F I L E D
United States Court of Appeals
Tenth Circuit
APR 24 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk
CHARLES L. NOVOSAD, JR.,
Plaintiff-Appellant,
v.
STATE OF NEW MEXICO; MICHAEL VIGIL,
Judge, First Judicial District, State of New
Mexico,
Defendants,
No. 97-2331
and
(D.C. No. CIV-97-691)
(D.N.M.)
NEW MEXICO BOARD OF MEDICAL
EXAMINERS; TOM UDALL, Attorney General
of New Mexico; NATALIE K. SHEMONSKY,
M.D., J.D.; G.T.S. KALSA, Assistant Attorney
General of New Mexico; JAMIA JACKSON,
Assistant Attorney General of New Mexico;
TANNIS L. FOX, Assistant Attorney General of
New Mexico; J. DAVID COPE, Assistant
Inspector General, United States Office of
Personnel Management; THE NEW MEXICAN,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.
Charles L. Novosad, Jr., brought this suit pro se against the State of New
Mexico, the New Mexico Board of Medical Examiners, Dr. Natalie Shemonsky,
who was a hearing examiner with the State Board, the State Attorney General and
three Assistant Attorneys General, a State district judge, a federal official, and a
newspaper, asserting claims under 42 U.S.C. § 1983 and state law arising from
proceedings in which his licenses to practice medicine and to prescribe controlled
substances were revoked. Dr. Novosad was allowed to proceed in forma pauperis.
The district court thereafter conducted a review sua sponte of Dr. Novosad’s
complaint and concluded that it failed to properly plead any claims against any
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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defendant and was frivolous under 28 U.S.C. § 1915(d).
Dr. Novosad then filed a first amended complaint. The court again
conducted a sua sponte review and dismissed on Eleventh Amendment grounds
the claims against the State of New Mexico and the State officials in their official
capacities, and the State trial judge in his official capacity. The court also ruled
that any claims against the judge in his individual capacity were barred by
absolute judicial immunity and dismissed them with prejudice as well. The
remaining claims against the State officials in their individual capacities and the
newspaper were dismissed without prejudice to allow Dr. Novosad to file a
second amended complaint. After Dr. Novosad did so, the court conducted a third
sua sponte review. The court concluded that Dr. Novosad’s claims against the
State officials remained official-capacity claims and dismissed them with
prejudice. The court declined to exercise supplemental jurisdiction over the state
law claims against the newspaper, and dismissed the second amended complaint
in its entirety. Dr. Novosad appeals.
It appears from Dr. Novosad’s Reply Brief that he has abandoned his
official-capacity claims against the State officials and all his claims against the
state judge. Accordingly we address only his individual-capacity claims against
the members of the Medical Board, Dr. Shemonsky, the Attorney General, and the
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Assistant Attorneys General. 1 The district court ruled that Dr. Novosad had
asserted only official-capacity claims against these defendants and accordingly
dismissed them on Eleventh Amendment grounds. Although we believe that the
second amended complaint, when construed liberally as we must, see Haines v.
Kerner, 404 U.S. 519, 520 (1972), asserts claims against these defendants
individually, we nonetheless see no ground for reversal.
We turn first to the claims against the Board members and Dr. Shemonsky.
This court has held under virtually identical circumstances that state medical
board members are entitled to absolute immunity when performing adjudicatory
and prosecutorial functions in the exercise of their authority to license physicians
and take disciplinary action against them. See Horwitz v. State Bd. of Medical
Examiners, 822 F.2d 1508, 1515 (10th Cir. 1987). Accordingly, Dr. Shemonsky
and the Board Members here are absolutely immune from liability on Dr.
Novosad’s claims, all of which are premised on defendants’ activities during the
revocation of Dr. Novosad’s medical licenses.
1
Dr. Novosad continues to assert claims against the federal official, an
assistant inspector general with the United States Office of Personnel
Management, under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
These claims are so conclusory as to be virtually unintelligible. They were
therefore properly dismissed as frivolous under 28 U.S.C. § 1915 and we will not
address them further. Dr. Novosad also presses his claims against the newspaper.
In light of our conclusion dismissing this appeal, we do not disturb the district
court’s decision declining to exercise supplemental jurisdiction over these state
law claims, noting that Dr. Novosad may pursue them in the proper forum.
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The claims against the Assistant Attorneys General arise from their activity
in appearing before the hearing examiner and the state courts on behalf of the
Board during the administrative proceedings and Dr. Novosad’s judicial appeal of
the administrative decision. A prosecutor is absolutely immune when he acts as
an advocate for the state before a neutral decision maker. See Roberts v. Kling,
104 F.3d 316, 318-19 (10th Cir. 1997). The trial court’s dismissal of the claims
against these defendants is therefore not subject to reversal. Finally, we address
the claim against the Attorney General, which is based on his condoning the
actions of his Assistants. This charge is in essence an assertion that the Attorney
General is liable on the basis of respondeat superior, a doctrine that cannot
support liability under section 1983. See Monell v. Dep’t of Social Servs., 436
U.S. 658, 691 (1978).
In sum, we conclude that Dr. Novosad’s claims on appeal are frivolous.
We therefore DENY his application to proceed in forma pauperis and DISMISS
his appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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