# Demery v. Kupperman

> Court of Appeals for the Ninth Circuit · June 22, 1984 · 735 F.2d 1139

URL: https://www.frixlaw.com/law-library/cases/8922157

## Case

- **Full name:** Leroy W. DEMERY, M.D. v. Lawrence KUPPERMAN, Deputy Attorney General of the State of California Robert Rowland, Executive Secretary of the Board of Medical Quality Assurance and Joseph Cosentino, M.D., Medical Consultant to the Board of Medical Quality Assurance
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** June 22, 1984
- **Citations:** 735 F.2d 1139
- **Precedential status:** Published
- **Opinion:** Concurrence by Panner
- **Judges:** Panner, Reinhardt
- **Cited by:** 199 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8922157

## How later opinions describe it (automated extraction)

- holding that even if neither party has raised an Eleventh Amendment objection to a federal court’s subject matter jurisdiction, the court has an obligation to fully consider the issue sua sponte
- holding that a deputy attorney general who allegedly induced false testimony 28 1 was absolutely immune even though “inducing false testimony is wrongful and 2 indefensible”
- holding that a deputy attorney general should be granted absolute immunity with regard to administrative disciplinary proceeding against a doctor
- holding that “prosecutors are absolutely immune from civil suits alleging wrongdoing with regard to post-litigation . . . handling of a case”

## Opinion text

PANNER, District Judge,
Concurring:
I concur in all but part II.D. of this opinion. That part, to my mind, goes beyond what is necessary. The striking differences between Pennhurst II and this ease make it unwise to engage in a detailed discussion of the relationship between Pennhurst II, Edelman, and Sckeuer.
Pennhurst II holds that the eleventh amendment bars federal courts from compelling state officials to conform their conduct to state law. In that case, state officials were sued only in their official capacities. Here, by contrast, Rowland and Co-sentino are sued in their individual capacities. In Pennhurst II, the Supreme Court considered a claim based on state law. Here, on the other hand, we consider a federal constitutional claim based on a federal statute, 42 U.S.C. § 1983 .
The majority is concerned about the following statement from Pennhurst II: “Under Edelman v. Jordan, supra, a suit against state officials for retroactive monetary relief, whether based on federal or state law, must be brought in state court.” 104 S.Ct. at 920. The panel concedes that language is bothersome only “if interpreted literally____” Supra, at 2666.
The Court specifically reiterated that a suit challenging the constitutionality of a state official’s action is not one against the state for eleventh amendment purposes. 104 S.Ct. at 909. Obviously, the quoted language must be interpreted in light of the issues that were involved. This interpretation was neither briefed nor argued. “Clarifying” Pennhurst II should be done only where necessary.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8922157. Public record. Not legal advice.