PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ADAM OSTRZENSKI, M.D.,
Plaintiff-Appellant,

v.                                                                   No. 98-1717

MARK S. SEIGEL, M.D.,
Defendant-Appellee.

ADAM OSTRZENSKI, M.D.,
Plaintiff-Appellee,

v.                                                                   No. 98-1809

MARK S. SEIGEL, M.D.,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-97-1823-DKC)

Argued: March 3, 1999

Decided: May 24, 1999

Before WILKINS and WILLIAMS, Circuit Judges, and
LEE, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Williams and Judge Lee joined.

_________________________________________________________________
COUNSEL

ARGUED: Chester Alexander Hewes, Jr., HEWES, GELBAND,
LAMBERT & DANN, Washington, D.C., for Appellant. Andrew
Howard Baida, Assistant Attorney General, Baltimore, Maryland, for
Appellee. ON BRIEF: J. Joseph Curran, Jr., Attorney General of
Maryland, Thomas W. Keech, Assistant Attorney General, Baltimore,
Maryland, for Appellee.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Dr. Adam Ostrzenski brought this action pursuant to 42 U.S.C.A.
§ 1983 (West Supp. 1998) against Dr. Mark S. Seigel, who conducted
a peer review of Ostrzenski at the behest of the Maryland Board of
Physician Quality Assurance (the Board). Ostrzenski alleged that Sei-
gel denied him due process under the Fifth and Fourteenth Amend-
ments as a result of procedural irregularities in the peer review
process. In addition, Ostrzenski brought a claim for false light inva-
sion of privacy under Maryland law. The district court dismissed
Ostrzenski's action for failure to state a claim upon which relief could
be granted, see Fed. R. Civ. P. 12(b)(6), reasoning that Seigel was
entitled to absolute quasi-judicial immunity from prosecution on Ostr-
zenski's § 1983 claim and that Ostrzenski had alleged the publication
of no facts that could be considered "highly offensive" to Ostrzenski
as required for a Maryland false light claim. J.A. 40 (internal quota-
tion marks omitted). Because we conclude that Seigel is entitled to
absolute quasi-judicial immunity on both the § 1983 and the false
light claims, we affirm.

I.

The Maryland Medical Practice Act governs the licensing and dis-
ciplining of physicians in Maryland. See Md. Code Ann. Health Occ.
§§ 14-101 to 14-702 (1994 & Supp. 1998). The Board, the state regu-
latory agency charged with carrying out the provisions of the Act, is
authorized to investigate allegations of violations of the Act, includ-

                    2
ing accusations that a physician has "[f]ail[ed] to meet appropriate
standards as determined by appropriate peer review for the delivery
of quality medical and surgical care performed in ... any ... location
in this State." Id. § 14-404(a)(22). The Act instructs that after con-
ducting a preliminary investigation, "the Board shall refer any allega-
tion involving standards of medical care ... to the[Maryland Medical
and Chirurgical] Faculty for further investigation and physician peer
review within the involved medical specialty." Id. § 14-401(c)(2)(i).
The Faculty may in turn "refer the allegation for investigation and
report to the appropriate ... [c]ounty medical society ... or ...
[c]ommittee of the Faculty." Id.§ 14-401(c)(2)(ii). The investigating
society or committee is required to submit a "report to the Board on
its investigation" that "contain[s] the information and recommenda-
tions necessary for appropriate action by the Board." Id. § 14-
401(e)(1)(i), (e)(2). Upon "receipt of the report, the Board shall con-
sider the recommendations made in the report and take the action ...
that it finds appropriate under this title." Id. § 14-401(e)(3). The
Board is authorized to impose a variety of sanctions, including license
revocation. See id. § 14-404(a).

In 1991, Holy Cross Hospital in Maryland decided to restrict the
privileges of Ostrzenski, a gynecological surgeon trained in laparos-
copic techniques. The hospital notified the Board of its decision,
sparking an investigation of Ostrzenski. The Board requested that the
Faculty advise it on whether a formal charge against Ostrzenski
should be pursued. And, the Faculty in turn referred the matter to the
Montgomery County Medical Society, which assigned peer reviewers
Drs. Mark S. Seigel and Ronald Orleans to review Ostrzenski's prac-
tice. In February 1993, Seigel and Orleans visited Ostrzenski's office
and selected ten files for review. Based on their review, they submit-
ted a report to the Board in March 1993. In June 1994, the Board
issued charges against Ostrzenski.

In May 1997, Ostrzenski brought this action against Seigel. The
first count alleged that Seigel had deprived Ostrzenski of due process
in violation of the Fifth and Fourteenth Amendments through various
procedural irregularities in the peer review process and the report.
The second count alleged a false light claim under Maryland law,
charging that Seigel had knowingly or recklessly included false infor-
mation in the report.

                    3
Prior to answering the complaint, Seigel filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), and the district
court dismissed the action with prejudice. See Carter v. Norfolk Com-
munity Hosp. Ass'n, 761 F.2d 970, 974 (4th Cir. 1985) (explaining
that a dismissal by the district court for failure to state a claim is with
prejudice unless the court specifically orders dismissal without preju-
dice). The court held that Seigel's duties as a peer reviewer were
quasi-judicial and thus that he was immune from§ 1983 liability. In
addition, the district court ruled that Ostrzenski's lone allegation of
falsehood in the report was that Seigel had misrepresented that he had
no conflicts of interest with Ostrzenski and that this representation
was "not even mildly offensive, let alone `highly offensive' as
required by Maryland law." J.A. 40. Ostrzenski challenges the ruling
of the district court with respect to both of these causes of action. We
address them seriatim.

II.

"Suits for monetary damages are meant to compensate the victims
of wrongful actions and to discourage conduct that may result in lia-
bility." Forrester v. White, 484 U.S. 219, 223 (1988). The prospect of
liability for damages encourages public officials to perform their
assignments appropriately and in a manner that does not injure others.
See id. Because generally actions for damages serve this laudable
goal, the Supreme Court has been very sparing in its grants of abso-
lute immunity from damages for constitutional violations in § 1983
actions. See id. at 224. In some situations, however, the threat of lia-
bility for damages hinders, rather than advances, the prospects that
public officials will perform their duties in the public interest. See id.
at 223-24. The special functions of some governmental officials
require that they be exempted completely from such liability. See Butz
v. Economou, 438 U.S. 478, 508 (1978) (recognizing "that there are
some officials whose special functions require a full exemption from
liability"). Such officials include judges performing judicial acts
within their jurisdiction, see Pierson v. Ray , 386 U.S. 547, 553-54
(1967), prosecutors performing acts "intimately associated with the
judicial phase of the criminal process," Imbler v. Pachtman, 424 U.S.
409, 430 (1976), and "quasi-judicial" agency officials whose duties
are comparable to those of judges or prosecutors when adequate pro-
cedural safeguards exist, see Butz, 438 U.S. at 511-17. The question

                     4
here is whether the district court correctly determined that Seigel's
duties as a peer reviewer fell within this latter category.

Every court of appeals that has addressed the issue has concluded
that members of a state medical disciplinary board are entitled to
absolute quasi-judicial immunity for performing judicial or prosecu-
torial functions. See O'Neal v. Mississippi Bd. of Nursing, 113 F.3d
62, 65-67 (5th Cir. 1997); Wang v. New Hampshire Bd. of Registra-
tion in Med., 55 F.3d 698, 701 (1st Cir. 1995); Watts v. Burkhart, 978
F.2d 269, 272-78 (6th Cir. 1992) (en banc); Bettencourt v. Board of
Registration in Med., 904 F.2d 772, 782-84 (1st Cir. 1990); Horwitz
v. State Bd. of Med. Exam'rs, 822 F.2d 1508, 1512-16 (10th Cir.
1987). The rationale underlying these decisions is that medical disci-
plinary boards satisfy the criteria set forth in Butz as justifying abso-
lute immunity because (1) the boards perform essentially judicial and
prosecutorial functions; (2) there exists a strong need to ensure that
individual board members perform their functions for the public good
without harassment and intimidation; and (3) there exist adequate pro-
cedural safeguards under state law to protect against unconstitutional
conduct by board members without reliance on private damages law-
suits. See, e.g., O'Neal, 113 F.3d at 66; Bettencourt, 904 F.2d at 783.

Although Seigel is not a Board member, and thus he is one step
removed from the "judicial" functions of the Board, he nevertheless
may be entitled to absolute quasi-judicial immunity if he is engaged
in a protected prosecutorial function. See Butz , 438 U.S. at 515 (hold-
ing "that agency officials performing certain functions analogous to
those of a prosecutor should be able to claim absolute immunity with
respect to such acts"); Wang, 55 F.3d at 701-02 (holding medical
board and its attorneys who investigated the charges were entitled to
absolute immunity); see also Kwoun v. Southeast Mo. Prof'l Stan-
dards Review Org., 811 F.2d 401, 406-09 (8th Cir. 1987) (holding
that state peer review groups, which were relied upon by the U.S.
Department of Health and Human Services to make recommendations
concerning whether physicians were entitled to participate in the
Medicare program, were entitled to absolute immunity); cf. Kalina v.
Fletcher, 118 S. Ct. 502, 508 (1997) (explaining "that the absolute
immunity that protects the prosecutor's role as an advocate is not
grounded in any special esteem for those who perform these func-
tions, and certainly not from a desire to shield abuses of office, but

                     5
because any lesser degree of immunity could impair the judicial pro-
cess itself," and thus, in determining immunity, a court must "exam-
ine the nature of the function performed, not the identity of the actor
who performed it" (internal quotation marks omitted)). A prosecutor
performing the duties of initiating a prosecution or presenting a case
is entitled to absolute immunity in an action for damages claiming
that the prosecutor violated the plaintiff's constitutional rights. See
Imbler, 424 U.S. at 431. However, this absolute immunity does not
encompass all of a prosecutor's official activities. See Burns v. Reed,
500 U.S. 478, 492-96 (1991). Thus, although absolute immunity
applies to activities "intimately associated with the judicial phase of
the criminal process" because the reasons underlying the grant of the
immunity apply to those activities by a prosecutor, absolute immunity
is not required for "those aspects of the prosecutor's responsibility
that cast him in the role of an administrator or investigative officer
rather than that of advocate." Imbler, 424 U.S. at 430-31. Accord-
ingly, a prosecutor's appearance in court in support of an application
for a search warrant and the presentation of evidence at that hearing
are protected by absolute immunity. See Burns , 500 U.S. at 491-92.
Likewise, "acts undertaken by a prosecutor in preparing for the initia-
tion of judicial proceedings or for trial, and which occur in the course
of his role as an advocate for the State, are entitled to the protections
of absolute immunity." Buckley v. Fitzsimmons , 509 U.S. 259, 273
(1993). But, a prosecutor is not entitled to absolute immunity for giv-
ing legal advice to law enforcement officers because the risk of vexa-
tious lawsuits as a result of this activity is slight, the giving of legal
advice is not related to the prosecutor's responsibilities to screen
cases for prosecution and to safeguard the judicial process, and insuf-
ficient checks exist to restrain a prosecutor's activities in this area.
See Burns, 500 U.S. at 492-96. And, absolute immunity is unavailable
when a prosecutor conducts a press conference or when he fabricates
evidence concerning an unsolved crime. See Buckley, 509 U.S. at
272-78. The Supreme Court has explained:

          There is a difference between the advocate's role in evaluat-
          ing evidence and interviewing witnesses as he prepares for
          trial, on the one hand, and the detective's role in searching
          for the clues and corroboration that might give him probable
          cause to recommend that a suspect be arrested, on the other
          hand. When a prosecutor performs the investigative func-

                     6
          tions normally performed by a detective or police officer, it
          is neither appropriate nor justifiable that, for the same act,
          immunity should protect the one and not the other.

Id. at 273 (internal quotation marks omitted).

Ostrzenski maintains that Seigel was acting in the role of an inves-
tigator in preparing the report as a peer reviewer for the Board and
that therefore he is not entitled to immunity. Seigel, on the other hand,
asserts that his activities were analogous to those in which a prosecu-
tor must engage in evaluating whether charges are to be pursued and
that therefore he is entitled to immunity.

Undoubtedly, Seigel's preparation of the peer review report
involved an examination of Ostrzenski's practice and files. But, not
all activities by a prosecutor involving a review of evidence fall out-
side his duties as an advocate. Clearly, some evidentiary review is
necessary to determine whether to pursue charges, and a prosecutor
is held to be absolutely immune from liability for performing such
duties. See id. Seigel's duties as a peer reviewer were analogous to
those of a prosecutor reviewing the evidence to determine whether to
recommend prosecution.

Additionally, there is a strong need to ensure that peer reviewers
perform their functions for the public good without harassment and
intimidation. Peer reviewers exercise their professional discretion in
determining whether one of their fellow physicians has deviated from
the standard of professional care in a manner requiring the Board to
intervene. If peer reviewers were to face the prospect of civil liability
for damages, the exercise of that discretion might be distorted. See
Butz, 438 U.S. at 515. Although a peer reviewer would not likely be
hounded with litigation if he were to decide that a physician has com-
mitted no wrongdoing, there is a real risk that a peer reviewer who
concluded that charges against a physician should be pursued would
meet with a retaliatory response. See id. A physician anticipating
disciplinary action, including the loss of a license to practice medi-
cine, may well seek vengeance.

Furthermore, there are adequate procedural safeguards under state
law to protect against unconstitutional conduct by peer reviewers

                     7
without reliance on private damages lawsuits. Prior to taking disci-
plinary action against a physician, the Board must give the physician
notice and an opportunity for a hearing before a hearing officer con-
ducted in accordance with the Maryland Administrative Procedures
Act. See Md. Code Ann. Health Occ. § 14-405(a)-(b). The physician
may call witnesses, offer evidence, cross-examine witnesses, and
present argument. See Md. Code Ann. State Gov't § 10-213(f) (1995).
Charges must be proven by clear and convincing evidence. See Md.
Code Ann. Health Occ. § 14-405(b). At the conclusion of the hearing,
"the hearing officer shall refer proposed factual findings to the Board
for the Board's disposition." Id. § 14-405(e). A physician is entitled
to seek judicial review of an adverse decision. See id. § 14-408; Md.
Code Ann. State Gov't § 10-222 (1995).

In sum, a physician requested by the Board to conduct a peer
review performs a function analogous to a prosecutor reviewing evi-
dence to determine whether charges should be brought. As such,
absolute immunity is necessary to foster an atmosphere in which the
peer reviewer can exercise his professional judgment without fear of
retaliation. An action for damages is not necessary to safeguard
against the inappropriate exercise of that discretion since other protec-
tions are provided through review by the hearing officer, the Board,
and ultimately the judiciary. Consequently, we conclude that Seigel
is entitled to absolute quasi-judicial immunity on Ostrzenski's § 1983
claim.

III.

The district court dismissed Ostrzenski's claim of false light inva-
sion of privacy under Maryland law for failure to state a claim upon
which relief could be granted. Federal Rule of Civil Procedure 8(a)
requires "a short and plain statement of the claim showing that the
pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "This portion of
Rule 8 indicates the objective of the rules to avoid technicalities and
to require that the pleading discharge the function of giving the
opposing party fair notice of the nature and basis or grounds of the
claim ...." 5 Charles Alan Wright & Arthur R. Miller, Federal Prac-
tice and Procedure § 1215 (2d ed. 1990) (footnote omitted). Under
Rule 8(a)(2), a claim is acceptable if "a plaintiff colorably states facts
which, if proven, would entitle him to relief." Adams v. Bain, 697

                     8
F.2d 1213, 1216 (4th Cir. 1982). But, a claimant need not set out in
detail all of the facts upon which the claim for relief is based; rather,
he need only provide a statement sufficient to put the opposing party
on fair notice of the claim and the grounds supporting it. See
Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S. 557, 568 n.15
(1987); Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1227 (4th
Cir. 1998); Gilbane Bldg. Co. v. Federal Reserve Bank, 80 F.3d 895,
900 (4th Cir. 1996).

This court reviews a dismissal of a claim by the district court under
Rule 12(b)(6) de novo. See Mylan Lab., Inc. v. Matkari, 7 F.3d 1130,
1134 (4th Cir. 1993). On appeal from an order granting a Rule
12(b)(6) motion to dismiss, this court accepts as true the facts as
alleged in the complaint, views them in the light most favorable to the
plaintiff, and recognizes that dismissal is inappropriate "unless it
appears to a certainty that the plaintiff would be entitled to no relief
under any state of facts which could be proved in support of his
claim." Id. at 1134 & n.4 (internal quotation marks omitted); see
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (explaining that
dismissal for failure to state a claim is proper"only if it is clear that
no relief could be granted under any set of facts that could be proved
consistent with the allegations").

Ostrzenski's false light count alleged the following:

          [Seigel] has published false statements about the Plaintiff to
          others in the form of, inter alia, the peer review report
          issued to the Montgomery County Medical Society[. Seigel]
          knew those statements were false when he made them, or he
          made them with reckless disregard as to their falsity. The
          statements were highly offensive to any reasonable person
          and they placed [Ostrzenski] in a false light.

J.A. 20. Earlier in the complaint, Ostrzenski alleged:

          The Report, signed by [Seigel], contained misrepresenta-
          tions and alleged facts that [Seigel] knew, or should have
          known were untrue. Among others, the Report falsely
          reported that [as a peer reviewer, Seigel reported that he did
          not have a conflict of interest with Ostrzenski].

                     9
J.A. 12-13.

The tort of false light is a type of action claiming an invasion of
privacy. Under Maryland law:

          "One who gives publicity to a matter concerning another
          that places the other before the public in a false light is sub-
          ject to liability to the other for invasion of his privacy, if

          (a) the false light in which the other person was placed
          would be highly offensive to a reasonable person, and

          (b) the actor had knowledge of or acted in reckless disregard
          as to the falsity of the publicized matter and the false light
          in which the other would be placed."

Bagwell v. Peninsula Reg'l Med. Ctr., 665 A.2d 297, 318 (Md. Ct.
Spec. App. 1995) (quoting Restatement (Second) of Torts § 652E
(1977)).

The district court dismissed Ostrzenski's complaint, reasoning that
the only allegation of falsity made by Ostrzenski was that Seigel mis-
represented in the report that he did not have a conflict of interest and
that this "falsity" could not be highly offensive. Although the district
court was correct that an allegation that Seigel lacked a conflict of
interest that would prohibit him from conducting the peer review does
not satisfy the "highly offensive" standard, the complaint also alleges
that the report "contained misrepresentations and alleged [false]
facts." J.A. 13. The district court ignored this allegation of falsity.
Because the report was not incorporated into the complaint, and since
Seigel has not yet answered, the report is not before the court. We
cannot say that it is clear that Ostrzenski cannot prove that some fac-
tual assertion in the report is highly offensive.

Seigel also asserts that the allegations contained in Ostrzenski's
complaint do not "`set forth enough details so as to provide [him] and
the court with a fair idea of the basis of the complaint and the legal
grounds claimed for recovery.'" Karpel, 134 F.3d at 1227 (quoting
Self Directed Placement Corp. v. Control Data Corp. , 908 F.2d 462,

                     10
466 (9th Cir. 1990)). Although we doubt that Ostrzenski's complaint
fails to satisfy this modest requirement, even if we were to agree that
the allegations of Ostrzenski's complaint were inadequate because
there should have been an explicit mention of the matters contained
in the report that were "highly offensive," the district court should not
have dismissed the complaint with prejudice without permitting Ostr-
zenski an opportunity to amend.

           A dismissal under Rule 12(b)(6) generally is not final or
          on the merits and the court normally will give plaintiff leave
          to file an amended complaint. The federal rule policy of
          deciding cases on the basis of the substantive rights
          involved rather than on technicalities requires that plaintiff
          be given every opportunity to cure a formal defect in his
          pleading. This is true even though the court doubts that
          plaintiff will be able to overcome the defects in his initial
          pleading. Amendment should be refused only if it appears
          to a certainty that plaintiff cannot state a claim. The better
          practice is to allow at least one amendment regardless of
          how unpromising the initial pleading appears because
          except in unusual circumstances it is unlikely that the court
          will be able to determine conclusively on the face of a
          defective pleading whether plaintiff actually can state a
          claim.

5A Charles Allen Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357, at 360-67 (2d ed. 1990) (emphasis added) (foot-
notes omitted); see id. at 361 n.81 (collecting cases). There is no indi-
cation from any source that Ostrzenski could not have amended his
complaint to allege representations in the report that were highly
offensive. Consequently, we cannot conclude that an amendment
would have been futile. See Foman v. Davis, 371 U.S. 178, 182
(1962) (noting that a court properly may refuse to allow leave to
amend pleadings when, inter alia, the proposed changes would be
futile).

Nevertheless, we may affirm the dismissal by the district court on
the basis of any ground supported by the record even if it is not the
basis relied upon by the district court. See United States v. Swann,
149 F.3d 271, 277 (4th Cir. 1998). Our research discloses that Mary-

                     11
land law recognizes absolute immunity for prosecutors when evaluat-
ing whether charges should be brought. See Gill v. Ripley, 724 A.2d
88, 96-98 (Md. 1999); see also Parker v. State , 653 A.2d 436, 442-43
(Md. 1995) (recognizing that judicial immunity is broader than public
official immunity in that the former immunizes officials from civil
liability for violations of the Maryland Constitution and for inten-
tional torts in addition to other state-law causes of action). Moreover,
Maryland law recognizes absolute immunity in quasi-judicial admin-
istrative proceedings when the nature of the public function of the
proceedings is sufficiently compelling and procedural safeguards are
adequate to minimize the potential for injury at the hands of the
immunized official. See Odyniec v. Schneider, 588 A.2d 786, 790
(Md. 1991); Gersh v. Ambrose, 434 A.2d 547, 551-52 (Md. 1981).
For the reasons set forth above concerning why Seigel is absolutely
immune from liability for damages under § 1983, we conclude that
Seigel is entitled to absolute quasi-judicial immunity under Maryland
law from Ostrzenski's false light claim.

IV.

In sum, we conclude that Seigel's activities as a peer reviewer were
analogous to those of a prosecutor in determining whether to press
charges and thus were intimately associated with the judicial process.
Accordingly, Seigel was entitled to absolute quasi-judicial immunity
from liability, and the district court properly dismissed Ostrzenski's
action for failure to state a claim upon which relief can be granted.

AFFIRMED

                    12
