UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1864
JOHN W. WANG, M. D.,
Plaintiff, Appellant,
v.
NEW HAMPSHIRE BOARD OF REGISTRATION IN MEDICINE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Cyr and Boudin, Circuit Judges,
and Keeton,* District Judge.
Vincent C. Martina for appellant.
Daniel J. Mullen, Senior Assistant Attorney General, with whom
Jeffrey R. Howard, Attorney General, was on brief.
June 6, 1995
*Of the District of Massachusetts, sitting by designation.
CYR, Circuit Judge. John W. Wang, M.D., appeals from a
CYR, Circuit Judge.
district court judgment dismissing his claims for monetary and
equitable relief relating to certain disciplinary proceedings
conducted by the New Hampshire Board of Registration in Medicine,
which culminated in the revocation of his license to practice
medicine in New Hampshire. We affirm the district court judg-
ment.
I
I
BACKGROUND
BACKGROUND
Wang practiced medicine for approximately sixteen years
under a medical license issued by the Commonwealth of
Massachusetts in 1967, then moved to New Hampshire in 1983 and
resumed the practice of medicine under a newly-obtained New
Hampshire medical license. On March 16, 1988, the Board of
Registration in Medicine for the Commonwealth of Massachusetts
("Massachusetts Board") revoked Wang's medical license for
professional misconduct.1 In light of the Massachusetts Board
action against Wang, the New Hampshire Board of Registration in
Medicine ("New Hampshire Board" or "Board") issued an order on
July 20, 1988, suspending his New Hampshire medical license
pursuant to the New Hampshire reciprocal revocation statute,2
1The charges and findings appear in Wang v. Board of Regis-
tration in Medicine, 537 N.E.2d 1216 (Mass. 1989).
2The reciprocal revocation statute, N.H. Rev. Stat. Ann.
329:17-c (1984), in effect at the time provided:
The board may summarily deny a license to, or revoke or
restrict the license of, any person who has been subjected
2
and allowing him until August 26 to request an administrative
hearing.
Wang promptly obtained preliminary injunctive relief
from a New Hampshire superior court, enjoining the suspension
order pending a revocation hearing before the New Hampshire
Board. The Board in turn withdrew its suspension order and, on
August 11, 1988, ordered that Wang show cause why his New Hamp-
shire license ought not be revoked on the ground that he had
never informed the Board of the license revocation order issued
by the Massachusetts Board. On October 5, 1988, the New Hamp-
shire Board decided to investigate Wang's New Hampshire medical
practice.
Pending investigation by the New Hampshire Board, Wang
appealed the Massachusetts Board license revocation order to the
Massachusetts Supreme Judicial Court ("SJC"). Contemporaneously,
Wang sought and on February 23, 1989, obtained a second New
Hampshire superior court order, enjoining the New Hampshire Board
from pursuing "any hearing the result of which might be revoca-
tion of [Wang's] New Hampshire license based on the action of the
Massachusetts Board . . . until such time as the matter in
Massachusetts has been finally adjudicated in the [SJC]." Two
months later on reconsideration the New Hampshire superior
court vacated its injunction for lack of jurisdiction. The
following week, the SJC upheld the Massachusetts Board license
to disciplinary action related to professional conduct by
the competent authority of any other jurisdiction.
3
revocation order.
On May 22, 1989, counsel was appointed by the New
Hampshire Board to investigate Wang's New Hampshire medical
practice. The investigation took over two years, followed by
hearings commencing in July and ending in October, 1991. The
Board found that in and of itself the unprofessional
conduct which had prompted the Massachusetts Board to revoke
Wang's medical license warranted revocation of his New Hampshire
license. Further, the Board found that Wang's unreasonable
withholding of information from the Board during its investiga-
tion into his New Hampshire medical practice, and his failure
even to demonstrate an attempt to address the professional
deficiencies in his Massachusetts practice, combined "not only
[to] justify, but [to] require reciprocal license revocation in
New Hampshire." On March 5, 1992, the Board issued its written
decision and order revoking Wang's New Hampshire medical license.
Wang appealed the revocation decision to the New
Hampshire Supreme Court, claiming deprivations of his due process
rights under state and federal law, including alleged violations
of the Board's own rules, regulations and enabling statutes, and
asserting conflicts of interest and unfair prejudice on the part
of Board members and its counsel. On August 26, 1992, the New
Hampshire Supreme Court summarily affirmed the license revocation
order, finding the New Hampshire Board decision neither unjust
nor unreasonable, and that the appeal presented no substantial
question of law.
4
Meanwhile, on November 22, 1991, before the New Hamp-
shire Board's license revocation order ever issued, Wang had
commenced the present action against the Board, its members and
counsel, in the United States District Court for the District of
New Hampshire. The federal complaint under 42 U.S.C. 1983
asserted claims for monetary relief and for temporary and perma-
nent injunctive relief enjoining further disciplinary action by
the Board; a judicial declaration that the Board's actions were
fundamentally unfair and violative of Wang's right to due process
of law; and an award of attorney fees against Board members and
its counsel in their individual capacities. The federal district
court stayed its proceedings pending a decision by the New
Hampshire Supreme Court.
All defendants moved to dismiss the federal action
shortly after the New Hampshire Supreme Court summarily affirmed
the New Hampshire Board's license revocation order. The district
court dismissed the claims for monetary relief against the Board
and its members, in their official capacities, on Eleventh
Amendment immunity grounds. Later, the claims for monetary
relief against Board members and its counsel, in their individual
capacities, were dismissed on grounds of absolute immunity.
Finally, on July 12, 1994, the district court entered summary
judgment on the claims for injunctive relief against the Board,
finding that it lacked subject matter jurisdiction to review the
New Hampshire Supreme Court decision. Wang appealed.
II
II
5
DISCUSSION
DISCUSSION
On appeal, Wang contends that the district court erred
in dismissing his claims for monetary relief against the Board
and its members in their official capacities; in sustaining the
absolute immunity claims interposed by Board members and its
counsel, acting in their individual capacities, in that these
defendants had exceeded their respective adjudicative and prose-
cutorial roles and would be entitled, at most, to qualified
immunity under New Hampshire law; and in ruling that it lacked
subject matter jurisdiction to afford prospective injunctive
relief.
A. Monetary Relief3
A. Monetary Relief
1. The Board and Board Members (Official Capacities)
1. The Board and Board Members (Official Capacities)
As it is well settled "that neither a state agency nor
a state official acting in his official capacity may be sued for
damages in a section 1983 action," Johnson v. Rodriguez, 943 F.2d
104, 108 (1st Cir. 1991) (citing Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71 (1989)), cert. denied, 502 U.S. 1063
(1992); see also Kaimowitz v. Board of Trustees, Univ. of Ill.,
951 F.2d 765, 767 (7th Cir. 1991) (finding that, as neither the
state nor its "alter ego" (state university) is a "person" for
section 1983 purposes, neither is subject to suit under section
3Rule 12(b)(1) dismissals for lack of subject matter
jurisdiction are reviewed de novo, Hogar Agua y Vida en el
Desierto, Inc. v. Suarez-Medina, 36 F.3d 177, 181 (1st Cir.
1994), crediting all well-pleaded allegations and drawing all
reasonable inferences favorably to the plaintiff. Murphy v.
United States, 45 F.3d 520, 522 (1st Cir. 1995).
6
1983), we affirm the dismissal of the claims for monetary relief
against the Board and its members acting in their official
capacities.
2. Board Members and Board Counsel (Individual Capacities)
2. Board Members and Board Counsel (Individual Capacities)
Immunity claims in section 1983 actions are governed by
federal law. Martinez v. California, 444 U.S. 277, 284 n.8
(1980). Wang nonetheless contends that the Board members and its
counsel, in their individual capacities, were entitled, at most,
to "good faith" immunity (under New Hampshire law) from monetary
liability under section 1983. As we discern no material distinc-
tion between the quasi-judicial and prosecutorial functions
performed by these defendants in behalf of the New Hampshire
Board, and those performed by their Massachusetts Board counter-
parts, the district court order dismissing these "individual
capacity" claims was entirely proper. See Bettencourt v. Board
of Registration in Medicine, 904 F.2d 772, 782-85 (1st Cir.
1990).
The Massachusetts Board members and its professional
staff were held absolutely immune from suit in their individual
capacities under section 1983, on the ground that these officials
serve in quasi-judicial capacities "functionally comparable" to
those performed by a state court judge. Id. at 783. As with the
Massachusetts Board, New Hampshire Board members weigh evidence
and make factual determinations, N.H. Rev. Stat. Ann. 329:-
17(VI), determine sanctions, see id. 329:17(VII), and issue
7
written decisions in disciplinary actions. See id. 329:-
18(III).4
Although Wang attempts to differentiate between the two
administrative tribunals on the ground that the New Hampshire
Board assumed an "inquisitorial or investigative role" in this
case by instigating and prosecuting the charges against him, the
attempted distinction is without legal significance. State
officials performing prosecutorial functions -- including their
decisions to initiate administrative proceedings aimed at legal
sanctions -- are entitled to absolute immunity as well. See Butz
v. Economou, 438 U.S. 478, 515 (1978); see also Horwitz v. Board
of Medical Examiners, 822 F.2d 1508, 1515 (10th Cir.) (describing
4The New Hampshire Board is empowered to conduct disciplin-
ary proceedings, and discipline licensees in appropriate cases,
N.H. Rev. Stat. Ann. 329:2(II)(b), 329:17(I),(VI), and to
appoint legal counsel and "such other assistants as may be
required" in performing its administrative responsibilities, id.
329:2(II)(c). It may initiate disciplinary proceedings on its
own motion or upon a written complaint alleging professional
misconduct. See id. 329:17(I), (VI). It may reprimand; limit,
suspend or revoke medical licenses; assess administrative fines;
and order treatment, counseling, continuing medical education and
medical practice supervision. Id. 329:17(VII). Appeals from
its disciplinary rulings are taken to the New Hampshire Supreme
Court, id. 329(VIII), under the procedures set forth in N.H.
Rev. Stat. Ann. 541.
The Massachusetts Board adjudicatory proceedings are con-
ducted by a hearing officer, see Bettencourt, 904 F.2d at 773,
who makes all evidentiary and procedural rulings, and issues a
"tentative decision" which the Massachusetts Board reviews,
together with any objection filed by the respondent physician,
before issuing its "final decision." See id. at 773-74. The
Massachusetts Board accords "substantial deference" to all
credibility determinations by the hearing officer, but may reject
or revise any finding based on conflicting evidence. Id. Legal
rulings are reviewed de novo. Id. Appeals from Massachusetts
Board decisions are taken to the SJC, which may set aside or
modify board decisions on a finding that substantial rights have
been prejudiced. Id. at 774.
8
Colorado medical board officials' adjudicatory and prosecutorial
role), cert. denied, 484 U.S. 964 (1987). Thus, New Hampshire
Board counsel, like the Massachusetts Board professional staff,
see Bettencourt, 904 F.2d at 785, is absolutely immune from suit,
in his individual capacity, based on his participation in partic-
ular cases before the Board. See id.
Wang next argues that the New Hampshire Board members
and its counsel were imbued with such "overwhelming malice and
bad faith" that due process was not to be had at their hands.
The allegation of malice and bad faith is founded principally on
the New Hampshire superior court decision preliminarily
enjoining further Board action entered on February 23, 1989,
and vacated for lack of subject matter jurisdiction two months
later.5
Even assuming a level of malice and bad faith suffi-
cient to poison the New Hampshire Board proceedings contrary
to the record evidence, as well as the New Hampshire Supreme
Court decision the Board members and its counsel nonetheless
5In its February 23, 1989, order enjoining the Board disci-
plinary proceedings, the superior court found that Wang had not
been accorded due process, in that the Board had prejudged the
outcome of its proceedings. Further, the superior court faulted
the multiple roles assumed by Assistant Attorney General Douglas
Jones, as Board counsel and prosecutor. "Under such circumstanc-
es there could not be even the appearance of fairness," the court
said.
On appeal, Wang relies heavily on these superior court
findings for his claim that the Board proceedings were devoid of
due process. But the superior court findings are without legal
effect since the superior court lacked subject matter jurisdic-
tion and its findings were implicitly rejected by the New Hamp-
shire Supreme Court decision affirming the Board's final
revocation order.
9
would be absolutely immune from suit, in their individual capaci-
ties, on section 1983 claims arising out of their respective
judicial, quasi-judicial and/or prosecutorial functions, even
though they acted "maliciously and corruptly." Pierson v. Ray,
386 U.S. 547, 554 (1967); Imbler v. Pachtman, 424 U.S. 409, 424
(1976) (extending absolute immunity under section 1983 to prose-
cutors acting in quasi-judicial capacity). Nor does Wang claim
that his medical license was revoked by the Board in the "clear
absence of all jurisdiction." Stump v. Sparkman, 435 U.S. 349,
357 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335,
351 (1871)); see also Ricci v. Key Bancshares of Maine, Inc., 768
F.2d 456, 462 (1st Cir. 1985) ("The conduct in question need only
be more or less connected to 'the general matters committed by
law to [the Board's] control or supervision' and not 'manifestly
or palpably beyond [the Board's] authority.'") (quoting Spalding
v. Vilas, 161 U.S. 483, 498 (1896)).
Lastly, Wang contends that absolute immunity cannot
insulate Board members and its counsel from suit, since the
challenged disciplinary action was taken pursuant to a New
Hampshire reciprocal revocation statute, see N.H. Rev. Stat. Ann.
329:17-c (1984), unconstitutional on its face. He reasons that
though our decision in Bettencourt might support absolute immuni-
ty for medical board members and its counsel, provided their
actions were taken under adequate procedural safeguards,
Bettencourt does not immunize such officials from suit in their
individual capacities for official actions summarily taken under
10
a reciprocal revocation statute simply on the ground that another
jurisdiction has revoked the respondent's license.
We decline the invitation to provide an advisory
opinion on a claim for which there is no evidentiary support in
the appellate record. See United States Nat'l Bank of Or. v.
Independent Ins. Agents of Am., Inc., 113 S. Ct. 2173, 2178
(1993) ("'The exercise of judicial power under Art. III of the
Constitution depends on the existence of a case or controversy,'
and 'a federal court [lacks] the power to render advisory
opinions.'") (citations omitted); State of R.I. v. Narragansett
Indian Tribe, 19 F.3d 685, 705 (1st Cir.), cert. denied, 115 S.
Ct. 298 (1994) (same). Wang concedes that the final license
revocation order issued by the New Hampshire Board was not the
product of a summary proceeding. Considering that almost three
years elapsed between the commencement of the disciplinary
investigation and the entry of the revocation order, we believe
the concession is well founded. Moreover, the Board conducted
several hearings at which Wang and his attorney appeared; the
proceedings were transcribed; the Board issued a written deci-
sion; and Wang was afforded and utilized to the fullest the
right to appeal the final Board order to the New Hampshire
Supreme Court. We find no basis in fact or law for the claim
that the procedural safeguards accorded Wang by the New Hampshire
Board differed in any significant respect from those the Massa-
chusetts Board afforded the respondent in Bettencourt. See 904
F.2d at 783.
11
B. Injunctive Relief
B. Injunctive Relief
Finally, Wang challenges the summary judgment entered
against him on the claim for permanent injunctive relief against
the Board.6 In particular, he attacks the federal district
court ruling that this claim is "inextricably intertwined" with
the New Hampshire Supreme Court decision disallowing his appeal
from the New Hampshire Board's license revocation order and,
consequently, that the district court lacked subject matter
jurisdiction to enjoin the present claim. See Rooker v. Fidelity
Trust Co., 263 U.S. 413, 416 (1923); District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462, 476 (1983). Wang argued to
the New Hampshire Supreme Court that the procedure by which his
medical license was revoked failed to afford him due process of
law. The New Hampshire Supreme Court rejected his claim, and its
decision was reviewable only by the United States Supreme Court.
See Feldman, 460 U.S. at 482.
Wang frivolously argues, nonetheless, that the Rooker-
Feldman doctrine does not bar the constitutional claims asserted
below in support of his request for permanent injunctive relief
against further disciplinary proceedings by the Board, because
unlike the plaintiffs in Feldman, there is no other forum avail-
able to him. He is wrong.
6Summary judgment rulings are reviewed de novo to determine
whether the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.
Simon v. FDIC, 48 F.3d 53, 56 (1st Cir. 1995).
12
Wang raised the due process claim before the New
Hampshire Supreme Court, albeit unsuccessfully, and may not
obtain review of its decision in federal district court on any
pretext. Schneider v. Colegio de Abogados de P.R., 917 F.2d 620,
628 (1st Cir. 1990) ("[L]ower federal courts have no jurisdiction
to hear appeals from state court decisions, even if the state
judgment is challenged as unconstitutional."), cert. denied, 502
U.S. 1029 (1992) (emphasis added). Constitutional claims pre-
sented to a United States district court, and found to be "inex-
tricably intertwined" with state court proceedings, impermissibly
invite the federal district court, "in essence," to review a
final state court decision. Feldman, 460 U.S. at 483 n.16.
Lower federal courts are without subject matter jurisdiction to
sit in direct review of state court decisions. Id. (citing
Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive Eng'rs,
398 U.S. 281, 296 (1970)).
III
III
CONCLUSION
CONCLUSION
The district court judgment dismissing all claims must
be affirmed.
Affirmed.
Affirmed.
13