Beck v. Texas State Board of Dental ExaminersBeck v. Texas State Board of Dental Examiners
Peter B. Plotts, III (argued), Office of Attorney General for State of Texas, Austin, TX, for Defendants-Appellees.
Before WIENER and STEWART, Circuit Judges.*
CARL E. STEWART, Circuit Judge:
This case involves a suit filed by a dental practitioner in the state of Texas against a state regulatory board and its members and staff. The plaintiff claims that the defendants imprоperly initiated disciplinary proceedings against him and revoked his dentistry license in an effort to retaliate against him from joining in a previous lawsuit filed by a group of dentists against the defendants. For the reasons stated below; we find that the board and its members are immune from liability under absolute immunity, and the board investigator Michael Pitcock is immune from liability under qualified immunity.
Factual And Procedural History
Robert Lee Beck (“Beck”) has been a dental practitioner in Texas since 1967. In 1980, Beck joined with other dentists in a
In July 1986, Michael Pitcock (“Pitcock”) and Wayne Youngblood (“Youngblood”), both staff members and investigators for the Board, accompanied Frank Perez, a Department of Public Safety (“DPS”) agent, on an inspection of Beck’s dental office. Pitcock stated in his deposition that information was forwarded to him alleging that Beck had ordered unusually high volumes of controlled substances. During the inspection, Beck was asked to produce documentation regarding his orders and prescriptions for controlled substances. The inspection revealed, inter alia, an unaccounted for shortage of certain controlled substances. The officers also discovered that Beck had self-prescribed drugs. Bеck also failed to make available the necessary records for inspection. Based on these findings, a formal complaint was filed to revoke Beck’s license.1
In 1987, the Board held a hearing to determine whether Beck’s license should be revoked. Beck failed to attend the hearing. A plea of “untrue” was entered on Beck’s behalf, and the Board conducted the hearing. After the presentation of evidence, the Board members unanimously voted to revoke Beck’s license.
After the Board’s final order to revoke Beck’s license was issued, Beck filed an action in state district court to contest the Board’s ruling. While Beck’s challenge to the Board’s order was pending before state district court, the Board and Beck entered into an Agreed Judgment in April 1992. The Board agreed to conditionally reinstate Beck’s license if he agreed to satisfy certain conditions. Beck satisfied the conditions and his license was reinstated.
Beck maintains that in 1992, Youngblood testified at a Sunset Committee that the Board targeted certain dentists for selective prosecutiоn because of their participation in the lawsuit challenging the Board’s regulations against advertising. Based on this information, Beck claims that the investigation of his dental practice and the disciplinary proceedings which led to the revocation of his license were based on improper retaliatory motivations.
In April 1994, Beck sued the Board, its members, and staff personnel (the “defendants”) in their individual and official capacities in federal district court claiming violations of
Standard of Review
We review de novo, a district court’s grant of summary judgment, applying the same standard as the district court in thе first instance. See Burge v. Parish of St. Tammany, 187 F.3d 452, 465 (5th Cir. 1999). Summary judgment is appropriate where the moving party establishes that “there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.”
Once the moving party has carried its summary judgment burden, the opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its рleadings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Thus, this showing requires more than some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co v. Zenith Radio Corp., 475 U.S. 574, 584-86 (1986).
Discussion
Beck argues that the district court erred when it granted summary judgment to the Board members and the Board’s staff member, Pitcock. Specifically, Beck argues that the Board members are not entitled to absolute immunity because the Board members failed to demonstrate that they performed a quasi-judicial function when they initiated disciplinary proceedings to revoke his license. Beck also contends that Pitcock in his role as an investigator is not entitlеd to absolute immunity.
I. Board members
Beck argues that the record is insufficient to support the Board members’ claim that they performed a “quasi-judicial” function regarding the disciplinary proceedings conducted against him. Specifically, Beck claims that the defendants failed to articulate facts sufficient to demonstrate they performed “quasi-judicial” functions under the factors set forth in Butz v. Economou, 438 U.S. 478 (1978). Beck additionally argues that the district court improperly invoked our decision in O’Neal v. Mississippi Board of Nursing, 113 F.3d 62 (5th Cir. 1997) (holding that state nursing regulatory board and its members were entitled to absolute immunity for perfоrming quasi-judicial functions). The defendants, on the other hand, maintain that absolute immunity is applicable because the Board performed quasi-judicial functions. In the alternative, the defendants assert that qualified immunity is applicable because the actions taken against Beck did not violate a clearly established constitutional right, and were not objectively unreasonable.
Before we discuss the merits of the absolute immunity issue, we find at the outset that Beck erroneously characterizes the burden of proof for summary judgment. Beck argues that the burden rests on the defendants to articulate facts to support their claim of immunity. Our well established summary judgment jurisprudence clearly shows otherwise. The moving party is not required to put forth evidence to meet its summary judgment burden for a claim of immunity. It is sufficient that the movant in good faith pleads that it is entitled to absolute or qualified immunity. See Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992). “Once the [movant] asserts this affirmative
As to the merits of the immunity issue, in a
Additionally, the Supreme Court has recognized that executive branch officials, when participating in a federal administrative agency’s adjudicative process, are entitled to absolute immunity because they perform functions comparable to those of judges and prosecutors. See Butz, 438 U.S. at 512-13. Under Butz’s “functional approach,” the Court looks at the nature of the function performed, not the identity or title of the actor who performed it. See Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993); see also Mays v. Sudderth, 97 F.3d 107, 110 (5th Cir. 1996). Thus, if a claim arises from a government or state agency performing “quasi-judicial” functions, the agency would be entitled to absolute immunity. In Butz, the Court identified a nonexhaustive list of factors to determine whether an agency and its members performed “quasi-judicial” functions, and thus are entitled to absolute immunity:
- the need to assure that the individual can perform his functions without harassment or intimidation;
- the presence of safeguards that reduce the need for private damages actions as a meаns of controlling unconstitutional conduct;
- insulation from political influence;
- the importance of precedent;
- the adversary nature of the process; and
- the correctability of error on appeal.
Butz, 438 U.S. at 512. No one factor is controlling.
In O’Neal, we applied the Butz factors and held that the members of a state nursing board were entitled to absolute immunity because the board and its members performed quasi-judicial functions. See Id. at 67. Beck essentially argues that the instant case is distinguishable from
Beck nonetheless asserts that adequate safeguards were lacking because several members of the Board stated in their depositions that they were unaware that Pitcock, Youngblood, and the DPS officer inspected Beck’s dental office prior to the disciplinary proceedings. Furthermore, Beck asserts that he did not receive adequate notice of the disciplinary hearing, that he was not present at the hearing,4 that he did not have an opportunity to confront and cross-examine witnesses, that he had no attorney present, and that he did not have the opportunity to call witnesses. Nonetheless, the Board members are entitled to absolute immunity “from liability for [their] judicial acts even if [their] exercise of authority is flawed by the commission of grave procedural error.” Stump v. Sparkman, 435 U.S. 349, 359 (1978).5 Thus,
Additionally, the summary judgment evidence reveals that other Butz factors weigh in the Board members’ favor. First, because the Board members were statutorily empowered to revoke, suspend and deny licenses, “it is important that [B]oard members [were able to] make these decisions free from the threat of incurring personal liаbility for every decision they hand[ed] down.” O’Neal, 113 F.3d at 66. Second, as to isolation of political influence, the Board members were appointed by the Governor to six-year staggered terms, with the terms of one-third of the Board members expiring every two-years. See
Fourth, the disciplinary proceedings were adversarial in nature. The dentist was able to be represented by counsel,
Finally, as stated above, the Board’s final order was appealable to a state district court.
II. Michael Pitcock
A. Absolute Immunity
Beck argues that Pitcock, an investigator for the Board, is not entitled to absolute immunity.6 Specifically, Beck maintains that Pitcock, a non-appointed staff member, functioned as an investigator rather than an adjudicator. To support this contention, Beck emphasizes that Pitcock had no authority to adjudicate, no authority to prosecute or decide which cases were prosecuted, and no authority to present evidence. The court apparently rejected Beck’s claim and granted summary judgment in favor of Pitcock based on absolute immunity.7
After a careful de novo review of the record, we find that the district court erred when it granted summary judgment to Pitcock based on absolute immunity. The record reveals that Pitcock performed investigative, not adjudicative nor prosecutorial functions. During the investigation and prosecution of Beck’s case before the Board, Pitcock was an assistant director
This circuit has not squarely addressed whether an investigator for a state professional regulatory board is entitled to absolute immunity under Butz and O’Neal. By analogy, although a prosecutor is absolutely immune when she acts in her role as an advocate for the state by initiating and pursuing prosecution, see Burns v. Reed, 500 U.S. 478, 491 (1991), or when her conduct is “intimately associated with the judicial phase of the criminal process,” id. at 492, she does not enjoy absolute immunity for her acts of investigation or administration. See Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). In the instant case, Pitcock neither initiated nor pursued prosecution of the complaint against Beck. Thus, Pitcock’s investigative activities are not covered under absolute immunity.
The defendаnts nonetheless argue that Pitcock enjoys absolute immunity because he was a staff member of the Board, and thus the umbrella of absolute immunity that covers the Board and the appointed members covers him as well. To support this claim, the defendants cite Bettencourt v. Board of Registration of the Commonwealth of Massachusetts, 904 F.2d 772 (1st Cir. 1990). In that case, the plaintiff sued a state medical board and three staff members for alleged constitutional violations regarding the revocation of his medical license. The three staff members rendered legal advice to the board, assisted in the writing of the final order, and met with board members to determine the appropriate sanctions and punishment. Id. at 785. The First Circuit observed that these functions relate to the heart of the adjudicatory process, and thus the staff members were entitled to quasi-judicial immunity. Id. Our reading of Bettencourt indicates that the board’s immunity did not ipso jure extend to the staff members but rather, the court conducted a factual examination of the staff members’ functions and determined that they were entitled to quasi-judicial immunity. Thus, the staff members’ quasi-judicial immunity existed independent of the board members’ immunity.
In the instant сase, Pitcock’s role as an investigator was not at the heart of the adjudicative process. Pitcock states in his deposition that he played no role in deciding whether to commence disciplinary proceedings against Beck. He did not help draft the final order, nor did he advise the Board as to the appropriate sanction. As established above, Pitcock’s own words best describe his role when he stated, “we just investigate the facts and let the Board secretary make the decision.” Therefore, under these circumstances, the district court erred when it invoked O’Neal and granted summary judgment to Pitcock because he did not perform either an adjudi
B. Qualified Immunity
The defendants in the alternative argue that Pitcock is entitled to qualified immunity. Specifically, the defendants contend that Pitcock and the DPS’s search of Beck’s dental office was a valid administrative search.
Government officials performing discretionary functions are protected from civil liability under the doctrine of qualified immunity if their cоnduct violates no “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Sorenson v. Ferrie, 134 F.3d 325, 327 (5th Cir. 1998). Claims of qualified immunity are reviewed under a two-step analysis. The first question is whether the plaintiff has asserted the violation of a clearly established constitutional right. If so, the court decides whether the defendant’s conduct was objectively reasonable. Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).
The summary judgment evidence reveals that Pitcock’s inspection of Beck’s office did not violate clearly established constitutional or statutory rights. Warrantless searches are presumptively invalid. Horton v. California, 496 U.S. 128, 133 (1990). However, administrative or regulatory searches are exceptions to the warrant requirement. New York v. Burger, 482 U.S. 691, 702-03 (1987). Such warrantless searches are constitutional only (1) if there is a substantial governmental interest that informs the regulatory scheme pursuant to which the inspection is made, (2) if warrantless inspections are necessary to further the regulatory scheme, and (3) if the inspection program provides a constitutionally adequate substitute for a warrant, in terms of certainty and regularity of its application. Id.
In the instant case, the regulation and monitoring of the use of controlled substances, particularly in the dentistry industry, is a substantial state interest. Furthermore, the inspection was conducted pursuant to two then coexisting regulatory schemes. Under the Texas Administrative Code, records and documents in dental offices were subject to on-site inspections.
Beck nonetheless argues that the search was not conducted рursuant to a regulatory scheme, but rather the search was conducted for purposes of uncovering criminal activity. To support his claim, he points out that during the inspection Pitcock was accompanied by a law enforcement officer from the controlled substance division of the DPS. Furthermore, Pitcock stated in his deposition that he suspected Beck of criminal activity regarding the improper use of controlled substances. Pitcock stated that he was concerned that Beck was ordering unusually high volumes of con
Nonetheless, the Supreme Court rejected a similar argument in United States v. Villamonte-Marquez when the Court upheld an administrative search of a vessel for marijuana even though U.S. Customs agents were accompanied by state law enforcement officers, and were following an informant’s tip that the ship was carrying contraband. See 462 U.S. 579, 584 (1983) (discussing Scott v. United States, 436 U.S. 128, 135-139 (1978)). Furthermore, we observed that “[a]dministrative searches conducted pursuant to valid statutory schemes do not violate the Constitution simply because of the existence of a specific suspicion of wrongdoing.” United States v. Thomas, 973 F.2d 1152, 1155 (5th Cir. 1992). Thus, Pitcock’s suspicions of Beck did not render the administrative search unreasonable.
Finally, the inspection programs provided an adequate substitute for a warrant. Although the present version of
Thus, under these circumstances, Beck does not show a violation of a clearly established constitutional right. Having failed to do so, we hold that Pitcock was entitled to qualified immunity.
Conclusion
We AFFIRM the district court’s granted of summary judgment in favor of the Board members based on absolute immunity, and AFFIRM summary judgment in favor of Michael Pitcock, albeit based on qualified rather than absolute immunity. Accordingly, the district court’s denial of Beck’s post-judgment motions are AFFIRMED.