviston: the LSBN issued its 1993 order revoking Daviston’s
license. Pursuant to that order, Daviston agreed to the one-year
contract with LSBN. The LSBN subsequently issued its 1995 order--
refusing to reinstate Daviston’s license for another year--that
Daviston unsuccessfully appealed. In 1996, Daviston and the LSBN
agreed to the consent order and, pursuant to that order, Daviston
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agreed to the five-year contract with the RNP. Then on February 6,
1997, the LSBN suspended Daviston for testing positive, only to
reinstate her on March 26, 1997.
We are somewhat perplexed that neither the LSBN nor Daviston
thought to place any of these documents in the record. We thus
have been required to decide this case without the benefit of the
1993 order, the one-year contract, the 1995 order, the consent
order, and the five-year contract. Furthermore, there is either no
written record of the LSBN’s February 6, 1997 decision to suspend
Daviston’s license or, if such a record exists, it too was excluded
from the record.
Daviston filed suit in a federal district court seeking
compensatory and punitive damages for a violation of 42 U.S.C.
§ 1983 and declaratory and injunctive relief under 28 U.S.C. §§
2201 and 2284 based on her forty-eight day suspension. The board
members filed a motion for summary judgment in which they argued
that they were entitled to both absolute quasi-judicial immunity
and qualified immunity. The district court denied the summary
judgment motion, holding that the board members’ actions were not
quasi-judicial in nature because Daviston had been suspended
without the opportunity for a pre-deprivation hearing and without
recourse to any procedural safeguards. The district court further
held that genuine issues of material fact existed with respect to
whether the board members should have known that urinalysis is an
unreliable form of drug testing. He therefore concluded that the
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board members were not entitled to summary judgment on their
qualified immunity claim.
II
Because we resolve this case on the basis of qualified
immunity, we need not address the absolute quasi-judicial immunity
issue.3 We review de novo the district court’s summary judgment
ruling, applying the same standards as the district court. See,
e.g., U.S. v. Johnson, 160 F.3d 1061, 1063 (5th Cir. 1998).
3
Initially, we were inclined to resolve this appeal on the
basis of quasi-judicial immunity--that is, that the suspension was
pursuant to a consent order that was the result of a quasi-judicial
proceeding. Based on the record before us, however, we cannot
determine whether Daviston was suspended because she violated the
consent order. We are therefore unable to decide the case on the
basis of the prior proceedings between Daviston and the LSBN.
Our review of the record does indicate that Daviston went
through a series of quasi-judicial proceedings in which she was
ordered to agree, ultimately through the consent order and the
five-year contract, to submit to spot testing for alcohol. The
excerpts we have available from the 1993 order make clear that if
Daviston breached this agreement, she would be immediately
suspended. If the LSBN suspended her for breaching the five-year
agreement, the LSBN would be protected under absolute, quasi-
judicial immunity. The problem is, without access to the five-year
contract or any of the relevant orders, we cannot ascertain whether
Daviston was suspended because she breached the agreement, that is,
we cannot determine if the agreement provided explicitly that if
she tested positive she would be automatically suspended. In fact,
because we have no written articulation of the LSBN’s reasons for
suspending her in 1997, we cannot even determine whether the LSBN
suspended Daviston’s license because it thought Daviston had
breached the agreement. For the reasons stated by the district
court, if the board members sought to suspend Daviston without the
force of a binding agreement, the process by which Daviston was
suspended is anything but quasi-judicial in nature and, under our
decision in O’Neal v. Mississippi Board of Nursing, 113 F.3d 62
(5th Cir. 1997), it is unlikely that we would accord the board
members absolute quasi-judicial immunity. Because the record makes
it difficult to address this issue, we focus instead on the board
members’ qualified immunity argument.
6
Summary judgment is appropriate if the record demonstrates that
“there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). The ultimate question with respect to this
inquiry is “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986).
The moving party bears the initial burden of demonstrating
that there are no genuine issue of material fact. When the
nonmoving party bears the burden of proof at trial, the moving
party may carry its burden by demonstrating an absence of evidence
necessary to support the nonmoving party's case. Morris v. Covan
Worldwide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). If the
moving party is successful, the non-moving party “may not rest upon
the mere allegations or denials of his pleading, but his response,
by affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial.”
Fed.R.Civ.P. 56(e).
To succeed in making out a violation of 42 U.S.C. § 1983,
Daviston must demonstrate that the board members’ conduct (1)
violates a clearly established constitutional or statutory right
and (2) is objectively unreasonable. Sanchez v. Swyden, 139 F.3d
464, 466-67 (5th Cir. 1998). Daviston has not provided evidence
that shows the conduct was objectively unreasonable. Here, the
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board members were confronted with a nurse with a history of
problems with alcohol who apparently had failed a urinalysis test.
Given the potential risk to patients of being treated by an
impaired nurse, it was not unreasonable to suspend that nurse.
The district court apparently thought the board members had
acted unreasonably based on Daviston’s argument that they knew that
Daviston was an insulin dependent diabetic and either knew or
should have known that a urinalysis test would not be reliable.
However, after a review of the record, we can find absolutely no
evidence proffered by Daviston to support this allegation. Each
member of the board submitted an affidavit in which the person
declared that he or she had no knowledge that the test results were
inaccurate. Daviston does not submit evidence to rebut these
affidavits. Nor does she provide any explanation for why the board
members should have known that the test results were unreliable.
Although we consider summary judgment evidence in a light most
favorable to the nonmoving party, “the nonmoving party may not rest
upon the mere allegations or denials of its pleadings, and
unsubstantiated or conclusory assertions that a fact issue exists
will not suffice.” Morris, 144 F.3d at 380. We therefore hold
that the district court erred by not granting the board members
motion for summary judgment.
III
On appeal, the board members argue that they are entitled to
absolute quasi-judicial and qualified immunity. Because of the
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distressingly sparse state of the record, it is difficult for us to
address the board members’ arguments with respect to quasi-judicial
immunity. The record is equally sparse with respect to the
qualified immunity argument. Unfortunately for Daviston, this time
the dearth of evidences cuts against her. Because we find no
evidence that the board members’ actions were objectively
unreasonable, we hold that they are entitled to qualified immunity.
For the foregoing reasons, we REVERSE the ruling of the district
court with respect to whether the board members are entitled to
qualified immunity and REMAND for entry of judgment consistent with
this opinion.
REVERSED in part and REMANDED for entry of Judgment.
9