OPINION AND ORDER
Pending before the Court are Plaintiffs Dr. Efrain González-Droz (“González-Droz”), Yessenia Candelaria, and the Conjugal Partnership González-Candelaria’s motion for summary judgment (Dockets ## 124 & 138), Defendants Dr. Luis R. González-Colon et al’s (“Defendants”) opposition thereto (Docket # 147), and Plaintiffs’ reply (Docket # 151). Defendants also moved for summary judgment (Dockets ## 126 & 129), and Plaintiffs filed their opposition (Docket # 146). After carefully considering the filings, the evidence on the record, and the applicable law, Plaintiffs’ Motion for Summary Judgment is DENIED, and Defendants’ motion is GRANTED in part and DENIED in part.
On December 18, 2006, Plaintiffs filed suit seeking declaratory and injunctive relief against Defendants under 42 U.S.C. § 1983 and 28 U.S.C. § 1331,
Prior to filing the present suit, Plaintiffs moved to California. See Plaintiffs’ Statement of Uncontested Facts (“Plaintiffs’ SUF”) ¶ 5 at Docket # 138. Shortly thereafter, on December 12, 2006, the Board members held a meeting after which González-Droz’s medical license was summarily suspended. Defendants’ Statement of Uncontested Facts (“Defendants’ SUF”) ¶¶ 7-9 at Docket # 129; Plaintiffs’ SUF ¶ 10. On April 17, 2007, the Board issued Resolution 2007-10 (Docket # 11, Ex. 2), in the administrative proceeding captioned “Medical Examining Board v. Dr. Efraín González, Medical License no. 12,077. MATTER: Summary suspension; medical malpractice and unlawful illegal practice of medicine. Case No. TEM-Q-2006-24,” and summarily suspended González-Droz’s Puerto Rico medical license. Plaintiffs’ SUF ¶ 9. According to Resolution 2007-10, González-Droz practiced the specialty of plastic surgery without being certified as a plastic surgeon by the Board. Defendants’ SUF ¶ 11. Therein, the Board found that since González-Droz is not certified as a plastic surgeon, his practice of that branch of medicine and his advertisements related to it were in breach of state law and the Professional Code of Ethics, and constituted an illegal practice of medicine. Docket # 11, Ex. 2. González-Droz was admonished, and ordered to refrain from the practice of medicine until an administrative hearing was held. Defendants’ SUF at ¶ 12. Through said Resolution, the Board summarily suspended González-Droz’s medical license and scheduled a formal administrative hearing. Id.
In the section of the Resolution titled “holding of hearing,” the Board stated that the suspension would become effective the date that González-Droz received the Resolution; that a hearing would be held 15 days after such notification; and that if he did not appear at that hearing, the Board could issue an entry of default and hold the hearing in his absence. Plaintiffs’ SUF ¶ 12; Docket # 11, Ex. 2. On May 1 or 2, 2007,
On May 11, 2007, Plaintiffs filed an Emergency Motion for injunctive relief in the present case, to order the Board and its members to reinstate González-Droz’s medical license, and to enjoin the Board from holding further administrative procedures related to González-Droz’s suspension from the practice of medicine in Puerto Rico. See Docket # 11. Ultimately, said Motion sought to leave Resolution 2007-10 without effect. In the interim, the hearing before the Board was held on May 15, 2007, and Plaintiffs and their counsel did not attend. Plaintiffs’ SUF ¶ 15. Based upon the evidence presented at the May 15, 2007 hearing, the Board issued an Order, dated April 4, 2008, and sent by certified mail to González-Droz on April 22, 2008, decreeing a five-year suspension of his medical license and imposing a fine of five thousand dollars ($5,000.00). Plaintiffs’ SUF ¶ 16; See Docket # 69 pp. 2-3. Plaintiffs moved this Court to set aside the five-year suspension and fine, but said request was denied. See Dockets ## 69, 72 & 76.
After a preliminary injunction hearing held before this Court on July 18, 2007 (see Docket # 44), Plaintiffs’ motion for injunctive relief was denied. See Docket # 58. Plaintiffs then filed a Notice of Interlocutory Appeal on March 6, 2008. See Docket # 64. On July 23, 2009,
In their motion for summary judgment, Defendants contend that they are entitled to Eleventh Amendment immunity in their official capacities, and quasi-judicial immunity in their personal capacities for the acts they performed as members of the Board. In the alternative, they argue that Plaintiffs failed to state claims under the First, Fifth, and Fourteenth Amendments to the U.S. Constitution. Lastly, Defendants claim that the Sherman Act does not apply to state action and state actors.
Plaintiffs countered with their own motion for summary judgment, arguing that Defendants summarily suspended González-Droz’s medical license in violation of his constitutional rights to a due process and equal protection. Specifically, they posit that Defendants failed to hold a predeprivation hearing, and properly notify Plaintiffs about the hearing held on May 15, 2007. Moreover, according to Plaintiffs, the Board’s “Public Notice” dated October 19, 2005 (“Public Notice”) regarding mesotherapy, aesthetic medicine, complementary and alternative medicine improperly bars all physicians, except dermatologists and plastic surgeons, from practicing cosmetic medicine in Puerto Rico.
Applicable Law and Analysis
R. Fed. Civ. P. 56
The Court may grant a motion for summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affi
Once the movant has averred that there is an absence of evidence to support the nonmoving party’s case, the burden shifts to the nonmovant to establish the existence of at least one fact in issue that is both genuine and material. Garside v. Osco Drug, Inc.,
In order to defeat summary judgment, the opposing party may not rest on conclusory allegations, improbable inferences, and unsupported speculation. See Hadfield v. McDonough,
Because the instant motions are for summary judgment, the parties must comply with the requirements of Local Rule 56, and file a statement of facts, set forth in numbered paragraphs, and supported by record citations. See Local Rule 56(b). In turn, when confronted with a motion for summary judgment, the opposing party must:
[sjubmit with its opposition a separate, short, and concise statement of material facts. The opposition shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party’s statement of material facts and unless a fact is admitted, shall supporteach denial or qualification by a record citation as required by this rule.
Local Rule 56(c). If the opposing party fails to do so, “summary judgment should, if appropriate, be entered.” Rule 56(e)(2). These rules “are meant to ease the district court’s operose task and to prevent parties from unfairly shifting the burdens of litigation to the court.” Cabán Hernández v. Philip Morris USA, Inc.,
Applicable Law and Analysis
It is settled law that each cross-motion for summary judgment must be decided on its own merits. See, e.g., Blackie v. Maine,
Upon reviewing the filings, this Court notes that Plaintiffs failed to comply with Rule 56(c). Specifically, they did not submit a separate, short, and concise opposing statement of material facts admitting, denying or qualifying the facts by reference to each numbered paragraph of Defendants’ statement of material facts. Accordingly, this Court deems admitted those relevant facts proposed by Defendants that are properly supported by the record.
The uncontested relevant facts are as follows. González-Droz is board certified in obstetrics and gynecology, and was a licensed physician in Puerto Rico from December 29, 1995 until April 17, 2007. Plaintiffs’ SUF ¶ 1 & 2. He completed his medical residence in obstetrics and gynecology, and began his medical practice in 1996. Plaintiffs’ SUF ¶ 1. To this date, he has performed at least one thousand surgical procedures in the field of obstetrics/gynecology, including caesarian sections, post partum sterilizations, dilatations, hysterectomies, and sterilizations, among others. Id. at ¶ 2. González-Droz is also a member of the American College of Surgeons, the American Academy of Cosmetic Surgery, the American Society of Cosmetic Breast Surgery and the American Society of Lipo-Suction Surgery. Id.
In 1997, González-Droz began performing liposuction procedures after taking continuing medical education courses in that area. Plaintiffs’ SUF ¶ 3. Thereafter, he took courses in other procedures belonging to the area of cosmetic medicine, including breast lifts, breast augmentations, breast reductions and abdominoplasties, and gradually added other cosmetic procedures to his medical practice. Id. To date, he has performed at least three thousand cosmetic medicine procedures, including liposuctions, breast lifts, breast augmentations, breast reductions and abdominoplasties. Id. at ¶ 4. By 2006, González-Droz was performing more cosmetic medicine procedures than obstetrics/gynecology procedures. Id.
On October 19, 2005, the Board published its Public Notice regarding mesotherapy, aesthetic medicine, complementary and alternative medicine. Id. at ¶ 2. According to the Board, there is no branch of medicine by the name of “aesthetic medicine,” and it has never been recognized as a specialty; instead, it is a group of techniques and procedures within the fields of dermatology and plastic surgery that are
The Board analyzed and studied all aspects of aesthetic medicine, and determined that all persons who advertise, practice, or intend to practice procedures that are inherent to dermatologists and plastic surgeons without the corresponding specialization certification are deemed to be practicing medicine illegally. Id. at ¶ 5 & 6. The Public Notice bars all physicians, except dermatologists and plastic surgeons, from practicing cosmetic medicine in Puerto Rico. Plaintiffs’ SUF ¶ 8. Under said notice, plastic surgeons and dermatologists are allowed to perform cosmetic procedures regardless of whether they have had specific training and experience to perform the same. Id.
During a hearing held on December 12, 2006, the Board decided to summarily suspend the medical license of González-Droz, who at that time maintained an internet page in which he publicly advertised the performance of cosmetic surgery. Defendants’ SUF ¶¶ 7-9; Plaintiffs’ SUF ¶ 10. In mid-December 2006, González-Droz and his family moved to the State of California, and immediately notified Defendants about their change of address. Plaintiffs’ SUF ¶ 5.
On May 1 or 2, 2007,
Yessenia Candelaria and the conjugal partnership
This Court first notes that Yessenia Candelaria and the González-Droz-Candelaria conjugal partnership lack standing to assert claims under Section 1983 for alleged violations to González-Droz’s constitutional rights. The First Circuit has held “that actions under § 1983
Based on the foregoing, this Court finds that Plaintiffs other than González-Droz lack a viable claim under Section 1983, since they do not claim that their constitutional rights were violated, but only that they have suffered damages for the violation of González-Droz’s constitutional rights. Although his wife may have suffered significant mental anguish as a result of his alleged injuries, these damages were not caused by a deprivation of her own constitutional rights. See Soto v. Flores,
Eleventh Amendment Immunity
In their motion for summary judgment, Defendants argue that they are entitled to Eleventh Amendment immunity in their official capacities. Although González-Droz asserts that he is not claiming damages against Defendants in their official capacity, the complaint and subsequent amendments thereto show otherwise. See Dockets ## 2, 36 & 104. As such, we will address this issue. The Eleventh Amendment to the United States Constitution provides:
[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const. Am. XI.
Although the Eleventh Amendment literally seems to apply only to suits against a State by citizens of another State, the Supreme Court has consistently extended the scope of this Amendment to suits by citizens against their own State. See Board of Trustees of the Univ. of Ala. v. Garrett,
The Supreme Court has established that the Eleventh Amendment protection primarily furthers two goals: the protection of a state’s treasury, and the
The Eleventh Amendment bar extends to governmental instrumentalities, which are an arm or “alter ego” of the State. See Ainsworth Aristocrat Int’l Pty. Ltd. v. Tourism Co. of P.R.,
The Supreme Court requires a two-step analysis in order to determine whether a government institution is an arm or alter ego of the state, and thus, entitled to immunity under the Eleventh Amendment. Fresenius Med. Care,
Considering the above, the Commonwealth of Puerto Rico is entitled to Eleventh Amendment immunity. By like token, this Court finds that the Board is an arm of the Commonwealth, and as a result, Defendants in their official capacities are also entitled to Eleventh Amendment immunity. Therefore, González-Droz’s claims against Defendants in their official capacities are DISMISSED with prejudice.
Absolute Immunity
Defendants also argue that they are entitled to absolute immunity in their individual capacities for the acts they performed as members of the Board. According to Defendants, they engage in quasi-judicial duties which sufficiently resemble those functions that enjoy absolute immunity. They further contend that co-defendant José Jiménez-Rivera (“Jiménez-Rivera”),
The Supreme Court has held that “there are some officials whose special functions require a full exemption from liability.” Butz v. Economou,
Similarly, those officials who perform quasi-judicial functions that share “enough characteristics [with] the judicial process ... should also be immune from suits for damages.” Butz,
In Diva’s Inc. v. City of Bangor,
In Bettencourt, the First Circuit expressly recognized that the members of the Massachusetts Board of Registration in Medicine were entitled to absolute immunity for their quasi-judicial functions. Other courts have reached similar conclusions regarding members of state medical examiners boards and analogous entities. See also Horwitz v. Bd. of Medical Examiners,
In the present case, we must determine if, “while executing the activities which gave rise to this claim,” Defendants, as members of the Board, “were acting in an adjudicatory capacity such that [they] are entitled to absolute immunity.” Destek Group, Inc. v. State of N.H. Pub. Utils. Comm’n,
Defendants aver that they are entitled to absolute immunity because (1) as members of the Board, they perform traditional adjudicatory functions; (2) the controversial nature of the decisions made by them in these proceedings expose them to numerous lawsuits; and (3) the right to appeal the Board’s decisions via judicial review provides a sufficient safeguard to protect an individual’s constitutional rights. González-Droz does not contest that the cases decided by the Board could subject its members to numerous lawsuits. Moreover, the First Circuit has recognized that “the act of revoking a physician’s license — which bars the physician from practicing medicine in the [relevant state] — is likely to stimulate a litigious reaction from the disappointed physician, making the need for absolute immunity apparent.” Bettencourt,
González-Droz does, however, aver that Defendants’ actions were not truly adjudicatory in nature, since they summarily suspended his medical license without an adjudicatory proceeding. He further contends that Defendants relied on a patently unconstitutional statute which allows summary suspension without a pre-deprivation hearing. According to González-Droz, the First Circuit has denied absolute immunity where a state official’s actions were based upon a statute that is “so fragrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.” Docket # 146, p. 13 (citing Guillemard v. Contreras,
In the present case, as in Bettencourt,
Additionally, Puerto Rico’s Uniform Administrative Procedure Act (“LPAU”), P.R. Laws Ann. tit. 3, § 2151 (2008), provides sufficient safeguards to an accused’s procedural due process rights, guaranteeing the right to be notified of the charges filed and present evidence, to have impartial adjudication, and a decision based on the record of the case. As in Bettencourt,
In regards to the hearings held before the Board, the Board’s Act, P.R. Laws Ann. tit. 20, § 52(j), states that individuals affected by the Board’s decisions have the right to appeal these decisions by seeking reconsideration, and subsequently judicial review to the Court of Appeals of Puerto Rico. Although the right to seek judicial review would have effectively safeguarded González-Droz’s rights from any possible error or wrongdoing by the Board, as his constitutional rights would have been adequately protected, he chose not to move for reconsideration or file an appeal. This omission in itself does not grant González-Droz the right to file suit in federal court, even if grave errors were committed during the administrative proceedings.
Given the Board’s quasi-judicial functions, the allegedly deficient manner in which the members of the Board presided over these administrative hearings is irrelevant, insofar as the tasks they performed were in fact adjudicatory in nature, are functionally comparable to those of a judge, and thus entitles them to the absolute immunity that is vested upon
As stated in Butz,
... the risk of an unconstitutional act by one presiding at an agency hearing is clearly outweighed by the importance of preserving the independent judgment of these men and women. We therefore hold that persons subject to these restraints and performing adjudicatory functions within a federal agency13 are entitled to absolute immunity from damages liability for their judicial acts. Those who complain of error in such proceedings must seek agency or judicial review.
Lastly, González-Droz alleges that the Board’s Act and Regulations allowing summary suspension are patently unconstitutional. However, courts have repeatedly upheld regulations and laws which allow summary suspension upon specific circumstances, such as to ensure public health and safety. See Watts,
In sum, as members of the Board, when determining whether or not to revoke or reinstate medical licenses, the Board must review the facts, weigh the evidence, apply the relevant laws and regulations to those facts, and issue a written order. These types of traditional adjudicatory functions entitle them to absolute immunity in order to avoid exposure to damages suits, and subject them to unnecessary harassment and intimidation in the performance of their duties. Moreover, the members of the Board execute their quasi-judicial functions against a backdrop of procedural safeguards provided by the LPAU, which adequately protect the individual’s constitutional rights.
Considering the above, just as in Coggeshall, Bettencourt’s ruling controls here. Accordingly, this Court finds that Defendants are entitled to absolute immunity in their individual capacities for their quasi judicial functions. See Schweiker v. Chilicky,
Legislative Immunity
In his motion for summary judgment, González-Droz argues that his summary suspension was based on the Public Notice which regulates the practice of cosmetic surgery in Puerto Rico. According to González-Droz, and as shown in the uncontested facts, physicians were not granted an opportunity to express their positions regarding said notice prior to its publication. Plaintiffs’ SUF ¶ 8. As Defendants point out, González-Droz does not set forth any additional arguments on this front. Therefore, his claims on this front could be dismissed without further discussion. Notwithstanding, this Court notes that the Board’s capacity to regulate the medical profession through rules and regulations falls squarely under the scope of legislative immunity.
Under the Supreme Court’s test in Bogan v. Scott-Harris,
In determining whether a defendant’s acts are legislative, courts must ascertain if their actions were legislative both “in form,” i.e., “integral steps in the legislative process,” and in substance, i.e., the acts “bore all the hallmarks of traditional legislation.” Bogan,
Considering the foregoing, we conclude that the members of the Board who participated in the approval of the Public Notice enjoy absolute legislative immunity, and dismissal of Plaintiffs claims against them is proper on said grounds. Velazquez Feliciano,
Sherman Act
In the case at bar, Plaintiffs allege that barring González-Droz from practicing cosmetic medicine in Puerto Rico is an unlawful restraint of trade under Sections 1 and 3 of the Sherman Act. Docket # 104, p. 21. Section 1 of the Sherman Act, under which Plaintiffs seek relief here, makes unlawful “any contract, combination ... or conspiracy, in restraint of trade or commerce among the several states ...” 15 U.S.C. § 1. “To be able to state a claim under this section, Plaintiff is obliged to allege the existence of a contract, combination, or conspiracy that is in restraint of interstate trade or commerce which has resulted in injury to Plaintiff.” Tropical Air Flying Servs. v. de Melecio,
Notwithstanding, the Supreme Court, “relying on principles of federalism and state sovereignty, held that the Sherman Act did not apply to anticompetitive restraints imposed by the States ‘as an act of government.’” City of Columbia v.
As stated by the Supreme Court in Parker,
Furthermore, as to the personal liability of government employees, this Circuit held “that the possible consequence of imposing personal liability on city or State officials for acts under the federal antitrust laws is ‘going too far to ‘compromise the States’ ability to regulate their domestic commerce.’ ” Id. (citing Omni,
In this case, Defendants clearly implement state policy regarding the practice of medicine in Puerto Rico. More to the point, the Board’s Act expressly grants its members the authority to deny, suspend, cancel or revoke a physician’s medical license under specific circumstances. Cf. Goldfarb,
Although neither the Eleventh Amendment nor the definition of “persons” under Section 1983 bar a plaintiffs claims for prospective and declaratory injunctive relief, Velazquez Feliciano,
Moreover, González-Droz improperly filed suit in this district instead of recurring to the proper administrative and state court remedies. That is, he wants this Court to determine the professional requirements of the practice of medicine in Puerto Rico, when such faculty is entrusted by law to the Board as a specialized state agency. This Court is undeniably ill-equipped to deal with these issues, which directly affect the public’s welfare and health. Therefore, we cannot acquiesce to González-Droz’s request for declaratory relief on this front.
However, in order to afford Plaintiff equitable relief, this Court orders the Board to hold a de novo hearing,
Conclusion
For the reasons set forth herein, Plaintiffs’ Motion for Summary Judgment is DENIED, and Defendants’ motion is GRANTED in part and DENIED in part.
IT IS SO ORDERED.
Notes
. Plaintiffs also allege diversity jurisdiction.
. On August 1, 2008, the Board’s Act was repealed, and a successor entity, the Medical Licensing and Discipline Board was created pursuant to Law 139, P.R. Laws ann. tit. 20, § 131 ef. seq.
.In his sworn statement (Docket # , 11-2, p. 7), González-Droz states that he was personally notified about the Resolution on May 1, 2007. However, Plaintiffs' SUF ¶ 9 provides that he learned about the Resolution on May 2, 2007.
. There appears to be a typographical error at Docket #11 as to the year of the notification (2006). Clearly, the notification was done in 2007, since the summary suspension was issued in April 2007.
. González-Droz currently holds a medical license issued by the pertinent authorities of the State of California, and his California insurance carrier issued a professional liability policy which specifically covers major surgery and cosmetic surgery procedures. Id. His plans were to practice cosmetic medicine only while in California. Id.
. In his sworn statement (Docket # , 11-2, p. 7), González-Droz states that he was personally notified about the Resolution on May 1, 2007. However, Plaintiffs' SUF ¶ 9 provides that he learned about the Resolution on May 2, 2007.
.There appears to be a typographical error at Docket #11 as to the year of the notification (2006). Clearly, the notification was done in 2007, since the summary suspension was issued in April 2007.
. This Court also notes that the Department of Health and the Board are not "persons” under Section 1983, and thus any claims against the Board on this front would also fail. See Velazquez Feliciano v. Tribunal Supremo,
. On April 15, 2003, Jiménez-Rivera was appointed as investigative officer of the Board. Defendants' SUF ¶ 1.
. In Resolution 2007-10, the Board cites, and includes copies of the grievances presented by Mrs. Juarkiria Colon and Maria Martinez Marrero on December 4 and 8, 2006 respectively, and points to Eileen Burdette Droz’s death due to cosmetic procedures performed by González-Droz. Docket # 129-5. This Court also takes judicial knowledge of malpractice suits filed against González-Droz in this district alleging negligence during the performance of cosmetic procedures. See Haaland-Bergman v. González-Droz, Civil No. 09-1301(CCC), Martinez v. Gonzaález-Droz, No. 07-1394(SEC).
.Generally, judges are immune from suits for monetary damages. Mireles v. Waco,
. As a result, Plaintiffs’ SUF ¶¶ 6, 7, 8 (partially), 9, 10, 11, 14, 15, 16, 17, 18, 19, and 20-24 are irrelevant for purposes of the present motion.
. For purposes of absolute immunity, the Supreme Court has refused to draw a distinction between suit brought against state officials under Section 1983 and suits brought directly under the Constitution against federal officials. Bettencourt,
. This Court notes that the hearing shall be held before the current Board.