06-1923-cv
Applewhite v. Briber, et al


                          UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT
                                   _______________

                                      August Term, 2007

(Argued: October 22, 2007                                         Decided: October 29, 2007)

                                    Docket No. 06-1923-cv

                                      _______________

                                   MONICA J. APPLEWHITE,

                                                                            Plaintiff-Appellant,

                                            —v.—

                                    ROBERT BRIBER, ET AL,

                                                                           Defendant-Appellee.


                                      _______________

Before:

                       FEINBERG , WINTER and STRAUB, Circuit Judges.


                                      _______________

       Appeal from a judgment of the United States District Court for the Western District of
New York (John T. Curtin, Judge) granting defendants’ motions to dismiss under Fed. R. Civ. P.
12(b)(6).
       Affirmed.
                                      ______________

JAMES P. DAVIES, Buffalo, New York, for Plaintiff-Appellant.

NANCY A. SPIEGEL, Special Assistant Solicitor General (Eliot Spitzer, Attorney General of
the State of New York, Julie S. Mereson, Assistant Solicitor General), Albany, New York,
for Defendants-Appellees.
                                        _______________
Per Curiam:

       Plaintiff-Appellant Monica J. Applewhite appeals from a judgment of the Western

District of New York (John T. Curtin, Judge), dismissing her action on motions to dismiss of all

Defendants-Appellees. Applewhite claims that Defendants-Appellees deprived her of property

in the form of her medical license without due process in violation of 28 U.S.C. §§ 1981, 1983.

In addition, Applewhite claims that Defendants-Appellees engaged in race discrimination against

her in violation of § 1983. The District Court granted Defendants-Appellees’ motions to dismiss

on the grounds of absolute judicial immunity, statute of limitations and failure to state a claim.

       For substantially the reasons stated by the District Court, we hereby affirm the District

Court’s opinion. We write only to note that absolute judicial immunity attaches to a state

medical review board’s disciplinary proceeding where, as here, the individual charged has the

right to be represented by counsel, to present evidence and to cross-examine witnesses, and

where the board articulates its findings and conclusions in a binding order – as opposed to a

mere recommendation – under a preponderance of the evidence standard. See N.Y. Public

Health Law §§ 230(10)(c), (e), (f), (g). Our sister circuits that have considered claims of judicial

immunity in similar contexts have reached the same conclusion. See, e.g., Guttman v. Khalsa,

446 F.3d 1027, 1032-34 (10th Cir. 2006); Olsen v. Id. State Bd. of Med., 363 F.3d 916, 923-26

(9th Cir. 2004); Wang v. N.H. Bd. of Registration in Med., 55 F.3d 698, 701 (1st Cir. 1995).

       Applewhite relies on our decision in DiBlasio v. Novello, 344 F.3d 292, 296-302 (2d Cir.

2003), cert. denied, 541 U.S. 988 (2004), to argue that the disciplinary proceeding at issue in this

case should not receive absolute judicial immunity. However, DiBlasio did not involve the

revocation of a medical license. Instead, the plaintiff in DiBlasio challenged the decision by the

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New York State Department of Health to suspend his license. 344 F.3d at 295. In concluding

that officials involved in such a proceeding do not deserve absolute judicial immunity, we stated

that the procedures governing such summary suspensions “lack[ed] the hallmarks and safeguards

of a judicial proceeding that would render absolute immunity for those officials involved

appropriate.” Id. at 299 (examining the factors relevant to applying judicial immunity discussed

in Butz v. Economou, 438 U.S. 478 (1978)).1

       We conclude that DiBlasio does not control here because summary suspensions and

revocations of medical licenses in New York involve altogether separate and distinguishable

proceedings. Compare N.Y. Public Health Law § 230(10) (providing procedures for revocations

of medical licenses) with § 230(12) (summary suspensions). While a board independent of the

Commissioner of the Department of Health (the “commissioner”) decides whether to revoke a

medical license, the commissioner exercises her “virtually unfettered authority” to accept the

recommendation of the suspension hearing committee – a panel appointed predominantly by the

commissioner. DiBlasio, 344 F.3d at 299 (discussing the “absence of meaningful safeguards

against arbitrary executive action in a summary suspension proceeding”). Furthermore, in

contrast to the administrative review available after a license revocation, see N.Y. Public Health

Law § 230(10)(i), there is no “meaningful review of the summary suspension because . . . the

commissioner is free to ignore” any later recommendation by the same committee to terminate

the suspension. DiBlasio, 344 F.3d at 299. Therefore, our conclusion here that absolute judicial



1
 Our decision in DiBlasio is apposite only as far as Defendant-Appellee Novello’s decision to
suspend Applewhite’s license is concerned. However, Defendants-Appellees do not argue that
Defendant Novello is entitled to absolute judicial immunity. In any case, the claims against
Novello were properly dismissed by the District Court on statute of limitations grounds.

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immunity attaches to medical license revocation proceedings pursuant to New York Public

Health Law § 230(10) does not affect our earlier conclusion that such immunity does not attach

to summary suspension proceedings under § 230(12).

       For the foregoing reasons, we AFFIRM the judgment of the District Court.




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