                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 25 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RALPH LEWIS READ,                                No. 13-35330

              Plaintiff - Appellant,             D.C. No. 3:12-cv-02021-MO

 v.
                                                 MEMORANDUM*
KATHLEEN HALEY; WARREN G.
FOOTE; DOVE GUTMAN; DOUGLAS
KIRKPATRICK, Dr.; LISA
CORNELIUS, Dr.; UNKNOWN
MEMBERS OF THE OREGON
MEDICAL BOARD; UNKNOWN
EMPLOYEES OF THE OREGON
MEDICAL BOARD,

              Defendants - Appellees.


                  Appeal from the United States District Court
                           for the District of Oregon
               Michael W. Mosman, Chief District Judge, Presiding

                              Submitted May 4, 2016**
                                 Portland, Oregon



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: TASHIMA, TALLMAN, and HURWITZ, Circuit Judges.

       Ralph Lewis Read appeals pro se from the district court’s judgment dismissing

his 42 U.S.C. § 1983 action arising from the revocation of his medical license by the

Oregon Medical Board. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

       1.   The district court correctly concluded that it lacked subject matter

jurisdiction over Read’s first “non-fraud” claim under the Rooker-Feldman doctrine.

See Noel v. Hall, 341 F.3d 1148, 1165 (9th Cir. 2003) (holding that Rooker-Feldman

doctrine bars federal jurisdiction “when a plaintiff’s suit in federal district court is at

least in part a forbidden de facto appeal of a state court judgment, and an issue in that

federal suit is ‘inextricably intertwined’ with an issue resolved by the state court

judicial decision from which the forbidden de facto appeal is taken”). By challenging

the Oregon Medical Board’s Order of Evaluation, Read’s first “non-fraud” claim

alleges an error by the Oregon Court of Appeals, which affirmed the Board’s

conclusion that Read violated the Order. See Read v. Or. Med. Bd., 260 P.3d 771,

776-77 (Or. Ct. App. 2011).

       Read’s second and third non-fraud claims, however, are not barred by Rooker-

Feldman if we view them as facial, rather than as-applied, challenges1 to the Board’s

       1
         Mindful that we construe pro se pleadings liberally, see Litmon v. Harris,
768 F.3d 1237, 1241 (9th Cir. 2014), we view Read’s claims as facial attacks that
are not barred by Rooker-Feldman. Given Read’s prolix, we can understand why
the district court considered his Complaint to assert “as applied” challenges.

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authority to issue orders and levy fines. Mothershed v. Justices of Supreme Court,

410 F.3d 602, 606 (9th Cir. 2005) (“The [Rooker-Feldman] doctrine does not . . .

prohibit a plaintiff from presenting a generally applicable legal challenge to a state

statute in federal court, even if that statute has previously been applied against him in

state court litigation.”). Even if the district court had subject matter jurisdiction over

Read’s second and third non-fraud claims, however, it would have been required to

dismiss the claims because Read lacks standing to pursue them. See Stormans, Inc.

v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) (“Questions of standing . . . may be

raised and considered for the first time on appeal.”).

      Read’s second and third non-fraud claims challenge the constitutionality of the

Board’s authority to issue orders and impose fines. He repeatedly emphasizes that he

seeks to enjoin the Board from exercising its allegedly unconstitutional authority

against him or others. But Read only has standing to pursue injunctive relief if he can

show: (1) that he “suffered or is threatened with a concrete and particularized legal

harm;” and (2) a “sufficient likelihood that he will again be wronged in a similar

way.” Canatella v. California, 304 F.3d 843, 852 (9th Cir. 2002) (citations and

internal quotation marks omitted). Read has done neither. His assertion that an

injunction is necessary to protect his rights “if” he obtains a medical license in the



                                            3
future is exactly the “conjectural or hypothetical” injury the standing requirement is

designed to preclude. Id. Because Read lacks standing to bring his second and third

non-fraud claims, we affirm the dismissal of those claims.

      Additionally, contrary to Read’s argument in support of his second non-fraud

claim, Oregon’s statutory scheme governing the Board and its authority does not

amount to a bill of attainder. See Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468

(1977) (explaining that a statute has the key features of a bill of attainder if it: (1)

“legislatively determines guilt and inflicts punishment,” (2) “upon an identifiable

individual,” and (3) “without provision of the protections of a judicial trial”). The

enabling act establishing the Board and its duties does not meet these criteria.

      2. The district court properly dismissed Read’s claims against Administrative

Law Judge Gutman on the basis of judicial immunity. Read failed to allege facts

sufficient to show that Gutman took non-judicial actions against him, or that

Gutman’s judicial actions were taken in the complete absence of all jurisdiction. See

Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999) (explaining that “[a]

judge is not deprived of immunity because he takes actions which are in error, are

done maliciously, or are in excess of his authority”).

      3. The district court also properly dismissed Read’s claims against Senior



                                           4
Assistant Attorney General Foote on the basis of prosecutorial immunity. Read failed

to allege facts sufficient to show that Foote’s actions did not relate to Foote’s

preparation for the initiation of a judicial proceeding, or the presentation of the state’s

case. See Fry v. Melaragno, 939 F.2d 832, 837-38 (9th Cir. 1991) (holding that

government attorney performing acts intimately associated with the judicial phase of

litigation is entitled to absolute immunity).

       4. Dismissing Read’s claims against members of the Oregon Medical Board

was not error. The district court properly applied Butz v. Economou, 438 U.S. 478

(1978), and Mishler v. Clift, 191 F.3d 998 (9th Cir. 1999), in determining that the

Board members’ functions were sufficiently analogous to those of a judge or

prosecutor.2 See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922-29 (9th Cir.

2004) (holding that members of Idaho State Board of Medicine, their staff, and their

counsel were entitled to absolute immunity under Butz and Mishler); see also Mishler,

191 F.3d at 1009 (concluding that members of Nevada medical board were entitled

to absolute immunity).

       5. The fraud claims against unknown employees of the Oregon Medical Board

were properly dismissed for failure to plead fraud with particularity under Federal

       2
        Because Read insists on appeal that his action alleged only federal claims,
we do not review the dismissal of the claims the district court construed as state
law claims.

                                            5
Rule of Civil Procedure 9(b).

      6. The district court did not err in declining to order the defendants to answer

Read’s complaint. Federal Rule of Civil Procedure 12(b) required the defendants to

file their motion to dismiss before filing an answer. Nor did the district court abuse

its discretion in denying Read’s request for default judgment against defendants

Haley, Foote, Gutman, and Cornelius. See, e.g., Eitel v. McCool, 782 F.2d 1470,

1471-72 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d 1089, 1092-93 (9th Cir. 1980)

(affirming denial of default judgment after defendants failed to timely answer

complaint).

      Each party shall bear its own costs on appeal.

      AFFIRMED.




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