FILED
NOT FOR PUBLICATION SEP 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAMID SAFARI, M.D. and MARK No. 12-16245
FAHLEN, M.D.,
D.C. No. 3:11-cv-05371-JSW
Plaintiffs - Appellants,
v. MEMORANDUM*
KAISER FOUNDATION HEALTH
PLAN; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted September 12, 2014**
San Francisco, California
Before: BEA, IKUTA, and HURWITZ, Circuit Judges.
Plaintiffs appeal the district court’s decision granting defendants’ motions to
dismiss under Federal Rule of Civil Procedure 12(b)(6). Plaintiffs bring an as-
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
applied challenge and a facial challenge under 42 U.S.C. § 1983 to the peer-review
process that a California health care provider must conduct before revoking a
doctor’s privileges to practice medicine at the provider’s facilities. Plaintiffs claim
the peer-review process violates the Due Process Clause of the Fourteenth
Amendment.
Both the plaintiffs’ as-applied and facial challenges are foreclosed by Pinhas
v. Summit Health, Ltd., 894 F.2d 1024 (9th Cir. 1989). First, the peer-review
process has not changed materially since Pinhas because California Business &
Professions Code § 809, et seq. merely codified the common law that existed when
Pinhas was decided. See El-Attar v. Hollywood Presbyterian Med. Ctr., 301 P.3d
1146, 1151 (Cal. 2013) (“[T]he peer review statute, like the common law fair
procedure doctrine that preceded it, establishes minimum protections for
physicians subject to adverse action in the peer review system.” (internal
quotations omitted)). Pinhas’s holding is therefore still valid. As a result,
defendants were not state actors when they conducted peer review and revoked
plaintiffs’ privileges to practice medicine at defendants’ facilities. See Pinhas, 894
F.2d at 1034.
Second, as Pinas remains valid, plaintiffs incorrectly named defendants,
who are private parties, in a facial challenge to the peer-review statutes. Id. at
1034–35.
AFFIRMED.