                                                                               F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                                        PUBLISH
                                                                               JUL 22 1999
                        UNITED STATES COURT OF APPEALS
                                                                             PATRICK FISHER
                                    TENTH CIRCUIT                                  Clerk


FAISAL F. AMANATULLAH, M.D.,

      Plaintiff-Appellant,

          v.                                                   No. 98-1314

COLORADO BOARD OF MEDICAL
EXAMINERS, an agency of the State of
Colorado; JAMES P. BORGSTEDE, M.D.;
MEMBERS OF PANEL A OF THE
COLORADO BOARD OF MEDICAL
EXAMINERS, IRENE AGUILAR, M.D.,
ELIZABETH FEDER, PH.D., WARREN T.
JOHNSON, M.D. JANE A. KENNEDY,
D.O., G. EDWARD KIMM, JR., M.D., in
their individual and official capacities;
MEMBERS OF PANEL B OF THE
COLORADO BOARD OF MEDICAL
EXAMINERS, ROGER M. BARKIN, M.D.,
LOUIS B. KASUNIX, D.O., Vice President,
RAY ANN BRAMMER, Esq., Chair Public
Member, PAMELA L. KIMBROUGH, M.D.,
JOHN T. AMMONS, M.D., in their official
capacities only; SUSAN MILLER,
administerial employee of the Colorado
Board of Medical Examiners; SHANNEL
LORANCE, administerial employee of the
Colorado Board of Medical Examiners;
JOHN DOES 1 through 5; and JANE DOES
1 through 5; agents of the Colorado State
Board of Medical Examiners,

      Defendants-Appellees.


                        Appeal from the United States District Court
                                for the District of Colorado
                                 (D.C. No. 97-WM-2581)
Chris L. Ingold (Paul D. Cooper with him on the briefs), of Cooper & Clough, P.C., Denver,
Colorado, for the appellant.

John S. Sackett, Assistant Attorney General, (Gale A. Norton, Attorney General, and Gregg E.
Kay, First Assistant Attorney General, with him on the brief), State of Colorado, Denver,
Colorado, for the appellees.


Before TACHA, BARRETT, and BRORBY, Circuit Judges.


BARRETT, Senior Circuit Judge.



       Faisal F. Amanatullah, M.D., (Amanatullah) appeals the district court’s Order abstaining

from considering his claims on the merits and dismissing his 42 U.S.C. § 1983 civil rights complaint.

                                               Facts

       Amanatullah is a physician licensed to practice medicine in Colorado and Nevada.1

Appellees are the Colorado Board of Medical Examiners (the Colorado Board) and various officers

and employees of the Board.

       In 1994, the Nevada Board of Medical Examiners (the Nevada Board) filed an administrative

complaint against Amanatullah, alleging five instances of substandard patient care (Counts 1-5) and

twenty-four instances of overcharging for diagnostic testing in violation of Nevada regulations




       1
                The court takes judicial notice of the fact that Colorado revoked Amanatullah’s
license to practice medicine on May 21, 1999. Fed. R. Evid. 201. See United States v. Burch,
169 F.3d 666, 671 (10th Cir. 1999) (judicial notice may be taken for the first time on appeal).



                                                -2-
(Counts 6-29). (App. Vol. 2 at 718-66.) On April 3, 1995, Amanatullah settled the complaint with

the Nevada Board. Id. Vol. 1 at 69-77. The Nevada Board dismissed the substandard patient care

charges with prejudice and Amanatullah pled nolo contendere to the overcharging violations. Id.

at 75-77. Amanatullah received a public reprimand and paid a fine, but remains in good standing

with the Nevada Board. Id. Following the settlement, Amanatullah relocated to Colorado Springs,

Colorado.

       In December, 1995, the Colorado Board began an investigation into the Nevada allegations.

See id. at 261. The Colorado Board contacted the Nevada Board and received a copy of the

reprimand letter, settlement, and complaint against Amanatullah. On March 13, 1996, the Colorado

Board inquiry panel sent a “30 day” letter to Amanatullah, requesting information regarding Counts

6-29, the overcharging allegations, of the Nevada complaint.2 Id. at 78-79. Amanatullah responded

on April 12, 1996. Id. at 94-97. On May 22, 1996, the inquiry panel voted to issue a second “30

day” letter to Amanatullah regarding Counts 1-5 of the Nevada complaint, the substandard care

allegations. Id. at 264, 266-67. Amanatullah responded to the second inquiry on June 5, 1996. Id.

at 268-71. In July, 1996, the inquiry panel reviewed Amanatullah’s second response and voted to

refer the case to Complaints and Investigations of the Department of Regulatory Agencies for

investigation and a review by an internal medicine consultant. Id. at 274.

       In September, 1997, after reviewing Amanatullah’s response to its May 22, 1996, “30-day”

letter and the report on its own investigation, the inquiry panel referred the case to the Attorney

General for commencement of formal disciplinary proceedings to revoke Amanatullah’s license.



       2
               The Colorado Board is divided into two panels, the inquiry panel, Panel A in this
case, and the hearings panel, Panel B. C.R.S. § 12-36-118(1).

                                               -3-
Id. at 280. Amanatullah was notified by letter of September 16, 1997. Id. Vol. 2 at 432.

        On December 9, 1997, Amanatullah filed this § 1983 action, seeking to enjoin the Colorado

Board’s proceedings against his Colorado medical license and damages stemming from the Colorado

Board’s alleged violations of his civil rights. Id. Vol. 1, Tab 1 at 1-21. On July 20, 1998, the district

court dismissed Amanatullah’s complaint based on the court’s conclusion that it must abstain under

the doctrine of Younger v. Harris, 401 U.S. 37 (1971). Id. Vol. 5, Tab 64 at 1450-60.

        On appeal, Amanatullah contends that the district court erred in dismissing his complaint and

that the Colorado Board is violating his constitutional rights. Amanatullah asserts that the district

court erred in abstaining pursuant to Younger because: (1) substantial proceedings on the merits took

place in federal court before any state proceedings, (2) the state proceedings cannot address his

federal claims raised in his complaint, and (3) dismissal of his damages claim was improper.3 On

the merits, Amanatullah argues that the Colorado Board is violating his rights by denying full faith

and credit to the Nevada Board’s order, and by exceeding its limited authority under its enabling

statute.4 Amanatullah asserts that the district court should have enjoined the clear violations of his

rights. We review de novo the district court’s decision to abstain pursuant to Younger. Taylor v.


        3
               It is curious that Amanatullah is concerned with the dismissal of his damages
claims inasmuch as he informed the court at the hearing on his motion for a preliminary
injunction on February 24, 1998, that “it is clear . . . that if the Board of Medical Examiners does
violate his constitutional rights, they’re not subject to a damages suit, . . ..” (App. Vol. 5 at
1710.) See C.R.S. § 12-36-103(5) (board members “immune from any civil action based upon a
disciplinary proceeding”); Horowitz v. State Board of Medical Examiners of Colo., 822 F.2d
1508 (10th Cir.), cert. denied, 484 U.S. 964 (1987) (board members absolutely immune from
damages under § 1983).
        4
                Based on our conclusion infra that we must abstain pursuant to Younger, we will
not address Amanatullah’s claims on the merits. See Griffin v. Davies, 929 F.2d 550, 554 (10th
Cir.) (we will not “undertake to decide issues that do not affect the outcome of a dispute”)
(citation omitted), cert. denied, 502 U.S. 878 (1991).

                                                  -4-
Jaquez, 126 F.3d 1294, 1296 (10th Cir. 1997), cert. denied, 118 S.Ct. 1187 (1998).

                                             Discussion

       “Younger abstention dictates that federal courts not interfere with state court proceedings by

granting equitable relief-such as injunctions of important state proceedings or declaratory judgments

regarding constitutional issues in those proceedings-when such relief could adequately be sought

before the state court.” Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th Cir. 1999). A federal court

must abstain from exercising jurisdiction when: (1) there is an ongoing state criminal, civil, or

administrative proceeding, (2) the state court provides an adequate forum to hear the claims raised

in the federal complaint, and (3) the state proceedings “involve important state interests, matters

which traditionally look to state law for their resolution or implicate separately articulated state

policies.” Taylor, 126 F.3d at 1297. Younger abstention is non-discretionary; it must be invoked

once the three conditions are met, absent extraordinary circumstances. See Seneca-Cayuga Tribe

of Okla. v. State of Oklahoma ex rel. Thompson, 874 F.2d 709, 711 (10th Cir.1989). We will now

address each of these conditions in turn.

       First, the Colorado Board initiated state proceedings against Amanatullah substantially before

Amanatullah filed his federal complaint. The state proceedings in this case are governed by the

Colorado Medical Practice Act, C.R.S. §§ 12-36-101 et seq., and the Colorado Administrative

Procedure Act, C.R.S. §§ 24-4-101 et seq. The disciplinary proceedings by the Colorado Board

begin with an informal inquiry and investigation into complaints. C.R.S. § 12-36-118(4). If upon

completion of the investigation, the inquiry panel finds that the facts “warrant further proceedings

by formal complaint,” the matter is referred to the attorney general for the preparation and filing of

a formal complaint. C.R.S. § 12-36-118(4)(c)(IV) (emphasis added). The formal complaint is heard


                                                -5-
by an administrative law judge at a formal hearing pursuant to § 12-36-118(5) and § 24-4-105. The

administrative law judge’s decision is reviewed by the Colorado Board’s hearing panel and the final

agency action is then subject to judicial review. See C.R.S. § 24-4-106 and § 12-36-119.

       We hold that state proceedings began on March 13, 1996, when the Colorado Board issued

its first “30-day” letter to Amanatullah advising him of its investigation into the allegations of the

Nevada complaint. The state proceedings did not begin when the formal complaint was filed by the

attorney general, as contended by Amanatullah. The Colorado Revised Statutes § 12-36-118(4)(a)(I)

provides, inter alia, “The physician complained of shall be given notice by certified mail of the

nature of the complaint and shall be given thirty days to answer or explain in writing the matters

described in such complaint.” The proceedings continued with: Amanatullah’s response on April

12, 1996; a second “30-day” letter on May 22, 1996, regarding Counts 1-5 of the Nevada complaint;

Amanatullah’s second response on June 5, 1996; the inquiry panel’s review and referral for an

investigation in July, 1996; and the inquiry panel’s review and referral of the matter to the attorney

general’s office for the filing of a formal complaint in September, 1997. Contrary to Amanatullah’s

contentions, substantial state proceedings took place before he filed his federal complaint on

December 9, 1997. The formal proceedings may have been initiated sooner had Amanatullah not

sought delays in the filing of the formal complaint by threatening a temporary restraining order in

federal court. See Vol. 2 at 408-426.

        Second, the state provides an adequate forum to hear Amanatullah’s constitutional and civil

rights claims raised in his federal complaint. The Colorado Administrative Procedure Act provides

that “[i]n order to assure that all parties to any agency adjudicatory proceeding are accorded due

process of law,” the administrative law judge has the authority “to dispose of motions to dismiss for


                                                -6-
lack of agency jurisdiction over the subject matter or parties or for any other ground.” C.R.S. § 24-

4-105(1) and (4) (emphasis added). See e.g. Middlesex County Ethics Comm. v. Garden State Bar

Ass’n, 457 U.S. 423, 435-37 (1982) (the Supreme Court held that federal courts should not interfere

with pending attorney disciplinary actions if state procedures allow an attorney the opportunity to

raise constitutional challenges to the proceedings). Furthermore, the final agency action shall be

subject to judicial review. See C.R.S. § 12-36-119 (appeal of final board actions to court of appeals);

C.R.S. § 24-4-106(11) (judicial review by court of appeals). It is sufficient for purposes of Younger

abstention that federal challenges, such as Amanatullah’s civil rights complaints, may be raised in

state court judicial review of administrative proceedings. See Ohio Civil Rights Comm’n v. Dayton

Christian Sch, Inc., 477 U.S. 619, 629 (1986) (“[I]t is sufficient under Middlesex, supra, at 436, that

constitutional claims may be raised in state-court judicial review of the administrative proceeding.”).

        At the time that the district court abstained and dismissed Amanatullah’s federal complaint,

there had been no hearing before an administrative law judge. We consider Amanatullah’s claims

as of the that time. Amanatullah would have had ample opportunity to present his constitutional and

civil rights claims to the administrative law judge at the hearing. We assume that the administrative

law judge would have followed his/her obligations under § 24-4-105 and considered Amanatullah’s

federal claims. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987) (“[W]hen a litigant has not

attempted to present his federal claims in related state-court proceedings, a federal court should

assume that state procedures will afford an adequate remedy, in the absence of unambiguous

authority to the contrary.”). Amanatullah also has the opportunity to raise his federal claims in the

judicial review process. See C.R.S. § 24-4-106(11). “If [the court of appeals] finds that the agency

action is . . . contrary to constitutional right, power, privilege, or immunity, . . . or otherwise contrary


                                                   -7-
to law . . . the court shall hold unlawful and set aside the agency action . . ..” C.R.S. § 24-4-106(7).

          Third, there is no question that the licensing and discipline of physicians involves important

state interests, matters which traditionally look to state law for their resolution, or implicate

separately articulated state policies. As the district court observed, it is difficult to imagine a state

interest more important than the protection of its citizens against the harms of unauthorized,

unqualified, and improper practice of medicine. (App. Vol. 5, Tab 64 at 1457.) See C.R.S. § 12-36-

102(1).

          Amanatullah argues that Younger abstention is not appropriate because the district court erred

in failing to consider his amended complaint, which demonstrated the bad faith of the Colorado

Board and its agents in pursuing his license. The Younger abstention doctrine does not apply “in

cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope

of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable

injury can be shown.” Perez v. Ledesma, 401 U.S. 82, 85 (1971). See Younger, 401 U.S. at 54

(creating exception on “showing of bad faith, harassment, or any other unusual circumstances that

would call for equitable relief.”); Phelps v. Hamilton, 59 F.3d 1058, 1066-68 (10th Cir. 1995)

(analyzing exceptions). “[I]t is the plaintiffs ‘heavy burden’ to overcome the bar of Younger

abstention by setting forth more than mere allegations of bad faith or harassment.” Phelps v.

Hamilton, 122 F.3d 885, 889 (10th Cir. 1997) (quoting Phelps, 59 F.3d at 1066). Amanatullah has

not met this burden. On the record before us, there is no evidence that any of these exception apply

to this case. The district court did not abuse its discretion in failing to consider Amanatullah’s




                                                  -8-
amended complaint.5

       Therefore, we hold that the district court properly abstained from considering Amanatullah’s

claims on the merits. The district court properly abstained under Younger.

       AFFIRMED.




       5
               This is especially true in view of the late filing of the amended complaint. It was
not tendered to the court until July 7, 1998. (App. Vol. 5 at 1740.)

                                               -9-
