Appellant, Case No ;

Appellate Case: 10-2167 Document: 01018520048 Date Filed: 10/22/2010 Page: 1

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

STUART T. GUTTMAN, M.D. Plaintiff/Appellant, Case No. 10-2167; 10-2172 v. G.T.S. KHALSA; LIVINGSTON PARSONS, and THE STATE OF NEW MEXICO Defendants/Appellees.

__________________________________________________________________ PLAINTIFF/APPELLANT STUART T. GUTTMAN, M.D.’S BRIEF IN CHIEF __________________________________________________________________ On appeal from the United States District Court for the District of New Mexico, District Court Cause No. Civ.-03-463 Hon. M. Christina Armijo, Magistrate Judge, presiding Submitted by: SANDERS, BRUIN, COLL & WORLEY, P.A. Ian D. McKelvy Post Office Box 550 Roswell NM 88202-0550 (575) 622-5440 Attorneys for Plaintiff/Appellant October 22, 2010 ORAL ARGUMENT IS REQUESTED

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v STATEMENT OF PRIOR OR RELATED APPEALS . . . . . . . . . . . . . . . . . . . . . 1 JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 I.

Congress validly abrogated state sovereign immunity under Title II of the ADA in the licensing context for actual violations of the 14th Amendment and beyond; therefore, the District Court erred in dismissing Dr. Guttman's ADA claims against the State of New Mexico where Dr. Guttman was denied Due Process and access to the Courts. . . . . . . . . . . . . . . . . . 10 A.

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B.

Guttman may proceed with Title II claims against New Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 1.

The State stipulated to jurisdiction and thereby waived immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2.

This Court’s analysis supports abrogation . . . . . . . . . 11

i

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C.

D.

Dr. Guttman has stated claims under Title II, which constitute violations of the Fourteenth Amendment. . . . . . . . . . . . . . . . 13 1.

Due process and a pre-deprivation hearing was required but denied.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2.

The State failed to afford other procedural rights . . . 14

3.

Hudson v. Palmer does not apply. . . . . . . . . . . . . . . . . 15

4.

A different result is not warranted under the de facto officer doctrine, nor was the defect waived . . . . . . . . . 17

5.

Parsons as hearing officer was biased as a matter of law and lacked jurisdiction, thus losing immunity and voiding the Board’s actions. . . . . . . . . . . . . . . . . . . . . 19

6.

Board Member Grant LaFarge was also precluded from acting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Congress validly abrogated eleventh amendment immunity under Title II in the area of programs and services, including licensing, under Lane.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 1.

Abrogation analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2.

Tennessee v. Lane and denial of access to justice. . . . 23

3.

The District Court’s Order declining to recognize abrogation based on the pattern found in Lane was erroneous.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

4.

Dr. Guttman was denied access to justice by reason of disability as in Lane. . . . . . . . . . . . . . . . . . . . . . . . . . . 24

5.

Title II is congruent and proportional in its application here. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

ii

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II.

III.

IV.

Individual absolute immunity does not extend to all claims against the individuals in this case, nor bars Dr. Guttman’s Section 1983 claims for prospective injunctive relief against the state officials sued in their official capacity; therefore, the District Court erred in dismissing Dr. Guttman’s official capacity claims under Ex parte Young seeking prospective injunctive relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 A.

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

B.

Absolute immunity does not extend to Parsons here who acted in the absence of jurisdiction.. . . . . . . . . . . . . . . . . . . . . . . . . 27

C.

Ex parte Young claims remain and there is no basis for dismissal based upon immunity. . . . . . . . . . . . . . . . . . . . . . . 27

Whether the law on Guttman's claims against the individual Defendants for defamatory publications in the present context was clearly established so that the District Court erred in granting qualified immunity for constitutional claims for "stigma plus". . . . 36 A.

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

B.

Dr. Guttman stated a claim . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

C.

The law was clearly established on the constitutional stigma plus, dating back to Paul v. Davis. . . . . . . . . . . . . . . . . . . . . 37

Whether the District Court erred in preserving the preclusion defenses when they had been previously denied and waived, and are otherwise inapplicable as a matter of law; and erred in dismissing Dr. Guttman's remaining claims and denying his Motion for Partial Summary Judgment, in light of the allegations taken as true and the record exhibiting actual constitutional violations . . . . . . . . . . . . . . . . . . . . 44 A.

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

B.

Defendant’s re-assertion of preclusion should have been stricken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 iii

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C.

Collateral estoppel has no application in this case. . . . . . . . . 47

D.

Partial summary judgment should have been granted in favor of Dr. Guttman for due process violations. . . . . . . . . . . . . . . 50

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . 55 CERTIFICATE OF VIRUS PROTECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

iv

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TABLE OF AUTHORITIES FEDERAL CASES Allen v. Denver Pub. Sch. Bd., 928 F.2d 978 (10th Cir.1991) . . . . . . . . . . . . . . . 37 Ashe v. Swenson, 397 U.S. 436, 443 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48 Beedle v. Wilson, 422 F.3d 1059 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Bell v. Burson, 402 U.S. 535 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Board of Regents v. Roth, 408 U.S. 564 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Boddie v. Connecticut, 401 U.S. 371 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . 26, 51 Brockamn v. Wyo. Dep’t of Family Servs., 342 F.3d 1159 (10th Cir. 2003) . . . . 11 Cannon v. City of West Palm Beach, 250 F.3d 1299 (11th Cir. 2001) . . . . . . . . . 40 Chaffin v. Kansas State Gvair B.D., 348 F.3d 850 (10th Cir. 2003) . . . . . . . . . . . 32 City of Boerne v. Flores, 521 U.S. 507 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Clanton v. Cooper, 129 F.3d 1147 (10th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . 37 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) . . . . . . . . . . . . . 13, 51 Credit Union Group Enterprises, LLC v. Kansas Dep’t of Credit Unions, 457 F.Supp.2d 1235 (D. Kan. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Crowe & Dunlevy, P.C. v. Stidham, 609 F.Supp.2d 1211, (N.D. Okla. 2009)) . 31 Cutshal v. Sunquist, 193 F.3d 466 (6th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . 40 DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . 16, 17, 38

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Edelman v. Jordan, 415 U.S. 651 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Ex parte Virginia, 100 U.S. 339 (1879) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Ex parte Young, 209 U.S. 123 (1908)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 40

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005) . . . . . . . . 1 FDIC v. Hulsey, 22 F.3d 1472 (10th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Fent v. Oklahoma Water Res. Bd., 235 F. 3d 553 (10th Cir. 2000) . . . . . . . . . . . . 11 Fletcher v. United States, 116 F.3d 1315 (10th Cir. 1997) . . . . . . . . . . . . . . . . . 10 Fuentes v. Shevin, 407 U.S. 67 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15 Gagan v. Norton, 35 F.3d 1473 (10th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . 27 Gibson v. Berryhill, 411 U.S. 564 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Gilliham v. Shillinger, 872 F.2d 935 (10th Cir. 1989) . . . . . . . . . . . . . . . . . . 13, 14 Goss v. Lopez, 419 U.S. 565 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Greene v. McElroy, 360 U.S. 474 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Greenwood v. New York, 163 F.3d 119 (2d Cir. 1998) . . . . . . . . . . . . . . . . . . . . . 40 Guttman v. Khalsa, 446 F.3d 1027 (10th Cir. 2006) . . . . . . . . . . . . . . . . 12, 21, 27 Harrison v. Eddy Potash, Inc., 248 F.3d 1014 (10th Cir. 2001) . . . . . . . . . . . 47, 48 Hope v. Pelzer, 536 U.S. 730 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Hudson v. Palmer, 468 U.S. 517 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 52 In re Corey, 394 B.R. 519 (10th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

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In re McWhorter, 887 F.2d 1564 (11th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . 45 Jensen v. Redevelopment Agency, 998 F.2d 1550 (10th Cir. 1993) . . . . . . . . . . . 37 Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161 (3rd Cir. 2002) . . . . 31 Laviky v. Burnett, 758 F.2d 468 (10th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . 14, 16 Lewis v. New Mexico Dep’t of Health, 261 F.3d 970 (10th Cir. 2001) . . . . . . . 10 Liljeberg v. Health Svcs. Acquisition Corp., 486 U.S. 847 (1988) . . . . . . . . . 20, 54 Lindsey v. United States, 448 F.Supp.2d 37(D.D.C 2006) . . . . . . . . . . . . . . . . 45 Liteky v. United States, 510 U.S. 540 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) . . . . . . . . . . . . . . . . . 12, 16, 18, 26, 49, 50, 51, 53, 54 Lucero v. Gunther, 52 F.3d 874 (10th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . 47 McKee v. Heggy, 703 F.2d 479 (10th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Medina v. City and County of Denver, 960 F.2d 1493 (10th Cir. 1992) . . . . . . . . 37 Melton v. City of Oklahoma City, 928 F.2d 920 (10th Cir. 1991) . . . . . . . . . . . . . 42 Mireles v. Waco, 502 U.S. 9, (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Moore v. Board of Educ. of Johnson City Schs., 134 F.3d 781 (6th Cir 1998) . . . 16 Morrissey v. Brewer, 408 U.S. 471 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Nevada v. Hall, 440 U.S. 410 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Palmore v. Sidoti, 466 U.S. 429 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Parratt v. Taylor, 451 U.S. 527 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 vii

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Paul v. Davis, 424 U.S. 693 (1976) . . . . . . . . . . . . . . . . . 37, 38, 39, 40, 41, 42, 43 Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262 (10th Cir. 1989) . . . . . . . . . . . . 41 Pittsburg County Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694 (10th Cir.2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Pulliam v. Allen, 466 U.S. 522 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Renaud v. Wyoming Dept. of Family Svcs., 203 F.3d 723 (10th Cir. 2000) . . . . . 41 Robinson v. State of Kansas, 295 F.3d 1183 (10th Cir. 2002) . . . . . . . . . . . . . . . 31 Rose v. Clark, 478 U.S. 570 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Schware v. Board of Bar Examiners, 353 U.S. 232 (1957) . . . . . . . . . . . . . . . . . 13 Setliff v. Memorial Hosp. of Sheridan County, 850 F.2d 1384 (10th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Siegert v. Gilley, 500 U.S. 226 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 42 Simmang v. Texas Bd. of Law Examiners, 346 F.Supp.2d 874 (W.D. Tex. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Starkey ex rel. A.B. v. Boulder County Social Svc’s, 569 F.3d 1244 (10th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Staton v. Mayes, 552 F.2d 908 (10th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . 17, 18 Stidham v. Peace Officer Standards and Training, 265 F.3d 1144 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 40, 41 Taylor v. Resolution Trust Corp., 56 F.3d 1497 (D.C. Cir. 1995) . . . . . . . . . . . . 43 Tennessee v. Lane, 541 U.S. 509 (2004) . . . . . . . . . . . . . . . . . . . . . . 23, 24, 25, 26

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Tumey v. Ohio, 273 U.S. 510 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) . . . . . . . . . . . . . . . 20, 54 United States v. Georgia, 546 U.S. 151 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 12 United States v. Story, 716 F.2d 1088 (6th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . 20 Van Horn v. Oelschlager, 502 F.3d 775 (8th Cir. 2007) . . . . . . . . . . . . . . . . . 30, 33 Walker v. Gibson, 228 F.3d 1217 (10th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . 20 Whitney v. State of N.M., 113 F.3d 1170 (10th Cir. 1997) . . . . . . . . . . . . . . . . . . . 37 Wolfenbarger v. Williams, 774 F.2d 358 (10th Cir. 1985) . . . . . . . . . . . . 13-14, 16 Workman v. Jordan, 32 F.3d 475 (10th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . 40, 41 WMX Tex Inc. V. Miller, 197 F.3d 367 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 40 Yvonne L., By & Through Lewis v. New Mexico Dept. of Human Services, 959 F.2d 883 (10th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Zinermon v. Burch, 494 U.S. 113 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

NEW MEXICO STATE CASES Lopez v. New Mexico Bd. of Med. Exam’rs, 107 N.M. 145 (NM 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 17, 18, 49, 50, 54 Martinez v. N.M. State Engineer’s Office, 2000-NMCA-074, 129 N.M. 413, 9 P.3d 657 (NM 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Maso v. State of New Mexico Taxation and Revenue Dep’t. Motor Vehicle Div., 2004-NMCA-025, 135 N.M. 152 . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 49 N.M. State Bd. of Psychologist Exam’rs v. Land, 2003-NMCA-034, ¶ 5, ix

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133 N.M. 362, 62 P.3d 1244 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Reid v. N.M. Bd. of Examiners, 92 N.M. 414, 589 P.2d 198 (NM 1979) . . . . . . . 22 OTHER STATE CASES Vance v. Fordham, 671 P.2d 124 (Utah 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 STATUTES 28 U.S.C. § 455(a)-(b) (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 42 U.S.C. § 1137(c) (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 NMSA 1978, § 61-1-3 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 51 NMSA 1978, § 61-1-3 (E) (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 NMSA 1978, § 61-7-4 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 OTHER RESTATEMENT (SECOND) JUDGMENTS § 12 (1982) . . . . . . . . . . . . . . . . . . . . . . . 49

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STATEMENT OF PRIOR OR RELATED APPEALS There are two prior appeals before this Court in this case. First, Case No. 032244 that resulted in two published opinions: Guttman v. Khalsa, 401 F.3d 1170 (10th Cir. 2005), vacated by Guttman v. Khalsa, 546 U.S. 801 (2005) (remanding in light of Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)); and Guttman v. Khalsa, 446 F.3d 1027 (10th Cir. 2006). Second, Case Nos. 07-2147, and 07-2169, which resulted in an unpublished opinion, Guttman v. Khalsa, 325 Fed. Appx. 687. The United States has also filed an appeal in this case in 10-2172, that was joined with the present appeal in 10-2167. JURISDICTIONAL STATEMENT Plaintiff/Appellant takes this appeal as of right from the Memorandum Opinion and Order entered by the U.S. District Court for the District of New Mexico dated June 30, 2010, which finally dismissed and disposed all of Plaintiff’s claims. Plaintiff/Appellant timely filed his Notice of Appeal on July 23, 2010, under Fed.R.App. P. 3 and 4. The Tenth Circuit has jurisdiction under 28 U.S.C. § 1291 to review final decisions of the District Courts of the United States. See, 28 U.S.C. § 1291; See also, Harris v. Allstate Ins. Co., 300 F.3rd 1183, 1186 (10th Cir. 2002).

1

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STATEMENT OF THE ISSUES I. The District Court erred in finding Congress had not validly abrogated state sovereign immunity under Title II of the ADA in the licensing context for actual violations of the 14th Amendment and beyond, and thereby erred in dismissing Dr. Guttman’s claims. II.

Individual absolute immunity does not extend to all claims against the

individual Defendants in this case, nor bars Dr. Guttman’s Section 1983 claims for prospective injunctive relief against the state officials sued in their official capacity; therefore, the District Court erred in dismissing Dr. Guttman’s official capacity claims under Ex parte Young seeking prospective injunctive relief. III.

The law on Guttman's claims against the individual Defendants for

defamatory publications in the present context was clearly established at the time of the publication, so that the District Court erred in granting these Defendants qualified immunity for constitutional claims for "stigma plus". IV.

The District Court erred in finding the preclusion defenses had not

already been denied and are otherwise inapplicable as a matter of law, and erred in dismissing Dr. Guttman's remaining claims raised in his Second Amended Complaint, and by denying his Motion for Partial Summary Judgment, in light of the allegations taken as true and the record exhibiting actual constitutional violations.

2

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STATEMENT OF THE CASE Dr. Guttman filed a pro se complaint in the District Court for the District of New Mexico under 42 USC § 1983, and Title II of The Americans with Disabilities Act (“ADA”). Since then, Dr. Guttman through counsel has filed a First Amended and Second Amended Complaint. Plaintiff complains that the summary suspension and revocation of his license to practice medicine was done in violation of procedural due process and equal protection, and that these failures voided the actions against him. Further, the New Mexico Board of Medical Examiners acted against him with discriminatory animus and failed to accommodate him under the ADA. Dr. Guttman sued G.T.S. Khalsa, the Board’s attorney and administrative prosecutor, Livingston Parsons, the hearing officer, and the State of New Mexico. Magistrate Judge Leslie C. Smith entered his Memorandum Opinion and Order on September 15, 2003, dismissing the suit based on lack of jurisdiction and absolute immunity under the claims in the original Complaint. That decision was reversed. Following remand and the filing of the First Amended Complaint, the Defendants stipulated to the District Court’s personal and subject matter jurisdiction. After another intervening appeal by the State based on a denial of its request to impute absolute quasi-judicial immunity, and after the Defendants’ fourth and fifth motions to dismiss, Magistrate Judge M. Christina Armijo, presiding, has dismissed the remainder of Dr. Guttman’s claims based on Eleventh Amendment Immunity in her Memorandum Opinion and Orders of March 31, 2010 and June 30, 2010. 3

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STATEMENT OF THE FACTS Dr. Guttman has been a medical doctor in the United States since 1975, and has held a medical licenses in various states. (App. 119; Doc. 108-1, ¶ 8). Dr. Guttman had been granted a stipulated license to practice medicine in New Mexico on May 20, 1993. (Id., ¶ 9). The license was granted with stipulations due to Dr. Guttman’s history of depression and PTSD. (Id., ¶ 10). These stipulations were lifted by the Board on or about May 19, 1995. (Id., ¶ 11). On March 7, 2000 Dr. Guttman’s license was summarily suspended, and eventually revoked. (App. 122-23, ¶ 35). On December 28, 1999, the Board directed the Plaintiff to appear before the Impaired Physician Committee (“IPC”), with whom he met on January 10, 2000. No explanation was given to Plaintiff for the reason of his impairment, though his attorney at the time had requested a clarification. (App. 119, Doc. 108-1, ¶ 12). The IPC was required by law to have been composed of three licensed physicians. Here it was not. One physician, Dr. Layman, was not licensed. (App. 182; 121, ¶ 22-24). Dr. Guttman was asked numerous questions regarding his practice of medicine in Gallup, New Mexico from December 1993 through March 1994, a period predating the lifting of stipulations on his license. (Id. at ¶ 13.) The Board already had all of the relevant documents and information regarding this period in its possession. (Id. at ¶ 21). In fact, Dr. Guttman had signed a release for Defendant Khalsa and the Board to review information in September of 1994. (App., 188). Khalsa admitted to 4

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knowing about the Gallup material. (App. , Doc. 137-2, p. 14). The Board is required to provide all relevant information to the IPC, yet it did not provide the IPC any information as to Dr. Guttman’s stay in Gallup. (App. 211, Doc. 108-1,¶ 26-27). After meeting the first time, the IPC found no cause to suspend or revoke Dr. Guttman’s license based upon all the information provided to it by the Board, but requested information about Gallup. (App. 209-10,Doc. 137-2, p. 12-13 ). Contrary to the Board’s procedures, the Board provided select information, but failed to disclose that Dr. Guttman had already previously released this information and had been cleared of any wrongdoing. The IPC then convened a second time without giving any notice of the meeting to Dr. Guttman, and without giving him an opportunity to be heard there. (App. 180, Doc. 137-1, p. 5, ¶ 28). On or about March 7, 2000, Dr. Guttman received a Notice of Contemplated Action (“NCA”) and an Order of Summary Suspension from the Board. (App.299304), finding he had been dishonest about his time in Gallup by failing to disclose events there, when Dr. Guttman had already released all that information years before and all stipulations on his license had been lifted after his stint in Gallup. The information regarding this suspension was published by Defendants in the National Practitioner Data Bank (“Data Bank”) in March of 2000.(App. 306). This information was knowingly false and stigmatizing. From October 23-25, 2000, Dr. Guttman appeared before Dr. Livingston Parsons and the Board in an administrative hearing 5

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to revoke his license to practice medicine. (App. 124, ¶ 41). On or about February 28, 2001, an Order was entered by the Board revoking Plaintiff’s license to practice medicine. (Id., ¶ 42; App. 328-337). This information was also published in the Data Bank and was false and stigmatizing. The hearing officer, Defendant Parsons, admitted that he questioned his ability to sit as an unbiased hearing officer because of his past regular dealings with Dr. Guttman. (App. 326-27). Prior to the proceeding, Defendant Parsons was aware of his contact with Dr. Guttman and was advised by the Board’s attorney that he could sit as hearing officer. (App. 321-22; 326-27, tr 448-49; 569-70). At the hearing Parsons admitted to monitoring Dr. Guttman’s progress while he was in Gallup. (App. 212-13; Doc. 137-2, pp.15-16). Plaintiff has alleged that Parson’s knowledge of events in Gallup disqualified him as a hearing officer, requiring recusal. (App.13031, Doc. 108-1, ¶¶ 89-90). Dr. Guttman moved for recusal of Defendant Parsons and for mistrial in the administrative proceeding, and that motion was denied. The hearing officer conceded at the hearing that Dr. Guttman’s ability to practice and the manner in which he conducted his of practice were not being called into question. (App., 323-24). The Board, including Parsons as a member of the Board, furnished Gallup material to the IPC in violation of the rules prohibiting discussion of the matters with the IPC. Dr. Tashijian, psychiatrist and chair of the Impaired Physician’s Committee (“IPC”) reviewing Dr. Guttman, testified at the 6

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revocation hearing that he believed the burden was on Dr. Guttman to come up with some level of control, though he conceded that it was possible Dr. Guttman could come up with some proposal of accommodation. (App., 318-19). Neither the Board or the hearing officer considered any reasonable accommodations that would allow Dr. Guttman to continue to practice medicine. (See, App., 311-17; 338). Dr. Guttman filed an appeal of the Board’s decision in the Seventh Judicial District Court of New Mexico (“state court”). On January 30, 2003, the state court issued an order simply affirming the Board’s revocation of the license, and refusing to consider the ADA issues, finding such issues were not preserved. (App., 338). Dr. Guttman appealed to the New Mexico Court of Appeals and filed a Petition for Certiorari to the New Mexico Supreme Court without receiving relief. (App., 339, 340). While the petition to the New Mexico Supreme Court was pending, Dr. Guttman filed his Complaint, pro se, in the Federal District Court for the District of New Mexico on April 17, 2003. Defendants responded by filing their first Motion to Dismiss and for Summary Judgment, followed by four additional motions to dismiss which have now resulted in the dismissal of all of Dr. Guttman’s claims. SUMMARY OF THE ARGUMENT The actions these Defendants took against Dr. Guttman’s license were in violation of his rights under the United States Constitution and void ab initio. Dr. Guttman’s medical license was summarily suspended and subsequently revoked in 7

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contravention to the law governing the property interest he had in his New Mexico medical license. This is beyond dispute. Dr. Guttman has not simply lost a job, he has lost his ability to be employed anywhere in his chosen profession. The State of New Mexico and its Board of Medical Examiners denied Dr. Guttman his rights to Due Process and Equal Protection under the Fourteenth Amendment. The Board knowingly violated its own rules and governing statutes, including the two year limitations period. The Board used the Gallup material in contravention to this rule years later with the intent to revoke his license. The Board’s participation with the IPC precluded it from voting on the IPC recommendations, and from naming Parsons as hearing officer. Parsons also was disqualified from serving as hearing officer based upon his knowledge of events in Gallup. For over 10 years now, Dr. Guttman has experienced an ongoing violation of his constitutional rights. He made attempts to raise his claims in the state, but has fundamentally been denied access to the courts to redress his grievances. In his First and Second Amended Complaints, following remand from the Tenth Circuit in 2005, he sued the officials in their official capacity under Ex parte Young seeking prospective injunctive relief. Despite no previous dismissal of these claims, the District Court has most recently found that the claims were in fact dismissed, apparently based on the absolute immunity against damage claims of the individual Defendants sued in their individual capacity in the original Complaint. This result 8

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is contrary to law and contrary to the record in this case. The District Court here has dismissed all of Dr. Guttman’s claims by: (1) failing to recognize the lack of jurisdiction that voided the entire proceeding under the facts of the Second Amended Complaint; (2) relying on prisoner tort cases to excuse clear violations of Due Process that made the Board’s actions void ab initio under Supreme Court precedent. Moreover, the State had already stipulated to the Court’s jurisdiction over it and the subject matter of the suit. Guttman’s claims include actual constitutional violations which the Supreme Court has unanimously held support a valid abrogation of sovereign immunity under Title II of the ADA. The State has also published information regarding Dr. Guttman that was false and constitutes constitutional defamation under § 1983, known generally as “stigma plus.” The law in this area had been clearly established for years before the Defendants’ violations in this case. While the District Court correctly found Dr. Guttman had stated a claim for stigma plus, it granted the individual Defendants qualified immunity, incorrectly finding that the law was not clearly established. In short, the Board and the Committee it convened to suspend and revoke Dr. Guttman’s license lacked jurisdiction, and lacked the authority or privilege to publish a knowingly false data bank report. It violated Dr. Guttman’s constitutional rights as a matter of law.

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ARGUMENT I.

Congress validly abrogated state sovereign immunity under Title II of the ADA in the licensing context for actual violations of the 14th Amendment and beyond; therefore, the District Court erred in dismissing Dr. Guttman's ADA claims against the State of New Mexico where Dr. Guttman was denied Due Process and access to the Courts. A.

Standard of Review

This Court reviews de novo the legal question of sovereign immunity. Fletcher v. United States, 116 F.3d 1315, 1323-24 (10th Cir. 1997). This Court reviews de novo an order dismissing a complaint for failure to state a claim, using the same standard used by the district court. Beedle v. Wilson, 422 F.3d 1059, 1063 (2005) (citation omitted). The Court accepts all well-pleaded facts as true, and views those facts in the light most favorable to Dr. Guttman as the nonmoving party. Id. B.

Guttman may proceed with Title II claims against New Mexico 1.

The State stipulated to jurisdiction and thereby waived immunity.

Tenth Circuit has held that once the issue of Eleventh Amendment immunity is raised “such immunity constitutes a bar to the exercise of federal subject matter jurisdiction.” Lewis v. New Mexico Dept. of Health, 261 F.3d 970, 979 (10th Cir. 2001)(citing, Fent v. Oklahoma Water Res. Bd., 235 F.3d 553, 559 (10th Cir.2000) (emphasis added)). The issue of sovereign immunity is jurisdictional in nature. 10

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Starkey ex rel. A.B. v. Boulder County Social Svc’s, 569 F.3d 1244, 1260 (10th Cir. 2009) (citing, see Brockman v. Wyo. Dep't of Family Servs., 342 F.3d 1159, 1163 (10th Cir.2003) (Eleventh Amendment sovereign immunity “is a threshold jurisdictional issue”). The State of New Mexico originally raised Eleventh Amendment Immunity in its first Motion to Dismiss. (Docs. 4, 5 ). Following remand from the Tenth Circuit after the first appeal, and after the denial of its second Motion to Dismiss, however, in January of 2007, the State and all Defendants entered into the Joint Status Report and Provisional Discovery Plan. (Doc. 49, p. 2). They stipulated that the District Court has jurisdiction of the parties and the subject matter. (Id.). Though it later contended it was entitled to immunity, New Mexico’s stipulation was conclusive and without reservation: The District Court has jurisdiction over it and the subject matter of Dr. Guttman’s claims. Eleventh Amendment Immunity has thus been waived. 2.

This Court’s analysis supports abrogation

The road map that the Tenth Circuit provided outlines what the District Court must determine, and the effect of that determination, as follows: (1) Which aspects of [New Mexico’s] alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid. 11

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(Doc. 106-2, p. 11 (citing Guttman, 446 F.3d at 1035) quoting United States v. Georgia, 546 U.S. 151, 159 (2006). The most recent Tenth Circuit Opinion reaffirms as follows: If Dr. Guttman’s “Title II claims against New Mexico also constitute an independent constitutional violation, Guttman may proceed with these claims against the state.” (Doc. 106-2, p. 12 (citing, Guttman, 446 F.3d [1027] at 1036 (citing Georgia, 126 S.Ct. at 880-81)(emphasis added). If the conduct Guttman alleges “does not in itself violate the constitution, the Court must determine ‘whether Congress’s purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.’” Id. (citing Georgia, 546 U.S. at 159). The District Court essentially followed the State’s argument below that the procedural rights and property interest afforded to Dr. Guttman by the governing New Mexico statutes are not applicable, contravening the U.S. Supreme Court’s decision in Logan v. Zimmerman Brush Co., 455 U.S. 422, 442 (1982). To treat persons differently by applying state statutes to one person and not another amounts to a clear violation of equal protection under the Fourteenth Amendment. See, Lopez, 107 N.M. 145, 147. Treating similarly situated physicians differently “is the very essence of arbitrary state action.” See, Logan, 455 U.S. at 442 (1982)(Blackmun, J. separate opinion). Plaintiff has shown that there are on-going constitutional violations here, and no basis exists to dismiss his pending claims. 12

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C.

Dr. Guttman has stated claims under Title II, which constitute violations of the Fourteenth Amendment.

Dr. Guttman has stated claims under Title II of the ADA. That issue has long been decided. (App. 72,Doc. 39, p. 4; App. 91, Doc. 43, p. 3). The alleged conduct taken as true violated Title II. Much of it also violated Due Process. 1.

Due process and a pre-deprivation hearing was required but denied.

There is no question that Dr. Guttman had a constitutionally protected property right in his medical license, as the trial court recognized. (App. 357, Doc 142, p. 17) (citing, Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1150 (10th Cir. 2007)) . If there is to be a deprivation of liberty or property interest as protected by the Fourteenth Amendment, then notice and hearing must be granted “at a time when the deprivation can still be prevented.” Fuentes v. Shevin, 407 U.S. 67, 84 (1972) (citations omitted). The Court “has described ‘the root requirement’ of the Due Process Clause as being “that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” Cleveland v. Loudermill, 470 U.S. 532, 542 (1985) (citation omitted)(emphasis in original)). The Tenth Circuit has uniformly required a predeprivation hearing where the record does not reveal “‘the necessity of quick action by the State or the impracticability of providing any predeprivation process.’” Gilliham v. Shillinger, 872 F.2d 935, 940 (10th Cir. 1989); see also e.g., See, Wolfenbarger v. Williams, 774 13

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F.2d 358, 362-64 (10th Cir. 1985); and, Laviky v. Burnett, 758 F.2d 468, 473 (10th Cir. 1985). Deprivation under established state procedure requires a predeprivation hearing. Gilliham at 939. In fact, the Board was required by statute to afford Dr. Guttman with notice an opportunity to be heard before the Board may take an action suspending his license. NMSA 1978, § 61-1-3 (E)(1993). There was nothing that prevented the IPC from conducting a pre-deprivation hearing. Indeed a hearing was conducted; however, Dr. Guttman was not notified of the meeting nor given the opportunity to be present. By conducting the second IPC meeting, the availability of a pre-deprivation hearing is indisputable. By failing to give Dr. Guttman notice and an opportunity to be heard at the secret second IPC meeting prior to voting to summarily deprive him of his license, the State deprived him of Due Process.. 2.

The State failed to afford other procedural rights.

The Board was required to recuse itself from voting regarding any action against the licensee if it participated in answering questions of the IPC, as it did here after the first IPC meeting. (App. 129, 131, Doc. 108-1, ¶ 80, 94). Nevertheless, the Board voted on the IPC’s second recommendations for summary suspension, and appointed one of its members, Parsons, as hearing officer. The New Mexico statutes clearly require that an Impaired Physicians Examining Committee must be composed of three licensed physicians. See NMSA 14

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1978, § 61-7-4 (1995). It is undisputed that one of the physicians on Dr. Guttman’s impaired physicians examining committee was not licensed as required by statute. (See, Doc. 64, p. 8-9 and Exh. “B”; App. 128-29, Doc. 108-1, ¶¶ 74-75). The governing statutes only allow the Board to take action on matters dating back two years, yet it is undisputed that the Board acted on matters well more than two years old in violation of Dr. Guttman’s due process rights. (App. 131, Doc. 1081, ¶ 97-98). Plaintiff has also alleged numerous other violations of due process in his Original Complaint, First Amended Complaint and Second Amended Complaint, and has alleged he was denied equal protection and was retaliated against in violation of the First Amendment. (App. 14, Doc. 1; App. 33, Doc. 28; App. 118, Doc. 108-1). All of these claims and others as outlined in Plaintiff’s First and Second Amended Civil Complaints constitute independent constitutional violations which are also part of Dr. Guttman’s Title II ADA claims. (App. 127, Doc. 108-1, ¶ 62-63). 3.

Hudson v. Palmer does not apply.

Despite its recognition of Dr. Guttman’s protected property right and the procedural violations in this case, the trial court erroneously dismissed Dr. Guttman’s Due Process claims, based on Hudson v. Palmer, 468 U.S. 517, 533 (1984) (App. 357, 360, Doc. 142, p. 17, 20). Hudson is inapplicable here. First, Hudson involved

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random action by a prison guard searching for contraband. Hudson, 468 U.S. at 52627. Second, Hudson did not involve a significant property interest. Third, the plaintiff in Hudson did not even allege that the asserted destruction of his property occurred pursuant to an established state procedure. Id. at 534. Ample authority supports this analysis. The Tenth Circuit has long noted the distinction between deprivations of property interests done pursuant to established state procedure and those that were random and unauthorized. See, Wolfenbarger v. Williams, 774 F.2d 358, 362-64 (10th Cir. 1985) (distinguishing Hudson and relying on Logan because the State was “in a position to provide predeprivation process”); Elsewhere, this Circuit has noted that an “action, planned and authorized, is not the sort of action for which postdeprivation process will suffice.” Laviky v. Burnett, 758 F.2d 468, 473 (10th Cir. 1985)(citing Logan, 455 U.S. as 436-37, and noting, “Oklahoma law already has a framework, which officials here ignored”). This is consistent with other circuits. See, e.g., Moore v. Board of Educ. of Johnson City Schs., 134 F.3d 781 (6th Cir 1998) (citing Zinermon v. Burch, 494 U.S. 113, 132 (1984)(a Title II ADA case, finding the district court erred in applying the Hudsontype analysis). Similarly, in DiBlasio v. Novello, the Second Circuit reversed the dismissal of a radiologist’s Due Process and stigma plus claims based on a summary suspension of his medical license, finding Hudson was inapplicable where the 16

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deprivation was not random and unauthorized, but the result of a state actor failing to follow established procedural safeguards. DiBlasio v. Novello, 344 F.3d 292, 30204 (2d Cir. 2003). 4.

A different result is not warranted in this case under the de facto officer doctrine, nor was the defect waived.

The State argued below that Dr. Guttman waived his Due Process rights, and Dr. Layman was a de facto officer, thereby excusing the procedural violations. These arguments fail. First, Dr. Guttman could not have waived any aspect of his right to participate in the illegal second meeting of the IPC because he was never given notice of it or an opportunity to respond. The law cannot require one with a protected property interest to have extra sensory perception to know of and object to a meeting he had no knowledge of. Second, even initial waivers of some procedures do not ultimately confer jurisdiction on a board in light of fundamental defects in due process. The decision remains void ab initio. See, Lopez v. NM Board of Med. Examr’s., 107 N.M. 145, 146 (N.M. 1988). Such error by a board is “foundational.” Id. Moreover, for a waiver to be effective, it must be volitional. Even cases cited by the State below recognized that to waive due process violations requires a “knowing waiver.” See, Staton v. Mayes, 552 F.2d 908, 912 (10th Cir. 1977). Guttman could not have waived that of which he was not made aware. There is also no authority that would apply the de facto officer doctrine to excuse the State’s failure to appoint three licensed physicians. The State below failed 17

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to cite any case where the de facto officer doctrine was applied in the present context in light of Logan. As noted, an agency’s procedural violation is not simply voidable, but was void ab initio as a “foundational” defect. See, Lopez v. N.M. Board of Med. Examr’s., 107 N.M. 145 (N.M. 1988)(citing, Logan, 455 U.S. 422 (1982)). The de facto officer doctrine is simply inapplicable in the present context. To allow such application would undermine the very purpose of the IPC in requiring physicians to be evaluated by other physicians, rather than lay people. Beyond the non-licensure of Dr. Layman, there are significant other procedural defects here. The IPC reconvened and met a second time without giving Dr. Guttman notice, and without authority or jurisdiction to do so. Dr. Guttman’s license was suspended as a result of the recommendation from the second meeting, though his Constitutional rights in the governing statutes preclude the Board from suspending his license without notice of such meeting and an opportunity to respond. NMSA 1978, § 61-1-3 (1993). The violations here also included the failure of the Board to provide relevant materials to the IPC, and the IPC’s lack of jurisdiction to recommend revocation under Section 61-7-3 as it did–dishonesty is not one of the enumerated grounds for revocation recommendation by an IPC. The purpose of the IPC is solely to determine a pattern of problematic behavior. The statutes also clearly provide a two year jurisdictional time limitation for acting against a physician’s license. Dr. Guttman certainly did not waive any of those 18

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requirements; in fact, he was not even given notice that the charges included any issues dating back 6 years prior. The IPC raised questions with the Board after meeting with Dr. Guttman, and requested out-dated material from Gallup. This created a mandatory disqualification from voting by the Board under the IPC guidelines. These were all jurisdictional defects beyond mere lack of licensure for the requisite time which was the sole procedural issue in Vance v. Fordham, 671 P.2d 124, 131 (Utah 1983), to which the State cited below in support of its de facto officer arguments. All of these facts establish that neither waiver or any other doctrine excuse these foundational constitutional violations. 5.

Parsons as hearing officer was biased as a matter of law and lacked jurisdiction, thus losing immunity and voiding the Board’s actions.

Dr. Guttman’s is not a prisoner case. There is no question that the established procedural requirements were violated here, which included the presence of a biased hearing officer and the Board’s action against Dr. Guttman despite its mandatory recusal from voting. It could not vote on the IPC recommendations, nor could it vote to appoint Parsons as hearing officer. Moreover, a judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455(a)-(b). Section 455(b)(1) is “self-executing.” “It requires the judge to disqualify himself; in fact, “it imposes a duty on the judge to act sua sponte, even if no motion or affidavit is filed. 19

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United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985)(citing, Accord United States v. Story, 716 F.2d 1088, 1091 (6th Cir.1983)). “If it would appear to a reasonable person that a judge has knowledge of facts that would give him an interest in the litigation then an appearance of partiality is created” even though none actually existed due to forgetfulness. Liljeberg v. Health Svcs. Acquisition Corp., 486 U.S. 847, 860 (1988). See also, Liteky v. United States, 510 U.S. 540, 546-47 (1994)(a judge with personal knowledge of evidentiary facts or who has served as adviser or material witness concerning the proceeding shall disqualify himself). The U.S. Supreme Court has found, in the criminal context, structural error subject to automatic reversal in cases involving the presence of a biased trial judge sitting on the trial. Walker v. Gibson, 228 F.3d 1217, 1235 (10th Cir. 2000), overruled on other grounds, Neill v. Gibson, 278 F.3d 1044 (10th Cir. 2001), (citing, See . . .Tumey v. Ohio, 273 U.S. 510 (1927)). Similarly, some constitutional errors require reversal without regard to the evidence in a particular case. Rose v. Clark, 478 U.S. 570, 577 (1986), overruled on other grounds, Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citing Tumey, 273 U.S. 510 (1927))(“The State of course must provide a trial before an impartial judge.”). Dr. Guttman’s property right in his license and constitutional rights were at issue, and violated by these Defendants. Parsons selected and provided Gallup information to the IPC. Parsons had personal knowledge of the evidentiary facts contained in the Gallup material because 20

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he was monitoring Dr. Guttman’s practice there. (App. 212-13, Doc 137-2, p. 15-16). It was reasonable to question Dr. Parsons’ ability to serve as hearing officer, because he questioned it himself. The fact that he proceeded to sit as hearing officer is a violation of state law and Dr. Guttman’s constitutional rights. This Court’s previous decision recognized that where a judge was not acting in his judicial capacity, or where there was an absence of jurisdiction then the officer does not enjoy absolute judicial immunity. Guttman v. Khalsa, 446 F.3d 1027,1034 (10th Cir. 2006)(citing, Mireles v. Waco, 502 U.S. 9, 12 (1991). Judge Lucero’s decision noted that Dr. Guttman had not alleged that the Board or Parsons was without jurisdiction. Id. As noted herein, Dr. Guttman’s current Complaint does state such claims. (See, App. 118-139, Doc. 108-1). The Board lacked jurisdiction to vote on the IPC recommendations, and that included Board member Parsons. That also meant they could not vote to install Parsons as hearing officer. In other words, there was a lack of jurisdiction at the very outset. With Parsons and the Board lacking jurisdiction, their actions were void and absolute immunity does not apply. Nor is there a different result required based upon the arbitrary and capricious state court review. Gibson v. Berryhill involved a state revocation proceeding under the Alabama Optometry Board, with optometrists charged with unprofessional conduct under the state optometry statute. See, Gibson v. Berryhill, 411 U.S. at 56668. The State Board of Optometry was incompetent to adjudicate the issues. Id.; see 21

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also, Reid v. N.M. Bd. of Examiners, 92 N.M. 414, 589 P.2d 198 (NM 1979)(reversing failure to disqualify biased hearing officer). The Supreme Court concluded: “Nor, in these circumstances, would a different result be required simply because judicial review, de novo or otherwise, would be forthcoming at the conclusion of the administrative proceedings.” Id. at 577 (citation omitted). 6.

Board Member Grant LaFarge was also precluded from acting.

The Board summarily suspended Dr. Guttman’s license and served on him Notice of Contemplated Action (“NCA”), signed by Board member C. Grant LaFarge, M.D. Dr. LaFarge was the Board Secretary in charge of enforcing the rules of the Board, and selected and convened the IPC. (App. 224, Doc 137-2, p. 27). He selected Dr. Layman who was unlicensed. He knew he would be involved in the case as a Board member. Dr. LaFarge had previous involvement with Dr. Guttman at Sierra Vista Hospital and had spoken with IPC member Dr. Tashijian prior to convening of the IPC. As such, Dr. LaFarge had personal knowledge and should have recused himself from participation in these proceedings. (App. 122-23, Doc 108-1, ¶ 35-36). The Board proceeded to take these actions in the absence of jurisdiction to do so, and in contravention of the statutes governing its conduct. Dr. LaFarge and the Board wrote to the IPC indicating that all information on Dr. Guttman would be supplied, but failed to do so by the time the IPC first met.

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D.

Congress validly abrogated eleventh amendment immunity under Title II in the area of programs and services, including licensing, under Lane. 1.

Abrogation analysis

The Supreme Court in Tennessee v. Lane applied the three-part analysis for Fourteenth Amendment legislation created by City of Boerne v. Flores, 521 U.S. 507 (1997). The District Court correctly agreed that the first two steps are settled. (App. 363, Doc. 142, p. 23). It erred in its analysis on the third part and under the facts of this case.

The U.S. DOJ has filed an appeal on that issue in 10-2172, and has

previously briefed the issue in the first appeal in this case, 03-2244. To avoid duplication, Dr. Guttman will not reiterate those arguments here, but relies on the U.S. DOJ’s brief in this case to more fully address those arguments, and incorporates them by reference. Instead, Dr. Guttman will show the application of the precedent to his case requires reversal of the District Court’s dismissal of his claims. 2.

Tennessee v. Lane and denial of access to justice.

There is well-documented discrimination by states in the provision of programs and services. In Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, (2004), the Supreme Court considered the claims of two plaintiffs, George Lane and Beverly Jones, “both of whom are paraplegics who use wheelchairs for mobility” and who “claimed that they were denied access to, and the services of, the state court system by reason of their disabilities” in violation of Title II. Lane, 541 U.S. at 513-14. The 23

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State argued that Congress lacked the authority to abrogate the State’s Eleventh Amendment immunity. The Supreme Court in Lane disagreed. See Id. at 533-34. 3.

The District Court’s Order declining to recognize abrogation based on the pattern found in Lane was erroneous.

Lane itself addressed the entire range of issues regarding accessibility of the justice system.

Lane, at 531-32.

The enforcement power of the Fourteenth

Amendment is indeed broad. Id. at 518, n 3 (citing, Ex parte Virginia, 100 U.S. 339, 346 (1880)(enforcing against judge who acted outside of his jurisdiction). The Supreme Court in Lane was satisfied that Title II of the ADA was a valid abrogation of sovereign immunity as it relates to the fundamental right of access to the courts. Lane at 534. Title II “is unquestionably valid legislation as it applies to cases implicating the accessibility of judicial services.” Id. at 531. That is the basis of Dr. Guttman’s claim. He was denied access to the justice system here, where he was denied his procedural due process rights, including a pre-deprivation hearing and a hearing before a constitutionally-constituted and unbiased fact-finder. Dr. Guttman’s case cannot be equated to denial of access to a “hockey rink”, as the District Court portends. (App. 365, Doc. 142, p. 25). 4.

Dr. Guttman was denied access to justice by reason of disability as in Lane.

Lane had the “‘right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.’” Lane, 541 U.S. at 523. Dr. Guttman 24

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was denied the same right. Dr. Guttman was denied the right to be present at the second IPC meeting–an unrecorded meeting that resulted in the suspension of his license, allegations against him of falsehood, and ultimate revocation.

With

something as critical as his professional license, reputation and livelihood on the line, it would not be too much to ask to allow Dr. Guttman to be present; in fact, it was constitutionally required. Surely the State would not argue that it would be an undue burden to simply notify Dr. Guttman and allow him his right to be present at this meeting–especially since it actually was convened–and to follow the mandated procedures to insure he was given a fair hearing. 5.

Title II is congruent and proportional in its application here.

Title II in the present context simply enforces the requirements of procedural due process when it requires a State to ensure that people with disabilities are afforded meaningful and fair hearings on license revocations and denials. See Lane, 541 U.S. at 532-33. The District Court recognized that Lane held that it is irrational to deny disabled persons access to the justice system. (App. 368, Doc. 142, p. 28). Yet, the District Court failed to acknowledge and apply the facts in this case that establish Lane’s application here. The court did not even need to reach the accommodation issue, because the clear Due Process violations voided the Board’s action and gave rise to the present claims under Lane and Georgia. This is especially true in light of the “well-established due process principle that, ‘within the limits of 25

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practicability, a State must afford to all individuals a meaningful opportunity to be heard.’” Lane at 532 (citing, Boddie, 401 U.S., at 379, 91 S.Ct. 780 (internal quotation marks and citation omitted)). All that was required was the State follow the mandated procedures and governing statutes, and provide Dr. Guttman with the process he was due. This is not accommodation. The core issue is the Fourteenth Amendment, per Logan v. Zimmerman. Affording process due by statute to insure that those who are mentally disabled are afforded the same procedural protections as other licensed physicians likewise cannot be considered accommodation. It is mandatory, and therefore by definition it does not “fundamentally alter the nature of the service, program or activity.” See, 28 C.F.R. § 35.130(b)(7). With Dr. Guttman’s fundamental right of access to the courts, and his right to engage in his profession of choice and his property interest in his license at stake, the State should be required to provide “significant justification” before denying Dr. Guttman his right to a pre-deprivation hearing and other process, just as the District Court recognized was required in Lane. (App. 367, Doc. 142, p. 27). There is no such justification is this case.

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II.

Individual absolute immunity does not extend to all claims against the individuals in this case, nor bars Dr. Guttman’s Section 1983 claims for prospective injunctive relief against the state officials sued in their official capacity; therefore, the District Court erred in dismissing Dr. Guttman’s offical capacity claims under Ex parte Young seeking prospective injunctive relief. A.

Standard of Review

This Court reviews de novo the question of absolute immunity. Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir. 1994) (citation omitted). B.

Absolute immunity does not extend to Parsons here who acted in the absence of jurisdiction.

See, supra, Section I. C. 5, pp. 19-22. C.

Ex parte Young claims remain and there is no basis for dismissal based upon immunity.

The Tenth Circuit’s 2006 Opinion affirming the dismissal of the claims against the individual Defendants based upon the original Complaint nowhere recites that the Ex parte Young claims against the Defendants in their official capacities are barred by individual absolute immunity. See, Guttman v. Khalsa, 446 F.3d 1027, 1032 (10th Cir. 2006). The District Court has apparently and mistakenly attempted to rely upon a statement from Judge Smith in his Memorandum Opinion of October 17, 2006 as an authoritative interpretation of this Circuit’s previous ruling regarding the claims for prospective injunctive relief. (Doc. 143, p.12, citing Doc. 39 at 6-7). Judge Smith never implicated the official immunity claims. (Doc. 18 at 8-9.)(App. 75, Doc. 39, 27

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p. 7). His Order of September 2003 never held that claims against officials sued in their official capacity could be dismissed based on absolute immunity. (See, Doc. 18). When ruling that the individual Defendants were entitled to absolute immunity in 2003, Judge Smith quoted the following authority regarding absolute immunity: 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. Kenman, 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. (Doc. 18, p. 8-9)(emphasis added). In other words, Judge Smith’s own decision noted that it was damage claims that were to be excluded by absolute immunity, and that the public policy protected individuals from personal liability. He did not discuss Ex parte Young, nor did he dismiss claims against the officials in their official capacity. Likewise, his October 2006 ruling did not dismiss Ex parte Young claims based on individual absolute immunity. (App. 75, Doc. 39, at 7). To the contrary, Judge Smith clarified that Ex parte Young claims under § 1983 remain. (App. 92, Doc. 43 at 3). A decision to imply a dismissal of that claim that was not even discussed in the

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applicable Order is unsupported. As the State argued, the original Complaint that Judge Smith was reviewing in 2003 did not even assert a claim for prospective injunctive relief.

(See, Doc.10, p.3)(“Plaintiff’s claims that he is entitled to

prospective injunctive relief under Ex Parte Young and its progeny is misplaced since the Complaint does not seek injunctive relief and only seeks monetary damages.”). The State never even mentioned a request to dismiss the prospective injunctive relief claims in its first Motion to Dismiss. (Doc. 10, p. 10). It is inconceivable that Dr. Guttman’s Ex parte Young claims have been disposed by silence. (App. 383, Doc. 150, p.9). Neither the District Court opinion nor the State in its prior arguments has cited to any case holding that the dismissal of individuals based on absolute immunity would also constitute a dismissal of official capacity claims Ex parte Young. Under the District Court’s opinion, Ex parte Young would never apply. The District Court found simply that it had previously “dismissed the Individual Defendants entirely from the proceedings.” (App. 383.). That was news to everyone--including the Defendants Khalsa and Parsons--who continued to be named and continued to request relief from the Court despite the phantom dismissal of the official capacity claims. Judge Armijo has found that Judge Smith’s Order of October, 2006 to be the pivotal expungement of any possible claim against the officials in this case. (App. 29

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382-83,Doc. 150, p. 8-9 (citing Doc. 39)). Yet, in January of 2007, all Defendants entered into the Joint Status Report and Provisional Discovery Plan. (Doc. 49, p. 2). They stipulated that the District Court has jurisdiction of the parties and the subject matter. (Id.). Defendants later contended that “they are entitled to Eleventh Amendment immunity, absolute judicial or quasi-judicial immunity, and that the individual Defendants are entitled to qualified immunity,” but did not dispute jurisdiction. (Id., p. 3). The Defendants did not contend that all claims against the individual Defendants had already been dismissed. In fact, even following Judge Smith’s 2007 Order and even following the most recent appeal, all Defendants were filing motions requesting relief from this Court noting their understanding that they remained part of the case up until just before the fourth Motion to Dismiss was filed. (See, Doc. 92, p. 1; Doc. 109, p. 1; Doc. 111, p. 1 (“collectively ‘Defendants’”)). Any number of cases recognize that neither the defense of sovereign immunity or absolute immunity precludes a citizen from suing a state official pursuant to Ex parte Young. Absolute, quasi-judicial immunity does not extend to claims for injunctive relief. Van Horn v. Oelschlager, 502 F.3d 775, 778-79 (8th Cir. 2007). It is clear that under Supreme Court precedent “immunity only extends to claims against government employees sued in their individual capacities,” not to official capacity claims. Id. at 778-79 (citation omitted). 30

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Likewise, the defense of sovereign immunity is not absolute and may be overcome by a citizen who sues a state official in his official capacity pursuant to Ex parte Young. See, Credit Union Group Enterprises, LLC v. Kansas Dep’t of Credit Unions, 457 F.Supp.2d 1235, 1241 (D. Kan. 2006)(citations omitted); see also Crowe & Dunlevy, P.C. v. Stidham, 609 F.Supp.2d 1211, 1216-17 (N.D. Okla. 2009)(citing Pulliam v. Allen, 466 U.S. 522 (1984) (“Judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity.”); see also, Robinson v. State of Kansas, 295 F.3d 1183, 1192 (10th Cir., 2002)( “Defendant state officials are not protected by the Eleventh Amendment, pursuant to the Ex parte Young doctrine.”). Injunctive relief that is prospective is also available under the auspices of the ADA. Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 17879 (3rd Cir. 2002). Even Simmang, cited by the District Court, supports Dr. Guttman’s claims under Ex parte Young. As noted: Defendants are mistaken in their assertion that Title II of the ADA is unenforceable against state officials under the Ex parte Young Doctrine. All of the Federal Appellate Courts that have addressed this issue have ruled that Title II of the ADA, regardless of whether it is valid abrogation of the state’s Eleventh Amendment Immunity, is indeed enforceable against state officials pursuant to the Ex parte Young Doctrine. Simmang, 346 F.Supp.2d at 886 (citing See Chaffin v. Kansas State Fair B.D., 348 F.3d 850, 866-67 (10th Cir. 2003)(other citations omitted). The Simmang Court 31

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denied the defendants’ motion to dismiss that plaintiff’s ADA claims pursuant to the Ex parte Young doctrine. Id. at 891. To the extent the District Court ruled Guttman’s claims were dismissed based upon absolute or sovereign immunity, such decision is unsupported by the record or the applicable law. Judge Smith was clear in his prior Orders regarding Plaintiff’s section 1983 claim for prospective injunctive relief: The individual Defendants had been dismissed, but claims against them in their official capacity for prospective injunctive relief under section 1983 remain. (App. 69-99, Doc. 39, 43, 44). Judge Smith held a Motion hearing where oral argument was taken on these issues that elucidates his rationale and the state of the record. As Smith noted in his November, 2006 Memorandum Opinion and Order, “[a]t the Motion hearing, Plaintiff conceded that the only relief available from the State on the section 1983 claims is prospective injunctive relief.” “Therefore, to the extent Plaintiff was seeking any other damages on the section 1983 claims, Defendant’s Motion to Dismiss will be granted.” (App. 89-90, Doc. 43, p. 1-2). However, the Court’s Order held: “the claims that remain are as follows: (1) the claim brought under Title II of the ADA against the State only; (2) the section 1983 claims against the State only for prospective injunctive relief; and (3) the “stigma plus” claim against all three Defendants.” (App. 91, Doc. 43, p. 3). Judge Smith correctly ruled that the claim for prospective injunctive relief remained, notwithstanding the fact that he found (in the same paragraph), that 32

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“Defendant’s Khalsa and Parsons are entitled for absolute immunity for every claim except the stigma plus claim.” (Id.). To be abundantly clear, Judge Smith therefore ordered that Defendant’s Second Motion to Dismiss was denied in part, and “Plaintiff may continue to seek prospective injunctive relief against the State with respect to his section 1983 claims for violations of his First Amendment, Equal Protection, and Due Process rights . . .” (App. 92, Doc. 43, p. 4). Dr. Guttman first asserted those claims against the individuals acting in their official capacity under the doctrine of Ex parte Young in his First Amended Civil Complaint. (App. 33, Doc. 28, ¶ 4). But the State of New Mexico used the long procedural history of this case to successfully inject confusion where none should exist. As the Eighth Circuit has more recently noted: “we, like the Fifth Circuit, acknowledge that confusion can often arise in litigation when ‘[c]ourts discuss immunity defenses without clearly articulating to whom and in which capacity [immunity] defenses apply . . .’” Van Horn v. Oelschlager, 502 F.3d 775, 779 (8th Cir. 2007)(citation omitted). Absolute, quasi-judicial immunity does not extend to claims for injunctive relief. Id. at 778-79. Nor is this a unique and isolated position, as Oeschlager subsequently noted: Nevertheless, this court’s precedent, Supreme Court precedent, and case law from our sister circuits makes clear that absolute, quasi-judicial immunity is not available for defendants sued in their official capacities . . . Therefore we hold that the defense of absolute, quasi-judicial immunity is not available to Oelschlager and the Commissioners for 33

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claims against them in their official capacities; thus, they cannot seek interlocutory appeal from the denial of such immunity. Id. at 779. Though an injunctive relief claim is not technically against the State, it is still viewed as an exception to the State’s Eleventh Amendment Immunity. The U.S. Supreme Court has noted that, “the Eleventh Amendment has not accorded the States absolute sovereign immunity in federal court actions. . . prospective injunctive and declaratory relief is available against States in suits in federal court in which state officials are the nominal defendants.” Nevada v. Hall, 440 U.S. 410, 420, n. 19 (1979)(citing, See Ex parte Young, 209 U.S. 123; Edelman v. Jordan, 415 U.S. 651; other citations omitted). At the hearing on Defendant’s Second Motion to Dismiss in 2006, the State’s Counsel agreed, stating: “I agree he’s [(Guttman)] still in on 1983 claims as far as prospective injunctive relief.” (App. 96, Doc. 44, 4). The Judge responded: “so we’re all on the same page.” (Id.). Counsel for the State then expressed some difficulty he had with the 1983 claim against the State, and the Judge responded as follows: “he’s agreeing that state isn’t a proper Defendant except for under Ex parte Young. So injunctive issues under section 1983 are still in the case with respect to State and the gentlemen in their official capacities.” (Id.) (emphasis added). In other words, Judge Smith clearly recognized that the Plaintiff’s claims for prospective injunctive 34

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relief against the State were based on claims against the individual defendants sued in their official capacities, notwithstanding the fact some claims against them individually had already been dismissed based on absolute immunity. Even the State conceded the point at that time. The District Court’s ruling that the State is the sole remaining defendant to the exclusion of the Ex parte Young claims is incorrect–the claims against the officials in such capacity have never been dismissed nor is there a basis to do so. Further, the finding that the State is the sole remaining Defendant is not dispositive of the Ex parte Young claims because in such cases the officials are only nominal defendants. The caption of the case clearly still bears the names of the officials and the First Amended and Second Amended Complaints names the individuals in their official capacities. (App. 33, 118, Docs. 28 and 108-1). Judge Smith in his June 4, 2007 Order also indicated that the claims for prospective injunctive relief under § 1983 remained part of the case, notwithstanding his dismissal of the claims against the individuals based on absolute immunity. (App. 101, Doc. 77, p. 2). Plaintiff should be allowed to proceed with his Ex parte Young claims and with discovery on such claims. There is no indication that Judge Smith dismissed the Ex parte Young claims on the basis of individual absolute immunity or based on Eleventh Amendment Immunity, but to the extent the District Court believes he did, that result was clearly erroneous and must be reversed. 35

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III.

Whether the law on Guttman's claims against the individual Defendants for defamatory publications in the present context was clearly established so that the District Court erred in granting qualified immunity for constitutional claims for "stigma plus". A.

Standard of Review

This Court reviews questions of qualified immunity de novo. It is a question of law. Yvonne L., By & Through Lewis v. New Mexico Dept. of Human Services, 959 F.2d 883, 891 (10th Cir. 1992) (citation omitted). B.

Dr. Guttman stated a claim

In its Memorandum Opinion and Order of June 4, 2007, the District Court rightly ruled that under the applicable standard, Plaintiff stated a claim for “stigma plus” against Defendants Khlasa and Parsons. (App. 107-09, Doc. 77, p. 8-10). Khalsa knew the initial publication in March of 2000 was false, when he admitted that “since [he] had been with the Board previously, [he] knew that there was something in Gallup.” (App. 211, Doc. 137-2, p. 14). As noted, the Board lacked jurisdiction and its actions were void; therefore, its report was false as a matter of law. The District Court correctly concluded, “Plaintiff has demonstrated more than a mere blemish on his reputation, his medical license has been completely revoked.” (App. 109, Doc. 77, p. 10, n. 5). However, it wrongly found that the contours of the law was not clearly established at the time of the publication in October 3, 2001. In point

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of fact, the first false publication was March 21, 2000 after the illegal summary suspension. (App. 306). To be clearly established, there need not be a case factually identical, or directly on point. See, Clanton v. Cooper, 129 F.3d 1147, 1156-57 (10th Cir. 1997). There need not even be a Tenth Circuit decision on point, if the clearly established weight of authority from other courts is found to be as the plaintiff asserts. See, Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). Stated more clearly by the U.S. Supreme Court, “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). There is no need to stray from the Tenth Circuit here, though, to find clearly established law. C.

The law was clearly established on the constitutional stigma plus, dating back to Paul v. Davis.

To prevail on such a claim, a plaintiff “‘must allege and establish that there was information published that was false and stigmatizing.’” Whitney v. State of N.M., 113 F.3d 1170, 1175 (10th Cir. 1997) (citing, Jensen v. Redevelopment Agency, 998 F.2d 1550, 1558 (10th Cir.1993)(‘it is necessary that the alleged stigmatization be entangled with some further interest....”). The stigmatization must also be coupled with the loss of a liberty or property interest “initially recognized and protected by state law.” Id. (citing, Paul v. Davis, 424 U.S. 693, 710 (1976); see Allen v. Denver 37

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Pub. Sch. Bd., 928 F.2d 978, 982 (10th Cir.1991)). This is consistent with another more recent medical license case from the Second Circuit. See, DiBlasio v. Novello, 344 F.3d 292, 302-04 (2d Cir. 2003) (reversing the dismissal of a physician’s stigma plus claims based on a summary suspension of his medical license). Dating back before the false publication in the instant case, Dr. Guttman’s rights were clearly established and only required deprivation of a liberty or property interest. Where a person’s reputation is at stake, notice and an opportunity to rebut the government charges against him is essential. Board of Regents v. Roth, 408 U.S. 564, 573 (1972)(citations omitted). “‘Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,’ constitutional due process is required. Goss v. Lopez, 419 U.S. 565, 574 (1975)(citing Roth, 408 U.S. at 573; other citation omitted). “‘The liberty interest that due process protects includes the individual’s freedom to earn a living.’” Setliff v. Memorial Hosp. of Sheridan County, 850 F.2d 1384, 1396 (10th Cir. 1988) (citation omitted). Based in part on Roth, the Tenth Circuit in Setliff acknowledged that a change in status that forecloses employment opportunities constitutes a deprivation of a liberty interest that supports a claim for stigma plus. Id. at 1396-97. Under Paul, a plaintiff must only show that damage to his reputation results in deprivation of a liberty or property interest secured by the Constitution; or has “worked any change of [plaintiff’s] status as . . . recognized under the state’s law.” 38

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Paul v. Davis, 424 U.S. 693, 712 (1976). To be clear, Paul v. Davis defined what was required to establish the “liberty” or “property” interest that was necessary in addition to reputation to allow a constitutional claim. The Paul Court cited Goss and Roth, noting that government stigmatization implicates constitutionally protected interests such as when a student is suspended from school. Id. at 730, n 15. Paul referred to Bell v. Burson, 402 U.S. 535 (1971) (a licensing case) and Morrissey v. Brewer, 408 U.S. 471, noting these rights were defined by circumstances where due process required procedural safeguards before the state could “alter the status” of the complainants. The Paul Court wrote: These interests attain this constitutional status by virtue of the fact that they have been initially recognized and protected by state law and we have repeatedly ruled that the procedural guarantees of the Fourteenth Amendment apply whenever the State seeks to remove or significantly alter that protected status. In Bell v. Burson, 402 U.S. 535 (1971), for example, the State by issuing drivers’ licenses recognized in its citizens a right to operate a vehicle on the highways of the State. The Court held that the state could not withdraw this right without giving petitioner due process. In Morrissey v. Brewer, 408 U.S. 471 (1972), the State afforded parolees the right to remain at liberty as the long as the conditions of their parole were not violated. Before the State could alter the status of a parolee because of alleged violations of these conditions, we held that the Fourteenth Amendment’s guarantee of due process of law required certain procedural safeguards. In each of these cases, as a result of the state action complained of, a right or status previously recognized by state law was distinctly altered or extinguished. It was this alteration, officially removing the interest from the recognition and protection previously afforded by the State, which we found sufficient to invoke procedural guarantees contained in the Due Process Clause of the Fourteenth Amendment. 39

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Paul, 424 U.S. 693, 710-711 (emphasis added). Under Paul v. Davis, the plaintiff must only show that the government imposed a burden that “significantly altered her status as a matter of law.” Paul, 424 U.S. at 710-11 ( Accord, Cannon v. City of West Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001); Cutshal v. Sunquist, 193 F.3d 466, 479 (6th Cir. 1999); WMX Tex Inc. v. Miller, 197 F.3d 367, 376 (9th Cir. 1999); Greenwood v. New York, 163 F.3d 119, 124 (2d Cir. 1998)). The Tenth Circuit has held that a stigma plus claim arises if stigmatization occurs in the course of terminating one’s employment or if the defamation foreclosed other employment opportunities. Workman v. Jordan, 32 F.3d 475, 481 (10th Cir. 1994). This Court recently reiterated that foreclosure of employment opportunities based on an altered status is actionable under Paul v. Davis. See, Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1153-54 (10th Cir. 2001). The Defendants’ arguments below mis-cited and misapplied other Tenth Circuit cases in this area, and in part led to the District Court’s error. The Defendants incorrectly argued that the Workman test was not only altered, but that third prong of the test regarding foreclosure of future employment opportunities was eliminated based on Renaud v. Wyoming Dept. of Family Svcs. (Doc., 42, p. 9-10). That argument lacks merit. Renaud was another termination of public employment case, and did not alter the Workman test, especially in the context of licensing. See, 40

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Renaud v. Wyoming Dept. of Family Svcs., 203 F.3d 723, 727 (10th Cir. 2000)(citing four-part test, Workman, 32 F.3d at 481). Likewise, Defendants misconstrued Phelps v. Wichita Eagle-Beacon. Phelps merely recited what has been clear since Paul v. Davis: Mere allegation of damage to reputation apart from “some more tangible interests” is not sufficient. Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1268 (10th Cir. 1989). But a liberty interest in one’s license is still a “tangible interest” that supports a stigma plus claim. Phelps did not change that. The plaintiff there had “not been foreclosed from practicing law.” Id. at 1269. Phelps actually reiterated the rule from Paul v. Davis and, citing a number of other cases, confirmed that the test for an actionable reputation claim is whether a person’s “status” has been “significantly altered.” Id. (citations omitted). In contrast to Phelps, Dr. Guttman has been foreclosed from practicing medicine, giving rise to an actionable stigma plus claim under Paul v. Davis, and Workman. The District Court recognized Workman, yet relied upon Siegert v. Gilley, 500 U.S. 226 (1991) to by-pass Workman, suggesting termination of employment and foreclosure of employment opportunities was required to establish a “stigma plus” claim. (App. 111, 114, Doc. 77, p. 12, 15). Such reliance on Siegert was misplaced, and the result is erroneous. There was no duplicity in the law. The plaintiff in Siegert was a public employee, and he had not been terminated–he resigned. Siegert v. Gilley, 500 U.S. 41

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226, 227 (1991). The plaintiff in Siegert had failed to even allege the violation of any constitutional right at all, since he had merely alleged an injury to reputation. Id. at 234. By contrast, Dr. Guttman has suffered a deprivation of his liberty and property interest in his medical license, and alleged more than simply damage to his reputation. The District Court also cited Melton v. City of Oklahoma, to the effect that “stigmatization without a punitive action against a public employee will not violate a protected liberty interest.” (App. 112, Doc. 77, p. 13)(citing Melton v. City of Oklahoma City, 928 F.2d 920, 930 (10th Cir. 1991)(citing Paul, 424 U.S. at 710)). Once again, the plaintiff in Melton was a former public employee – a police officer in Oklahoma City who was discharged from his job. Melton, 928 F.2d at 922, 92627. Moreover, the error in Melton was that the jury was allowed to find a foreclosure of future employment without finding the employee had been stigmatized. Id. at 927 Melton actually supports the proposition that stigmatization and foreclosure of future employment opportunities supports a claim for “stigma plus.” If anything, Melton stands for the proposition that the foreclosure of employment opportunities is the key element in a stigma plus case, not that it has been eliminated or that termination of employment is required. Regardless, since Siegert and Melton were both public employment cases, they do not cast doubt on the plain reading of Workman under the facts in this case.

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In response to Plaintiff’s “stigma plus” claim, Defendants also argued that they were immune from suit under the Health Care Quality Improvement Act. (Doc. 30, p. 19). Under the HCQIA, Defendants were aware that they could not publish a knowingly false statement without losing the qualified immunity provided thereunder. See, 42 U.S.C. § 11137(c)(1994)(App. 135-36, Doc. 108-1, ¶ 130). In addition, Defendants were aware that the very purpose of the HCQIA was to publish this information to all health care providers and would have the effect of foreclosing employment opportunities to Dr. Guttman. Here, Dr. Guttman’s license was summarily suspended and revoked without due process; thus, his status was “significantly altered.” Paul recognized that alteration of a status, such as a license, was sufficient to make an injury to reputation a constitutional claim. As noted, the Paul Court cited to Bell v. Burson (involving a driver’s license), indicating that such right may form the basis of an actionable liberty or property interest for stigma plus claims. The right to follow a chosen profession free from unreasonable government interference is a liberty and a property interest. See, Greene v. McElroy, 360 U.S. 474, 492 (1959)(citing Schware, 353 U.S. 232; other citations omitted). A plaintiff may demonstrate that the government's action precludes him from such a broad range of opportunities that it “interferes with [his] constitutionally protected ‘right to follow

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a chosen trade or profession.’ ” Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1506 (D.C. Cir. 1995)(quoting Greene v. McElroy, 360 U.S. at 492). Government action precluding one from future employment opportunities will infringe on constitutional liberty interests if it is sufficiently formal or broad. Id. The plain reading of Workman v. Jordan was clearly established by other cases, within and without the Tenth Circuit, at least back to Paul v. Davis. Therefore, the grant of qualified immunity in favor of the individuals must be reversed. IV.

Whether the District Court erred in preserving the preclusion defenses when they had been previously denied and waived, and are otherwise inapplicable as a matter of law; and erred in dismissing Dr. Guttman's remaining claims and denying his Motion for Partial Summary Judgment, in light of the allegations taken as true and the record exhibiting actual constitutional violations. A.

Standard of Review

“Whether collateral estoppel is available is a mixed question of law and fact in which the legal issues predominate.” The question of its availability is subject to de novo review. In re McWhorter, 887 F.2d 1564, 1566 (11th Cir. 1989) (citations omitted); accord, In re Corey, 394 B.R. 519 (10th Cir. 2008). B.

Defendant’s re-assertion of preclusion should have been stricken.

The District Court has correctly denied Defendants’ fourth motion to dismiss on the basis of collateral estoppel, but erred in failing to find the defense had not been waived and by ruling it was not ripe for decision. (App. 372, Doc. 142, p. 32). Dr. Guttman filed a motion to strike the defense and references to evidence outside the 44

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pleadings. (Doc. 117). Guttman noted that the Court may strike from a pleading “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). “Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from an earlier motion.” Fed. R. Civ. P. 12(g)(2). A party's failure to raise the affirmative defense of issue preclusion generally waives the issue. See Fed.R.Civ.P. 8(c); see also Pittsburg County Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 708 n. 4 (10th Cir.2004). Rule 12 prohibits more than one motion to dismiss. Here, Defendant has filed five. “Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from an earlier motion.” Fed. R. Civ. P. 12(g)(2). A second motion under Rule 12(b)(6) is sometimes allowed “in order to avoid undue delay,” where the defendants are not “repeating arguments on which the Court has already substantively ruled,” Lindsey v. U.S., 448 F.Supp.2d 37, 56 (D.D.C.,2006), overruled on other grounds by, Ramer v. U.S., 620 F.Supp.2d 90, 99-100 (D.D.C. Jun 02, 2009) (emphasis added) (citation omitted). Allowing defendants to file multiple Rule 12(b)(6) motions “runs counter to [Rule 12(g) ].” Id. (citations omitted). Courts are most likely to allow defendants to bring a second Rule 12(b)(6) motion in cases 45

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where “the problem [Rule] 12(g) was designed to prevent-unnecessary delay-[is] not a concern.” Id. at 55 (citations omitted). The State of New Mexico has piece-mealed its defenses in five separate motions filed under 12(b)(6). The State filed its fourth Motion to Dismiss repeating arguments on preclusion it omitted from its third Motion to Dismiss but included in its second Motion to Dismiss that was already substantively disposed of. The defense was substantively rejected by the District Court following the second Motion to Dismiss, and its re-emergence here a third time was redundant. (See, Doc. 39, p. 4; Doc. 43, p. 3). Such should have been considered waived. Nor should it be allowed to surface again under the guise of a motion for summary judgment, where the Defendants and the District Court already referred to matters outside of the pleadings. The State has already argued that discovery is not necessary. (Doc. 111, 131, p.2). Moreover, the Federal rules are clear that if matters outside the pleadings are presented to and not excluded by the Court, a Motion under Rule 12(b)(6) shall be treated as a Motion for Summary Judgment. Lucero v. Gunther, 52 F.3d 874, 877 (10th Cir. 1985). Dr. Guttman had requested the District Court strike such extraneous references from the State’s fourth Motion to Dismiss under this standard. (Doc. 117). It apparently declined to do so, at least in part, in that it relied upon such extraneous material from Dr. Guttman’s state court appeal in its March 31, 2010 ruling. (App. 358-59, 373, Doc. 142, p. 18-19, 32). As such, 46

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additional discovery does not provide justification for giving the State a fourth bite at this apple. C.

Collateral estoppel has no application in this case.

More importantly, the doctrine of collateral estoppel is inapplicable here as a matter of law. It bars the re-litigation of certain issues where the following elements are met: 1) the issue previously decided is identical with the one presented in the action in question; 2) the prior action has been finally adjudicated on the merits; 3) the party against whom the doctrine is invoked is a party or in privity with a party to the prior adjudication; and, 4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action. Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1022 (10th Cir. 2001). The doctrine is predicated on an issue of ultimate fact having “been determined by a valid and final judgment.” See, Ashe v. Swenson, 397 U.S. 436, 443 (1970) (emphasis added). Guttman has had no opportunity to litigate his claims, and there was no valid judgment as a matter of law. The New Mexico Medical Review Board was the actor which committed the violation of the ADA. As shown above, its actions were void ab initio. See, supra, p. 13-19. The Board itself provided no forum in which to litigate the ADA claim. It is without dispute that the New Mexico Medical Review Board as an agency did not even have jurisdiction to consider Dr. Guttman’s ADA claims. No one has argued to the contrary, and Defendants previously conceded the point. In the Defendants’ 47

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words, “[t]he Board lacked jurisdiction to try a full-blown ADA claim.” (Doc. No. 17; attached Sur-Surreply, p. 4) (citing, See, Martinez v. N.M. State Engineer’s Office, 2000-NMCA-074, ¶ 27, 129 N.M. 413, 9 P.3d 657, cert. denied (N.M. 2000). Defendants also conceded: “The Board lacks jurisdiction to adjudicate due process claims. . .” (Doc. 5, p. 9). Not only was the Board itself the actor giving rise to the claim, it had no jurisdiction to consider such claim as a matter of law. See also, Maso v. State of New Mexico Taxation and Revenue Dep’t. Motor Vehicle Div., 2004NMCA-025, ¶ 13, 135 N.M. 152, aff’d, 2004-NMSC-028, 136 N.M. 161. Much more than not having a full and fair opportunity to litigate the issues relative to the denial of his due process rights, and the violation of the ADA, Dr. Guttman had no opportunity to litigate those issues. To rule otherwise under these facts would “effectively foreclose any due process challenges to the administrative process” by Dr. Guttman, which, in turn, “would impermissibly constrain the right of access to the courts.” See, Maso, 2004-NMCA-025, ¶ 16. That is the very right that the United States Supreme Court vindicated in its opinion in Tennessee v. Lane – right of access to the courts. This is especially true where there was an absence of jurisdiction. It is impossible to litigate the due process and ADA claims in front of the very officer who was part of the violations. Not only is the application of collateral estoppel against a government agency disfavored, especially if it frustrates the purposes contained in congressional statutes 48

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(See, FDIC v. Hulsey, 22 F.3d 1472, (10th Cir. 1994)), but it also does not apply where the underlying court lacked jurisdiction. A party even has the opportunity to collaterally attack a court’s jurisdiction when the judgment, “was rendered by a court lacking capability to make an adequately informed determination of a question concerning its own jurisdiction . . . as a matter of procedural fairness.” RESTATEMENT (SECOND) JUDGMENTS § 12 (1982). As noted herein, the underlying Board hearing was constitutionally infirm, its actions void and it was without jurisdiction. “If the Board possessed no jurisdiction ab initio to render its decision, everything which the Board did following that decision is void and of no effect.” See, Lopez, 107 N.M. at 146 (NM 1988)(citing, see, Logan, 455 U.S. 422 (1982)). Likewise, when a New Mexico district court sits as an appellate tribunal, the court is jurisdictionally limited to acting in an appellate capacity, which means “an appeal from a court or agency that lacks subject-matter jurisdiction ‘confers no jurisdiction on the appellate court.’” Maso, 2004-NMCA-025 at ¶ 13. (citation omitted). The State Court is also limited to conducting a deferential, arbitrary and capricious appellate record review. See, N.M. State Bd. of Psychologist Exam’rs v. Land, 2003-NMCA-034, ¶ 5, 133 N.M. 362, 62 P.3d 1244. A void decision from an agency that lacked jurisdiction is not a “valid and final judgment,” nor could it confer jurisdiction to a state court in a deferential record review. Preclusion has no application here. 49

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D.

Partial summary judgment should have been granted in favor of Dr. Guttman for due process violations.

There is no question that Dr. Guttman did not have a pre-termination hearing before his license was suspended. In fact, he did not even get notice and an opportunity to respond to the second meeting of the IPC that the Board lacked jurisdiction to convene. These and other undisputed material facts entitle Dr. Guttman to partial summary judgment. (App. 158-164, Doc. 137-1, p. 2-7). Every licensee in New Mexico is entitled to notice and an opportunity to be heard before the Board has any jurisdiction to suspend his license under the Uniform Licensing Act. NMSA 1978, § 61-1-3 (1993). Those procedures outlined therein “constitute a vital property right, the deprivation of which is a deprivation of due process of law under the Fourteenth Amendment to the United States Constitution.” Lopez, 107 N.M. 145, 147 (N.M. 1988)(citing, Logan, 455 U.S. 422, 434-35 (1982)). As noted, ‘the root requirement’ of the Due Process Clause [is] ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citing, Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis in original)). The right to be heard has “little reality or worth unless one is informed. . .and can choose whether to appear or default, acquiesce or contest’” prior to the destruction of his property right. McKee v. Heggy, 703 F.2d 479, 481 (10th Cir. 1983)(reversing summary judgment, and relying on Logan, 455 U.S. at 434). Dr. 50

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Guttman did not have a meaningful opportunity to be heard before his license was summarily suspended. As in Logan, this was not a random and unauthorized deprivation, but was done under the guise and pursuant to established state procedure. See, Logan, 455 U.S. 422, 435 (1982). “[A]bsent ‘the necessity of quick action by the State or the impracticability of providing any predeprivation process,’” a postdeprivation hearing is constitutionally inadequate. Id. at 436 (citations omitted). Logan acknowledged that an administrative proceeding with established procedural rights is not the same as a random deprivation, such as in Parratt v. Taylor, where a state employee negligently lost a prisoner’s hobby kit. Id. at 435 (citing, Parratt v. Taylor, 451 U.S. 527, 541 (1981))(overruled by Daniels v. Williams, 474 U.S. 327 (1986)). By contrast, where the agency fails to follow the procedural requirements governing its conduct, it is the state system that destroys a complainant’s property interest. Id. at 435-36. That is the case here where the New Mexico State Board itself was the actor. As shown above, the District Court erroneously relied on the progeny of prisoner right cases when it cited Hudson v. Palmer, 468 U.S. 517, 533 (1984) in holding a post-deprivation hearing would be sufficient here. (See, supra, p. 15). There was no requirement of quick action, as this process played out over a number of weeks. Nor was there an inability to convene a hearing as the IPC actually met a second time. Moreover, this case does not involve mere negligent deprivation of 51

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pillow cases and hobby kits or a random search by a guard conducting a prison shakedown where violence is rampant, and vigilance and surprise is key for personal safety against violent felons and concealed weapons. See, Hudson, at p. 526-27. In contrast to Hudson, here the Board began a formal statutory proceeding against Dr. Guttman which by letter dated December 28, 1999 appointed the IPC. The Board summoned Dr. Guttman to appear before the IPC because the Board stated that it had reason to believe that Plaintiff was “impaired.” (App. 119, Doc. 108-1, ¶ 12). It was the Board that did not provide the Gallup material (App. 225, Doc. 1372, p. 28), and that thereafter provided only select material regarding Gallup to the IPC, withholding the exonerating material despite its possession of all of it. (App. 121, Doc. 108-1, ¶ 27-28). The matter was obviously not urgent because, with the material it received and following meeting with Dr. Guttman, the IPC did not feel the complaints against Dr. Guttman were sufficient to warrant even a restriction on Dr. Guttman’s license. (Id., ¶ 29). Undeterred, the Board pressed ahead and–despite the fact the IPC guidelines preclude the Board from discussing the case or answering questions of the IPC because of the consequential recusal of the Board from voting–the Board responded to the IPC’s questions and provided additional material. (Id., ¶ 32-33). The IPC had a second meeting outside of the required two-week period from the time its members were appointed. Dr. Guttman did not even get notice of this second meeting, nor was he allowed to respond to the new charges. 52

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Thereafter, it was the Board that on March 7, 2000 summarily suspended Dr. Guttman’s license and served on him Notice of Contemplated Action (“NCA”), signed by Board member C. Grant LaFarge, M.D. Dr. LaFarge knew he would be involved in the case as a Board member. Dr. LaFarge had previous involvement with Dr. Guttman at Sierra Vista Hospital and had spoken with IPC member Dr. Tashijian prior to convening of the IPC. As such, Dr. LaFarge had personal knowledge and should have recused himself from participation in these proceedings. (Id., ¶ 35-36). In addition, Board Member Dr. Parsons had prior involvement with Dr. Guttman’s practice in Gallup from Guttman’s quarterly visits before the Board under his stipulated license. (Id., ¶ 82). Dr. Parsons thus possessed personal knowledge of evidentiary facts at issue in the hearing. He also had knowledge of Plaintiff’s disability. (Id., ¶ 83). Dr. Parsons’ knowledge of these facts called his objectivity into question, as he himself questioned whether he should participate. (Id., ¶ 84). All these were actions by the State Board, not random negligent acts of a state employee. The procedural rights and property interest afforded by the governing state statutes cannot be ignored with impunity. As the Logan Court noted, “[a] system or procedure that deprives persons of their claims in a random manner...necessarily presents an unjustifiably high risk that meritorious claims will be terminated.” Id. at 434-35.

To treat persons whose claims are processed within the procedural

guidelines differently than those persons whose claims do not follow the procedural 53

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guidelines “amounts to a denial of equal protection under the Fourteenth Amendment.” Lopez, 107 N.M. at 147. Treating similarly situated physicians differently “is the very essence of arbitrary state action.” See, Logan, 455 U.S. 422, 442 (1982)(Blackmun, J. separate opinion). Dr. Guttman’s is not a prisoner case. There is no question that the established procedural requirements were violated here. Parsons was required to disqualify himself. See, Balistrieri, 779 F.2d at 1202 (7th Cir. 1985); Liljeberg, 486 U.S. 847, 860 (1988). This was the same rule that applied to the Board under its own rules that required recusal from voting. It was reasonable to question Dr. Parsons’ ability to serve as hearing officer, because he questioned it himself. In sum, procedures such as those set out in the state licensing act constitute a vital property right. The deprivation of such at the hands of the State which results in loss of a liberty and property interest constitutes a denial of due process of law under the Fourteenth Amendment, making the State’s action void. CONCLUSION For the foregoing reasons, Plaintiff/Appellant Stuart T. Guttman, M.D. requests this Court for an order reversing the decision of the District Court, and reinstating his claims, denying the application of preclusion defenses as a matter of law, and granting partial summary judgment in his favor on the violation of due process, together with such other relief as the Court deems just and proper. 54

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STATEMENT REGARDING ORAL ARGUMENT The Plaintiff/Appellant Stuart T. Guttman, M.D. requests oral argument. With the number of issues involved, oral argument would help materially advance this appeal by providing guidance through the long procedural history of the case that includes multiple written rulings from various courts, and through the detailed allegations supporting the important constitutional rights implicated. Respectfully Submitted, SANDERS, BRUIN, COLL & WORLEY, P.A. By:___/s/__________________________________ Ian D. McKelvy Post Office Box 550 Roswell, New Mexico 88202-0550 Telephone: (575) 622-5440 Attorneys for Plaintiff/Appellant Stuart T. Guttman, M.D. CERTIFICATE OF VIRUS PROTECTION I certify that the digital version of the foregoing is an exact copy of what has been submitted to the Court in written form and e-mailed to counsel of record. There are no privacy redactions to be made. The digital submission has been scanned with the most recent version of AVG, which daily scans for updates, and according to the program is virus free. By: ___/s/_________________________________ Ian D. McKelvy Attorneys for Plaintiff/Appellant Guttman 55

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CERTIFICATE OF COMPLIANCE This Brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B). Excluding the table of contents, table of authorities and statement regarding oral argument, as directed by Rule 32(a)(7)(B)(iii), I certify to the best of my belief and knowledge that this brief contains 13,622 words as calculated by WordPerfect. Likewise, the brief was prepared in a monospaced typeface and contains 1132 lines of text. This brief has been prepared in a proportionally spaced typeface using WordPerfect 12 in Times New Roman font, size 14. I certify that the information on this form is true and correct to the best of my knowledge and belief formed after a reasonable inquiry. __/s/___________________ Ian D. McKelvy Attorney for Plaintiff/Appellant Guttman Dated: October 22, 2010

56

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy hereof was served electronically this 22nd day of October, 2010, to: Sean Olivas, Esq. Thomas C. Bird, Esq. KELEHER & McLEOD, P.A. P.O. Box AA Albuquerque, NM 87103-1626 [email protected] [email protected] Dirk Phillips, Esq. U.S. Department of Justice Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 305-4876 [email protected]

___/s/___________________ Ian D. McKelvy Attorney for Plaintiff/Appellant Guttman

57

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

STUART T. GUTTMAN, M.D., Plaintiff, v.

No. CIV-03-463 MCA/KBM

G.T.S. KHALSA, LIVINGSTON PARSONS, AND THE STATE OF NEW MEXICO, Defendants. MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on Defendants’ Motion To Dismiss Second Amended Complaint [Doc 144] and Plaintiff’s Motion For Partial Summary Judgment [Doc 136] Having considered the parties’ submissions, the relevant law, and otherwise being fully advised in the premises, the Court grants Defendants’ Motion and denies Plaintiff’s Motion. I.

BACKGROUND Plaintiff, Stuart Guttman, is a former medical doctor whose license to practice

medicine in the State of New Mexico was revoked in 2000 by the New Mexico Board of Medical Examiners (Board). Because this matter has developed an extensive docket and record, and because the parties dispute the current status of the case, a detailed review of the procedural history is necessary in order to place their respective arguments in their factual context.

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Plaintiff’s original complaint was filed on April 17, 2003, against the State of New Mexico and Individual Defendants, G.T.S. Khalsa and Livingston Parsons (collectively, Defendants). [Doc 1] In the original complaint, filed by Plaintiff pro se, he did not indicate that he was suing the Individual Defendants in their official capacities, nor did he request injunctive relief. [Id.] He did, however, assert claims for relief under 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act (“ADA” or “Title II”). By June 4, 2003, all parties consented to proceed before United States Magistrate Judge Leslie C. Smith. [Doc 2, Doc 7] On September 15, 2003, Judge Smith entered a Memorandum Opinion and Order (Guttman v. Khalsa, 320 F.Supp.2d 1164 (D.N.M. 2003) (Guttman I), granting Defendants’ motion for summary judgment. Id. at 1171. In Guttman I, Judge Smith concluded that “all named Defendants are entitled to absolute immunity as to Plaintiff’s claims under 42 U.S.C. § 1983. . . .” Id. An order immediately followed the opinion, filed the next day, which constituted a “final order” that “Summary judgment is hereby entered in favor of Defendants G.T.S. Khalsa, Livingston Parsons and the State of New Mexico on Plaintiff’s claims under 42 U.S.C. § 1983. . . .” [Doc 19] Plaintiff appealed from Guttman I. [Doc 20] Our Circuit affirmed Judge Smith’s order, see Guttman v. Khalsa, 401 F.3d 1170 (10th Cir. 2005) (Guttman II), but the Supreme Court of the United States granted certiorari and vacated the Guttman II opinion. See Guttman v. Khalsa, 126 S.Ct. 321 (2005). The Tenth Circuit Court of Appeals reexamined the issues and determined, among other things, that although the Individual Defendants were entitled to absolute immunity from the § 1983 claims, remand was Page 2 of 11

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necessary for this Court to consider whether Plaintiff could proceed under Title II. See Guttman v. Khalsa, 446 F.3d 1027, 1036 (10th Cir. 2006) (Guttman III). The Court in Guttman III did not address the question of prospective relief. After the 2006 remand, Plaintiff filed the first amended complaint, this time represented by counsel. [Doc 28] The first amended complaint adds claims for violations of equal protection and the first amendment, as well as for defamation and false data bank report. [Doc 28 at 7, 12, 13-14] Plaintiff also made reference to the Individual Defendants in their “official capacities” and specifically requested injunctive relief. [Id. at 14-15] Defendants filed a motion to dismiss the first amended complaint. [Doc 29] In their motion, Defendants argued that the equal protection and ADA claims were barred by collateral estoppel or res judicata, that the Individual Defendants had already been granted immunity from suit, and that Plaintiff failed to state a claim under the ADA and the First Amendment or for defamation or false data bank report. [Doc 30 at 6, 7, 11, 14, 18] Judge Smith held a hearing and directed Plaintiff to respond to Defendants’ motion. [Doc 31] In his response, Plaintiff argued that the rulings in Guttman I and Guttman III did not preclude claims for injunctive relief against the Individual Defendants in their official capacities. [Doc 33 at 18] Judge Smith set another hearing on the motion, [Doc 38] and in the meantime, he issued a memorandum opinion and order, granting in part, denying in part, and deferring in part Defendants’ motion to dismiss, see Guttman v. Khalsa, No. Civ 03-0463, Docket No. 39 (D.N.M. Oct. 17, 2006) (Guttman IV).

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In Guttman IV, Judge Smith concluded that Plaintiff had stated a claim against the State under the ADA but also that Plaintiff could “not bring any claims against Defendants Khalsa and Parsons under the ADA or § 1983, regardless of whether Plaintiff asserted the claims in his original or amended complaint.” Id. at * 6. Judge Smith explained that

This Court and the Tenth Circuit have already precluded Plaintiff from bringing these claims, and nothing has changed that would allow him to do so now. In the Memorandum Opinion and Order filed on September 13, 2003 in this case, I specifically held that Defendants Khalsa and Parsons were entitled to absolute immunity from Plaintiff’s claims pursuant to Title II and § 1983 in as much as Plaintiff requested ‘damages and injunctive relief. . . ’ (Doc 18 at 8-9.) The Tenth Circuit affirmed this decision on April 19, 2006: ‘The district court properly granted absolute immunity for Parsons and Khalsa because they were serving in quasi-judicial and prosecutorial roles at the New Mexico Board of Medical Examiners’ Hearing.’ Guttman [III], 446 F.3d at 1032. There is no need to repeat the same analysis I set forth in my previous opinion. (Doc 18 at 6-9.) Defendants’ motion is granted with respect to this issue: Defendants Khalsa and Parsons are not subject to suit under the ADA or § 1983. Guttman IV, No. Civ 03-463, Doc 39 at * 7. In addition, Plaintiff’s claims for false data bank report and defamation were dismissed. Id. at * 7. Judge Smith reserved ruling on Plaintiff’s § 1983 claims against the State and possible state tort claims for defamation. Id. at * 8. After Guttman IV was filed, Plaintiff filed a motion for reconsideration, asking the Court to revisit the issue of defamation. [Doc 41 at 3] On November 17, 2006, Judge Smith filed another Memorandum Opinion and Order, Guttman v. Khalsa, No. Civ 03463, Docket No. 43 (D.N.M. November 17, 2006) (Guttman V), addressing Plaintiff’s Page 4 of 11

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motion for reconsideration, as well as the claims that were deferred in Guttman IV. Id. at * 1. At the outset of that opinion, the Court stated that “[a]t the motion hearing, Plaintiff conceded that the only relief available from the State on the § 1983 claims is prospective injunctive relief.” Id. at *1-2. In addition, Judge Smith reinstated Plaintiff’s § 1983 defamation claim. Id. at * 3. In sum, the Court determined that the following claims remained:

(1) the claim brought under Title II of the ADA against the State only; (2) the § 1983 claims against the State only for prospective injunctive relief; and (3) the “stigma plus” claim against all three Defendants. At this stage, Defendants Khalsa and Parsons are entitled to absolute immunity for every claim except the stigma plus claim. Id. The case proceeded with discovery after the Guttman V order. On March 6, 2007, Defendants filed another motion to dismiss. [Doc 59] Defendants also filed a motion to stay discovery, which was granted. [Doc 60, Doc 62] Plaintiff responded to the motion to stay and argued that the stay should be denied because the motion to dismiss did not address the pending claims for prospective injunctive relief. [Doc 63 at 1-2] Specifically, Plaintiff stated that “although absolute immunity and qualified immunity offer protection to officials from civil damages, they do not preclude or protect against a claim for prospective injunctive relief and the recovery of attorney’s fees for a successful plaintiff.” [Id. at 2] This response was entered after the order granting the stay, and the arguments relating to prospective injunctive relief were therefore not addressed. The stay remained in place. Judge Smith held a hearing on the

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motion to dismiss, and on June 4, 2007, the Court filed Guttman v. Khalsa, No. Civ 03463, Docket No. 77 (D.N.M. June 4, 2007) (Guttman VI). [Doc 74] In Guttman VI, the Court granted the Individual Defendants qualified immunity on the § 1983 defamation claim. Id. at * 7. In addition, the Court ruled that the State was not entitled to quasi-judicial immunity for the ADA claim. Id. at * 17-18. The State immediately appealed the quasi-judicial immunity ruling. [Doc 78] Seven days after the State filed its notice of appeal, Plaintiff filed a motion for reconsideration. [Doc 83] Plaintiff requested the Court to reconsider its ruling on the defamation allegation and to consider an expanded basis for the due process claim. [Id. at 2] Approximately a month later, Plaintiff also filed a cross appeal in the Tenth Circuit Court of Appeals. [Doc 89] Judge Smith held a hearing on Plaintiff’s motion for reconsideration [Doc 94] and July 23, 2007, entered an order denying the motion. [Doc 95] Plaintiff’s cross appeal was dismissed by stipulation on January 10, 2008. [Doc 104-1] During the pendency of the 2007 appeal, Judge Smith retired and this case was assigned to the Honorable M. Christina Armijo, United States District Judge. [Doc 105] The 2007 appeal was decided on May 20, 2009. [Doc 106] In Guttman v. Khalsa, 325 Fed.Appx. 687 (10th Cir. 2009) (Guttman VII), our Circuit remanded the matter back to this Court with detailed instructions. Id. at 692. Specifically, this Court was instructed to evaluate whether the State was entitled to Eleventh Amendment immunity from suit under the ADA. Id. at 688. Guttman VII does not address the qualified immunity ruling issued by Judge Smith in Guttman VI. Guttman VII, 325 Fed.Appx. at 692. Page 6 of 11

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On remand, the parties filed a series of motions. On March 31, 2010, this Court addressed all of these motions, as well as the mandate issued by the Tenth Circuit Court of Appeals in Guttman VII. See Guttman v. Khalsa, No. Civ 03-463, Docket No. 142 (D.N.M. March 31, 2010) (Guttman VIII). In Guttman VIII, this Court permitted Plaintiff leave to file a second amended complaint, denied Plaintiff’s motion to lift the stay, granted in part and denied in part the State’s motion to dismiss, and denied Plaintiff’s motion to compel discovery. Id. at * 33. This Court specifically ruled that Eleventh Amendment immunity prevented Plaintiff from suing the State under Title II of the ADA. Id. at * 29. In addition, because the parties did not brief the issue, the Court determined that Plaintiff’s First Amendment retaliation claim remained—against the State only for prospective injunctive relief. Id. at * 33. While this Court considered the motions that were the subject of the March 2010 Order, Plaintiff filed a Motion For Partial Summary Judgment [Doc 136]. In addition, after the Court issued the Guttman VIII opinion, Defendants filed a Motion To Dismiss Second Amended Complaint [Doc 144]. II.

ANALYSIS In the most recent filings, the parties dispute what claims remain. The State

contends that the only claim that has not been disposed is the First Amendment claim against the State for prospective injunctive relief, and the State advocates for dismissal of that claim as well. [Doc 144 at 3; 147 at 3] Plaintiff maintains that all of his claims for prospective injunctive relief remain, as against both the State and the Individual Page 7 of 11

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Defendants. [Doc 146 at 2] Thus, according to Plaintiff, his claims for violations of Due Process, Equal Protection, and the First Amendment remain viable as pleaded for injunctive relief against all Defendants. [Id. at 3-4] Specifically, Plaintiff contends that a review of the procedural history demonstrates that claims against the Individual Defendants in their official capacity remain to be decided: “neither Judge Smith nor the Tenth Circuit have held that Plaintiff’s claims for prospective relief were dismissed by virtue of the individual’s absolute immunity.” [Doc 146 at 2] This carefully crafted statement disregards the specific history of the case and the prior rulings made. In September 2003, the Court issued a “final order,” which stated that “[s]ummary judgment is hereby entered in favor of Defendants G.T.S. Khalsa, Livingston Parsons and the State of New Mexico on Plaintiff’s claims under 42 U.S.C. § 1983. . . .” Guttman I, 320 F.3d at 1171. The Tenth Circuit’s Guttman III opinion affirmed the grant of immunity to the Individual Defendants and did not address additional “official capacity” liability for prospective relief—leaving this Court to presume that the issue of prospective relief against the Individual Defendants was not raised before the Circuit. In briefing before this Court in 2006, after the first remand, Plaintiff raised the issue of the availability of prospective relief and this Court responded that “Defendants Khalsa and Parsons are not subject to suit under the ADA or § 1983.” Guttman IV, No. Civ 03-463, Doc 39 at * 7. In that same order, Judge Smith referred to the claims for prospective relief: “In the Memorandum Opinion and Order filed on September 13, 2003 Page 8 of 11

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in this case, I specifically held that Defendants Khalsa and Parsons were entitled to absolute immunity from Plaintiff’s claims pursuant to Title II and § 1983 in as much as Plaintiff requested ‘damages and injunctive relief. . .’” Id. Indeed, with each order Judge Smith carefully delineated what claims remained and against whom those claims were brought. Guttman VII, the 2009 opinion from the Circuit, again does not address the prospective relief issue. In part, perhaps the complexity of the docket contributes to the perceived confusion of the issues. The original complaint did not include all of the claims and manners for relief that the later, amended complaints incorporated. The original order granting summary judgment thus could not have encompassed claims that were not originally pleaded or considered by the Court—such as prospective, injunctive relief against the Individual Defendants in their official capacities. Additionally, non-final and yet appealed orders abound—this case has traversed the pathways of the federal judiciary numerous times. The preceding careful review of the record, however, demonstrates that this Court dismissed the Individual Defendants entirely from the proceedings. Further, based on the silence of the appellate opinions filed as a result of this Court’s orders, I conclude that by failing to appeal Judge Smith’s repeated dismissal of the Individual Defendants, Plaintiff has waived any claim for prospective injunctive relief against the Individual Defendants. Therefore, the only remaining claim for which a ruling has not been made is on the First Amendment retaliation claim against the State.

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This Court has ruled that the Eleventh Amendment protects the State from suit under Title II of the ADA, Guttman VIII, No. Civ 03-463, Docket No. 142 at * 29, and our Circuit “affirm[ed] the district court’s determination that both Parsons and Khalsa are protected by “absolute immunity.” Guttman III, 446 F.3d at 1036. When the case arrived back in this Court, Judge Smith clearly stated that “Defendants Khalsa and Parsons are entitled to absolute immunity for every claim except the stigma plus claim.” Guttman V, No. Civ 03-463, Docket no. 43 at * 3. Later, the Court also granted the Individual Defendants absolute immunity for the stigma plus claim and reiterated that the § 1983 claims remain “against the State only for prospective injunctive relief.” Guttman VI, No. Civ 03-463, Docket No. 77 at * 2, 7. Further, as Defendants point out, the State itself is not subject to liability under § 1983 for the deprivation of civil rights. See Wills v. Michigan Dep’t of State Police, 491 U.S. 58, 65 (1989) (“Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties.”). Thus, all of Plaintiff’s claims have been disposed, were waived, or are not viable. For these reasons, the Court grants Defendants’ Motion To Dismiss Second Amended Complaint. Turning to Plaintiff’s Motion For Partial Summary Judgment [Doc 136], Plaintiff has requested summary judgment on his claims for violations of procedural due process. After Plaintiff filed his Motion, this Court issued Guttman VIII, which determined that Plaintiff received “sufficient process to protect his significant interest in his medical Page 10 of 11

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license.” Id., No. Civ 03-463, Docket no. 142 at 23. In his reply brief, filed after Guttman VIII, Plaintiff asserts that “[n]otwithstanding the Court’s finding therein, . . . the undisputed facts establish that he was not afforded the constitutional process that was due him which voided the Board’s actions.” [Doc 145 at 4] For the reasons stated in Guttman VIII, the Court is not persuaded. As a result, the Court denies Plaintiff’s Motion For Partial Summary Judgment [Doc 136]. III.

CONCLUSION For the foregoing reasons, the Court determines that no viable claims remain

against Defendants. IT IS THEREFORE ORDERED that Defendants’ Motion To Dismiss Second Amended Complaint [Doc 144] is GRANTED and Plaintiff’s Motion For Partial Summary Judgment [Doc 136] is DENIED. SO ORDERED this 30th day of June 2010, in Albuquerque, New Mexico.

____________________________ M. CHRISTINA ARMIJO United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

STUART T. GUTTMAN, M.D., Plaintiff, v.

No. CIV-03-463 MCA/KBM

G.T.S. KHALSA, LIVINGSTON PARSONS, AND THE STATE OF NEW MEXICO, Defendants. MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the following motions by the parties: Plaintiff’s Motion For Leave To File Second Amended Civil Complaint [Doc 108]; Plaintiff’s Motion To Lift Stay Of Discovery [Doc 107];Defendant’s Motion To Dismiss [Doc 116]; Plaintiff’s Motion To Strike Defenses And Statements From Defendant’s Fourth Motion To Dismiss [Doc 117]; Plaintiff’s Motion To Compel Discovery Responses [Doc 126]. Having considered the parties’ submissions, the relevant law, and otherwise being fully advised in the premises, the Court grants Doc 108, denies Doc 107, grants in part and denies in part Doc 116, denies Doc 117, and denies Doc 126. I.

BACKGROUND In 1993, Plaintiff obtained a license to practice medicine in the state of New Mexico.

The license was subject to stipulations that resulted from Plaintiff’s mental illness, which included depression and post traumatic stress disorder. In 1995, the stipulations were lifted by the New Mexico Board of Medical Examiners (Board). In 1999, based on a number of

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complaints that had been received about Plaintiff, the Board instructed Plaintiff to appear before a statutorily assembled Impaired Physician Examining Committee (IPC). Plaintiff met with the IPC in January 2000, and in March 2000, Plaintiff received a Notice of Contemplated Action and an Order of Summary Suspension from the Board. This action was based on Plaintiff’s mental disability, allegations of false statements to the Board, and allegations of inappropriate behavior with patients and staff. A hearing before the Board was convened in October 2000, at which Plaintiff appeared with counsel. Plaintiff’s license was revoked in February 2001. The Board found the following: (1) Plaintiff made dishonest statements to the Board; (2) Plaintiff had behaved in an abusive and disruptive manner towards colleagues, staff, and patients; (3) Plaintiff had a history of major depression, post traumatic stress disorder, and an underlying mixed personality disorder; (4) prior attempts at therapeutic treatment and intervention by Plaintiff’s employers had been ineffective; and (5) Plaintiff could not be effectively monitored. Plaintiff appealed the revocation of his license to the Seventh Judicial District Court of New Mexico, which affirmed the Board’s order.

Plaintiff filed a motion for

reconsideration to the New Mexico Court of Appeals, followed by a petition for certiorari to the New Mexico Supreme Court. Both courts denied Plaintiff’s appeals. Plaintiff next filed suit in this Court, alleging violations of Title II of the Americans with Disabilities Act (ADA) and various constitutional deprivations. Over the next seven years, this federal cause

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of action has resulted in numerous opinions from this Court1, three opinions from the Tenth Circuit Court of Appeals2, and one intervention from the Supreme Court of the United States.3 At the current time, the Tenth Circuit Court of Appeals has issued a mandate requiring this Court to address certain specific issues, all of them related to whether Defendant4 is entitled to Eleventh Amendment immunity from suit.5 II.

ANALYSIS

A.

The Terms of the Mandate In this most recent remand, our Tenth Circuit Court of Appeals directed this Court to

determine the following:

(1) which aspects of [New Mexico’s] alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.

1

Most notably the following opinions were issued by the Honorable Judge Leslie C. Smith: Guttman v. Khalsa, 320 F.Supp.2d 164 (D.N.M. Sept. 15, 2003) (Guttman I); Guttman v. Khalsa, No. Civ 03-0463, Doc 39 (D.N.M. Oct. 17, 2006) (Guttman IV); and Guttman v. Khalsa, No. Civ 03-0463, Doc 43 (D.N.M. Nov. 17, 2006) (Guttman V). The Honorable M. Christina Armijo was assigned to the case on October 1, 2008. [Doc 105] 2

Guttman v. Khalsa, 401 F.3d 1170 (10th Cir. 2005) (Guttman II); Guttman v. Khalsa, 446 F.3d 1027 (10th Cir. 2006) (Guttman III); and Guttman v. Khalsa, 325 Fed.Appx. 687 (10th Cir. 2009) (Guttman VI). 3

Guttman v. Khalsa, 126 S.Ct. 321 (2005) (vacating Guttman II).

4

Through the disposition of various motions, the only remaining Defendant in this case is the State of New Mexico. 5

With regard to the Eleventh Amendment immunity question, the United States of America has filed briefs in this case as an Intervenor. Page 3 of 34

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Guttman VI, 325 Fed.Appx. at 692 (alteration in original). Guttman VI emphasizes that this Court is “best situated” to determine the question of sovereign immunity because the Tenth Circuit Court of Appeals was “unclear about the precise nature of the conduct [Plaintiff] alleges in support of his Title II claim—at the October 2000 Board hearing or otherwise.” Id. Nevertheless, this remand, does not, as Plaintiff argues, indicate an immediate need for further discovery for two reasons. [See Plaintiff’s Motion To Lift Stay Of Discovery [Doc 107] and Plaintiff’s Motion To Compel Discovery [Doc 126]] First, our Circuit explained that the sovereign immunity question must be decided now, rather than later. This is because immunity is an attribute of state sovereignty that should be addressed promptly, because the Eleventh Amendment provides immunity from suit and the burdens associated with it, because the question of immunity challenges a court’s subject matter jurisdiction, and because the current immunity question potentially resolves the entire case. Guttman VI, 325 Fed.Appx. at 691-92. To permit further discovery at this stage would deprive New Mexico of one of the benefits of sovereignty—the benefit to be free from the burden of suit.6

6

Plaintiff also argues that the stay of discovery that was imposed by this Court in 2007 is no longer in effect because the stay expired automatically if any of his claims survived Defendant’s motion to dismiss. [Doc 107 at 2] This Court’s order granting Defendant’s motion for a stay states that if any of Plaintiff’s claims “survive the Motion to Dismiss,” Defendant is to respond to the outstanding discovery requests within ten days of receiving the Court’s opinion. [Doc 62] The Tenth Circuit Court of Appeals has purposefully yet to address or resolve the absolute and qualified immunity issues that were the subject of that motion to dismiss and the basis for the stay. Therefore, by its terms, the stay has not yet expired and discovery is not yet due because it is as yet impossible to determine whether any of Plaintiff’s claims have survived the motion to dismiss. Page 4 of 34

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Second, in remanding the matter to this Court, the Guttman VI Court cited Justice Stevens’s concurring opinion in United States v. Georgia, 546 U.S. 151, 160 (2006). Justice Stevens observed that the majority opinion “wisely permits the parties, guided by Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004), to create a factual record that will inform [the] outer limits of Title II’s valid abrogation of state sovereign immunity.” Justice Stevens then continued, in a footnote, to observe that a factual record was necessary because “Title II prohibits a somewhat broader swath of conduct than the Constitution itself forbids,” and “[w]hile a factual record may not be absolutely necessary to . . . resolution of the question, it will surely aid . . . understanding of the issues. . . .” United States v.Georgia, 541 U.S. at 160, n.2. This language, together with the Guttman VI direction to clarify “the nature of the conduct [Plaintiff] alleges in support of his Title II claim,” Guttman VI, 325 Fed.Appx. at 692, indicates that this Court’s role is to clarify Plaintiff’s allegations—and not to require the parties to develop evidence to support their respective positions. This conclusion is further supported by the majority opinion in United States v. Georgia. In that case, the matter was remanded to the district court because it was “not precisely clear what conduct [the plaintiff] intended to allege in support of his Title II claims.” 546 U.S. at 159. In order to clarify, “the Eleventh Circuit ordered that the suit be remanded to the District Court to permit [the plaintiff] to amend his complaint. . . .” Id. The Supreme Court of the United States observed that the district court would be “best situated” to determine the ultimate issues after the complaint was amended—and not after additional discovery. Id. Thus, this Court will look to the allegations in Plaintiff’s complaint in order Page 5 of 34

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to determine the scope of his statutory and constitutional claims—as well as any additional filings that further clarify those allegations. In that vein, Plaintiff has filed a motion for leave to amend his complaint a second time. [Doc 108] Plaintiff asserts that the proposed Second Amended Complaint alleges the facts necessary to support his claim against the state for violations of procedural due process. [Id. at 3] Defendant opposes Plaintiff’s motion. [Doc 109] Defendant argues that permitting Plaintiff to amend his complaint is contrary to the mandate in Guttman VI, that Plaintiff’s motion is untimely, and that amendment is futile. [Doc 109 at 1-2] The Tenth Circuit’s mandate required this Court to permit the parties to develop a “factual record” that would facilitate review of Plaintiff’s Title II claims. While this Court is not convinced that further discovery is required or even desirable, it is apparent that the Eleventh Amendment immunity question requires the sharpest possible picture of Plaintiff’s allegations. Thus, Plaintiff’s request to amend his complaint is not contrary to the Tenth Circuit’s mandate. In addition, Rule 15(a)(2) of the Federal Rules of Civil Procedure permits this Court to “freely give leave [to amend] when justice so requires.” Defendant’s concerns about timeliness and futility do not supercede “justice” under these circumstances, when Plaintiff cannot be granted leave to conduct discovery and when Plaintiff’s entire case rests on the clarity of his allegations. Accordingly, this Court considers the Plaintiff’s Second Amended Civil Complaint [Doc 1082] to be the basis for his remaining allegations. The Court therefore denies Plaintiff’s Motion To Lift Stay Of Discovery [Doc 107] and Plaintiff’s Motion To Compel Discovery Responses [Doc 126]. In order to facilitate Page 6 of 34

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expeditious review of the issues before the Court, Plaintiff’s Motion For Leave To File Second Amended Civil Complaint [Doc 108] is granted and the proposed Second Amended Civil Complaint is deemed to be before the Court for consideration. B.

Eleventh Amendment Immunity Pursuant to the Eleventh Amendment to the United States Constitution, the states are

immune from “any suit in law or equity, commenced or prosecuted . . . by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The Supreme Court of the United States has made clear that “[e]ven though the Amendment by its terms . . . applies only to suits against a State by citizens of another State, our cases have repeatedly held that this immunity also applies to unconsented suits brought by a State’s own citizens.” Tennessee v. Lane, 541 U.S. at 517 (second alteration in original) (internal quotation marks and citation omitted) (Lane). Despite this historical constitutional protection from suit, it is well established that Congress may abrogate the states’ Eleventh Amendment sovereign immunity. See Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 364 (2001) (Garrett). To determine whether Congress has abrogated Eleventh Amendment immunity, “two predicate questions” must be resolved: “first, whether Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority.” Lane, 541 U.S. at 517 (internal quotation marks and citation omitted). There is no question that in the ADA, Congress “unequivocally expressed its intent to abrogate [sovereign] immunity.” Id. at 518. Title II sets forth that a Page 7 of 34

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“State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter.” 42 U.S.C. §12202. Thus, the pertinent inquiry regarding Title II is whether “Congress had the power to give effect to its intent.” Lane, 541 U.S. at 518. Congress’s authority to abrogate a state’s sovereign immunity stems from Section 5 of the Fourteenth Amendment, which empowers Congress to “enforce the substantive guarantees of that Amendment.” Lane, 541 U.S. at 518. Congress’s power under Section 5

is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment [but rather,] Congress’ power ‘to enforce’ the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000). In other words, Congress may “enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct.” Lane, 541 U.S. at 518 (internal quotation marks and citation omitted). Congressional Section 5 power is not, however, unlimited—it is by nature “remedial and preventive.” City of Boerne v. Flores, 521 U.S. 507, 524 (1997). The authority to determine the substantive parameters of the Fourteenth Amendment remains with the judiciary—only the courts have the power to “determine what constitutes a constitutional violation.” Kimel, 528 at 81. The courts therefore evaluate congressional action in order to determine whether Page 8 of 34

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legislation that abrogates Eleventh Amendment immunity is a valid use of Section 5 power—whether the legislation is “remedial and preventive.” City of Boerne, 521 at 524. Legislation is sufficiently “remedial” to be a valid Congressional use of Section 5 power when there is “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Id. at 520. The Supreme Court of the United States has cautioned that “[l]acking such a connection, legislation may become substantive in operation and effect,” and under those circumstances, Congress exceeds its constitutional authority. Id. at 519-20. Further, while the scope of Congress’s “prophylactic enforcement powers under § 5 of the Fourteenth Amendment” is a source of judicial disagreement, “no one doubts that § 5 grants Congress the power to enforce the provisions of the Amendment by creating private remedies against the States for actual violations of those provisions.” United States v. Georgia, 546 U.S. at 158 (internal quotation marks and citation omitted). Thus, “insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.” Id. at 159. In sum, according to both the mandate of our Tenth Circuit Court of Appeals and the United States Supreme Court in United States v. Georgia, this Court must determine the following:

(1) which aspects of the State’s alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity Page 9 of 34

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as to that class of conduct is nevertheless valid. United States v. Georgia, 546 U.S. at 159; see also Guttman VI, 325 Fed.Appx. at 692. The parties agree that this Court has already determined that Plaintiff’s complaint adequately states a claim for violations of Title II. [See Doc 116 at 5; Doc 118 at 5; Doc 39 at 4] Accordingly, the questions remaining are whether the alleged misconduct “also violated the Fourteenth Amendment” and whether Congress validly abrogated sovereign immunity as to the class of conduct that Plaintiff contends violated only Title II. 1.

Independent Constitutional Violations

Plaintiff’s Second Amended Complaint alleges independent constitutional violations pursuant to the Equal Protection Clause and the Due Process Clause.7 [Doc 108-2 at 10-16] These constitutional arguments are addressed—apart from Title II and on their own merits—in turn. a.

Equal Protection

7

Plaintiff has also alleged violations of the First Amendment, based on a retaliatory discharge theory. Neither Plaintiff nor Defendant reference the First Amendment claim in their recent briefing. This claim is not new, it was first set out in Plaintiff’s First Amended Civil Complaint. [Doc 28 at 12-13] Defendant argued that this claim should be dismissed on the merits in its second motion to dismiss. [Doc 30 at 14] This Court ruled that the claim could proceed against the State only for prospective injunctive relief. [Doc 43 at 1-2] This issue, relating to the First Amendment claim, has not been raised again, but the claim reappears in Plaintiff’s second amended complaint. Plaintiff has discussed the conduct that he alleges constitutes “independent violations of the Fourteenth Amendment” at length, and he has not included a violation of Section 1 of the Fourteenth Amendment, which applies the First Amendment’s protections against the states. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516 (1996) (noting that the First Amendment is “made applicable to the States by the Due Process Clause of the Fourteenth Amendment”). Accordingly, the Court presumes that while the First Amendment retaliation claim remains in limited fashion, Plaintiff did not intend for it to be asserted as an independent constitutional violation under Title II. Page 10 of 34

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The Equal Protection Clause of the Fourteenth Amendment assures that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” This protection boils down to “a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Section 5 of the Fourteenth Amendment, as discussed above authorizes Congress to enforce the Equal Protection Clause, but “the courts themselves have devised standards for determining the validity of state legislation or other official action that is challenged as denying equal protection.” Id. at 440. Generally, “legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related a legitimate state interest.” Id. When the statute or official action classifies by race, alienage, national origin, gender, or illegitimacy, it is well established that the “general rule gives way . . . and these laws are subjected to strict scrutiny.” Id. The Supreme Court of the United States, however, has determined that disability does not fall under the strict scrutiny umbrella, and instead, “States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions toward such individuals are rational.” Garrett, 531 U.S. at 367. As a result, the Court examines the alleged unequal treatment in order to determine if that treatment is rationally related to a legitimate state interest. Turning to the Second Amended Complaint, Plaintiff has alleged the following: 65. In dealing with other licensed physicians in New Mexico who have come before the Board for disciplinary matters, the Board and these Defendants provide greater accommodation, and administer lesser penalties on Page 11 of 34

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those physicians who do not have a known disability, than they did in dealing with Plaintiff. 66. Other licensed physicians in New Mexico who did not have a known disability have come before the Board for disciplinary matters that dealt with direct violations of patient trust or patient care, or on matters that raised concerns about those physicians’ abilities to safely practice medicine were given lesser penalties than the Board and these Defendants assessed against Plaintiff. 67. Other licensed physicians who did not have a known disability but whose alleged disciplinary violations were far more egregious than those alleged against Plaintiff were allowed to continue to practice medicine, while Plaintiff’s license was revoked. 68. Plaintiff was treated differently from those other physicians who were similarly situated before the New Mexico Medical Review Board and Defendants. 69. Plaintiff was not treated as these other physicians because of Defendants’ animosity and discrimination against Plaintiff because of his known disabilities. 70. There was no legitimate state purpose for this animosity and discrimination against Plaintiff based upon his disabilities, which was a violation of clearly established law. [Doc 108-2 at 10-11] Plaintiff contends that based on his disability, he was impermissibly treated differently than other similarly situated physicians who came before the Board for disciplinary purposes. This contention inevitably leads to a conclusion that medical licensing boards may not rationally consider a licensee’s mental health disability as a part of the disciplinary review process—that there can be no legitimate purpose for evaluating mental health factors in the licensing context.

To the contrary, a legitimate public safety

concern—the protection of patients from a mentally unstable physician—is an abundantly

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rational basis for treating Plaintiff differently than other similarly situated physicians—other physicians who are facing disciplinary action from a licensing board. See Kimel, 528 U.S. at 84 (explaining that “when conducting rational basis review [courts] will not overturn such [governmental action] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [government’s] actions were irrational” (some alterations in original) (internal quotation marks and citation omitted));See Williamson v. Lee Optical of Okla., 348 U.S. 483, 488 (1955) (“It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.”). Plaintiff cites City of Cleburne, Garrett and Romer v. Evans, 517 U.S. 620 (1996), for the proposition that “even rational basis scrutiny is not satisfied by irrational fears or stereotypes . . . and simple ‘animosity’ towards the disabled is not a legitimate state purpose.” [Doc 118 at 16] The context of those cases, however, belies their application in the present case. In City of Cleburne, the Supreme Court of the United States could discern no legitimate purpose for requiring a special use permit in order to run a facility for the mentally retarded. 473 U.S. at 477-48. Such a permit was not required for apartments, boarding and lodging houses, fraternities or sororities, hospitals, sanitariums, or nursing homes. Id. Specifically, the record revealed no “rational basis for believing that the [home for the mentally retarded] would pose any special threat to the city’s legitimate interests.” Id. at 448.

As a result, the Court affirmed the judgment that the ordinance was

constitutionally invalid as applied in that case. In the present case, however, Defendant has Page 13 of 34

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a legitimate interest in handling the licensing of physicians with mental health disabilities differently than other physicians. See Amanatullah v. Colo. Bd. of Med. Exam’rs, 187 F.3d 1160, 1164-65 (10th Cir. 1999) (stating, in the context of Younger v. Harris, 401 U.S. 37 (1971), that “it is difficult to imagine a state interest more important than the protection of its citizens against the harms of unauthorized, unqualified, and improper practice of medicine”). Put another way, there is a rational basis for believing that a licensed mentally disabled physician could pose a special threat to Defendant’s legitimate interests. See City of Cleburne, 473 U.S. at 448. Turning next to Garrett, Plaintiff’s citation to that case is incomplete. Plaintiff attributes the following proposition to Garrett: “Discrimination against the disabled in licensing programs is unconstitutional if based on ‘[m]ere negative attitudes, or fear’ alone. . . .” [Id.] The language in Garrett, however, quoted City of Cleburne, and the entire quote reads as follows: “[M]ere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently. . . .” Garrett, 531 U.S. at 367, quoting City of Cleburne, 473 U.S. at 448 (alteration in original) (emphasis in original). In the present case, the mental health of the physician is a “properly cognizable” factor in a licensing proceeding and therefore, is a constitutionally permissible basis for the different treatment of a physician. City of Cleburne, 473 U.S. at 448. Garrett thus does not aid Plaintiff’s cause. Romer also does not further Plaintiff’s argument. In Romer, the Supreme Court of the United States evaluated a state constitutional amendment that prohibited the passage of Page 14 of 34

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laws or ordinances designed to protected homosexual persons. 517 U.S. at 623-24. The Romer Court determined that the amendment violated the Equal Protection Clause, in part because it “rais[ed] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Id. at 631-34. The amendment denied homosexual persons “any particular protections from the law” and thereby inflicted on them “immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it.”

Id. at 635.

Such is not the case under the present

circumstances—the use of Plaintiff’s history of mental disability for the purpose of a medical licensing disciplinary proceeding does not raise an inference of animosity toward “the class of persons affected.” Id. at 634. Instead, the Board included Plaintiff’s history of mental disability as a part of a “broad and ambitious purpose” that “can be explained by reference to legitimate public policies,” which justify “the incidental disadvantages that they impose on certain persons.” Id. at 635. Factually, this case most closely resembles Kimel. The plaintiffs in Kimel filed suit under the Age Discrimination in Employment Act (ADEA) in order to recover money damages for their state employer’s alleged discrimination based on the plaintiffs’ age. Kimel, 528 U.S. at 66. The state defendants argued that the ADEA did not validly abrogate Eleventh Amendment immunity. Id. In considering this question, the Supreme Court of the United States evaluated whether age classifications violate the Equal Protection Clause. Id., at 83. The Court observed that “[a]ge classifications, unlike governmental conduct based on race or gender, cannot be characterized as so seldom relevant to the achievement of any Page 15 of 34

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legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.” Id. (internal quotation marks and citation omitted). Because age is not considered to be a suspect classification, the Kimel Court concluded that “[u]nder the Fourteenth Amendment, a State may rely on age as a proxy for other qualities, abilities, or characteristics that are relevant to the State’s legitimate interests.” Id. at 84. Similarly, as has already been explained, disability is not a suspect classification, and thus, it is a reasonable “proxy for other qualities.” Id. Plaintiff does not deny that he has a mental health disability. Instead, he contends that his mental health disability was an impermissible basis for the license revocation. Based on well-established authority, the Court concludes that Plaintiff has failed to sufficiently allege a claim for violations of the Equal Protection clause of the Fourteenth Amendment because the Board could rationally consider Plaintiff’s mental health disability in order to further a legitimate state purpose when evaluating whether to revoke Plaintiff’s license to practice medicine. b.

Due Process

Plaintiff also alleges that Defendant’s conduct violated his right to procedural due process under the Fourteenth Amendment. [Doc 108-2 at 11] In resolving procedural due process questions, the Tenth Circuit Court of Appeals engages a two-part inquiry: “(1) Did the individual possess a protected interest to which due process protection was applicable? [and] (2) Was the individual afforded an appropriate level of process?” Ward v. Anderson, 494 F.3d 929, 934 (10th Cir. 2007) (internal quotation marks and citation omitted). Plaintiff Page 16 of 34

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correctly posits that the denial or revocation of a license can trigger the procedural protections of the Due Process Clause. See Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1150 (10th Cir. 2007) (“[T]he revocation or removal of a license or certificate that is essential in the pursuit of a livelihood requires procedural due process under the Fourteenth Amendment.” (internal quotation marks and citation omitted)). Plaintiff must have a license in order for him to work as a physician. Accordingly, Plaintiff “retains a protected property right” in his medical license, id., and the analysis turns to whether Plaintiff received the appropriate level of process before that license was revoked. Due process is a “flexible concept that varies with the particular situation.” Zinermon v. Burch, 494 U.S. 113, 127 (1990). In order to determine whether the procedure employed in a particular situation was constitutionally sufficient, this Court considers the following factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 127 (quoting Matthews v. Eldridge, 424 U.S. 319, 395 (1976)). The right implicated in the present case is the right to maintain a professional license and to work as a physician—an undoubtedly significant interest. In order to consider the second factor, the risk of erroneous deprivation, it is first necessary to lay out the procedures that were employed during the revocation proceedings. Page 17 of 34

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Pursuant to NMSA 1978, § 61-7-4 (A) (1995), the Board convened an IPC. See also NMSA 1978, § 61-7-2 (2001) (defining the “board”). Plaintiff appeared before the IPC and answered its questions. Plaintiff alleges that the IPC was not properly convened according to Section 61-7-4(B), because one of the three physicians who sat on the IPC was not currently licensed. [Doc 108-2 at 4] Plaintiff further alleges that the Board provided the IPC with selected and incomplete materials, which cast Plaintiff in a bad light and which improperly raised issues that had been resolved by other proceedings in years past. [Id. at 4, 15] According to Plaintiff, the IPC contacted and questioned the Board, contrary to IPC guidelines. [Id. at 4] The IPC met a second time, which is not contemplated by the IPC guidelines, and Plaintiff did not receive notice of the second meeting, nor was he invited to appear. [Id.] Plaintiff contends that he was given insufficient notice of the subject of inquiry and that the IPC refused to clarify the cause for the inquiry. [Id. at 14] Under threat of license revocation, Plaintiff was required, on 24 hours notice, to explain 27 alleged complaints and all of his alleged misstatements. [Id. at 16] After receiving a Notice of Contemplated Action, Plaintiff appeared before a hearing officer, Dr. Parsons. [Id. at 7] Plaintiff states that Dr. Parsons was biased against him based on personal knowledge and conflict of interest. [Id. at 13] After proceedings conducted by Dr. Parsons, Plaintiff’s license was revoked. After the revocation, Plaintiff appealed to the state district court, pursuant to NMSA 1978, § 61-7-10 (1995); NMSA 1978, § 61-1-7 (1999); and NMSA 1978, § 39-3-1.1(c). [See Doc 5-2 at 20] In extensive and detailed pleadings, Plaintiff raised the issue of bias before Page 18 of 34

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the state district court, [id. at 36] and that court concluded, with no explanation, that the decision of the Board was not “fraudulent, arbitrary, or capricious.” [Id. at 41] Plaintiff pursued the matter to the New Mexico Court of Appeals, which affirmed the district court. Plaintiff filed a petition for certiorari with the New Mexico Supreme Court, which was denied. [Id. at 43] Plaintiff contends, in great detail that various violations of New Mexico law demonstrate a lack of due process. He points to potential bias, to an unlicensed board member, to an alleged conflict of interest, and to deficiencies in the statutory procedure for disciplinary hearings. The Supreme Court of the United States has made clear, however, that although the contours of a constitutional right can be defined by state law, the question of whether a state has afforded sufficient process to protect that right is not a question of state law. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 540-41 (1985) (stating that protected interests are “created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law” but that “once it is determined that the Due Process Clause applies, the question remains what process is due [and] the answer to that question is not to be found in the [state] statute” (internal quotation marks and citations omitted)). In the present case, the protected interest—Plaintiff’s medical license—is created by New Mexico law. The Court turns to constitutional principles, however, to determine whether the State afforded constitutionally adequate process in the deprivation of that interest. Id. In that regard, the essential principle of the due process guarantee is that the State provide “notice and opportunity for hearing appropriate to the Page 19 of 34

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nature of the case.” Id. at 542. In general, the Supreme Court of the United states has described this “root requirement of the Due Process Clause as being that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” Id. (emphasis in original) (internal quotation marks and citation omitted). Nevertheless, “an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Plaintiff does not argue that he was deprived of his medical license as the result of an established Board policy of acting pursuant to bias and without regard for the established IPC procedures. It would seem that Plaintiff’s procedural due process arguments stem from the alleged random and unauthorized acts of the Board and the IPC. Considering the remedy available to Plaintiff after the allegedly random and unauthorized deprivation of his license, Defendant provided ample opportunity for redress. Plaintiff had an automatic statutory right to appeal to the district court and a further discretionary opportunity to appeal to the New Mexico Court of Appeals and to the New Mexico Supreme Court. That the state appellate courts did not accept Plaintiff’s invitation for further review does not lessen the practical effect of its availability—Plaintiff had three chances to challenge the Board and IPC proceedings. These opportunities for review of the Board’s decision focus the procedural due process question: what more could the State—Defendant—have done? Plaintiff was entitled Page 20 of 34

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to three levels of appeal, three examinations of the merits of his claims and the proceedings below. The New Mexico Legislature foresaw the need for appellate review of Board decisions and provided ample process for Plaintiff to pursue his claims. It is difficult to imagine what more process could be provided to Plaintiff in order to address and remedy an unauthorized deprivation. Plaintiff argues that the standard of review for the proceedings before the state district court, the Court of Appeals, and the New Mexico Supreme Court, prevented him from asserting his due process claims—prevented him from receiving adequate process from Defendant to correct the allegedly inadequate process that he received from the Board. Section 39-3-1.1(D) outlines the standard for review for agency appeals:

In a proceeding for judicial review of a final decision by an agency, the district court may set aside, reverse or remand the final decision if it determines that: (1) the agency acted fraudulently, arbitrarily or capriciously; (2) the final decision was not supported by substantial evidence; or (3) the agency did not act in accordance with law. This standard has been succinctly characterized by the New Mexico Court of Appeals in the following manner:

The party challenging an agency decision bears the burden on appeal of showing that agency action falls within one of the oft-mentioned grounds for reversal including whether the decision is arbitrary and capricious; whether it is supported by substantial evidence; and whether it represents an abuse of the agency’s discretion by being outside the scope of the agency’s authority, clear error, or violative of due process. Page 21 of 34

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Miss. Potash, Inc. v. Lemon, 2002-NMCA-014, ¶ 8, 133 N.M. 128, 61 P.3d 837 (internal quotation marks and citation omitted). Indeed, the New Mexico Supreme Court has explained that “even when we review for an abuse of discretion, our review of the application of the law to the facts is conducted de novo.” N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 7, 127 N.M. 854, 886 P.2d 450 (internal quotation marks and citation omitted). This is because an “abuse of discretion” is a “discretionary decision that [is] premised on a misapprehension of the law.” Id. (alteration in original) (internal quotation marks and citation omitted). Thus, the doors of the New Mexico appellate courts were open to Plaintiff with regard to his contentions that the revocation proceedings were constitutionally flawed.8 See Lopez v. N.M. Bd. of Med. Exam’rs, 107 N.M. 145, 145, 147, 754 P.2d 522, 522, 524 (1988) (evaluating a due process claim brought by a physician appealing the revocation of his license). Based on these considerations, it is difficult to contemplate what “additional or substitute procedural safeguards” could be employed by Defendant to cure the allegedly random and unauthorized deprivation of Plaintiff’s medical license. See Zinermon, 494 U.S. at 127. Defendant currently authorizes one appeal by right to the district court, followed by two opportunities for discretionary appeal. Plaintiff has not suggested an alternate procedure. Accordingly, balancing the three factors and viewing the entire state procedure, the Court 8

These observations do not constitute a ruling on Defendant’s argument that collateral estoppel prevents this Court from considering Plaintiff’s factual assertion that the Board failed to provide reasonable accommodations. [See Doc 116] The current analysis focuses on the process that Defendant afforded to Plaintiff to correct any errors in the proceedings before the Board. Page 22 of 34

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finds that although he was ultimately unsuccessful, Plaintiff received sufficient process in order to protect his significant interest in his medical license. c.

Summary

Thus, Plaintiff has failed to allege independent constitutional violations that would, pursuant to United States v. Georgia, end the Title II analysis. This Court is therefore required to continue to consider whether “Congress’s purported abrogation as to [the] class of conduct is nevertheless valid.” United States v. Georgia, 546 U.S. at 159. 2.

Valid Abrogation

As stated earlier, in order for Congress to validly abrogate the states’ Eleventh Amendment immunity, the legislation must exhibit “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Lane, 541 U.S. at 520 (internal quotation marks and citation omitted). The “congruence and proportionality” test is a three-part inquiry: “(1) identifying the constitutional right or rights that Congress sought to enforce when it enacted Title II; (2) determining whether Congress identified a history and pattern of unconstitutional conduct by the states; and, if so, (3) whether the abrogation constitutes a proportionate response to the constitutional violation.” Guttman VI, 325 Fed.Appx. at 692 (internal quotation marks and citations omitted). With regard to the first step of this analysis, the Supreme Court of the United States, in Lane, explained that the constitutional purpose of Title II, like Title I, is for the “enforcement of the Fourteenth Amendment’s command that all persons similarly situated should be treated alike.” Lane, 541 U.S. at 522. The second factor is likewise settled. The Lane Court Page 23 of 34

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considered the history of Title II and concluded that there was sufficient evidence in the legislative record to support Congress’s passage of the “prophylactic legislation” in response to a documented history of inadequate provision of public services and access to public facilities. Id. at 529; see also Klingler v. Director, Dep’t of Rev., 455 F.3d 888, 896 (8th Cir. 2006) (“The court’s decision in Lane that Title II targeted a pattern of unconstitutional conduct forecloses the need for further inquiry.”); Day v. State, Civ. No. 05-2675, *22, 2007 WL 4321999 (D.Minn. Dec. 6, 2007). The next step of the inquiry focuses on whether “Title II is an appropriate response to this history and pattern of unequal treatment.” Id. at 530. For this phase, Lane directs courts to narrow the scope of the analysis. Accordingly, the Court will not evaluate Title II’s “wide variety of applications, as an undifferentiated whole.” Id. Instead, the Court will consider whether Title II is valid Section 5 legislation “as it applies” to the class of cases implicated in the present controversy. Id. at 531. The parties, however, do not agree on the scope of the “class of cases” that are implicated. Plaintiff and the United States as Intervenor (the Government) argue that this case implicates “public licensing,” and thus offers comparisons to a state’s ability to restrict marriage licenses, teacher’s licenses, driver’s licenses, and licenses for group homes. [Doc 118 at 9-12] Defendant contends that the abrogation of sovereign immunity should be considered in relation only to the state’s ability to limit “professional licenses.” [Doc 128 at 11] Plaintiff and the Government assert that this Court should consider “the full range of constitutional rights and Title II remedies potentially at issue,” and thus evaluate the “type Page 24 of 34

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of governmental operations implicated by the lawsuit.” [Doc 125 at 11] Plaintiff and the Government use Lane as the example. In that case, the plaintiffs were a physically disabled criminal defendant and a physically disabled court reporter, who were unable to access the court house because the state had made no physical accommodations. Id. at 513-514. Plaintiff points out that the Lane Court did not confine itself to the Sixth Amendment right to confrontation or the Fourteenth Amendment right to Equal Protection. Instead, the Court considered not just the individual plaintiffs’ accessibility difficulties, but the entire range of accessibility issues that are related to accessing the judicial system. Id. at 531-32. Lane, however, limited its scope. The Court considered the range of physical accessibility issues related to access to the judicial system—it did not evaluate the range of accessibility issues with regard to all government buildings. Lane specifically did not address physical accessibility to all state-owned buildings—“the question presented in this case is not whether Congress can validly subject States to private suits for money damages for failing to provide reasonable access to hockey rinks, or even to voting booths. . . .” Id. at 530. In the present case, the categories of licensing and the cases cited by Plaintiff and the Government are widely varying and implicate different state interests. For example, the Government cites statutes which deny marriage licenses to persons with HIV or to persons with mental disabilities. The question in the current case, whether Defendant violated Title II when it revoked Plaintiff’s medical license based in part on his mental disability, does not “implicate” the same governmental response as discrimination in marriage licensing. Lumping these licensing categories together eliminates the case-specific balancing that is necessary to resolve Page 25 of 34

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the question before the Court. Surely the states have widely different interests in regulating marriage than in regulating the practice of medicine—surely the courts should consider the different state responsibilities and objectives that are inherent with different restrictions on different types of licenses. This is why the Lane Court did not consider access to hockey rinks when the question before it was access to courts. The analyses in Garrett and Lane support narrowing the scope of the current dispute because the specific rights at stake necessarily implicate a specific, corresponding governmental interest. In Garrett, the Supreme Court of the United States considered whether Congress validly abrogated sovereign immunity with respect to Title I of the ADA. 531 U.S. at 360. The Court determined that the abrogation of sovereign immunity was out of proportion to the remedial objective because “it would be entirely rational (and therefore constitutional) for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities,” but “the ADA requires employers to mak[e] existing facilities used by employees readily accessible to and usable by individuals with disabilities.” Id. at 372 (internal quotation marks and citation omitted). The Court continued to determine that “the accommodation duty far exceeds what is constitutionally required in that it makes unlawful a range of alternative responses that would be reasonable but would fall short of imposing an ‘undue burden’ on the employer.” Id. In Lane, the Court was concerned with the right of access to the courts as it is intertwined with the rights to equal protection and due process. 541 U.S. at 522-23, 531 (“[T]he question presented in this case is . . . whether Congress had the power under § 5 to Page 26 of 34

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enforce the constitutional right of access to the courts.”). The Title II remedy, the Court noted, was justified by a long and documented history of the exclusion of persons with disabilities from the justice system, “which persisted despite several legislative efforts to remedy the problem.” Id. at 531. The abrogation of sovereign immunity was further justified because the remedy was limited: the states need only provide “reasonable modifications.” Id. at 532-33. Ultimately, the Court concluded that “ordinary considerations of costs and convenience alone cannot justify a State’s failure to provide individuals with a meaningful right of access to the courts.” Id. at 533. In both cases, the Court considered a specific right and balanced against that right the corresponding governmental interest, which in part, accounts for the difference in outcome between the cases. An additional distinction between Lane and Garrett is the constitutional importance of the right at stake. In Garrett, the constitutional right at issue was subject to less searching scrutiny; the states are permitted greater latitude in employment discrimination based on disability. Meanwhile, in Lane, the right at stake was fundamental, and the state was required to provide significant justification before denying disabled citizens access to the judicial system. In the present case, the right implicated is not fundamental: a professional license may be denied if the state’s decision is rationally related to a legitimate state purpose. Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 238-39 (1957) (explaining that a state may not exclude a person from the practice of any profession unless there is a rational connection between the requisite qualifications and the applicants fitness or capacity to practice); See Simmang v. Texas Bd. of Law Exam’rs, 346 F.Supp.2d 874 (W.D. Tex. 2004) (explaining Page 27 of 34

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that the Lane holding “is founded squarely on the source of the plaintiff’s encroached rights”). For Title II of the ADA to increase the level of scrutiny for disabled persons in the current context of professional licensing would be to exceed the legislative power “to enforce” Section 5’s guarantees. See Kimel, 528 U.S. at 81 (“Congress cannot decree the substance of the Fourteenth Amendment’s restrictions on the States.” (internal quotation marks and citation omitted)). It is clear that “[t]he ultimate interpretation and determination of the Fourteenth Amendment’s substantive meaning remains the province of the Judicial Branch.” Id. The Court in Lane was satisfied that Title II’s abrogation of sovereign immunity in the context of access to the judicial system did not alter the constitutional equal protection framework: there could be no rational reason to prevent disabled persons from accessing the judicial system. At the same time, the Court in Garrett was concerned that the ADA imposed significant burdens on the state that well exceeded what was required by the constitution. The present case more closely resembles Garrett than Lane because Title II’s remedy in the context of professional licensing far exceeds what is constitutionally required. See Garrett, 531 at 372. The statute states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (1990). The regulations that accompany Title II further mandate that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would Page 28 of 34

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fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). The language of Title II, together with its enforcing regulations, require states to justify licensing decisions that would be otherwise constitutional. Licensing entities, under Title II’s scheme, are required to demonstrate that modifications would “fundamentally alter the nature” of the service that those entities provide. This is a significant burden on such entities—a burden that is not constitutionally required because the consideration of a physician’s mental health is rationally related to a legitimate governmental purpose. Title II’s remedy is thus not proportional in that it “prohibits substantially more” licensing decisions “than would likely be held unconstitutional under the applicable equal protection, rational basis, standard.” Kimel, 528 U.S. at 86 (concluding that the abrogation of sovereign immunity under the ADEA was not proportional because the statue, “through its broad restriction on the use of age as a discriminating factor, prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard”). Under these circumstances, the abrogation of sovereign immunity is not valid. See Garrett, 531 U.S. at 374 (concluding that for abrogation of immunity to be valid, “the remedy imposed by Congress must be congruent and proportional to the targeted violation”). The Court therefore concludes that Defendant’s Eleventh Amendment immunity remains intact and it is not subject to suit under Title II. C.

Collateral Estoppel Defendant, as a part of its Motion To Dismiss, [Doc 116] urges this Court to also

determine whether the continued litigation of certain factual issues is barred by collateral Page 29 of 34

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estoppel. [Id. at 10] Specifically, Defendant argues that the question of accommodation and the question of Plaintiff’s honesty have already been determined through the course of the state-court litigation. [Id. at 10, 13] Plaintiff argues that Defendant waived the collateral estoppel defense and that in any event, it does not apply. Defendant’s collateral estoppel argument is not easily disposed due to the procedural tangle of this case. Defendant has filed four motions to dismiss. The first motion to dismiss was in response to Plaintiff’s initial complaint. [Doc 4] In that motion, Defendant raised the collateral estoppel argument, [Doc 5 at 9-10] but this Court did not issue a ruling on that issue. [See Doc 18] On appeal, our Tenth Circuit Court of Appeals directed this Court to consider the collateral estoppel issue. See Guttman III, 446 F.3d at 1036 (observing that on remand, the district court “will be able to determine whether [Plaintiff’s] claims are otherwise barred because they are precluded by res judicata or collateral estoppel”). After that appeal, Plaintiff filed an amended complaint, [Doc 28] to which Defendant responded with its second motion to dismiss. [Doc 29] In that motion to dismiss, Defendant again argued that certain factual issues were barred from relitigation by collateral estoppel. [Id. at 7-11] Again, this Court did not address the issue. [See Doc 39; Doc 43] Thereafter, Defendant filed a third motion to dismiss, which did not raise the collateral estoppel issue. [See Doc 59] The subsequent order from this Court, and the resulting remand from the Tenth Circuit, also did not further address the collateral estoppel issue. [See Doc 77; Doc 106] Plaintiff, in response to Defendant’s collateral estoppel argument, filed Plaintiff’s Motion To Strike Defenses And Statements From Defendant’s Fourth Motion To Dismiss [Doc Page 30 of 34

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117]. In that Motion, Plaintiff insists that the defense of collateral estoppel has already been rejected by this Court, that Defendant waived the defense by failing to raise the issue in the third motion to dismiss, that consideration of the issue is contrary to the Tenth Circuit’s most recent remand, and that Defendant’s arguments impermissibly reference evidence outside of the pleadings. [See id.] With regard to the first argument, Plaintiff cites this Court’s Memorandum Opinion and Order, filed October 17, 2006 (Guttman IV) and the Memorandum Opinion and Order, filed November 17, 2006 (Guttman V). In Guttman IV, this Court acknowledged in a footnote that the Tenth Circuit, in Guttman III, had directed the Court to address in part, “whether Plaintiff’s claims are otherwise barred because they are precluded by res judicata or collateral estoppel.” [Doc 39 at 4, n.1] The remainder of the opinion is silent on the issue of collateral estoppel because this Court was of the opinion that “[t]he issues the Tenth Circuit raised . . .are more appropriate for decision at a later stage. . . . “ [Id. at 4] In Guttman V, contrary to Plaintiff’s assertion, this Court did not refuse to “dismiss Plaintiff’s claims,” thereby rejecting Defendant’s collateral estoppel argument. [Doc 117 at 2] Instead, the Court simply resolved additional outstanding issues and permitted the parties to begin discovery, as the Court clearly thought was necessary in order to determine the issues that the Tenth Circuit raised. [See Doc 39 at 4 (noting that to handle the Tenth Circuit’s “specific instructions,” would require “some development of the facts”)] Plaintiff has not pointed to another place in the record that would indicate a ruling on the collateral estoppel question. Additionally, close examination of the pleadings demonstrates that the course of this Page 31 of 34

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litigation has been very difficult to follow. Multiple filings by the parties, together with multiple orders by various courts have left the issues somewhat in disarray. The purpose behind requiring parties to raise the issue of collateral estoppel is that of notice. See Sierra Club v. El Paso Gold Mines, Inc., No. 01-cv-002163, * 3, 2006WL2331082 (10th Cir. Aug. 10, 2006). There is certainly no question that Plaintiff has had notice and there does not appear to be any prejudice in permitting Defendant to proceed on this theory. This is particularly so in light of the Court’s next conclusion, which is that the question of collateral estoppel is not currently ripe for decision. In Guttman IV, this Court indicated that further discovery was needed before certain issues could be decided. While some of those issues—Eleventh Amendment immunity—could be resolved without discovery, the collateral estoppel question “require[s] a determination of the precise nature of plaintiffs’ claims and would necessarily rest on materials outside the complaint (in particular the record of the state court proceedings).” Garcia v. Int’l Elevator Co., 358 F.3d 777, 782 (10th Cir. 2004). Thus, “[w]hether res judicata or collateral estoppel bars this action in whole or part is more appropriately decided in the context of a motion for summary judgment than it is in the context of a defendant’s motion to dismiss.” Id. Thus, to the extent that Defendant’s Motion To Dismiss relates to collateral estoppel, it is denied. Further, Plaintiff’s Motion To Strike Defenses And Statements From Defendant’s Fourth Motion To Dismiss is granted to the extent that the Court will not consider the collateral estoppel argument in the context of a motion to dismiss, but Defendant is permitted raise the issue again should discovery be conducted in this matter. Page 32 of 34

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III.

CONCLUSION This Court has not yet determined whether any of Plaintiff’s claims or factual

assertions are precluded by collateral estoppel. Nor has this Court taken up the recently filed Plaintiff’s Motion For Partial Summary Judgment [Doc 136], which has not yet completed briefing.9 Finally, because Plaintiff’s First Amendment retaliation claim against Defendant was not addressed by the parties after Guttman VI, it remains pending, subject to the limitations already imposed by this Court and subject to any appellate ruling on the absolute quasi-judicial immunity issue. [See Doc 43 at 1-2] IT IS THEREFORE ORDERED THAT Plaintiff’s Motion For Leave To File Second Amended Civil Complaint [Doc 108] is granted; Plaintiff’s Motion To Lift Stay Of Discovery [Doc 107] is denied; Defendant’s Motion To Dismiss [Doc 116] is granted in part and denied in part; Plaintiff’s Motion To Strike Defenses And Statements From Defendant’s Fourth Motion To Dismiss [Doc 117] is granted; and Plaintiff’s Motion To Compel Discovery Responses [Doc 126] is denied.

9

In addition, Plaintiff contends that Plaintiff’s Motion For Reconsideration, [Doc 83] remains before this Court. Specifically, Plaintiff requests this Court to reopen Judge Smith’s order, which granted the three individual defendants qualified immunity on Plaintiff’s stigma plus claim. [See Doc 77] Judge Smith denied Plaintiff’s Motion For Reconsideration based on his conclusion that the Court lacked subject matter jurisdiction—Defendant filed a Notice of Appeal on June 7, 2007, three days after the Court’s order was entered, and Plaintiff did not file the motion for reconsideration until June 12, 2007. [See Doc 95] Plaintiff cites no authority for his position that because the Motion was denied for lack of subject matter jurisdiction, the Motion somehow remains pending before the Court at this time. Because the order acting on the Motion was entered, the Motion has been disposed. Whether the Motion was properly denied for lack of jurisdiction is a question for our Circuit. See Fed. R. App. P. 4(a). Page 33 of 34

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SO ORDERED this 31st day of March, 2010, in Albuquerque, New Mexico.

___________________________ M. CHRISTINA ARMIJO United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO STUART T. GUTTMAN, M.D., Plaintiff, v.

CV 03-0463 LCS/KBM

G.T.S. KHALSA, LIVINGSTON PARSONS, and THE STATE OF NEW MEXICO, Defendants. MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Defendants’ Motion to Dismiss for Failure to State a Claim Upon Which Relief May Be Granted filed on March 6, 2007. (Doc. 59.) Pursuant to 28 U.S.C. § 636(c) and Federal Rules of Civil Procedure 73(b), the parties consented to have me serve as the presiding judge and enter final judgment. (See Docs. 2, 7.) After having meticulously considered the motion, briefs, and applicable law, the motion will be GRANTED IN PART and DENIED IN PART. PROCEDURAL BACKGROUND For a summary of the procedural background prior to July 12, 2006, see the Memorandum Opinion and Order filed on October 17, 2006. (Doc. 39 at 1-3.) After Plaintiff filed his amended complaint on June 9, 2006, Defendants filed a motion to dismiss for failure to state a claim. (See Docs. 28-30.) In my October 17, 2006 Memorandum Opinion and Order, I reiterated that Defendants Khalsa and Parson are entitled to absolute immunity for all claims under the ADA and § 1983, I dismissed Plaintiff’s “false data bank report” claim brought pursuant to the Health Care Quality Improvement Act, and I dismissed Plaintiff’s defamation claim brought pursuant to 42 U.S.C. § 1983. (See Doc. 39 at 9.) I reserved decision on Plaintiff’s remaining claims - those brought against the State of New Mexico pursuant to § 1983 for violations of Plaintiff’s First

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Amendment, equal protection, and procedural due process rights, and the state tort claim for defamation against all three Defendants. (Id. at 8.) Plaintiff moved the Court to reconsider its October 17, 2006 opinion. (Doc. 41 at 6.) In his motion to reconsider, Plaintiff clarified that Count V of his amended complaint was a “stigma plus” defamation claim under § 1983. (Id. at 3-6.) Further, Plaintiff explained that the individual Defendants may not be entitled to absolute immunity for such a claim. (Id. at 6-7.) After I heard the parties’ arguments on this issue and the issues reserved in the previous opinion, I granted Plaintiff’s motion to consider, dismissed the state tort claim for defamation against all three Defendants, and dismissed Plaintiff’s § 1983 claims against the State to the extent Plaintiff was seeking any damages other than prospective injunctive relief. (See Doc. 43 at 4.) After my second opinion on Defendants’ previous motion to dismiss, the claims that remain to be decided are as follows: (1) the claim brought under Title II of the ADA against the State only; (2) the § 1983 claims against the State only for prospective injunctive relief; and (3) the “stigma plus” defamation claim against all three Defendants. (Id. at 3.) Defendants filed a second motion to dismiss for failure to state a claim on March 6, 2007. (Doc. 59.) In their second motion to dismiss since Plaintiff’s amended complaint, Defendants move the Court to dismiss the “stigma plus” defamation claim and the claim under Title II of the ADA. (Id. at 1.) STANDARD OF REVIEW In considering Defendants’ motion to dismiss under FED. R. CIV. P. 12(b)(6), I must assume as true all well-pleaded facts and must draw all reasonable inferences in favor of Plaintiff. See, e. g., Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). I 2

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may not dismiss Plaintiff’s cause of action for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. (internal quotation marks and citation omitted). “‘The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.’” Id. (quoting Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991)). “It is not, however, proper to assume that [Plaintiff] can prove facts that [he] has not alleged or that the defendants have violated the . . . laws in ways [Plaintiff has not] alleged.” Associated Gen. Contractors, Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983)). “[G]ranting a motion to dismiss is ‘a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.’” Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir. 1989) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir. 1986)). ANALYSIS I.

The Court Will Allow Defendants’ Second Motion to Dismiss. As an initial matter, the Court finds that Defendants’ second motion to dismiss should be

considered at this time in the interests of judicial economy. Plaintiff argues that because Defendants failed to raise the issue of absolute quasi-judicial immunity in their first motion to dismiss, they waived that defense pursuant to FED. R. CIV. P. 12(g). (Doc. 64 at 2-5.) Plaintiff is mistaken. “ While Rule 12(g) requires most defenses raised under Rule 12 to be joined in one motion to preserve the ability to raise the defense, . . . Rule 12(g) expressly excludes from its

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waiver provision the defenses listed in Rule 12(h)(2).”1 Lindsey v. United States, 448 F. Supp. 2d 37, 54-55 (D.D.C. 2006) (citing FED. R. CIV. P. 12(g)). “Rule 12(h)(2) provides that ‘[a] defense of failure to state a claim upon which relief can be granted . . . may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings [pursuant to Rule 12(c)], or at trial on the merits.’” Id. at 55 (quoting FED. R. CIV. P. 12(h)(2)). “Read together, Rules 12(g) and 12(h)(2) plainly indicate that a defense of failure to state a sustainable claim is not waived simply by the defendant’s failure to include it in an initial 12(b) motion submitted to the Court.” Id. Absolute quasi-judicial immunity and qualified immunity are affirmative defenses appropriately raised in a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.2 See, e.g., Peterson v. Jensen, 371 F.3d 1199, 1201-02 (10th Cir. 2004) (considering a qualified immunity defense in the context of a Rule 12(b)(6) motion to dismiss). Consequently, Defendants have not waived their right to challenge Plaintiff’s

1

Rule 12(g) reads: A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.

2

Defendants suggest that the Court’s subject matter jurisdiction hinges on the outcome of their claimed immunity defenses. (Doc. 65 at 5.) I disagree. The Tenth Circuit has held that “[I]mmunity, whether qualified or absolute, is an affirmative defense which must be affirmatively pleaded . . . .” Yellen v. Cooper, 828 F.2d 1471, 1476 n.1 (10th Cir. 1987) (internal quotation marks and citations omitted). Moreover, both defenses may be waived if raised for the first time on appeal. See Bentley v. Cleveland County Bd. of County Comm’rs, 41 F.3d 600, 604-05 (10th Cir. 1994). The United States Supreme Court has noted that the treatment of qualified immunity “as a threshold jurisdictional question” would lead to “an odd result . . . .” Jefferson County, Ala. v. Acker, 527 U.S. 423, 447 (1999) (discussing removal cases under 28 U.S.C. § 1443) (citations omitted). Defendants mistakenly cite to several cases involving sovereign immunity, which is often treated as “a jurisdictional limit courts must consider sua sponte.” Nelson v. Geringer, 295 F.3d 1082, 1098 n.16 (10th Cir. 2002) (citation omitted). But sovereign immunity, which “is a constitutional limitation on the federal judicial power[,]” is a much different creature than absolute or qualified immunity. Id. (internal quotation marks and citation omitted). From the cases cited above, it is clear to me that the affirmative defenses of absolute and qualified immunity do not affect this Court’s subject matter jurisdiction.

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complaint on the grounds that they are entitled to either absolute quasi-judicial immunity (on behalf of the State for the Title II claim) or qualified immunity (on behalf of the individual Defendants for the “stigma plus” defamation claim).3 See Lindsey, 448 F. Supp. 2d at 54-55. Thus the issue becomes whether it is appropriate to permit Defendants to file a second 12(b)(6) motion to dismiss, or whether Defendants should be forced to raise their affirmative defenses in a later motion, such as one for judgment on the pleadings or for summary judgment. As the Lindsey court notes, “[t]he weight of authority . . . ‘confirms that Rule 12(g) normally bars successive pre-answer motions to dismiss . . . .’” Id. at 55 (quoting Stoffels ex rel. SBC Concession Plan v. SBC Commc’ns, Inc., 430 F. Supp. 2d 642, 647 (W.D. Tex. 2006)). This bar “‘extends to the three ‘substantial defenses’ listed in 12(h)(2), including failure to state a claim upon which relief can be granted under Rule 12(b)(6) . . . .” Id. (quoting Stoffels, 430 F. Supp. 2d at 647 (citing 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1385; 2 JAMES WM. MOORE, ET AL., MOORE’S FEDERAL PRACTICE § 12.23, at 12-29)).

3

Plaintiff presents two additional arguments to support his assertion that Defendants have waived the defense of absolute quasi-judicial immunity. Neither have merit. First, Plaintiff maintains that because this case has been to the Tenth Circuit, the United States Supreme Court, and back down again, and because no court raised the issue of absolute quasi-judicial immunity sua sponte, that the issue is moot on this latest remand. (Doc. 64 at 2.) In other words, Plaintiff asserts that “since the court of appeals remanded the case . . . , that court must have somehow implicitly found no basis for” absolute quasi-judicial immunity. Prison Legal News, Inc. v. Simmons, 401 F. Supp. 2d 1181, 1188 (D. Kan. 2005). Plaintiff’s “argument is without merit, as evinced by [his] failure to cite any authority for [his] proposition.” Id. Rule 8(c) requires defendants to raise affirmative defenses in an answer, and in all of this case’s long history, Defendants have never filed an answer. FED. R. CIV. P. 8(c). Consequently, Defendants are not precluded from raising the defense of absolute quasi-judicial immunity at this late date. Second, Plaintiff correctly points out that Defendants should have filed an answer within ten days of this Court’s Memorandum Opinion and Order entered on November 17, 2006. (Doc. 64 at 4.) Plaintiff goes on to assert that because Defendants did not answer, they have waived the defense of absolute quasi-judicial immunity. (Id. at 4-5.) Plaintiff does not cite to, nor can the Court find, any authority for such a proposition. Defendants’ failure to answer does not now preclude them from asserting the new defense of absolute quasi-judicial immunity.

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But “‘despite the weight of the authority, allowing consideration of a second 12(b)(6) motion to dismiss is not an entirely uncommon practice.’” Id. (quoting Stoffels, 430 F. Supp. 2d at 648). “[I]n a limited number of cases the district court has exercised its discretion to permit a second preliminary motion to present a Rule 12(b)(6) defense, although it was technically improper to do so.”4 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1385 (quoted in Lindsey, 448 F. Supp. 2d at 55 (citation omitted)). “Courts are most likely to allow defendants to bring a second Rule 12(b)(6) motion in cases where ‘the problem [Rule] 12(g) was designed to prevent – unnecessary delay – [is] not a concern.’” Lindsey, 448 F. Supp. 2d at 55 (quoting Stoffels, 430 F. Supp. 2d at 648 (internal citation omitted)). Courts have also reasoned that because “the objection [of failure to state a claim] is so basic and is not waived,” Strandell v. Jackson County, Ill., 648 F. Supp. 126, 129 (S.D. Ill. 1986), it may be proper to entertain a second motion to dismiss in order to narrow the scope of the issues and/or dispose of the merits of the case, thereby “expediting [the] resolution of the case . . . .” Donnelli v. Peters Sec. Co., Civ. No. 02-691, 2002 WL 2003217, at *4 (N.D. Ill. Aug. 29, 2002) (quoted in Lindsey, 448 F. Supp. 2d at 56). There is no evidence that Defendants intended to cause undue delay by filing their second motion to dismiss, and I believe deciding the merits of the motion will expedite the resolution of this case. While “[a] strict application of Rule 12(g) would result in the denial of Defendant[s’] second 12(b)(6) motion, . . . Rule 12(h)(2) would allow Defendant[s] to raise the defense of

4

See DSMC, Inc. v. Convera Corp., 273 F. Supp. 2d 14, 23 (D.D.C. 2002); Fed. Express Corp. v. U.S. Postal Serv., 40 F. Supp. 2d 943 (D.C. Tenn. 1999); Strandell v. Jackson County, Ill., 648 F. Supp. 126 (D.C. Ill. 1986); Steele v. Stephan, 633 F. Supp. 950 (D.C. Kan. 1986); Thorn v. New York City Dep’t of Social Servs., 523 F. Supp. 1193 (D.C.N.Y. 1981).

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failure to state a claim” in a later motion “or at trial.” Lindsey, 448 F. Supp. 2d at 56 (citation omitted). “ Allowing Defendant[s’] second motion would simply permit consideration now of a defense that would otherwise be raised at a later stage . . .; for that reason, there are no dilatory effects created by considering the defense at this stage.” Id. (citation omitted). II.

Stigma Plus Defamation Claim Defendants allege that the “stigma plus” defamation claim fails as a matter of law, because

Plaintiff cannot demonstrate that the defamation occurred in the course of terminating Plaintiff’s employment. (Doc. 59 at 2-4.) As a result, Defendants claim, Defendants Khalsa and Parsons are entitled to qualified immunity from Plaintiff’s stigma plus defamation claim. (Id.) I agree that the individual Defendants are entitled to qualified immunity for this claim. A.

Qualified Immunity Standard

“‘Under the doctrine of qualified immunity, government officials performing discretionary functions[ ] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Robbins v. Wilkie, 433 F.3d 755, 764 (10th Cir. 2006) (quoting Douglas v. Dobbs, 419 F.3d 1097, 1100 (10th Cir. 2005) (internal quotation omitted)). Defendants have raised a qualified immunity defense for Plaintiff’s “stigma plus” defamation claim, and so “the burden shifts to the plaintiff to show that [Defendants are] not entitled to immunity.” Id. (citing Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)). To meet his burden, “[P]laintiff must first assert a violation of a constitutional or statutory right and then show that the right was clearly established.” Id. (citing Garramone v. Romo, 94 F.3d 1446, 1449 (10th Cir. 1996)). See also Peterson v. Jensen, 371 F.3d 1199, 1202 (10th Cir. 2004). “ A right is ‘clearly established’ if 7

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Supreme Court or Tenth Circuit case law exists on point or if the ‘clearly established weight of authority from other circuits’ found a constitutional violation from similar actions.” Peterson, 371 F.3d at 1202 (quoting Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1251 (10th Cir. 1999)). “ Under this standard, [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 639-40 (1987) (internal citations omitted). “ Once the plaintiff satisfies this initial two-part burden, the burden shifts to the defendant to show that there are no genuine issues of material fact and that defendant is entitled to judgment as a matter of law.” Robbins, 433 F.3d at 764 (citing Axson-Flynn v. Johnson, 356 F.3d 1277, 1299 (10th Cir. 2004)). B.

Analysis 1.

Plaintiff has established the violation of a constitutional right.

When determining whether a defendant is entitled to qualified immunity, the Court’s “first inquiry must be whether a constitutional right would have been violated on the facts alleged . . . .” Saucier v. Katz, 533 U.S.194, 200 (2001). Here, Plaintiff asserts that Defendants Khalsa and Parsons violated his liberty interest by publishing defamatory statements in the October 3, 2001 report to the National Practitioner’s Data Bank in conjunction with the revocation of Plaintiff’s medical license. (Doc. 28 at 13-14; see also Doc. 59 at 3.) See also Renaud v. Wyoming Dep’t of Family Servs., 203 F.3d 723, 726 (10th Cir. 2000). Plaintiff contends that the publication of these defamatory statements, made in the course of the revocation of his license, has foreclosed 8

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future employment opportunities in New Mexico and elsewhere. (Doc. 64 at 13.) Plaintiff relies on the Tenth Circuit decision in Workman v. Jordan, 32 F.3d 475 (10th Cir. 1994). In Workman, the Tenth Circuit held that in order to show a deprivation of a liberty interest, a plaintiff must establish that the statement at issue impugned the plaintiff’s reputation, was false, occurred in the course of terminating plaintiff’s employment or foreclosed other employment opportunities, and was published. Workman, 32 F.3d at 481. Plaintiff asserts that the statements at issue in this case were false and defamatory, were published, and have resulted in the foreclosure of employment opportunities. (Doc. 64 at 13-14.) Defendants argue that the foreclosure of employment opportunities is not enough to demonstrate the violation of a constitutional right – instead, they believe Plaintiff must prove that the statements were published in the course of terminating Plaintiff’s employment. (Doc. 49 at 2-4.) Defendants cite to a footnote in a 2000 Tenth Circuit case in support of their argument. (Doc. 59 at 2-4 (citing Renaud, 203 F.3d at 728 n.1).) As explained in the next section, however, I believe the Renaud footnote is more relevant in a discussion about whether the law in this area was clearly established at the time of the conduct. I am hesitant to extend Renaud in a way that would overturn the holding of Workman. Additionally, when considering the initial Saucier inquiry of whether Plaintiff has established the violation of a constitutional right, the Court must look at the facts alleged “in the light most favorable to the party asserting the injury . . . .” Saucier, 533 U.S. at 201 (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). Accordingly, considering the facts in the light most favorable to Plaintiff, I find that Plaintiff has demonstrated a violation of his liberty

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interest.5 2.

Plaintiff has not demonstrated that the right he asserts was clearly established at the time of the conduct at issue.

Because Plaintiff has demonstrated the violation of a constitutional right, the next question becomes “ whether the right was clearly established . . . .” Saucier, 533 U.S. at 200. “In an action under [§] 1983, individual defendants are entitled to qualified immunity unless it is demonstrated that their alleged conduct violated clearly established constitutional rights of which a reasonable person in their positions would have known.” Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1251 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “‘[T]he right the official is alleged to have violated must have been ‘clearly established’ in a more particularized,

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Although not cited by Plaintiff, there is other Tenth Circuit authority that may support Plaintiff’s position. The Tenth Circuit has noted that “‘[t]he liberty interest that due process protects includes the individual’s freedom to earn a living.’” Setliff v. Mem’l Hosp. of Sheridan County, 850 F.2d 1384, 1396 (10th Cir. 1988) (quoting Lentsch v. Marshall, 741 F.2d 301, 303 (10th Cir. 1984) (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 572 (1972))). There is no doubt that Plaintiff’s freedom to earn a living as a physician in New Mexico is now impossible after the State revoked his medical license. In Setliff, the Tenth Circuit cited several additional cases which support the proposition that a liberty interest may be implicated where a professional’s license is revoked by the state. Id. at 1396-97. For example, the Seventh Circuit has held that where a plaintiff was “not foreclosed from practicing law[,] . . . [and was] still a member in good standing of the Illinois Bar and thus [was] qualified to represent clients[,]” the plaintiff had not established a “stigma plus” defamation claim. Goulding v. Feinglass, 811 F.2d 1099, 1103 (7th Cir. 1987), cert. denied, 482 U.S. 929 (1987) (cited in Setliff, 850 F.2d at 1396). As the Tenth Circuit noted, “‘[a] liberty interest is not implicated merely by a reduction in an individual’s attractiveness to potential employers.’” Setliff, 850 F.2d at 1396 (quoting Goulding, 811 F.2d at 1103 (internal citation and quotation marks omitted)). In this case, Plaintiff has demonstrated more than a mere blemish on his reputation, his medical license has been completely revoked. The Setliff court also noted a case from the Ninth Circuit. Stretten v. Wadsworth Veterans Hosp., 537 F.2d 361, 366 (9th Cir. 1976) (cited in Setliff, 850 F.2d at 1397). In Stretten the plaintiff, who was a physician, was dismissed from his position as a resident in a federally run hospital. Id. at 363. Stretten brought suit against the hospital and others, alleging that the defendants violated his liberty interest in connection with the dismissal. Id. at 363, 365-66. Relying on Roth, the Ninth Circuit clarified that the Supreme Court’s decision in Paul v. Davis did not foreclose Stretten’s liberty interest claim. Id. at 365 (citing Paul, 424 U.S. 693 (1976); Roth, 408 U.S. at 573). The court noted that Stretten’s claim was different from the plaintiff in Paul, because whereas the Paul plaintiff suffered only damage to his reputation, Stretten “suffered a tangible loss in being dismissed from his residency.” Id. (citing Paul, 424 U.S. 693). The Ninth Circuit found no infringement of Stretten’s liberty interest, however, on grounds that are unrelated to the issue in this case. Stretten, 537 F.2d at 366. Here, Plaintiff has also suffered a tangible loss in having his medical license revoked. These cases, together with Workman, are persuasive authority for the conclusion that Plaintiff has established the violation of a constitutional right.

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and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’” Saucier, 533 U.S. at 202 (quoting Anderson, 483 U.S. at 640). Further, “[i]n order for the law to be clearly established, ‘there must be a Supreme Court or other Tenth Circuit decision on point, or the clearly established weight of authority from other circuits must have found the law to be as the plaintiff maintains.’” Murrell, 186 F.3d at 1251 (quoting Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)). Defendants argue they are entitled to qualified immunity, because the clearly established law in the Tenth Circuit requires plaintiffs to establish that the defamation alleged in a “stigma plus” claim occurred in the course of termination of employment. (Doc. 59 at 2-4.) The Tenth Circuit has established a four-part test “that a plaintiff must satisfy to demonstrate a deprivation of liberty . . . .” Renaud, 203 F.3d at 727 (citing Workman, 32 F.3d at 481). First, to be actionable, the statements must impugn the good name, reputation, honor, or integrity of the employee. Second, the statements must be false. Third, the statements must occur in the course of terminating the employee or must foreclose other employment opportunities. And fourth, the statements must be published. Workman, 32 F.3d at 481 (citations omitted) (quoted in Renaud, 203 F.3d at 727). Defendants argue that Plaintiff cannot satisfy the third element of the Workman test. (See Doc. 65 at 6-7.) Because Plaintiff “had no employment relationship with the State of New Mexico, Mr. Khalsa, or Dr. Parsons[,]” Defendants argue that the revocation of Plaintiff’s medical license was not equivalent to a termination of Plaintiff’s employment. (Doc. 65 at 7.) Plaintiff does not dispute this fact. Defendants maintain that the relevant Tenth Circuit law “‘clearly requires that the defamation occur in the course of terminating the plaintiff’s employment.’” (Doc. 59 at 3 (citing 11

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Renaud, 203 F.3d at 728 n.1).) Plaintiff emphasizes the disjunctive nature of Workman’s third element: “the statements must occur in the course of terminating the employee or must foreclose other employment opportunities.” Workman, 32 F.3d at 481 (citations omitted) (emphasis added). (See also Doc. 64 at 12-13.) Plaintiff argues that the third part of the Workman test is satisfied, because the defamatory statements Defendants made during the revocation proceedings have foreclosed any opportunities for Plaintiff to work as a physician. (Doc. 64 at 13.) Consequently, Plaintiff maintains that he has satisfied the four-part Workman test. The third prong of the Workman test is disjunctive on its face: the plaintiff must demonstrate that the defamation occurred in the course of the termination of plaintiff’s employment OR the defamation foreclosed other employment opportunities. Workman 32 F.3d at 481 (citations omitted). There is case law, however, which demonstrates this prong may not be disjunctive. The cases discussed below tend to show that a “stigma plus” defamation claim must arise out of the termination of a public employee. The “stigma plus” defamation claim originated in the case of Paul v. Davis. 424 U.S. 693 (1976). In Paul, the plaintiff’s photograph was included by local police chiefs in a “flyer” of “active shoplifters,” after petitioner had been arrested for shoplifting. The shoplifting charge was eventually dismissed, and the plaintiff filed suit under 42 U.S.C. § 1983 against the police chiefs, alleging that the officials’ actions inflicted a stigma to his reputation that would seriously impair his future employment opportunities, and thus deprived him under color of state law of liberty interests protected by the Fourteenth Amendment. Siegert v. Gilley, 500 U.S. 226, 233 (1991) (citing Paul, 424 U.S. 693). In rejecting the plaintiff’s claim, the Court relied on its decision in Bd. of Regents of State Colls. v. Roth, 408 12

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U.S. 564 (1972), noting that “it was not thought sufficient to establish a claim under [§] 1983 and the Fourteenth Amendment that there simply be defamation by a state official; the defamation had to occur in the course of the termination of employment.” Paul, 424 U.S. at 710. The Supreme Court reiterated this termination requirement in Siegert, 500 U.S. 226. In Siegert, the plaintiff resigned from his position with a federal hospital (St. Elizabeths) after learning that the hospital officials were “preparing to terminate his employment.” Siegert, 500 U.S. at 227-28. The plaintiff was later given limited duties at and ultimately terminated from a second job, allegedly because of negative reports his former supervisor at St. Elizabeths shared with the second employer. Id. at 228-29. Siegert sued his former supervisor from St. Elizabeths, alleging that his loss of employment and inability to find comparable work because of the negative reports constituted a deprivation of his liberty interest. Id. at 232. The Court held that the facts alleged were insufficient to state the deprivation of a liberty interest, in part because Siegert had not been terminated from St. Elizabeths – he had resigned. Id. at 233-35. Because Siegert had failed to even establish the violation of a constitutional right, the defendant was entitled to qualified immunity. Id. at 233. The Tenth Circuit has also emphasized the importance of establishing termination from government employment in a “stigma plus” defamation claim. “[T]he genesis of the liberty interest claim is action taken by a public employer against a public employee.” Melton v. City of Oklahoma City, 928 F.2d 920, 930 (10th Cir. 1991). Citing to Paul, the Melton court went on to state, “stigmatization without a punitive action against a public employee will not violate a protected liberty interest.” Id. (citing Paul, 424 U.S. at 710). The Tenth Circuit was more adamant about a termination requirement in a footnote to a more recent case. In Renaud, the 13

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Tenth Circuit explained that Workman’s third prong is not disjunctive: Under the test formulated in Workman, 32 F.3d at 481, the defamatory statements “ must occur in the course of terminating the employee or must foreclose other employment opportunities ” (emphasis added). At first blush, it appears that this prong of the test can be met either by statements made in the course of terminating an employee or, in the alternative, by any other statements that might foreclose other employment opportunities. Workman, which was decided on other grounds, did not examine this question. In delineating this prong of the test, Workman cited Paul, 424 U.S. at 710, 96 S. Ct. 1155, and Sullivan v. Stark, 808 F.2d 737, 739 (10th Cir.1987). As explained in the foregoing analysis, Paul clearly requires that the defamation occur in the course of the termination of employment. Sullivan did not abrogate or minimize this requirement. While the language of Workman may be susceptible to another reading, we conclude that the Workman court did not intend to create a test under which a liberty interest might be infringed by any defamatory statement that might foreclose future employment opportunities. Renaud, 203 F.3d at 728 n.1. Plaintiff argues unconvincingly that the Tenth Circuit’s decision in Renaud “does not stand for the proposition the Defendants assert.” (Doc. 64 at 12.) Plaintiff also relies heavily on case law from other circuits to support his position. (Id. at 10-11.) Plaintiff’s arguments are unavailing.6 For example, Plaintiff relies on Ersek v. Township of Springfield, 102 F.3d 79, 83-84

6

Plaintiff also argues that Defendants knowingly violated “clearly established” New Mexico state statutes and the Health Care Quality Improvement Act. (Doc. 64 at 6-8.) It appears Plaintiff believes that any alleged violations of these extraneous statutes support his argument that the law related to his “stigma plus” defamation claim was clearly established. Plaintiff is mistaken. These statutes are irrelevant to what a “reasonable official would understand” about conduct that violates the right at issue in a “stigma plus” claim. See Saucier, 533 U.S. at 202 (internal quotation marks and citation omitted). As such, the Court will not consider Plaintiff’s arguments on the inapplicable statutes. Furthermore, Plaintiff argued in his brief and at the motion hearing that the Board’s failure to “designate three licensed health care providers to be members of [the] examining committee” voided all of the actions taken by the committee. (Doc. 64 at 8 (quoting NMSA 1978 § 61-7-4 (1995)); see also Doc. 76.) Plaintiff has cited no authority that directly supports this theory. Plaintiff does rely on Lopez v. New Mexico Bd. of Med. Examiners, 754 P.2d 522 (N.M. 1988) to substantiate his claim. Lopez is distinguishable for at least two reasons. First, the statute at issue in Lopez was NMSA 1978 § 61-1-13, which has nothing to do with the licensing requirement of board members. Lopez, 754 P.2d at 522. Second, the plaintiff in Lopez properly brought his claim regarding the state statute in state court. Id. Here, Plaintiff has never raised the licensing issue prior to his response to this motion to dismiss. And to my knowledge, Plaintiff failed to raise this issue in the state court proceedings several years ago. The licensing issue is completely unrelated to Plaintiff’s current federal claims and is not properly

14

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(3d. Cir. 1996). The Ersek court, however, specifically noted that “it is not clear whether” plaintiffs must establish “termination or discharge” in a “stigma plus” defamation claim. Ersek, 102 F.3d at 83 n.5. The court did not have to decide that question in Ersek, though, because it was not at issue. Id. And, in fact, the Ersek court upheld the lower court’s grant of qualified immunity to the defendants. Id. at 85. Plaintiff also cites to a Seventh Circuit case and a New York state case, but fails to mention that the plaintiffs in both cases had been terminated by their government employers. (Doc. 64 at 11 (citing Olivieri v. Rodriguez, 122 F.3d 406 (7th Cir. 1997); In re Swinton, 720 N.E.2d 89 (N.Y. Ct. App. 1999)).) While there does not have to be a case directly on point to show that the law was clearly established, Plaintiff must show “‘that in light of pre-existing law the unlawfulness [was] apparent.’” Murrell, 186 F.3d at 1251 (quoting Woodward v. City of Worland, 977 F.2d 1392, 1398 (internal citation omitted)). Here, there are cases which seem to suggest that the foreclosure of future employment opportunities is sufficient to meet the third prong of the “stigma plus” test. See, e.g., Setliff, 850 F.2d at 1396-97. On the other hand, the Tenth Circuit’s Renaud decision was the law on point immediately prior to the conduct at issue.7 See 203 F.3d 723. In Renaud, the Tenth Circuit very clearly stated plaintiffs are required to show that defamatory statements were made in the course of terminating employment for purposes of “stigma plus”

cognizable by this Court. To the extent Plaintiff now moves for permission to amend his complaint yet again to add such a claim, his motion is denied. Additionally, during the motion hearing on this matter, it appeared that Plaintiff may have also moved for reconsideration of the Court’s prior decision that the individual defendants enjoy absolute immunity for certain claims. Plaintiff believes this decision should be reconsidered in light of his argument that the board was without jurisdiction to revoke Plaintiff’s medical license. I do not agree with Plaintiff for the reasons discussed in this footnote, and to the extent Plaintiff did so move for reconsideration, that motion is denied. 7

The allegedly defamatory report at issue here was published on October 3, 2001, and the Renaud decision was issued on February 8, 2000. (See Doc. 59 at 3.)

15

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claims. Id. at 728 n.1. Regardless of whether Workman’s third prong is disjunctive or not, the foregoing cases demonstrate that “‘[t]he contours of the right [are not] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’” Saucier, 533 U.S. at 202 (quoting Anderson, 483 U.S. at 640). Plaintiff has failed to show that the law in this area is clearly established. Defendants could not have known that their conduct was unlawful in the factual situation alleged. See id. Consequently, Defendants are entitled to qualified immunity for purposes of the “stigma plus” defamation claim. Furthermore, Plaintiff cannot maintain this § 1983 “stigma plus” claim against the State of New Mexico, because the State is not a “person” under § 1983.8 See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Defendants’ motion to dismiss is granted with respect to this issue. III.

ADA Claim Defendants argue that Plaintiff’s Title II claim fails as a matter of law, because the State is

protected by absolute quasi-judicial immunity. (Doc. 59 at 4-12.) Plaintiff argues that the State is not entitled to the defense. (Doc. 64 at 17-23.) Because I do not feel it is appropriate to extend the defense of absolute quasi-judicial immunity to the State for purposes of this ADA claim, I will deny Defendants’ motion on this issue. Defendants cite several cases to support their position, but the cases are all distinguishable. (Doc. 59 at 4-12.) For example, Defendants rely on a 1966 Washington case,

8

Defendants now claim that because the individual defendants are entitled to qualified immunity for the “stigma plus” claim, the State of New Mexico is not liable for prospective injunctive relief under § 1983. (See Doc. 65 at 2-3.) The parties did not brief this issue, and I decline to rule on it now. Consequently, the issue of whether the State is liable for prospective injunctive relief under Plaintiff’s § 1983 claims remains to be decided.

16

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Creelman v. Svenning, 410 P.2d 606 (Wash. 1966). In Creelman, the court held that where a county prosecutor enjoys quasi-judicial immunity from a malicious prosecution suit, public policy dictates that the state and county are entitled to the same type of immunity. Creelman, 410 P.2d at 607-08. The Creelman decision is not helpful here both because it lacked any significant analysis, and because it did not deal with the ADA. See id. Defendants also rely on a 2000 case from the District of Colorado, Villescas v. Richardson, 124 F. Supp. 2d 647 (D. Colo. 2000), rev’d on other grounds, Villescas v. Abraham, 311 F.3d 1253 (10th Cir. 2002). The Villescas court held that where an Assistant United States Attorney enjoys quasi-judicial immunity from suit under Title VII, the ADEA, and the Privacy Act, the Department of Justice, as the agent of the attorney, “is also entitled to absolute immunity.” Villescas, 124 F. Supp. 2d at 655-56. Again, however, the court failed to provide any significant legal analysis for its conclusion, nor does the case concern Title II of the ADA. See id. In fact Defendants cite to no case, nor can the Court find a case, that extends the defense of absolute quasi-judicial immunity to the State in the context of a Title II claim. The Court declines to extend the defense in such a manner without any precedent on point, from the Tenth Circuit or elsewhere. Accordingly, Defendants’ motion will be denied on this issue. IV.

Conclusion Defendants’ motion is granted in part in that I find Plaintiff has failed to demonstrate that

the law was clearly established with respect to his “stigma plus” claim. Consequently, Defendants Khalsa and Parsons are entitled to qualified immunity for purposes of Plaintiff’s “stigma plus” claim. Because the parties did not brief the issue of whether the State is liable for prospective injunctive relief under Plaintiff’s § 1983 claims, that issue is reserved for another day. 17

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Defendants’ motion is denied in part in that the State is not entitled to quasi-judicial immunity for purposes of the ADA claim.9 WHEREFORE, IT IS ORDERED THAT Defendants’ motion to dismiss (Doc. 59) is GRANTED IN PART: Defendants Khalsa and Parson are entitled to qualified immunity for the “stigma plus” claim. IT IS FURTHER ORDERED THAT the Defendants’ motion to dismiss is also DENIED IN PART: the State of New Mexico is not entitled to quasi-judicial immunity for purposes of the ADA claim. IT IS SO ORDERED.

______________________________________ LESLIE C. SMITH UNITED STATES MAGISTRATE JUDGE

9

At the motion hearing on this matter, the Court asked the parties if they were now ready to brief the issue for which the Tenth Circuit remanded this case in April, 2006. See Guttman v. Khalsa, 446 F.3d 1027, 1036 (10th Cir. 2006). Defendants informed the Court that they do not desire to go down that path at this time. Plaintiff believes that the issues in the Tenth Circuit’s opinion have already been decided.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO STUART T. GUTTMAN, M.D., Plaintiff, v.

CV 03-0463 LCS/KBM

G.T.S. KHALSA, LIVINGSTON PARSONS, and THE STATE OF NEW MEXICO, Defendants. MEMORANDUM OPINION AND ORDER THIS MATTER came before the Court for oral argument on the remaining portions of Defendants’ Motion to Dismiss (Doc. 29) and on Plaintiff’s Motion for Reconsideration. (Doc. 41.) Pursuant to 28 U.S.C. § 636(c) and Federal Rules of Civil Procedure 73(b), the parties consented to have me serve as the presiding judge and enter final judgment. (See Docs. 2, 7.) After having meticulously considered the motions, briefs, oral arguments, and applicable law, the remaining portions of Defendants’ motion will be GRANTED IN PART and DENIED IN PART, and Plaintiff’s motion to reconsider will be GRANTED. I.

REMAINING ISSUES FROM MOTION TO DISMISS1

In the first Memorandum Opinion and Order entered on Defendants’ motion to dismiss, I deferred decision on two issues until after oral argument: (1) whether Plaintiff could bring claims against the State pursuant to 42 U.S.C. § 1983 for violations of his First Amendment, equal protection, and procedural due process rights; and (2) whether Plaintiff could bring claims against any of the Defendants for the state tort of defamation. (Doc. 39 at 8-9.) At the motion hearing, Plaintiff conceded that the only relief available from the State on

1

A procedural background of this case and the standard for Defendants’ motion to dismiss is in the Memorandum Opinion and Order filed on October 17, 2006. (Doc. 39 at 1-4.)

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the § 1983 claims is prospective injunctive relief. Therefore, to the extent Plaintiff was seeking any other damages on the § 1983 claims, Defendants’ motion to dismiss will be granted. Plaintiff also conceded that the tort claim is foreclosed by the New Mexico Tort Claims Act. Defendants’ motion will be granted with respect to the state tort claim for defamation. II.

MOTION TO RECONSIDER

While the federal rules do not formally provide for motions to reconsider, parties may seek relief from a judgment pursuant to FED. R. CIV. P. 59 in three situations: to (1) review a decision in light of a recent change in controlling law; (2) review newly discovered evidence; or (3) “correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citation omitted). This Court has discretion in deciding whether to grant or deny a motion to reconsider. See Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988). A motion to reconsider may not be used to reexamine issues that have already been addressed or to advance “new arguments or supporting facts which were otherwise available for presentation when the original . . . motion was briefed . . . .” Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991) (internal quotation marks and citation omitted). Here, Plaintiff argues that the Court incorrectly decided to dismiss Count V, the “defamation and false data bank report” claim. (See Docs. 1 at 13-14; 41 at 1-2.) Plaintiff argues that Count V is a “stigma plus” claim, which alleges “a sufficient liberty interest under § 1983 to include the publication of the false data bank report within [Plaintiff’s] constitutional claims.” (Doc. 41 at 4.) Plaintiff also contends that the individual Defendants are not entitled to either absolute or qualified immunity for the stigma plus claim. (Id. at 6-7.) Defendants counter that Plaintiff has not demonstrated that the law in this area was clearly established at the time of the 2

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alleged defamation. (Doc. 42 at 13.) After reviewing the arguments of the parties, I find that it is appropriate to grant Plaintiff’s motion for reconsideration of Count V. Normally, in a motion to dismiss filed by defendants who raise the defense of qualified immunity, it becomes the plaintiff’s burden to “identify a clearly established statutory or constitutional right of which a reasonable person would have known, and then allege facts to show that the defendant’s conduct violated that right.” Lybrook v. Members of Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1337 (10th Cir. 2000) (internal quotation marks and citation omitted). I am unable to determine whether Plaintiff has pled a clearly established right, however, because Plaintiff did not identify in the complaint when the false data bank report was published. (See Doc. 28.) It is essential that the Court know when the report was published to identify what law was clearly established at that time. Consequently, Plaintiff’s motion is granted: the grant of Defendants’ motion to dismiss as to Count V will be vacated, and this issue will remain.2 III.

CONCLUSION

After this opinion, the claims that remain are as follows: (1) the claim brought under Title II of the ADA against the State only; (2) the § 1983 claims against the State only for prospective injunctive relief; and (3) the “stigma plus” claim against all three Defendants. At this stage, Defendants Khalsa and Parsons are entitled to absolute immunity for every claim except the stigma plus claim. Plaintiff’s state tort claim for defamation is dismissed with respect to all three Defendants. The parties are free to begin discovery.

2

I would like to gently remind Plaintiff that this issue should have been addressed before there was a need for a motion to reconsider. Plaintiff had at least two opportunities to state this claim clearly, both in his first amended complaint and in his response to Defendants’ motion to dismiss.

3

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WHEREFORE, IT IS ORDERED that the remainder of Defendants’ Motion to Dismiss (Doc. 29) is GRANTED IN PART and DENIED IN PART: Plaintiff may continue to seek prospective injunctive relief against the State with respect to his § 1983 claims for violations of his First Amendment, equal protection, and procedural due process rights; and Plaintiff’s state tort claim for defamation is dismissed with respect to all Defendants. IT IS FURTHER ORDERED that Plaintiff’s Motion for Reconsideration (Doc. 41) is GRANTED: the grant of Defendants’ motion to dismiss as to Count V (“ Defamation and False Data Bank Report”) is VACATED (see Doc. 39), Defendants’ motion to dismiss will be DENIED with respect to Count V, and this claim will remain. IT IS SO ORDERED.

______________________________________ LESLIE C. SMITH UNITED STATES MAGISTRATE JUDGE

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

STUART T. GUTTMAN, M.D. Plaintiff, vs.

No. CIV 03-463 LCS

G.T.S. KHALSA, LIVINGSTON PARSONS, AND THE STATE OF NEW MEXICO Defendants.

MEMORANDUM OPINION AND ORDER 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 Plaintiff’s history of mental illness involving depression and post traumatic stress disorder (“PTSD”). (Id.) The stipulations on Plaintiff’s license were lifted by the Board on or about May 19, 1995. (Compl. ¶ 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,

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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 Plaintiff’s 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 Plaintiff’s 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 Plaintiff’s 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 Plaintiff’s employers had been ineffective in changing Plaintiff’s 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 30, 2003, the State Court issued an Order affirming the Board’s revocation of Plaintiff’s license. The court found that the Board’s decision was based on substantial evidence, 2

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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, Plaintiff’s ADA claims were not considered by the court. (Def. Ex. F). Plaintiff’s 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 (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 3

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‘genuine issue for trial.” Matsushita Electric indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968)). The movant’s initial burden may be discharged by showing there is an absence of evidence to support the non-moving party’s case. See Celotex v. Catrett, 477 U.S. 317, 323 (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 Plaintiff’s 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 Plaintiff’s claims under the Rooker-Feldman Doctrine.1 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

1

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust, 263 U.S. 413, 416 (1923).

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(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 Kenman, 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, Feldman v. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86 (1983). and 2) the 5

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prior state-court judgment did not actually decide that the state law at issue was facially constitutional. Kenman at 476. (quoting Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (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 (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 injunctive relief and damages under the ADA which requires a review of the state court decision. It is clear that Plaintiff’s injury resulted from the state-court judgment, that his complaint in this Court seeks to upset that judgment and that the resolution of Plaintiff’s federal claims necessarily requires consideration of the underlying state-court decision. Kenman, 314 F.3d at 476. Because Plaintiff’s claims fall directly within the parameters of Rooker-Feldman. 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. Plaintiff’s 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 Plaintiff’s 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 6

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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). Plaintiff’s reliance on this authority is misplaced. In Elephant Butte, the acts of state 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. Plaintiff’s 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 (1993). Plaintiff’s 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. 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. 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. 7

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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. Horowitz 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 (1982). 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. Kenman, 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 8

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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. Plaintiff’s 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 Plaintiff’s 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 (1978). Regarding Plaintiff’s 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 (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. 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. 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. 9

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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 (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 Plaintiff’s claims must therefore fail.2

2

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.

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IV.

Conclusion

Upon review of the evidence presented on this Motion for Summary Judgment, this Court has determined that this it lacks jurisdiction to hear Plaintiff’s claims under Rooker-Feldman. Furthermore, all named Defendants are entitled to absolute immunity as to Plaintiff’s 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.

_____________________________________ LESLIE C. SMITH UNITED STATES MAGISTRATE JUDGE

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