
    Stuart T. GUTTMAN, M.D. Plaintiff, v. G.T.S. KHALSA, Livingston Parsons, and the State of New Mexico Defendants.
    No. CIV. 03-463 LCS.
    United States District Court, D. New Mexico.
    Sept. 15, 2003.
    
      Ian D. McKelvy, Roswell, NM, for Plaintiff.
    Timothy S. Hale, Albuquerque, NM, for Defendants.
   MEMORANDUM OPINION AND ORDER

SMITH, United States Magistrate Judge.

THIS MATTER is before the Court on Defendants’ Motion for Summary Judgment, filed on May 28, 2003. The Court, acting upon consent and designation pursuant to 28 U.S.C. § 636, and having reviewed the Motion and considered the submissions of counsel, relevant authorities, and being otherwise fully advised, finds that this Motion is well-taken and should be GRANTED.

I. Background.

This case arises out of the revocation of Plaintiff’s medical license by the New Mexico Board of Medical Examiners (“Board”). Plaintiff was granted a stipulated license to practice medicine in New Mexico on May 20,1993. (Def.Ex. A.) The license was granted with stipulations due to Plaintiffs history of mental illness involving depression and post traumatic stress disorder (“PTSD”). (Id.) The stipulations on Plaintiffs license were lifted by the Board on or about May 19, 1995. (Comply 9.) On December 28, 1999, the Board directed Plaintiff to meet with an Impaired Physician Examining Committee based on a number of complaints regarding Plaintiff. (Def.Ex. D). Plaintiff met with the examining committee on January 10, 2000 in Albuquerque, New Mexico. On or about March 7, 2000, Plaintiff received a Notice of Contemplated Action and an Order of Summary Suspension from the Board based on Plaintiffs mental illness, allegations of false statements to the Board and inappropriate behavior with patients and hospital staff. (Def.Ex. B, C). Plaintiff appeared with counsel at an administrative hearing before the Board from October 23-25, 2000. The purpose of this hearing was to determine whether Plaintiffs license to practice medicine in the State of New Mexico should be revoked. Defendant Parsons acted as administrative hearing officer at this hearing and Defendant Khalsa acted as administrative prosecutor for the Board. The Board ordered that Plaintiffs license to practice medicine be revoked on February 28, 2001 based on dishonest statements made to the Board by Plaintiff and on findings of abusive and disruptive behavior by Plaintiff towards colleagues, hospital staff and patients. (Def.Ex. D). The Board further found that Plaintiff had a history of major depression, PTSD, and an underlying mixed personality disorder, that prior therapeutic treatment and prior intervention by Plaintiffs employers had been ineffective in changing Plaintiffs behavior, and that Plaintiff could not be effectively monitored with respect to his disruptive behavior. (Id.).

Plaintiff filed an appeal of the Board’s decision in the Seventh Judicial District Court of New Mexico alleging that the Board’s decision was not supported by substantial evidence, that the decision of the Board was not in accordance with applicable law, that the decision was arbitrary, capricious and an abuse of discretion and that the decision did not comport with the requirements of Title II of the Americans with Disabilities Act (“ADA”) (Def.Ex. E).

On January 80, 2003, the State Court issued an Order affirming the Board’s revocation of Plaintiffs license. The court found that the Board’s decision was based on substantial evidence, was within the Board’s authority and based upon the law, and was not arbitrary, capricious or fraudulent. (Def.Ex. F.) The court further found that, because Plaintiff had not raised the allegation of ADA violations before the Board, this issue was not preserved for appeal. (Id.) As such, Plaintiffs ADA claims were not considered by the court. (Def.Ex. F). Plaintiffs Motion for Reconsideration to the New Mexico Court of Appeals and petition for certiorari to the New Mexico Supreme Court were denied. (Def.Ex. G, H.) Plaintiff has exhausted all avenues available to him in state court pursuant to 28-1-13 NMSA 1978.

Defendants argue that they are entitled to summary judgment because Plaintiff has not stated a claim for violation of his Procedural Due Process rights under 42 U.S.C. § 1983 or for violations of Title II of the ADA and because jurisdiction is improper before this Court.

II. Standard

A motion for summary judgment may be granted only when “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P 56(c). Summary judgment is proper when the pleadings, depositions, answers to interrogatories and admissions on file, as well as any affidavits “show that there is no genuine issue as to any material fact.” Id. When applying this standard, the Court examines the record and reasonable inferences in the light most favorable to the non-moving party. See Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999).

The movant bears the initial burden of establishing that no genuine issue exists as to any material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita Electric indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). The movant’s initial burden may be discharged by showing there is an absence of evidence to support the nommoving party’s case. See Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets its burden, the burden shifts to the non-moving party to demonstrate a genuine issue for trial on a material matter. See McGarry v. Pitkin Co., 175 F.3d 1193, 1201 (10th Cir.1999).

III. Analysis

Plaintiff brings this action under Title II of the Americans with Disabilities Act (“ADA”) and under 42 U.S.C. § 1983. Defendants contend they are entitled to summary judgment on the grounds that this Court lacks subject matter jurisdiction over Plaintiffs claims and that the immunity of Defendants Khalsa and Parsons and the State of New Mexico is well established under Tenth Circuit law.

a. Rooker-Feldman as a Bar to Jurisdiction

Defendant contends that this Court lacks subject matter jurisdiction over Plaintiffs claims under the Rooker-Feldman Doctrine. Under Rooker-Feldman, a party who loses in a state court proceeding is barred “ ‘from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party’s claim that the state judgment itself violates the loser’s federal rights.’ ” Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, 1169 (10th Cir.1998). (quoting Johnson v. DeGrandy, 512 U.S. 997, 1005-06, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994)). Federal review of state court judgments can be obtained only in the United States Supreme Court. 28 U.S.C. § 1257. The Rooker-Feldman doctrine therefore prohibits a lower federal court from considering claims actually decided by a state court and claims “inextricably intertwined” with a prior state-court judgment. See Kenmen Engineering v. City of Union, 314 F.3d 468, 473 (10th Cir.2002).

Plaintiff asserts that Rooker-Feldman does not apply to the present case because Plaintiff did not have a full and fair opportunity to litigate his ADA claims in the prior state proceeding. However, in Kenmen, the Tenth Circuit ruled that application of the Rooker-Feldman doctrine was appropriate despite the fact that the federal court plaintiff had no opportunity to litigate a particular claim in a state court proceeding. Id. at 478. Rooker-Feldman bars any suit seeking to undo a prior state court judgment, regardless of whether the state proceeding afforded Plaintiff a full and fair opportunity to litigate his claims. Facio v. Jones, 929 F.2d 541, 544 (10th Cir.1991). The fact that the state court declined to hear Dr. Guttman’s ADA claims does not provide this Court with jurisdiction to hear those claims.

Plaintiff also contends that, because the State court refused to hear Dr. Guttman’s ADA claims, these claims are not “inextricably intertwined” with that court’s judgment within the meaning of Rooker-Feldman and therefore can be raised by Plaintiff in this Court. This contention must be rejected. The Supreme Court has identified two categories of cases that fall outside of Rooker-Feldman’s “inextricably intertwined” formula. First, a party may bring a general constitutional challenge to a state law, provided that: 1) the Party does not request that the federal court upset a prior state-court judgment applying that law against the party, District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). and 2) the prior state-court judgment did not actually decide that the state law at issue was facially constitutional. Kenmen at 476. (quoting Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923)). Second, a party may challenge state procedures for enforcement of a judgment where consideration of the underlying state-court decision is not required. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 26, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987).

The present action does not fall within either of these exceptions to the Rooker-Feldman jurisdictional bar. Although Plaintiff contends in his Surreply that he is not intending a review of the state court decision, Plaintiff seeks prospective injunc-tive relief and damages under the ADA which requires a review of the state court decision. It is clear that Plaintiffs injury-resulted from the state-court judgment, that his complaint in this Court seeks to upset that judgment and that the resolution of Plaintiffs federal claims necessarily requires consideration of the underlying state-court decision. Kenmen, 314 F.3d at 476.

Because Plaintiffs claims fall directly within the parameters of Rooker-Feld-man.. these claims are not reviewable by this Court. However, as discussed infra, Plaintiff would be entitled to no relief even if this Court had jurisdiction to consider his claim.

b. Plaintiffs Claims against Defendants Parsons and Khalsa

Plaintiff alleges that Defendants possessed a bad faith intent to discriminate against him in violation of 42 U.S.C. § 1983 and Title II of the ADA and that Defendants Khalsa and Parsons singled Plaintiff out for discrimination because of a knowledge of Plaintiffs mental illness. Plaintiff has not presented any evidence tending to prove this contention.

Plaintiff argues that he may appropriately bring suit against state officials, even if they claim to be acting under state law, for conduct by the officials that constitutes an ongoing violation of federal law. For this proposition, Plaintiff cites Elephant Butte Irrigation District of New Mexico v. Dep’t of the Interior, 160 F.3d 602, 609 (10th Cir.1998). Plaintiffs reliance on this authority is misplaced. In Elephant Butte, the acts of staté officials constituted a conflict with federal law at the inception of the state action in question. Id. In the present case, officials Khalsa and Parsons were acting pursuant to New Mexico state law. However, Plaintiff does not argue that New Mexico state law is invalid, nor does Plaintiff claim that the State of New Mexico was authorizing its officials to violate federal law. Indeed, Plaintiff appears to make no claim at all regarding the validity of New Mexico state law. Plaintiffs cited authority is therefore inapplicable to the case at bar.

Plaintiff further contends that Defendant Khalsa is not entitled to immunity because he was involved in administrative duties and investigatory work, which does not fall within the scope of immunity traditionally afforded to officials acting as prosecutors. Plaintiff also argues that Defendants Khalsa and Parsons acted in bad faith and, as such, are not entitled to immunity from suit. For this contention, Plaintiff cites Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Plaintiffs reliance on this authority is misplaced.

The Supreme Court in Buckley declined to withhold all immunity from prosecutors acting in an investigative or administrative capacity. Id. at 265, 113 S.Ct. 2606. Instead, the Court held that these individuals were entitled to qualified immunity. Id. The Supreme Court further held that acts undertaken by a prosecutor in preparation for the initiation of judicial proceedings or trial are entitled to absolute, rather than qualified, immunity. Id. at 273, 113 S.Ct. 2606. The actions of Defendants Khalsa and Parsons fall within the Supreme Court’s provisions for absolute immunity and as such, the acts of Khalsa and Parsons are not amenable to suit by Plaintiff.

The Tenth Circuit has previously dealt with agency adjudications in the context of medical licensing and determined that, because such agencies perform functions analogous to a court of law, agency members are entitled to absolute immunity from suit. Horwitz v. State Board of Medical Examiners, 822 F.2d 1508 (10th Cir.1987). Traditionally, administrative officials have been afforded absolute immunity when performing functions analogous to those of judges and prosecutors. Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Absolute immunity is to be granted in those situations where, 1) the officials’ functions are similar to those involved in the judicial process, 2) the officials’ actions are likely to result in damages lawsuits by disappointed parties, and 3) there are sufficient safeguards in the regulatory framework to control unconstitutional conduct. Id. These requirements are satisfied in the present case. At the agency hearing, the functions of Defendants Khalsa and Parsons were clearly similar to those involved in the judicial process. The actions of Khalsa and Parsons did in fact result in a suit for damages and injunctive relief by the Plaintiff and there were sufficient safeguards in the regulatory framework, including an appeal of the Board’s decision in state court, to control any potential unconstitutional conduct by Defendants.

The Tenth Circuit has recognized a strong public policy in favor of affording absolute immunity from damages liability under 42 U.S.C. § 1983 to agency officials who perform functions that are adjudicatory and/or prosecutorial in nature. Horwitz, 822 F.2d at 1515. The Court noted that there is a strong need to insure that individual Board members perform functions for the public good free from harassment or intimidation. Id. In responding to a complaint closely analogous to that now before this court, the Court explained, “It is important to insulate Board members from political influences in meeting their adjudicatory responsibilities in the adversarial setting involving licensure to practice medicine.” Id. Under Tenth Circuit law, public policy requires that officials serving in such an adjudicatory capacity be exempted from personal liability. Id.

c. Plaintiffs Claims against Defendant State of New Mexico

Plaintiff next argues that the State of New Mexico is a proper defendant under his ADA and Procedural Due Process claims. With regard to Plaintiffs claims under, 42 U.S.C. § 1983, the State of New Mexico is not a proper Defendant. Monell v. Dep’t of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Regarding Plaintiffs ADA claims, Plaintiff contends he has brought a claim under Title II of the ADA, for which sovereign immunity has been either abrogated or waived by the State of New Mexico. This contention fails for several reasons.

The ultimate guarantee of the Eleventh Amendment is that nonconsenting states may not be sued by private individuals in federal court. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). Congress may nevertheless abrogate the Eleventh Amendment guarantee pursuant to Section 5 of the Fourteenth Amendment, which grants to Congress the power to enforce the substantive guarantees contained in Section I of the Amendment through the enactment of appropriate legislation. Id. at 364-65, 121 S.Ct. 955.

Plaintiff correctly points out that the Supreme Court declined to decide whether Congress had abrogated the sovereign immunity of states under Title II of the ADA. Id. at 360, 121 S.Ct. 955. However, the Tenth Circuit has dealt with this issue with respect to Title II and found that Title II is not a valid abrogation of the states’ Eleventh Amendment immunity. Thompson v. Colorado, 278 F.3d 1020, 1034 (10th Cir.2001). Therefore, under Tenth Circuit law, Plaintiff cannot join the State of New Mexico in a claim under Title II of the ADA.

Even without the Tenth Circuit’s guidance on Title II, it is still apparent that the State of New Mexico has not chosen to abrogate its immunity under Title II of the ADA. Only unequivocal actions by a state will support a determination that the state has waived sovereign immunity. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Whether a state’s attorney general has waived sovereign immunity on behalf of the state depends on two questions: 1) whether the action taken by the attorney general is sufficient to constitute a waiver, and 2) whether the attorney general has the authority under state law to waive the state’s sovereign immunity. See, AFSCME v. Corrections Dep’t of New Mexico, 783 F.Supp. 1320, 1327 (D.N.M.1992).

The Plaintiff has made no showing that the attorney general of New Mexico unequivocally intended to waive the State’s sovereign immunity. Only unequivocal expressions by a State will support a waiver of immunity. Id. Furthermore, Plaintiff has made no showing that the Attorney General of New Mexico has any authority to waive the State’s sovereign immunity. Section 8-5-2 NMSA (1978 Comp.), which specifies the powers of the Attorney General, does not expressly confer on the Attorney General the authority to waive Eleventh Amendment immunity. Plaintiff therefore has failed to make out a case that either Congress or the State of New Mexico intended to waive the state’s sovereign immunity with respect to Title II of the ADA and Plaintiffs claims must therefore fail.

IY. Conclusion

Upon review of the evidence presented on this Motion for Summary Judgment, this Court has determined that this it lacks jurisdiction to hear Plaintiffs claims under Rooker-Feldman. Furthermore, all named Defendants are entitled to absolute immunity as to Plaintiffs claims under 42 U.S.C. § 1983 and Title II of the ADA. Accordingly, Defendants’ Motion for Summary Judgment, filed on May 28, 2003, shall be GRANTED.

Defendant’s Motion for Leave to file a Surreply and Memorandum in support (Doc. 17) is hereby DENIED AS MOOT.

A SUMMARY JUDGMENT CONSISTENT WITH THIS OPINION SHALL ISSUE. 
      
      . District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust, 263 U.S. 413, 416, 44 S.Ct. 149, 68 L.Ed. 362 (1923).
     
      
      . Defendant further contends that Plaintiff has not satisfied the administrative requirements for filing suit under the ADA. However, Title II of the ADA does not require Plaintiff to exhaust all remedies before bringing suit. Davoll v. Webb, 194 F.3d 1116, 1124 (10th Cir.1999). Although Plaintiff has satisfied the requirements for bringing suit under Title II of the ADA, his claims must fail because Defendants are entitled to immunity.
     