The opinion
Case: 10-41040 Document: 00511552418 Page: 1 Date Filed: 07/27/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 27, 2011
No. 10-41040
Summary Calendar Lyle W. Cayce
Clerk
RUDOLFO L. RIVERA, M.D.
Plaintiff-Appellant
v.
ROBERTA M. KALAFUT, D.O.; MANUEL G. GUAJARDO, M.D.;
MELINDA S. FREDRICKS; PATRICIA S. BLACKWELL;
JOSE M. BENAVIDES, M.D.; JULIE K. ATTEBURY;
MICHAEL ARAMBULA, M.D.; LAWRENCE L. ANDERSON, M.D.;
CHARLES E. OSWALT, III, M.D.; MARGARET C. MCNEESE, M.D.;
DONALD PATRICK; MARI ROBINSON; IRVIN E. ZEITLER, JR., D.O.;
TIMOTHY WEBB; TIMOTHY J. TURNER; ANNETTE P. RAGGETTE;
LARRY PRICE, D.O.; MELINDA MCMICHAEL, M.D.; AMANULLAH KHAN;
PAULETTE B. SOUTHARD; DAVID GARZA, D.O.;
ANONYMOUS EXPERT REVIEWER FOR INVESTIGATION LOG 06-1873;
IRWIN SEGAL, M.D.; AARON SEGAL, M.D.; CATHLEEN PARSLEY,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:09-CV-181
Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 10-41040
I.
Appellant Rodulfo Rivera (“Rivera”), a physician in the state of Texas, filed
suit against various defendants, including individual members of the Texas
State Medical Board (the “Board”), for events relating to the revocation–or
attempted revocation–of his medical license. According to Rivera, in March
2006, a former patient filed a complaint against him with the Board. The filing
of this complaint prompted an investigation into the allegations against Rivera.
After finding Rivera no longer competent to practice medicine, the Board asked
Rivera to voluntarily relinquish his license to avoid further proceedings. Rivera
declined, and the Board filed charges against him in the Texas State Office of
Administrative Hearings (“SOAH”).
Weeks before SOAH held a trial, Rivera filed suit against a number of
defendants, asserting various constitutional claims based on these events. The
defendants fall into three general groups: (1) two private doctors; (2) the
members of the Texas Medical Board (“TMB Appellees”); and (3) the Chief
Administrative Law Judge of SOAH (“ALJ”). The two private doctors, Aaron
Segal and Irwin Segal, filed a motion to dismiss for failure to state a claim,
which the district court granted. See FED. R. CIV. P. 12(b)(6). The TMB
Appellees and ALJ raised qualified immunity as a defense, and filed motions
requesting a Rule 7 reply, which the district court also granted. After Rivera
filed his reply pursuant to this order, the TMB Appellees and ALJ moved to
dismiss for failure to state a claim. The district court granted both motions and
dismissed. Rivera timely appealed. We AFFIRM.
II.
As noted above, the defendants in this case fall into one of three general
categories. Rivera’s argument raised on appeal relating to the defendants in
each group will be treated in turn.
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A. Appellees Aaron Segal & Irwin Segal
Rivera first argues that the district court erred by dismissing his case
against Appellees Aaron Segal and Irwin Segal (“Segal Appellees”), since their
pleadings allegedly failed to comply with Rule 11 of the Federal Rules of Civil
Procedure. In particular, Rivera relies upon Pavelic & LeFlore v. Marvel
Entertainment Group, 493 U.S. 120, 110 S. Ct. 456 (1989), to argue that their
pleadings were facially invalid because the Segal Appellees’ law firm’s name was
listed above the signature block where their lawyer had signed the pleadings.
Rule 11 requires every pleading submitted to the court to be signed “by at
least one attorney of record in the attorney’s name.” FED. R. CIV. P. 11(a). In
this case, our review of the record confirms that the Segal Appellees’ filings in
the district court complied with Rule 11: each is electronically signed by
Appellees’ lead attorney and satisfies the other enumerated requirements of
Rule 11. That counsel’s firm name is listed above the signature block leaves this
conclusion unchanged. While Rivera claims Pavelic & LeFlore suggests
otherwise, that case merely held that the presence of the attorneys’ signature
under the firm name does not permit imposition of Rule 11 sanctions on the firm.
493 U.S. 120, 110 S. Ct. 456. Rather, the individual attorney who signed the
pleading remains the party liable for any Rule 11 sanctions. Id. at 124,
110 S. Ct. at 459. For this reason, Rivera’s first point of error is meritless.
Rivera also argues that the district court erred in dismissing his claims
against the Segal Appellees. This court reviews the grant of a motion to dismiss
pursuant to Rule 12(b)(6) de novo. Lampton v. Diaz, 639 F.3d 223, 225 (5th Cir.
2011).
Only two of the forty seven counts in Rivera’s complaint specifically
reference the Segal Appellees.1 These counts allege that the Segal Appellees
1
Even if the Segal Appellees were implicitly charged in the other counts as well, the
same analysis in this section applies to justify dismissal of all other claims against them.
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provided–or encouraged Rivera’s patient to provide–false information to the
Board, and conspired with the Board to interfere with Rivera’s medical practice.
Even if the allegations are true, however, Rivera has failed to state a claim, since
there are no allegations that the Segal Appellees were state actors for purposes
of section 1983. See Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir. 1999)
(to state a claim under section 1983, plaintiff must allege facts showing
defendant was acting under color of state law). In fact, the complaint concedes
that they are private medical doctors practicing in Plano, Texas, and that they
were not themselves members of the Texas Medical Board. Thus, even if they
provided “information to the state and press[ed] for state action” against Rivera,
such allegations cannot, without more, suffice to make them liable under section
1983 as state actors. Manax v. McNamara, 842 F.2d 808, 813 (5th Cir. 1988).
Moreover, allegations of a “conspiracy between private and state actors requires
more than conclusory statements,” Priester v. Lowndes Cnty., 354 F.3d 414, 423
n.9 (5th Cir. 2004), which is all Rivera has provided here. Accordingly, the
district court properly dismissed Rivera’s claims against the Segal Appellees.
B. Members of Texas Medical Board
The defendants in this group are members, employees, or agents of the
Texas Medical Board, and have been sued in their individual capacities on a host
of constitutional grounds. The Board Appellees asserted qualified immunity as
an affirmative defense, and asked the court to order Rivera to file a Rule 7 reply
describing the particular conduct of each Board member that violated clearly
established law. The district court granted the motion and ordered Rivera to
reply. After Rivera filed his response, Appellees moved to dismiss under Rule
12(b)(6), and the district court agreed.
While Rivera’s argument on appeal is not entirely clear, he appears to
argue that the Board Appellees are not entitled to qualified immunity, because
the Board members failed to sign their oaths of office, and thus could not have
acted in their “official capacity.” The district court rejected this same argument
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below, holding that failure to take an oath under state law was not a basis to
deny qualified immunity.
As an initial matter, Rivera’s bald assertions that state officials failed to
comply with Texas constitutional requirements for oath taking does not state a
violation of federal law. See Scott v. Fiesta Auto Ctr. of San Antonio, 273 F.3d
1095, 2001 WL 1085192 (5th Cir. Sept. 7, 2001) (unpublished). In addition,
Rivera has failed to show that such allegations defeat the Board Appellees’
entitlement to qualified immunity. While Rivera cites a number of cases
regarding the oaths of state judges, nothing in Rivera’s allegations demonstrates
that members of the Texas Medical Board would not qualify as de facto officers
under state law, notwithstanding any failure to take the oath of office. Cf.
Delamora v. State, 128 S.W.3d 344, 357-58 (Tex. App. 2004) (finding police officer
to qualify as a de facto officer, even though no official oath had been taken or
filed in the relevant period). Rivera has thus failed to carry his burden to
overcome Board Appellees’ qualified immunity defense. See Bennett v. City of
Grand Prairie, 883 F.2d 400, 408 (5th Cir. 1989).
In addition, Rivera’s argument that the Board Appellees violated the Bill
of Attainder Clause is meritless. A bill of attainder is “a law that legislatively
determines guilt and inflicts punishment upon an identifiable individual without
provision of the protections of a judicial trial.” Nixon v. Adm’r of Gen. Servs.,
433 U.S. 425, 468, 97 S. Ct. 2777, 2803 (1977). Rivera sued the Board Appellees
in their individual capacities. Appellees, as individuals, could not have
“legislatively determine[d] guilt and inflict[ed] punishment.” Id. Consequently,
even if this claim were otherwise valid, it could have been levied only against the
Board itself.
C. Chief Administrative Law Judge Cathleen Parsley
Finally, Rivera raises a number of claims against Appellee Cathleen
Parsley, who was the Chief Administrative Law Judge of SOAH during Rivera’s
hearing before the Board. In the district court, Appellee Parsley raised the
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affirmative defenses of absolute and qualified immunity for claims arising from
any “adjudicative, prosecutorial, or administrative functions performed by her.”
Parsley then moved for a Rule 7 reply, which the district court granted. Rivera
responded by arguing that Parsley is not entitled to qualified immunity “because
she acted beyond the general scope of her jurisdiction as Chief ALJ.” In
particular, Rivera asserted that Parsley applied–or allowed other ALJs to
apply–an incorrect standard of proof in the administrative proceeding, and that
she appointed an ALJ who had not signed an oath of office to hear his case.
After Rivera filed and served this response, Parsley filed a Rule 12(b)(6) motion
to dismiss, arguing that Rivera’s Rule 7 reply failed to cure the defects in his
complaint. The district court granted the motion and dismissed, finding that
“none of the facts alleged pertain to any actions taken by Parsley outside of her
official capacity as Chief ALJ.” Accordingly, Rivera failed to show that Parsley
was not entitled to qualified immunity in this case.
On appeal, Rivera’s brief only references Parsley once,2 in the conclusion,
asserting that she “cannot claim qualified immunity in that the actions she is
charged with were administrative in nature and not judicial.” Rivera provides
no basis for holding that qualified immunity is applicable only to officers
engaging in judicial acts. Nor could he. See, e.g., Jacobs v. W. Feliciana Sheriff’s
Dep’t, 228 F.3d 388, 398 (5th Cir. 2000) (granting deputy sheriff qualified
immunity). We thus find this aspect of argument unavailing.
In addition, to the extent Rivera intended to make additional arguments,
they are waived. While this court liberally construes briefs of pro se litigants,
2
Rivera’s brief does elsewhere allude to “an Administrative Law Judge,” presumably
Parsley, and state that qualified immunity “cannot be applied as a defense because [she] acted
outside the scope of [her] authority and jurisdiction by committing Constitutional violations
against Rivera.” Even if true, this does not prove Parsley would not be entitled to qualified
immunity, however, since an official may still be entitled to qualified immunity if the conduct’s
unconstitutionality were not clearly established. Cf. Wallace v. Cnty. of Comal, 400 F.3d 284,
289 (5th Cir. 2005) (noting that in qualified immunity cases, the “court must decide whether
the plaintiffs’ allegations, if true, establish a violation of a clearly established right”).
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pro se parties must still brief the issues and reasonably comply with the
standards of Rule 28 in order to preserve their arguments on appeal. Grant v.
Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). In this case, any other arguments
relating to Parsley are waived for failure to adequately brief them. Sanders v.
Unum Life Ins. Co. of Am., 553 F.3d 922, 927 (5th Cir. 2008).
III.
For these reasons, the judgment of the district court is AFFIRMED.
7