ORDER RE: DEFENDANT'S MOTION TO DISMISS AND FOR ENTRY OF JUDGMENT

COLLINS, District Judge.

Pending before the Court is a Motion to Dismiss filed by American Board of Obstetrics and Gynecology ("Defendant"). The Motion came on regularly for hearing before the Court on January 10, 2005. Upon consideration of the parties' submissions, the arguments of counsel and plaintiff, and the case file, the Court hereby GRANTS Defendant's Motion.

I. BACKGROUND

Plaintiff, a board certified obstetrician, was licensed by the New York State Board and the Medical Board of California to practice medicine in New York and California, respectively. The New York State Board revoked his license after finding that he committed numerous acts of misconduct. Subsequently, the Medical Board of California, relying in part of the New York state board's findings, likewise revoked Plaintiff's license to practice medicine in California. Each of Plaintiff's current claims arises out of, or challenges some aspect of, these two decisions.

Plaintiff steadfastly denies committing any misconduct. Instead, he claims that the New York State Board and the Medical Board of California discriminated against him because of his Middle Eastern origin. He attributes this discrimination to prejudice resulting from the September 11, 2001 attacks on the United States.

Defendant is a non-profit organization that certifies obstetricians and gynecologists in the United States. Defendant certified Daniel Kredentser, M.D., as a gynecologist. Dr. Kredentser later offered evidence against Plaintiff at the New York State Board's revocation hearing. Plaintiff contends that the New York State Board relied exclusively on the evidence offered by Dr. Kredentser in reaching its decision to revoke Plaintiff's medical license. Plaintiff further asserts that the evidence submitted by Dr. Kredentser was "reckless and fraudulent."

Plaintiff faults Defendant for certifying Dr. Kredentser as a gynecologist. According to Plaintiff, Defendant should have known that Dr. Kredentser did not respect United States agencies and that his use of certain prescription drugs in treating patients was "risky and not evidence based." Plaintiff also alleges that Defendant should have known that, before 1993, Dr. Kredentser was not fully licensed to practice medicine in the State of New York. According to Plaintiff, Defendant could have prevented the loss of Plaintiff's medical licenses by revealing the truth about Dr. Kredentser.

Based on these allegations, pro se Plaintiff has alleged six different causes of action against Defendant, as well as against the other forty named defendants. First, Plaintiff claims that Defendant violated his civil rights by treating him differently than similarly situated physicians. Second, Plaintiff alleges that Defendant deprived him of his property rights by revoking his license to practice medicine without affording him a fair hearing. Third, Plaintiff contends that Defendant violated his right to equal protection by treating him differently from those similarly situated in Western New York and California. Fourth, Plaintiff claims that Defendants violated his right to due process and a liberty interest by denying him a "name clearing" hearing. Fifth, Plaintiff asserts that Defendant violated 42 U.S.C. § 1986 by failing to disclose the truth about Dr. Kredentser's activities at Gynecologic Oncology Group ("GOG"). Sixth, Plaintiff claims that Defendant violated antitrust laws by attempting to obtain "total market control" over the gynecology field in New York.

On March 18, 2004, Plaintiff filed this action, in which he alleged seven causes of action against forty different defendants. He also has a parallel action pending in federal district court in New York. On May 24, 2004, Defendant filed a motion to dismiss the Complaint because Plaintiff had not pleaded sufficient facts to state a claim against Defendant. On June 14, 2004, the Court dismissed Defendant from this action without prejudice. On October 21, 2004, Plaintiff filed a Second Amended Complaint. On November 17, 2004, Defendant filed a Motion to Dismiss, again alleging that Plaintiff had failed to plead sufficient facts to state a claim against Defendant. On December 20, 2004, Plaintiff filed his Opposition to Defendant's Motion. On January 3, 2005, Defendant filed a Reply.

II. LEGAL STANDARD

A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in a complaint. See Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." 5A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1356 (1990). "The Rule 8 standard contains `a powerful presumption against rejecting pleadings for failure to state a claim.'" Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997). A Rule 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory."Balistreri v. Pacifica Police Dept., 901 F.2d 969, 699 (9th Cir. 1988); accord Gilligan, 108 F.3d at 249 ("A complaint should not be dismissed `unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'") (citations omitted).

The Court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). Furthermore, the complaint must be read in the light most favorable to plaintiff. Id. However, the Court need not accept as true any unreasonable inferences, unwarranted deductions of fact, or conclusory legal allegations cast in the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

Moreover, in ruling on a 12(b)(6) motion, a court generally cannot consider material outside of the complaint (e.g., those facts presented in briefs, affidavits, or discovery materials).Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). A court may, however, consider exhibits submitted with the complaint.Id. at 453-54. Similarly, a court may consider documents that are not physically attached to the complaint but "whose contents are alleged in [the] complaint and whose authenticity no party questions." Id. at 454. Further, it is proper for the court to consider matters subject to judicial notice pursuant to Federal Rule of Evidence 201. Mir, M.D. v. Little Co. of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988).

III. DISCUSSION

Plaintiff's Second Amended Complaint suffers from the same problems from which his initial Complaint suffered — namely, that it fails to allege sufficient facts to support any of Plaintiff's causes of action against Defendant. Plaintiff has alleged no facts showing how Defendant violated Plaintiff's due process rights, civil rights, or equal protection rights. Instead, Plaintiff alleges only that Defendant erred in certifying Dr. Kredentser as a gynecologist and that it should have known that Dr. Piver's work was risky. But taking these statements as true, they could not support a constitutional violation relating to the revocation of Plaintiff's medical licenses. Indeed, Defendant had no part in the revocation hearing. As such, Defendant could not have denied Plaintiff of his property interest in his medical license. Similarly, Defendant does not have the power to either provide or deny Plaintiff with a "name clearing" hearing, and Plaintiff alleges no facts suggesting otherwise. Although Plaintiff contends that Defendant discriminated against non-Canadians, his equal protection and civil rights claims allege dissimilar treatment from similarly situated New York and California physicians. Thus, Defendant's alleged preferential treatment of Canadian physicians has no bearing on any of Plaintiff's causes of action. And in any event, Plaintiff alleges no facts explaining how this purported preferential treatment impacted either New York or California's decision to revoke his medical licenses. In short, Plaintiff's allegations do not support a civil rights claim, a due process claim, or an equal protection claim against Defendant.

Likewise, Plaintiff alleges no facts to show how Defendant either violated 42 U.S.C. § 1986 or violated antitrust laws. First, Plaintiff cannot maintain an action under § 1986 because he has alleged no underlying conspiracy of which Defendant was aware. On the contrary, Plaintiff faults Defendant for not knowing sufficient facts about Dr. Kredentser. Second, Plaintiff fails to explain how Defendant, a non-profit organization, has or could have committed an antitrust violation. Indeed, the only allegation about Defendant in Plaintiff's antitrust claim states that Defendant's "certifications are meaningless for the State `Defendants[.]'" Neither this allegation, nor the allegations relating to Dr. Kredentser, establishes an antitrust violation.

In sum, Plaintiff has alleged no facts that could support any of the claims that he has asserted against Defendant. While pro se complaints, such as Plaintiff's, are held to a less stringent standard when considering a motion to dismiss pursuant to Rule 12(b)(b), "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim." In re Stac Electronics Securities Litigation, 89 F.3d 1399, 1403 (9th Cir. 1996). The Court has already afforded Plaintiff one opportunity to state a viable cause of action against Defendant. Although his Second Amended Complaint alleges more facts regarding Defendant's alleged conduct than did his initial Complaint, Plaintiff has nevertheless failed to allege sufficient facts to support a cause of action against Defendant. Instead, he has simply alleged different reasons why Defendant allegedly erred in certifying Dr. Kredentser as a gynecologist. But no matter how many different ways he presents this allegation, it does not support any of the causes of action Plaintiff has asserted against Defendant. Because Plaintiff's Second Amended Complaint offers no factual support for his repeated claims, the Court finds it would be futile to afford Plaintiff yet another opportunity to amend.

IV. CONCLUSION

For the reasons described above, the Court GRANTS Defendant's Motion and DISMISSES Defendant from this action with prejudice.

SO ORDERED.

ORDER RE: DEFENDANT'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

I. BACKGROUND

Plaintiff, a board certified obstetrician, was licensed by the New York State Board and the Medical Board of California to practice medicine in New York and California, respectively. The New York State Board revoked his license after finding that he committed numerous acts of misconduct. Subsequently, the Medical Board of California, relying in part of the New York state board's findings, likewise revoked Plaintiff's license to practice medicine in California. Each of Plaintiff's current claims arises out of, or challenges some aspect of, these two decisions.

Plaintiff steadfastly denies committing any misconduct. Instead, he claims that the New York State Board and the Medical Board of California discriminated against him because of his Middle Eastern origin. He attributes this discrimination to prejudice resulting from the September 11, 2001 attacks on the United States.

Defendant is a non-profit health maintenance corporation licensed under Article 44 of the New York Public Health Law. According to Plaintiff, Defendant's president withheld a specific prescription drug from Plaintiff's patient in 1989, but later in 2000 and 2001 claimed that prescribing the drug was standard therapy. Plaintiff treated the patients at issue in New York. Defendant's alleged acts also occurred in New York.

On March 18, 2004, pro se Plaintiff filed this action, in which he alleged seven causes of action against forty different defendants. He also has a parallel action pending in federal district court in New York. On October 21, 2004, he filed a Second Amended Complaint. On November 26, 2004, Defendant filed a Motion to Dismiss, alleging that the court lacks personal jurisdiction over Defendant. On December 20, 2004, Plaintiff filed his Opposition to Defendant's Motion. On January 4, 2005, Defendant filed a Reply.

II. DISCUSSION The Court Has No Personal Jurisdiction Over Defendant.

There is no applicable federal statute governing personal jurisdiction in this case. Accordingly, the Court must apply the law of California, the state in which the Court sits. Core-Vent Corp. v. Nobel Industries AB, 11 F.3d 1482, 1484 (9th Cir. 1993). California's long-arm statute permits a court to exercise personal jurisdiction over a defendant to the extent permitted by the Due Process Clause of the Constitution. Cal. Code Civ. P. § 410.10; Gordy v. Daily News, L.P., 95 F.3d 829, 831 (9th Cir. 1996). Due process requires that the nonresident defendant "`have certain minimum contacts'" with the forum state such that the maintenance of the suit "does not offend `traditional notions of fair play and substantial justice.'" Terracom v. Valley Nat'l Bank, 49 F.3d 555, 559 (9th Cir. 1995) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The defendant's "conduct and connection with the forum state" must be such that the defendant "should reasonably anticipate being haled into court there." World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297 (1980).

Personal jurisdiction may be founded on either general jurisdiction or specific jurisdiction. "General jurisdiction exists when a defendant is domiciled in the forum state or his activities there are `substantial' or `continuous and systematic.'" Panavision International, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998) (quoting Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-16 (1984)). Factors that courts may consider in determining whether general jurisdiction exists include "whether the defendant makes sales, solicits or engages in business in the state, serves the state's markets, designates an agent for service of process, holds a license, or is incorporated there." Bancroft Masters, Inc. v. Augusta National Inc., 223 F.3d 1082, 1086 (9th Cir. 2000). The standard for establishing general jurisdiction is "fairly high."Bancroft Masters, Inc. v. Augusta National Inc., 223 F.3d 1082, 1086 (9th Cir. 2000) (quoting Brand v. Menlove Dodge, 796 F.2d 1070, 1073 (9th Cir. 1986)). Indeed, the plaintiff cannot meet his burden to establish general jurisdiction unless he shows that the defendant's contacts are the type that approximate physical presence. Bancroft, 223 F.2d at 1086.

Specific jurisdiction is proper when the case arises out of "certain forum-related acts." Gator, 341 F.3d at 1076 (citingBancroft, 223 F.3d at 1086). The Ninth Circuit evaluates three factors to determine whether specific jurisdiction exists. First, the defendant must perform some act by which he purposefully avails himself to the benefits and protections of the forum's laws. Second, the plaintiff's cause of action must arise out of or result from the defendant's forum-related activities. Finally, the exercise of jurisdiction must be reasonable under the circumstances of the given case. Ochoa v. J.B. Martin Sons Farms, Inc., 287 F.3d 1182, 1188-89 (9th Cir. 2002) (citation omitted). Below, the Court analyzes each of the these factors.

Here, Plaintiff has failed to show that the Court has either general or specific jurisdiction over Defendant. First, no general jurisdiction exists because Defendant does not have "substantial" or "continuous and systematic" contacts with California. On the contrary, Defendant has no contacts with California. Defendant does not sell any products in California or to California residents. It does not maintain any offices or employees in California, nor has it designated an agent for service of process in California. Defendant is not authorized or licensed to do business in California. (Decl. of Lawrence C. Digiulio ¶¶ 4-5). In short, Defendant has no contacts with California that would equate to physical presence in California. Accordingly, Defendant is not subject to general jurisdiction in California.

Second, no specific jurisdiction exists because Defendant has not purposefully availed itself to the benefits and protections of California. Purposeful availment requires a finding that the defendant "[has] performed some type of affirmative conduct which allows or promotes the transaction of business within the forum state." Doe v. Unocal Corp., 248 F.3d 915, 924 (9th Cir. 2001) (citing Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990). In this case, Defendant conducts no business in California, nor does it solicit any business in California. In fact, Defendant is headquartered in, and serves only residents located in, five specific counties in New York. (Decl. of Lawrence C. Digiulio ¶ 4; Health Maintenance Organization Certificate of Authority). Thus, it has not purposefully availed itself to the benefits and protections of California. As such, Defendant is not subject to specific jurisdiction for Plaintiff's causes of action.

IV. CONCLUSION

SO ORDERED.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

I. FACTUAL BACKGROUND

Plaintiff alleges that Defendants committed fraud in revoking his license to practice medicine in California. Plaintiff, a board certified obstetrician, was licensed by the Medical Board of California to practice medicine in California. Defendants Joseph and Wender are members of the Medical Board of California. They both served on the Board when it revoked Plaintiff's license to practice in California. Defendant Simon is a Deputy Attorney General. She represented the Board when Plaintiff later challenged the Board's initial decision to revoke his license in California state court.

In revoking Plaintiff's license, the Medical Board of California relied, in part, on the prior findings of the New York State Board for Professional Medical Conduct. Plaintiff was previously licensed to practice medicine in New York, but the New York State Board revoked his license after finding that he committed numerous acts of misconduct. Plaintiff appealed the New York State Board's finding, but a New York state court upheld the decision.

Plaintiff steadfastly denies committing any misconduct. Instead, he claims that the Medical Board of California, as well as the New York State Board, discriminated against him because of his Middle Eastern origin. He attributes this discrimination to prejudice resulting from the September 11, 2001 attacks on the United States. He maintains that no evidence supports either the Medical Board of California's or the New York Sate Board's decision to revoke his license to practice medicine.

According to Plaintiff, Defendants Joseph, Wender, and Simon abused the powers and duties of their respective offices in connection with revoking Plaintiff's medical license. Specifically, Plaintiff accuses them of knowingly submitting false information about Plaintiff's competence and past medical practices to both the Superior Court of California and the California Court of Appeal. Plaintiff further contends that Joseph, Wender, and Simon all committed perjury in the court proceedings involving Plaintiff's challenge to the revocation of his medical license. Plaintiff also faults Joseph and Wender for failing to hold the initial hearing regarding the revocation of Plaintiff's license within the statutory time limit.

On March 18, 2004, Plaintiff filed this action, in which he alleges seven causes of action against forty different defendants. He also has a parallel action pending in federal district court in New York. On September 1, 2004, Defendant Wender filed a Motion to Dismiss, which the Court granted with leave to amend. Subsequently, Defendants Joseph, Simon, and the Medical Board of California filed a separate motion to dismiss. While that motion was pending, Plaintiff filed a Second Amended Complaint on October 21, 2004. Accordingly, the Court struck the then-pending motion to dismiss and instructed Defendants Joseph, Simon, and the Medical Board of California to respond to Plaintiff's Second Amended Complaint.

On November 10, 2004, Defendants filed this Motion to Dismiss. On December 20, 2004, Plaintiff filed his Opposition to Defendants' Motion. Defendants did not file a Reply.

II. LEGAL STANDARD

A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in a complaint. See Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." 5A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1356 (1990). "The Rule 8 standard contains `a powerful presumption against rejecting pleadings for failure to state a claim.'" Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997). A Rule 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 969, 699 (9th Cir. 1988);accord Gilligan, 108 F.3d at 249 ("A complaint should not be dismissed `unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'") (citations omitted).

The Court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). Furthermore, the complaint must be read in the light most favorable to plaintiff. Id. However, the Court need not accept as true any unreasonable inferences, unwarranted deductions of fact, or conclusory legal allegations cast in the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

Moreover, in ruling on a 12(b)(6) motion, a court generally cannot consider material outside of the complaint (e.g., those facts presented in briefs, affidavits, or discovery materials).Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). A court may, however, consider exhibits submitted with the complaint.Id. at 453-54. Similarly, a court may consider documents that are not physically attached to the complaint but "whose contents are alleged in [the] complaint and whose authenticity no party questions." Id. at 454. Further, it is proper for the court to consider matters subject to judicial notice pursuant to Federal Rule of Evidence 201. Mir, M.D. v. Little Co. of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988).

III. DISCUSSION

A. Defendant Joseph and Wender Are Entitled to Absolute Immunity.

"Absolute immunity is generally accorded to judges and prosecutors functioning in their official capacity." Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004) (citing Stump v. Sparkman, 435 U.S. 349, 364 (1978); Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976)). "This immunity reflects the long-standing `general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.'" Olsen, 363 F.3d at 922 (quotingBradley v. Fisher, 13 Wall. 335, 347 (1871)); see also Mishler v. Clift, 191 F. 3d 998, 1003 (9th Cir. 1999) ("The essential rationale is that, without protection from retaliatory suits, a judge would lose `that independence without which no judiciary can be either respectable or useful.' A prosecutor's entitlement to absolute immunity flows from the performance of activities that are intimately associated with the judicial process.") (citations omitted).

Courts employ a functional approach to determine whether or not an official is entitled to absolute immunity. Mishler, 191 F. 3d at 1003. "`Essentially, the court examines the function performed by the official and determines whether it is similar to a function that would have been entitled to absolute immunity when Congress enacted § 1983.'" Id. (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993)). If the official functions as the equivalent of a judge or a prosecutor, the official will likely be entitled to absolute immunity for any acts committed in that role. Olsen, 363 F.3d at 923 ("We must consider whether the actions taken by the official are `functionally comparable' to that of a judge or a prosecutor.") (citations omitted).

The Supreme Court, in Butz v. Economou, 438 U.S. 478 (1978), identified the following non-exclusive factors that "embody characteristics of the judicial process" and aid in determining whether to grant absolute immunity: "(a) the need to assure that the official can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal." Cleavinger v. Saxner, 474 U.S. 193, 202 (1985) (citingButz, 438 U.S. at 512).

Although the Supreme Court has never addressed the issue, two Ninth Circuit decisions have held that state medical boards and their officers enjoy absolute immunity for the non-ministerial acts that they commit in performing their duties. First, in Mishler v. Clift, the Ninth Circuit found that members of the Nevada State Medical Board were absolutely immune from liability for acts they committed during a disciplinary hearing. Mishler, 191 F.3d at 105-08. The Mishler Court also stated that an individual board member's act of filing an allegedly false disciplinary complaint against a physician was likewise entitled to immunity. Id. at 1009. Second, in Olsen v. Idaho State Board of Medicine, the Ninth Circuit, relying on Mishler, found that the Idaho State Medical Board and its members could not be sued for the quasi-judicial and quasi-prosecutorial actions they took in adjudicating a disciplinary dispute. Olsen, 363 F.3d at 928-29.

Here, as in Mishler and Olsen, the Butz factors weigh in favor of applying absolute immunity to Joseph's and Wender's alleged acts of using and making false accusations in revoking Plaintiff's license to practice medicine in California. The Court addresses each factor in turn below.

1. Need to Ensure Performance of Functions Without Harassment

The Medical Board of California, like the state medical boards in Mishler and Olsen, must function without harassment in order to promote its goals. The purpose of the Medical Board of California ("Board") is to protect the public. Cal. Bus. Prof. Code § 2001.1. Furthering this purpose is the Board's "highest priority" in exercising its licensing, regulatory, and disciplinary functions. Id. The Board could not accomplish this purpose without having the power to, when necessary, deny applications to practice medicine in California or revoke existing licences. Such actions, however, are likely to lead to countless lawsuits by disgruntled physicians, such as Plaintiff. See Mishler, 191 F.3d at 1005 (concurring with First Circuit's observation "that disciplinary proceedings and the revocation of a physician's license are acts that are likely to stimulate numerous damages actions") (citingBettencourt, 904 F.3d at 783). Accordingly, as in Mishler, promoting the goal of protecting the public requires that the Board operate without "the threat of harassment or intimidation."Id. at 1005.

2. Safeguards that Reduce the Need for Private Damages Actions

California's statutory scheme governing the Board's decisions and challenges to those decisions contains safeguards that effectively reduce the need for private damages actions. As inMishler and Olsen, the Board functions under a comprehensive set of regulations, which are codified in the California Code of Regulations and the California Business and Professions Code. Under those regulations, a physician, such as Plaintiff, who is deemed unsuitable to practice medicine in California may request a hearing regarding that finding. Cal. Code Regs., tit. 16, § 1301 (2001). Moreover, assuming the physician is unsuccessful at the hearing, he or she may thereafter seek further review of the Board's decision in state court. Cal. Civ. Proc. Code § 1094.5(f). The state court then has authority to thoroughly inquire into the Board's decision, including whether the Board acted within its jurisdiction, whether the Board conducted a fair hearing, and whether the Board's decision resulted in prejudicial abuse of discretion. Cal. Civ. Proc. Code § 1094.5(b). Indeed, when analyzing this statutory scheme in another context, the Ninth Circuit observed that California provides a "meaningful opportunity" for aggrieved physicians to challenge the Board's decisions. See Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir. 1992) (stating that California's "statutory framework provides a meaningful opportunity for [physicians] to present [their] constitutional claims for independent review prior to the Board's decision becoming effective").

In short, California's statutory scheme governing the Board's decisions adequately reduces the need for private damages actions. Consequently, this factor also weighs in favor of granting its members absolute immunity.

3. Insulation from Political Influences

The structure of the Board insulates it from political influences. The Board has twenty-one members, nine of whom are non-physicians or "public" members. Cal. Bus. Prof. Code § 2001. The presence of these public members minimizes the possibility that the remaining Board members might act out of self-interest in issuing or refusing to issue a licence to practice in California. See Mishler, 191 F.3d at 1006-07 (noting that "risk of Board Members acting out of their own self-interest is further diminished" because of presence of three public members on nine-person board); Olsen, 363 F.3d at 925 (finding that presence of two public members on seven-person Board lessened possibility that Board members would act out of self-interest).

Moreover, the manner in which the Board's members are selected minimizes political influence over the Board. None of the twenty-one Board members, including Joseph and Wender, is elected by the people of California. Instead, the Governor of California appoints nineteen individuals to the Board. Thereafter, each of those nineteen members must be confirmed by the State Senate. Cal. Bus. Prof. Code § 2001. The Senate Rules Committee and the Speaker of the Assembly each appoint one of the two remaining Board members, both of whom are public members. Id. Once confirmed, the Board members serve a four-year term. Cal. Bus. Prof. Code § 2010. Although Board members can be removed, the appointing power can do so only for neglect of duty, incompetency, or unprofessional conduct. Cal. Bus. Prof. Code § 2011.

Furthermore, California's rules restricting those deemed qualified to serve on the Board further reduces the possibility of politics influencing the Board. For instance, no person may serve as a Board member if he or she "owns any interest in any college, school, or institution." Cal. Bus. Prof. Code § 2007. Additionally, no more than four Board members may hold full-time appointments to the faculties of any approved medical school in the state of California. Id. Aside from the nine public members, only licensed physicians and surgeons may serve as Board members. Id. Finally, no one can serve on the Board unless he or she has been a citizen of California for at least five years. Cal. Bus. Prof. Code § 2007.

Citing similar safeguards, both the Mishler and the Olsen Courts found that state medical board members were insulated from political pressures. The Court sees no reason to reach a different conclusion here.

4. Remaining Butz Factors: Precedent, Adversariness, and Correctability

The remaining Butz factors also weigh in favor of finding the Board's members absolutely immune. First, California's statutory scheme provides that the Board's decisions may be designated as precedential decisions when they contain "a significant legal or policy determination" generally applicable in likely recurring situations. Cal. Code Regs., tit. 16, § 1364.40(a) (2000). Although the Board may reverse such a designation, it can do so only after serving public notice of its intent. Cal. Code Regs., tit. 16, § 1301(d) (2001). Second, as the Olsen Court observed, disciplinary hearings are necessarily adversarial. See Olsen, 363 F.3d at 925 (stating that "the Board's proceedings are clearly adversarial"). Finally, as described above, California provides for appeals from the Board's decisions, first through a Board hearing and then through the state court process.

After reviewing California's statutory scheme governing the Board and its activities, the Court finds that the Board and its members, including Joseph and Wender, "function in a sufficiently judicial and prosecutorial capacity to entitle them to absolute immunity." Id. at 926.

B. The Scope of Joseph's and Wender's Immunity Precludes Plaintiff's Claims Against Them.

Finding that absolute immunity applies to any quasi-judicial or quasi-prosecutorial actions that either Joseph or Wender committed as Board members does not end the Court's analysis. Instead, the Court must now determine which, if any, of their alleged acts "are not sufficiently connected to their judicial function to warrant the shield of absolute immunity." Olsen, 363 F.3d at 926.

"[T]he protections of absolute immunity reach only those actions that are judicial or closely associated with the judicial process." Mishler, 191 F.3d at 1007. Thus, in Mishler, the Ninth Circuit explained that acts committed during a disciplinary hearing process fall within the scope of absolute immunity. Id. at 1008. Later, in Olsen, the Ninth Circuit elaborated onMishler's previous explanation, adding that acts intimately related to a Board member's adjudicatory role in licensing physicians are likewise absolutely immune. Olsen, 363 F.3d at 928.

In contrast, ministerial acts enjoy no such protection.Mishler, 191 F.3d at 1008. In Mishler, the Ninth Circuit refused to apply absolute immunity to a Nevada Board member's failure to respond to inquiries from another state medical board.Id. The Mishler Court reasoned that such an act, or failure to act, was not closely associated with the judicial process, but rather constituted an administrative function entailing examination of records and sending of correspondence. Id. Applying the same reasoning, the Olsen Court refused to accord absolute immunity to acts pertaining to a state medical board's billing practices. Olsen, 363 F.3d at 929.

Here, by contrast, Plaintiff's allegations against Joseph and Wender involve only actions closely related to their respective roles in a quasi-judicial or quasi-prosecutorial process. Indeed, assuming they made fraudulent statements about Plaintiff, or relied on previously uttered fraudulent statements, they did so only in connection with revoking Plaintiff's license to practice medicine in California. These alleged acts, unlike responding to general inquiries or maintaining billing procedures, cannot be classified as ministerial or administrative in nature. Rather, they are inseparable from Joseph's and Wender's ultimate decision to revoke Plaintiff's license. As such, their alleged acts fall squarely within the scope of absolute immunity.

Moreover, whether or not Joseph and Wender held a timely hearing regarding the revocation of Plaintiff's medical license is inconsequential. Indeed, even if, as Plaintiff alleges, Joseph and Wender failed to hold the hearing in a timely manner, this fact would not somehow transform their otherwise quasi-prosecutorial actions into ministerial actions. Timely or not, Joseph and Wender allegedly committed the fraudulent acts in connection with revoking Plaintiff's license to practice medicine in California. Thus, their acts were quasi-prosecutorial in nature.

C. Defendant Simon Is Entitled to Absolute Immunity.

An attorney in the Attorney General's Office is immune from lawsuits for any action she commits in discharging her litigation-related duties. Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001). This immunity can take one of two forms. First, if sued as a member of the Attorney General's Office, the attorney has absolute official immunity. Id. (citing Pena v. Gardner, 976 F.2d 469, 473 (9th Cir. 1992)). Alternatively, if sued in her individual capacity, the attorney is "similarly absolutely immune for conduct during performance of official duties." Bly-Magee, 236 F.3d at 1018 (citing Fry v. Melarango, 939 F.2d 832, 836-37. This immunity does not extend, however, to actions that are "wholly unrelated to or outside of [the attorney's] official duties." Bly-Magee, 236 F.3d at 1018.

Here, Simon is absolutely immune from Plaintiff's suit. Each of Plaintiff's allegations against Simon relates exclusively to actions that Simon allegedly committed in discharging her official duties as a Deputy Attorney General. Indeed, Plaintiff's only allegations against Simon involve fraudulent statements that Simon purportedly made while representing the Medical Board of California in legal proceedings before two California courts. Such actions, by their nature, are related to litigation. As such, Simon is absolutely immune from any suit involving those actions.

D. The Medical Board of California is Entitled to Sovereign Immunity.

"The Eleventh Amendment bars suits against [a] [s]tate or its agencies for all types of relief, absent unequivocal consent by the state." Romamo v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999). A state agency's consent to suit cannot be implied; rather, the agency's consent is effective "`only where [it is] stated by the most express language.'" Yakama Indian Nation v. State of Washington Dept. of Revenue, 176 F.3d 1241, 1245 (9th Cir. 1999) (quoting Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990)). Furthermore, a state agency's act of pleading sovereign immunity in its first responsive pleading shows that the agency does not intend to waive its immunity defense. Yakama Indian Nation, 176 F.3d at 1245.

Here, the Medical Board of California, as a state agency, is entitled to sovereign immunity. Moreover, the Board has not consented to Plaintiff's suit against it. On the contrary, the Board raised the sovereign immunity defense at the earliest time possible. Accordingly, Plaintiff cannot maintain his suit against the Board.

In short, Plaintiff cannot maintain an action against any of the moving Defendants.

E. Permitting Plaintiff to Amend Would Be Futile.

Plaintiff cannot amend his Complaint to state a viable cause of action against any of the moving Defendants. The Court has already afforded Plaintiff one opportunity to amend his Complaint as to Defendant Wender. Because Plaintiff's Second Amended Complaint offers no other relevant factual support for his repeated claims, the Court finds it would be futile to afford Plaintiff yet another opportunity to amend his claims against Wender. Although the Court has not previously dismissed either Joseph, Simon, or the Board, the Court sees no way in which Plaintiff could amend his Second Amended Complaint to state a viable cause of action against any of these Defendants. Indeed, Plaintiff can only plead the same facts regarding Joseph as Plaintiff alleged against Wender, as both were members of the Medical Board of California and, therefore, committed the exact same acts. Because Plaintiff cannot maintain a claim against Wender, Plaintiff likewise cannot maintain a claim against Joseph. Similarly, Plaintiff's only allegations against Simon involve the fraudulent statements that she allegedly made before the California courts. But no matter how many times or ways in which Plaintiff attempts to amend, these actions will always be subject to absolute immunity. Finally, no amendment will overcome the Medical Board of California's entitlement to sovereign immunity. As such, granting leave to amend would be futile in this case.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants' Motion and DISMISSES Defendants with prejudice.