
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1864                                 JOHN W. WANG, M. D.,                                Plaintiff, Appellant,                                          v.               NEW HAMPSHIRE BOARD OF REGISTRATION IN MEDICINE, ET AL.,                                Defendants, Appellees.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                                                                      ____________________                           Cyr and Boudin, Circuit Judges,                                           ______________                             and Keeton,* District Judge.                                          ______________                                                                                      ____________________             Vincent C. Martina for appellant.             __________________             Daniel J.  Mullen, Senior  Assistant Attorney General,  with whom             _________________        Jeffrey R. Howard, Attorney General, was on brief.        _________________                                                                                      ____________________                                     June 6, 1995                                                                                      ____________________                                    ____________________             *Of the District of Massachusetts, sitting by designation.                    CYR, Circuit Judge.  John W. Wang, M.D., appeals from a                    CYR, Circuit Judge.                         _____________          district court  judgment dismissing  his claims for  monetary and          equitable  relief relating  to  certain disciplinary  proceedings          conducted by the New Hampshire Board of Registration in Medicine,          which  culminated in the  revocation of  his license  to practice          medicine  in New Hampshire.   We affirm the  district court judg-          ment.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Wang practiced medicine for approximately sixteen years          under   a  medical   license  issued   by  the   Commonwealth  of          Massachusetts  in 1967, then moved  to New Hampshire  in 1983 and          resumed  the  practice of  medicine  under  a newly-obtained  New          Hampshire  medical  license.   On March  16,  1988, the  Board of          Registration in  Medicine for the  Commonwealth of  Massachusetts          ("Massachusetts  Board")  revoked   Wang's  medical  license  for          professional misconduct.1   In  light of the  Massachusetts Board          action against Wang, the New  Hampshire Board of Registration  in          Medicine ("New  Hampshire Board" or  "Board") issued an  order on          July  20,  1988, suspending  his  New  Hampshire medical  license          pursuant to  the  New Hampshire  reciprocal revocation  statute,2                                        ____________________               1The  charges and findings appear in Wang v. Board of Regis-                                                    ____    _______________          tration in Medicine, 537 N.E.2d 1216 (Mass. 1989).          ___________________               2The reciprocal  revocation statute, N.H. Rev.  Stat. Ann.            329:17-c (1984), in effect at the time provided:               The  board may  summarily deny  a license  to, or  revoke or               restrict  the license of, any  person who has been subjected                                          2          and  allowing him  until August 26  to request  an administrative          hearing.                    Wang  promptly  obtained preliminary  injunctive relief          from  a New  Hampshire superior  court, enjoining  the suspension          order  pending  a revocation  hearing  before  the New  Hampshire          Board.   The Board in turn  withdrew its suspension order and, on          August 11, 1988, ordered that  Wang show cause why his  New Hamp-          shire license  ought not  be revoked  on the  ground that  he had          never informed the  Board of the license  revocation order issued          by the Massachusetts  Board.  On October  5, 1988, the  New Hamp-          shire Board  decided to investigate Wang's  New Hampshire medical          practice.                    Pending  investigation by the New Hampshire Board, Wang          appealed the Massachusetts Board  license revocation order to the          Massachusetts Supreme Judicial Court ("SJC").  Contemporaneously,          Wang sought    and on February 23, 1989, obtained    a second New          Hampshire superior court order, enjoining the New Hampshire Board          from pursuing "any hearing  the result of which might  be revoca-          tion of [Wang's] New Hampshire license based on the action of the          Massachusetts  Board  . .  .  until such  time  as the  matter in          Massachusetts has  been finally adjudicated  in the [SJC]."   Two          months later     on reconsideration    the New Hampshire superior          court vacated  its  injunction for  lack  of jurisdiction.    The          following week,  the SJC  upheld the Massachusetts  Board license                                        ____________________               to disciplinary  action related to  professional conduct  by               the competent authority of any other jurisdiction.                                          3          revocation order.                     On  May 22,  1989,  counsel was  appointed  by the  New          Hampshire  Board  to  investigate  Wang's New  Hampshire  medical          practice.   The investigation  took over  two years, followed  by          hearings commencing in  July and  ending in October,  1991.   The          Board  found that      in and  of  itself     the  unprofessional          conduct  which had  prompted  the Massachusetts  Board to  revoke          Wang's medical license warranted  revocation of his New Hampshire          license.    Further, the  Board  found  that Wang's  unreasonable          withholding of  information from the Board  during its investiga-          tion into  his New  Hampshire medical  practice, and  his failure          even  to  demonstrate  an  attempt to  address  the  professional          deficiencies  in his  Massachusetts practice, combined  "not only          [to] justify,  but [to] require reciprocal  license revocation in          New Hampshire."  On  March 5, 1992, the Board  issued its written          decision and order revoking Wang's New Hampshire medical license.                    Wang  appealed  the  revocation  decision  to  the  New          Hampshire Supreme Court, claiming deprivations of his due process          rights under state and  federal law, including alleged violations          of the Board's own rules,  regulations and enabling statutes, and          asserting conflicts of interest and unfair prejudice on  the part          of Board  members and its counsel.   On August 26,  1992, the New          Hampshire Supreme Court summarily affirmed the license revocation          order, finding  the New  Hampshire Board decision  neither unjust          nor unreasonable,  and that  the appeal presented  no substantial          question of law.                                          4                    Meanwhile, on  November 22, 1991, before  the New Hamp-          shire  Board's license  revocation  order ever  issued, Wang  had          commenced  the present action against the  Board, its members and          counsel,  in the United States District Court for the District of          New  Hampshire.   The federal  complaint under  42 U.S.C.    1983          asserted claims  for monetary relief and for temporary and perma-          nent injunctive relief enjoining  further disciplinary action  by          the Board; a  judicial declaration that the Board's  actions were          fundamentally unfair and violative of Wang's right to due process          of law; and an award of  attorney fees against Board members  and          its counsel in their individual capacities.  The federal district          court stayed  its  proceedings  pending  a decision  by  the  New          Hampshire Supreme Court.                    All  defendants  moved  to dismiss  the  federal action          shortly after the New  Hampshire Supreme Court summarily affirmed          the New Hampshire Board's license revocation order.  The district          court  dismissed the claims for monetary relief against the Board          and  its  members,  in  their official  capacities,  on  Eleventh          Amendment  immunity  grounds.   Later,  the  claims for  monetary          relief against Board members and its counsel, in their individual          capacities,  were dismissed  on  grounds  of  absolute  immunity.          Finally, on  July 12,  1994, the  district court entered  summary          judgment on the claims for  injunctive relief against the  Board,          finding that  it lacked subject matter jurisdiction to review the          New Hampshire Supreme Court decision.  Wang appealed.                                          II                                          II                                          5                                      DISCUSSION                                      DISCUSSION                                      __________                    On appeal, Wang contends  that the district court erred          in dismissing  his claims for  monetary relief against  the Board          and  its members in their  official capacities; in sustaining the          absolute  immunity claims  interposed  by Board  members and  its          counsel,  acting in  their individual  capacities, in  that these          defendants had  exceeded their respective adjudicative and prose-          cutorial roles  and  would be  entitled,  at most,  to  qualified          immunity  under New Hampshire law;  and in ruling  that it lacked          subject  matter jurisdiction  to  afford  prospective  injunctive          relief.          A.   Monetary Relief3          A.   Monetary Relief               _______________               1.   The Board and Board Members (Official Capacities)               1.   The Board and Board Members (Official Capacities)                    _________________________________________________                    As  it is well settled "that neither a state agency nor          a  state official acting in his official capacity may be sued for          damages in a section 1983 action," Johnson v. Rodriguez, 943 F.2d                                             _______    _________          104, 108 (1st Cir. 1991) (citing Will v. Michigan  Dep't of State                                           ____    ________________________          Police,  491 U.S.  58, 71  (1989)), cert.  denied, 502  U.S. 1063          ______                              _____  ______          (1992); see also Kaimowitz  v. Board of Trustees, Univ.  of Ill.,                  ___ ____ _________     _________________________________          951 F.2d  765, 767 (7th Cir. 1991)  (finding that, as neither the          state  nor its "alter ego"  (state university) is  a "person" for          section  1983 purposes, neither is  subject to suit under section                                        ____________________               3Rule  12(b)(1)  dismissals  for  lack   of  subject  matter          jurisdiction  are reviewed  de  novo, Hogar  Agua  y Vida  en  el                                      __  ____  ___________________________          Desierto,  Inc.  v. Suarez-Medina,  36  F.3d 177,  181  (1st Cir.          _______________     _____________          1994),  crediting all  well-pleaded allegations  and drawing  all          reasonable  inferences favorably  to  the plaintiff.   Murphy  v.                                                                 ______          United States, 45 F.3d 520, 522 (1st Cir. 1995).          _____________                                          6          1983),  we affirm the dismissal of the claims for monetary relief          against  the  Board and  its  members  acting in  their  official          capacities.                  2.   Board Members and Board Counsel (Individual Capacities)               2.   Board Members and Board Counsel (Individual Capacities)                    _______________________________________________________                    Immunity claims in section 1983 actions are governed by          federal  law.   Martinez  v. California,  444  U.S. 277,  284 n.8                          ________     __________          (1980).  Wang nonetheless contends that the Board members and its          counsel, in their individual  capacities, were entitled, at most,          to "good faith" immunity (under  New Hampshire law) from monetary          liability under section 1983.  As we discern no material distinc-          tion  between  the  quasi-judicial  and  prosecutorial  functions          performed  by these  defendants  in behalf  of the  New Hampshire          Board, and those performed  by their Massachusetts Board counter-          parts,  the  district  court order  dismissing  these "individual          capacity" claims was entirely  proper.  See Bettencourt v.  Board                                                  ___ ___________     _____          of  Registration  in Medicine,  904  F.2d 772,  782-85  (1st Cir.          _____________________________          1990).                      The  Massachusetts Board  members and  its professional          staff were  held absolutely immune from suit  in their individual          capacities under section 1983, on the ground that these officials          serve in  quasi-judicial capacities "functionally  comparable" to          those performed by a state court judge.  Id. at 783.  As with the                                                   ___          Massachusetts Board,  New Hampshire Board members  weigh evidence          and  make factual  determinations, N.H.  Rev. Stat. Ann.    329:-          17(VI),  determine sanctions,  see id.    329:17(VII),  and issue                                         ___ ___                                          7          written  decisions  in disciplinary  actions.   See  id.    329:-                                                          ___  ___          18(III).4                      Although Wang attempts to differentiate between the two          administrative  tribunals on  the ground  that the  New Hampshire          Board assumed  an "inquisitorial  or investigative role"  in this          case by  instigating and prosecuting the charges against him, the          attempted  distinction is  without  legal  significance.    State          officials  performing prosecutorial functions  -- including their          decisions to  initiate administrative proceedings aimed  at legal          sanctions -- are entitled to absolute immunity as well.  See Butz                                                                   ___ ____          v. Economou, 438 U.S. 478, 515 (1978);  see also Horwitz v. Board             ________                             ___ ____ _______    _____          of Medical Examiners, 822 F.2d 1508, 1515 (10th Cir.) (describing          ____________________                                        ____________________               4The New Hampshire Board  is empowered to conduct disciplin-          ary proceedings, and discipline  licensees in appropriate  cases,          N.H. Rev.  Stat.  Ann.    329:2(II)(b),  329:17(I),(VI),  and  to          appoint  legal  counsel  and "such  other  assistants  as  may be          required" in performing its administrative  responsibilities, id.                                                                        ___            329:2(II)(c).  It may  initiate disciplinary proceedings on its          own  motion or  upon  a written  complaint alleging  professional          misconduct.  See id.   329:17(I), (VI).  It may reprimand; limit,                       ___ ___          suspend or  revoke medical licenses; assess administrative fines;          and order treatment, counseling, continuing medical education and          medical practice  supervision.  Id.   329:17(VII).   Appeals from                                          ___          its disciplinary  rulings are taken to the  New Hampshire Supreme          Court, id.    329(VIII), under the  procedures set forth  in N.H.                 ___          Rev. Stat. Ann.   541.                 The  Massachusetts Board  adjudicatory proceedings  are con-          ducted  by a hearing officer,  see Bettencourt, 904  F.2d at 773,                                         ___ ___________          who  makes all evidentiary  and procedural rulings,  and issues a          "tentative  decision"  which  the  Massachusetts  Board  reviews,          together with  any objection  filed by the  respondent physician,          before  issuing its "final  decision."  See  id. at 773-74.   The                                                  ___  ___          Massachusetts   Board  accords  "substantial  deference"  to  all          credibility determinations by the hearing officer, but may reject          or revise any finding based on  conflicting evidence.  Id.  Legal                                                                 ___          rulings  are reviewed de novo.   Id.   Appeals from Massachusetts                                __ ____    ___          Board  decisions are  taken to the  SJC, which  may set  aside or          modify  board decisions on a finding that substantial rights have          been prejudiced.  Id. at 774.                            ___                                          8          Colorado  medical board officials' adjudicatory and prosecutorial          role),  cert. denied, 484 U.S.  964 (1987).   Thus, New Hampshire                  _____ ______          Board counsel, like  the Massachusetts Board professional  staff,          see Bettencourt, 904 F.2d at 785, is absolutely immune from suit,          ___ ___________          in his individual capacity, based on his participation in partic-          ular cases before the Board.  See id.                                          ___ ___                    Wang next  argues that the New  Hampshire Board members          and  its counsel were  imbued with such  "overwhelming malice and          bad faith"  that due process  was not to  be had at  their hands.          The  allegation of malice and bad faith is founded principally on          the  New  Hampshire  superior  court  decision      preliminarily          enjoining  further Board action    entered  on February 23, 1989,          and vacated for  lack of subject  matter jurisdiction two  months          later.5                    Even assuming  a level of  malice and bad  faith suffi-          cient to poison the  New Hampshire Board proceedings     contrary          to  the record  evidence, as  well as  the New  Hampshire Supreme          Court decision     the Board members and  its counsel nonetheless                                        ____________________               5In its  February 23, 1989, order enjoining the Board disci-          plinary proceedings, the  superior court found that  Wang had not          been  accorded due process, in  that the Board  had prejudged the          outcome of its proceedings.  Further, the superior  court faulted          the multiple roles assumed  by Assistant Attorney General Douglas          Jones, as Board counsel and prosecutor.  "Under such circumstanc-          es there could not be even the appearance of fairness," the court          said.               On  appeal,  Wang relies  heavily  on  these superior  court          findings  for his claim that the Board proceedings were devoid of          due process.  But  the superior court findings are  without legal          effect since  the superior court lacked  subject matter jurisdic-          tion and its findings  were implicitly rejected by the  New Hamp-          shire  Supreme   Court  decision  affirming   the  Board's  final          revocation order.                                          9          would be absolutely immune from suit, in their individual capaci-          ties,  on section  1983 claims  arising out  of their  respective          judicial,  quasi-judicial  and/or  prosecutorial functions,  even          though  they acted "maliciously and  corruptly."  Pierson v. Ray,                                                            _______    ___          386 U.S. 547,  554 (1967); Imbler v. Pachtman, 424  U.S. 409, 424                                     ______    ________          (1976) (extending absolute immunity  under section 1983 to prose-          cutors acting in quasi-judicial  capacity).  Nor does  Wang claim          that his medical  license was revoked by the Board  in the "clear          absence of all jurisdiction."   Stump v. Sparkman, 435  U.S. 349,                                          _____    ________          357  (1978) (quoting Bradley v.  Fisher, 80 U.S.  (13 Wall.) 335,                               _______     ______          351 (1871)); see also Ricci v. Key Bancshares of Maine, Inc., 768                       ___ ____ _____    _____________________________          F.2d 456, 462 (1st Cir. 1985) ("The conduct in question need only          be  more or less connected  to 'the general  matters committed by          law to [the Board's] control or supervision'  and not 'manifestly          or palpably beyond [the  Board's] authority.'") (quoting Spalding                                                                   ________          v. Vilas, 161 U.S. 483, 498 (1896)).               _____                    Lastly, Wang  contends  that absolute  immunity  cannot          insulate  Board members  and  its counsel  from  suit, since  the          challenged  disciplinary  action  was  taken pursuant  to  a  New          Hampshire reciprocal revocation statute, see N.H. Rev. Stat. Ann.                                                   ___            329:17-c (1984), unconstitutional on its face.  He reasons that          though our decision in Bettencourt might support absolute immuni-                                 ___________          ty for  medical  board members  and its  counsel, provided  their          actions   were  taken   under  adequate   procedural  safeguards,          Bettencourt does not immunize  such officials from suit  in their          ___________          individual capacities for official actions summarily taken  under                                          10          a reciprocal revocation statute simply on the ground that another          jurisdiction has revoked the respondent's license.                    We  decline  the  invitation  to  provide  an  advisory          opinion on a claim  for which there is no  evidentiary support in          the appellate  record.  See  United States  Nat'l Bank of  Or. v.                                  ___  _________________________________          Independent  Ins.  Agents of  Am., Inc.,  113  S. Ct.  2173, 2178          _______________________________________          (1993)  ("'The exercise of judicial  power under Art.  III of the          Constitution  depends on the existence of a case or controversy,'          and  'a  federal  court  [lacks] the  power  to  render  advisory          opinions.'") (citations omitted);  State of R.I. v.  Narragansett                                             _____________     ____________          Indian Tribe, 19 F.3d  685, 705 (1st Cir.), cert. denied,  115 S.          ____________                                _____ ______          Ct.  298 (1994)  (same).   Wang concedes  that the  final license          revocation  order issued by the  New Hampshire Board  was not the                                                                    ___          product of a summary proceeding.   Considering that almost  three          years  elapsed  between  the  commencement  of  the  disciplinary          investigation and the entry  of the revocation order,  we believe          the  concession is well  founded.  Moreover,  the Board conducted          several hearings  at which  Wang and  his attorney  appeared; the          proceedings were  transcribed; the  Board issued a  written deci-          sion; and Wang was afforded    and utilized to the fullest    the          right  to appeal  the  final Board  order  to the  New  Hampshire          Supreme Court.   We find  no basis in fact  or law for  the claim          that the procedural safeguards accorded Wang by the New Hampshire          Board differed in any  significant respect from those the  Massa-          chusetts Board afforded the  respondent in Bettencourt.   See 904                                                     ___________    ___          F.2d at 783.                                            11          B.   Injunctive Relief           B.   Injunctive Relief               _________________                    Finally,  Wang challenges the  summary judgment entered          against him on the claim for permanent injunctive  relief against          the  Board.6   In  particular,  he attacks  the  federal district          court ruling  that this claim is  "inextricably intertwined" with          the New  Hampshire Supreme Court decision  disallowing his appeal          from  the New  Hampshire  Board's license  revocation order  and,          consequently,  that  the  district court  lacked  subject  matter          jurisdiction to enjoin the present claim.  See Rooker v. Fidelity                                                     ___ ______    ________          Trust Co., 263 U.S.  413, 416 (1923); District of  Columbia Court          _________                             ___________________________          of Appeals  v. Feldman, 460 U.S. 462, 476 (1983).  Wang argued to          __________     _______          the New Hampshire Supreme  Court that the procedure by  which his          medical license was revoked  failed to afford him due  process of          law.  The New Hampshire Supreme Court rejected his claim, and its          decision was  reviewable only by the United States Supreme Court.          See Feldman, 460 U.S. at 482.          ___ _______                    Wang frivolously argues, nonetheless, that  the Rooker-                                                                    ______          Feldman doctrine does not  bar the constitutional claims asserted          _______          below in  support of his request for  permanent injunctive relief          against  further disciplinary  proceedings by the  Board, because          unlike  the plaintiffs in Feldman, there is no other forum avail-                                    _______          able to him.  He is wrong.                                        ____________________               6Summary judgment rulings are  reviewed de novo to determine                                                       __ ____          whether  the pleadings, depositions,  answers to interrogatories,          and admissions on  file, together  with the  affidavits, if  any,          show that there  is no genuine issue as to  any material fact and          that the moving party is entitled to judgment as a matter of law.          Simon v. FDIC, 48 F.3d 53, 56 (1st Cir. 1995).          _____    ____                                          12                    Wang  raised  the  due  process claim  before  the  New          Hampshire  Supreme  Court,  albeit unsuccessfully,  and  may  not          obtain  review of its decision  in federal district  court on any          pretext.  Schneider v. Colegio de Abogados de P.R., 917 F.2d 620,                    _________    ___________________________          628 (1st Cir. 1990) ("[L]ower federal courts have no jurisdiction          to hear appeals  from state  court decisions, even  if the  state                                                        ____  __          judgment is  challenged as unconstitutional."), cert. denied, 502                                                          _____ ______          U.S. 1029  (1992) (emphasis  added).  Constitutional  claims pre-          sented to a United States district court, and found to  be "inex-          tricably intertwined" with state court proceedings, impermissibly          invite  the federal  district court,  "in essence,"  to review  a          final  state  court decision.   Feldman,  460  U.S. at  483 n.16.                                          _______          Lower federal  courts are without subject  matter jurisdiction to          sit  in  direct review  of state  court  decisions.   Id. (citing                                                                ___          Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive Eng'rs,          ____________________________    ________________________________          398 U.S. 281, 296 (1970)).                                           III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    The district court judgment  dismissing all claims must          be affirmed.                     Affirmed.                    Affirmed.                    ________                                          13
