              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 98-30797
                       _____________________

DENA LYNNE DAVISTON,

                                               Plaintiff-Appellee,

                              versus

LOUISIANA STATE BOARD OF
NURSING, ET AL.,

                                                        Defendants,

BETTY JO AGUILLARD; KATHLEEN COOPER;
OSWALD FERRY, DR.; MARGARET GRIENER;
SHERRY L. HALEY; MAXINE JOHNSON;
PATSY McCLANAHAN; ENRICA SINGLETON, DR.;
TANNY JO VAN ZILE; VINCENT A.
CULLOTA, DR.; ELI SORKOW, DR.,

                                           Defendants-Appellants.
_________________________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
                            (97-CV-1236)
_________________________________________________________________

                           June 21, 1999

Before KING, Chief Judge, REYNALDO G. GARZA and JOLLY, Circuit
Judges.

E. Grady Jolly:*

     This case involves an interlocutory appeal of a denial of

absolute quasi-judicial and qualified immunity, claimed by the

members of the Louisiana State Board of Nursing (the “LSBN”). Dena

Lynne Daviston is a nurse and a recovering alcoholic.   She sued the

     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
LSBN and its individual members (referred to collectively as “the

board members”) for suspending her license.          The district court

granted a motion for summary judgment with respect to LSBN, finding

that it was protected by the Eleventh Amendment.             The district

court, however,   denied   the   motion    with   respect   to   the   board

members.   The court held, inter alia, that       the board members were

not entitled to: (1) absolute quasi-judicial immunity--because the

procedure by which Daviston was suspended was not quasi-judicial in

nature--or (2) qualified immunity--because fact issues remained

with respect to whether the board member’s actions were objectively

reasonable.   We reverse the court’s ruling on qualified immunity.

We hold that the board members are entitled to qualified immunity

and reverse for entry of judgment.

                                   I

     At the outset, we must observe that the record in this case is

poorly developed.    This deficit is further complicated by the

intricate procedural history between Daviston and the LSBN.

     Daviston was licensed as a registered nurse in the state of

Louisiana in 1988.   In 1993, it became apparent that Daviston had

problems with alcohol abuse.1      As a result, in November of that

year, the LSBN, after a hearing, revoked Daviston’s license for a

minium of one year (1993 order).          Although we do not have that




    1
     Daviston does not contest that she is a recovering alcoholic.



                                   2
order in the record, Daviston’s complaint includes the following

excerpt from the 1993 order:2

      1.    She shall sign and adhere to a new contract with
            Recovering Nurse Program (“RNP”) for a minimum of
            one (1) year.

      2.    If reinstated, she agrees to sign and adhere to a
            new contract with RNP for another five (5) years.

      3.    She requests a hearing for the purpose of
            reinstatement at which time the registrant appears
            before the Board and shows cause as to why she
            should be allowed to practice as a registered
            nurse.

      4.    Further, failure to comply with the RNP contract
            shall cause a hearing to be scheduled for
            revocation of this registrant’s license.

      5.    Failure to comply with the RNP contract after
            reinstatement   shall  result  in   an  immediate
            suspension of this registrant’s license and shall
            cause a hearing to be scheduled for revocation of
            this registrant’s license.

      On October 14, 1994, Daviston signed a one-year contract with

the   RNP   (“one-year   contract”)       setting   forth   conditions   for

reinstatement. In 1995, Daviston applied for reinstatement and, on

November 16, 1995, the LSBN issued an order denying reinstatement

for another year (“1995 order”).            This order again conditioned

reinstatement on Daviston adhering to a contract with the RNP.

      Daviston appealed the 1995 order denying her reinstatement to

the Nineteenth Judicial District Court in and for the Parish of

East Baton Rouge.        That court affirmed the order.           Then, on


      2
      Given the board members’ citation to this passage in their
brief, we presume that they do not challenge that it is an accurate
rendition of the original order.



                                      3
November 13, 1996, Daviston signed a consent order with the LSBN in

which she agreed to a new contract with the RNP (“consent order”).

On the same day, she signed a contract with the RNP (“five-year

contract”).

     Pursuant to the five-year agreement, Daviston agreed to submit

to random urinalysis tests for the presence of alcohol.                   On

December 13, 1996 and January 15, 1997, Daviston tested positive

for the presence of ethanol.             On February 6, 1997, the LSBN

suspended Daviston’s license for two years and required her to

attend relapse therapy.

     Daviston, however, is an insulin dependent diabetic for whom

urinalysis testing is not reliable. At several points, both before

and after her suspension, Daviston attempted to call this fact to

the attention of LSBN.       On March 26, 1997, the LSBN reinstated

Daviston’s license on the basis of a report from its Medical Review

Officer    stating   that   the   readings   from   the   two   tests   were

inconclusive.    As far as the record shows, Daviston has continued

her employment uninterrupted.

     So, to sum up the proceedings before the LSBN involving

Daviston: the LSBN issued its 1993 order revoking Daviston’s

license.   Pursuant to that order, Daviston agreed to           the one-year

contract with LSBN.    The LSBN subsequently issued its 1995 order--

refusing to reinstate Daviston’s license for another year--that

Daviston unsuccessfully appealed.         In 1996, Daviston and the LSBN

agreed to the consent order and, pursuant to that order, Daviston




                                     4
agreed to the five-year contract with the RNP.      Then on February 6,

1997, the LSBN suspended Daviston for testing positive, only to

reinstate her on March 26, 1997.

     We are somewhat perplexed that neither the LSBN nor Daviston

thought to place any of these documents in the record.            We thus

have been required to decide this case without the benefit of the

1993 order, the one-year contract, the 1995 order, the consent

order, and the five-year contract. Furthermore, there is either no

written record of the LSBN’s February 6, 1997 decision to suspend

Daviston’s license or, if such a record exists, it too was excluded

from the record.

     Daviston filed suit in a federal district court seeking

compensatory and punitive damages for a violation of 42 U.S.C.

§ 1983 and declaratory and injunctive relief under 28 U.S.C. §§

2201 and 2284 based on her forty-eight day suspension.           The board

members filed a motion for summary judgment in which they argued

that they were entitled to both absolute quasi-judicial immunity

and qualified immunity.        The district court denied the summary

judgment motion, holding that the board members’ actions were not

quasi-judicial   in   nature   because   Daviston   had   been   suspended

without the opportunity for a pre-deprivation hearing and without

recourse to any procedural safeguards.       The district court further

held that genuine issues of material fact existed with respect to

whether the board members should have known that urinalysis is an

unreliable form of drug testing.        He therefore concluded that the




                                    5
board members were not entitled to summary judgment on their

qualified immunity claim.

                                     II

     Because   we   resolve   this   case   on   the   basis   of   qualified

immunity, we need not address the absolute quasi-judicial immunity

issue.3   We review de novo the district court’s summary judgment

ruling, applying the same standards as the district court.              See,

e.g., U.S. v. Johnson, 160 F.3d 1061, 1063 (5th Cir. 1998).


      3
       Initially, we were inclined to resolve this appeal on the
basis of quasi-judicial immunity--that is, that the suspension was
pursuant to a consent order that was the result of a quasi-judicial
proceeding.   Based on the record before us, however, we cannot
determine whether Daviston was suspended because she violated the
consent order. We are therefore unable to decide the case on the
basis of the prior proceedings between Daviston and the LSBN.
     Our review of the record does indicate that Daviston went
through a series of quasi-judicial proceedings in which she was
ordered to agree, ultimately through the consent order and the
five-year contract, to submit to spot testing for alcohol. The
excerpts we have available from the 1993 order make clear that if
Daviston breached this agreement, she would be immediately
suspended. If the LSBN suspended her for breaching the five-year
agreement, the LSBN would be protected under absolute, quasi-
judicial immunity. The problem is, without access to the five-year
contract or any of the relevant orders, we cannot ascertain whether
Daviston was suspended because she breached the agreement, that is,
we cannot determine if the agreement provided explicitly that if
she tested positive she would be automatically suspended. In fact,
because we have no written articulation of the LSBN’s reasons for
suspending her in 1997, we cannot even determine whether the LSBN
suspended Daviston’s license because it thought Daviston had
breached the agreement. For the reasons stated by the district
court, if the board members sought to suspend Daviston without the
force of a binding agreement, the process by which Daviston was
suspended is anything but quasi-judicial in nature and, under our
decision in O’Neal v. Mississippi Board of Nursing, 113 F.3d 62
(5th Cir. 1997), it is unlikely that we would accord the board
members absolute quasi-judicial immunity. Because the record makes
it difficult to address this issue, we focus instead on the board
members’ qualified immunity argument.



                                     6
Summary judgment is appropriate if the record demonstrates that

“there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law."

Fed.R.Civ.P. 56(c).   The ultimate question with respect to this

inquiry is “whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.”    Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52 (1986).

     The moving party bears the initial burden of demonstrating

that there are no genuine issue of material fact.         When the

nonmoving party bears the burden of proof at trial, the moving

party may carry its burden by demonstrating an absence of evidence

necessary to support the nonmoving party's case.   Morris v. Covan

Worldwide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).   If the

moving party is successful, the non-moving party “may not rest upon

the mere allegations or denials of his pleading, but his response,

by affidavits or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for trial.”

Fed.R.Civ.P. 56(e).

     To succeed in making out a violation of 42 U.S.C. § 1983,

Daviston must demonstrate that the board members’ conduct (1)

violates a clearly established constitutional or statutory right

and (2) is objectively unreasonable.   Sanchez v. Swyden, 139 F.3d

464, 466-67 (5th Cir. 1998).   Daviston has not provided evidence

that shows the conduct was objectively unreasonable.     Here, the




                                7
board members were confronted with a nurse with a history of

problems with alcohol who apparently had failed a urinalysis test.

Given the potential risk to patients of being treated by an

impaired nurse, it was not unreasonable to suspend that nurse.

       The district court apparently thought the board members had

acted unreasonably based on Daviston’s argument that they knew that

Daviston was an insulin dependent diabetic and either knew or

should have known that a urinalysis test would not be reliable.

However, after a review of the record, we can find absolutely no

evidence proffered by Daviston to support this allegation.               Each

member of the board submitted an affidavit in which the person

declared that he or she had no knowledge that the test results were

inaccurate.     Daviston does not submit evidence to rebut these

affidavits. Nor does she provide any explanation for why the board

members should have known that the test results were unreliable.

Although we consider summary judgment evidence in a light most

favorable to the nonmoving party, “the nonmoving party may not rest

upon   the   mere   allegations   or   denials   of   its   pleadings,    and

unsubstantiated or conclusory assertions that a fact issue exists

will not suffice.”      Morris, 144 F.3d at 380.        We therefore hold

that the district court erred by not granting the board members

motion for summary judgment.

                                   III

       On appeal, the board members argue that they are entitled to

absolute quasi-judicial and qualified immunity.             Because of the




                                       8
distressingly sparse state of the record, it is difficult for us to

address the board members’ arguments with respect to quasi-judicial

immunity.     The record is equally sparse with respect to the

qualified immunity argument. Unfortunately for Daviston, this time

the dearth of evidences cuts against her.             Because we find no

evidence    that   the   board   members’   actions    were   objectively

unreasonable, we hold that they are entitled to qualified immunity.

For the foregoing reasons, we REVERSE the ruling of the district

court with respect to whether the board members are entitled to

qualified immunity and REMAND for entry of judgment consistent with

this opinion.

                REVERSED in part and REMANDED for entry of Judgment.




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