Alan J. Mishler, M.D. v. Nevada State Board of Medical Examiners Robert C. Clift, M.D.

LEAVY, Circuit Judge,

dissenting:

Mishler brought the present action under 42 U.S.C. § 1983 (1982), alleging that “[t]he procedures that the Board followed during its investigation of the plaintiff were unduly protracted, manipulative, and unnecessarily deleterious, and violated rights guaranteed to the plaintiff by the Fourteenth Amendment to the United States Constitution.” Complaint at 1-2. The named defendants were the Nevada Board of Medical Examiners (“the Board”) and various members of the Board, in their individual and official capacities. Id. at 2-3 .

Mishler’s right to relief cannot be based on section 1983 itself. It is well-established that a section 1983 complainant must establish a claim for relief grounded on some constitutional or statutory right other than section 1983. “[O]ne cannot go into court and claim a ‘violation of § 1983’—for § 1983 does not protect anyone against anything.” Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 , 99 S.Ct. 1905, 1915 , 60 L.Ed.2d 508 (1979). Rather, “[section 1983] merely provides a remedy for the violation of rights conferred by the Constitution or other statutes.” Maher v. Gagne, 448 U.S. 122, 129 , 100 S.Ct. 2570, 2574 , 65 L.Ed.2d 653 (1980).

Mishler grounded his right to relief under section 1983 exclusively on the theory that the defendants’ conduct violated Mish-ler’s rights to procedural due process. “This lawsuit is being brought by a physician whose rights to procedural due process were violated by the Nevada Board of Medical Examiners.” Complaint at 1. In procedural due process cases, our inquiry is to determine (1) whether the complainant is deprived of a protected interest; and, if so, (2) whether due process was provided the complainant before the state effected the deprivation. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 , 102 S.Ct. 1148, 1153 , 71 L.Ed.2d 265 (1988).

In my view, the defendants did not, either individually or in their official capacities, deprive Mishler of any protected interest. State law did not create a protected interest in the prompt reply to Ohio’s inquiry. As Mishler concedes, Nevada law does not guarantee such a reply, whether the inquiring entity be a sister state, a foreign sovereign, or a private individual.

Assuming Mishler had a constitutionally protected interest in the legal exercise of his profession, these defendants did not deprive him of that interest. Mishler has not alleged that the defendants prevented him from practicing medicine within Nevada. Moreover, these defendants are not responsible in any constitutional sense for depriving Mishler of the right to practice medicine in Ohio. The Ohio Board of Medical Examiners has a policy of denying licenses to applicants licensed in other states, if one of the Boards of the other states fails to submit promptly a letter verifying the applicant’s good standing. The defendants, the members of the Nevada Board, could hardly be responsible for Ohio’s licensing policies. The defendants did not effect a deprivation of a protected interest.

In conclusion, I disagree that the defendants’ failure to reply promptly to Ohio’s inquiry constituted a deprivation of a protected interest, for which process is due. I thus cannot share the view that the Ohio Board, in the name of due process, has the extraterritorial power to compel an act by the Nevada Board, which act is not even required under Nevada law.