Opinion
No. C-01-0355-PJH
August 5, 2002
ORDER RE DEFENDANT BALL'S MOTION FOR SUMMARY JUDGMENT
This order is not appropriate for citation pursuant to Civil Local Rule 7-13.
The motion of defendant James Ball for summary judgment of the above-entitled action came on for a hearing on July 31, 2002, before this court, the Honorable Phyhis J. Hamilton presiding. Plaintiff appeared by his counsel, Albert Garcia and defendant appeared by his counsel, Heidi Salerno. Having carefully reviewed the parties' papers and considered the arguments of counsel and the relevant legal authority, and good cause appearing, the court hereby GRANTS the motion for the following reasons.
BACKGROUND
Plaintiff Dr. Lionel Foster is an African-American urologist and surgeon. On October 16, 1997, he operated to remove a cancerous kidney from his patient, John Hernandez. Hernandez died the next day from complications that arose during the surgery. Following peer review of the incident, the San Jose Medical Clinic ("SJMC"), with which Dr. Foster was associated, suspended Dr. Foster for 14 days and imposed further restrictions on his practice. Dr. Foster challenged this suspension and the matter was arbitrated by the American Arbitration Association ("AAA"). In June, 1998, the AAA ruled in Dr. Foster's favor and ordered him reinstated to the SJMC.
Meanwhile, in March, 1998, the SJMC sent a report to the Medical Board of California ("Medical Board"), as required by California Bus. and Prof. Code § 805, reporting Dr. Foster's suspension. Supervising Investigator Ken Douglas initiated an investigation and assigned the case to defendant James Ball ("Ball") a Senior Investigator. Ball's investigation consisted of reviewing records at the SJMC, interviewing the other physician participants in the Hernandez surgery, and consulting with Dr. Barnett, a physician employee to the Medical Board. Among the doctors interviewed by Ball was Dr. Robert Prall, chief of urology at SJMC, who had been present at the Hernandez surgery and who apparently did not condone the way Dr. Foster performed the surgery. Dr. Foster claims that Dr. Prall's opinion is racially motivated, and that by relying in any way on Dr. Prall's statements, Ball himself acted with racial animus thereby depriving Dr. Foster of his equal protection rights.
At Dr. Barnett's request, Ball consulted with a urologist, Dr. Van Geisen, to whom Ball provided complete medical records on the Hernandez surgery. Medical Board guidelines instruct consultants to ignore the existence of any other legal adjudications and the testimony of any other expert witnesses about the matter. Therefore, Ball provided Dr. Van Geisen only with the medical record, and did not inform Dr. Van Geisen of the AAA proceedings. Dr. Van Geisen reached an opinion contradictory to that of the AAA and concluded that Dr. Foster's care of Hernandez constituted an extreme departure from the standard of practice.
Based on Dr. Van Geisen's expert opinion, as well as on the rest of the evidence gathered during his investigation, Ball found reason to believe that there had been an extreme departure from the standard of care and therefore a violation of the Medical Practice Act. With the concurrence of his supervisor, he recommended that the case be referred to the California Attorney General's Office ("AGO") for action. His Investigation Report contained no mention of the AAA action.
On May 19, 1999, the AGO prepared, and the Medical Board filed, a disciplinary Accusation against Dr. Foster. After Dr. Foster brought the AAA decision exonerating him to the AGO's attention, the AGO and the Board decided to submit the matter to yet another medical expert, Dr. Peter Bretan of the University of California, San Francisco. Dr. Bretan agreed with the AAA that Dr. Foster had behaved appropriately and did not agree with Dr. Van Geisen's opinion. Following receipt of Dr. Bretan's report, the Medical Board, on October 29, 1999, withdrew the Accusation.
Dr. Foster's original complaint was filed in San Francisco Superior Court in October, 2000, and the action was removed to this court on January 22, 2001. Dr. Foster filed his Second Amended Complaint on November 2001 from which remains a single cause of action brought under 42 U.S.C. § 1983. Specifically, Dr. Foster alleges that Ball violated his rights under the equal protection clause by deliberately, and with discriminatory racial animus, withholding the potentially exculpatory AAA decision from his Investigation Report, as well as from Dr. Van Geisen.
DISCUSSION I. ABSOLUTE IMMUNITY
Ball argues that he should prevail on this summary judgment motion because he enjoys absolute prosecutorial immunity. The Supreme Court has ruled that such immunity extends not only to actual prosecutors, but to people who perform functions analogous to those of a prosecutor, such as those who appear before a judge and present evidence. Buckley v. Fitzsimmons, 509 U.S. 259, 269-72 (1993). When prosecutors perform administrative or investigatory acts unrelated to their preparation for and initiation of prosecution, absolute immunity does not attach. "Id. at 273.
Ball relies largely on a Ninth Circuit case to support his bid for absolute prosecutorial immunity. Romano v. Bible, 169 F.3d 1182 (9th Cir. 1999). However, Romano is easily distinguished from the present case. In Romano, members of the Nevada Gaming Board were granted absolute immunity because they had the quasi prosecutorial power to administer oaths, subpoena testimony, enter into settlement discussions, and initiate disciplinary proceedings. Id. at 1196-87. Ball did not enjoy such wide discretionary latitude. Upon assignment of the case, his job consisted of gathering and reviewing medical records, interviewing witnesses, and preparing a report for review by his supervisor. Such investigatory actions are not the sort that entitle Ball to absolute prosecutorial immunity.
II. QUALIFIED IMMUNITY
Government officials performing discretionary functions are entitled to qualified immunity when "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). If an official "could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action." Id. at 819.
To defeat Ball's assertion of qualified immunity, Dr. Foster must establish that (1) the alleged conduct set out a constitutional violation and (2) the constitutional standard was clearly established at the time in question. Sweaney v. Ada County, 119 F.3d 1385, 1388-89 (9th Cir. 1997); County of Sacramento v. Lewis, 523 U.S. 833, 842 n. 5, (1998). To be clearly established, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Further, the right asserted must be "clearly established at the time of the challenged actions." Mitchell v. Forsyth, 472 U.S. 511, 528 (1985). Under this test, Dr. Foster must "offer more than general conclusory allegations" that Ball violated a constitutional right. Backlund v. Barnhart, 778 F.2d 1386, 1389 (9th Cir. 1985).
If Dr. Foster meets this burden, Ball may still be entitled to qualified immunity if he can show that a reasonable official would not have known that the conduct in question would violate Dr. Foster's clearly established rights. Sweaney, 119 F.3d at 1388-89; Gasho v. United States, 39 F.3d 1420, 1438 (9th Cir. 1994). However, "[t]he qualified immunity standard `gives ample room for mistaken judgments by protecting "all but the plainly incompetent or those who knowingly violate the law.'" Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 343 (1986)). For example, law enforcement officers who "reasonably but mistakenly conclude that probable cause is present" when undertaking an arrest or search are entitled to qualified immunity. Anderson, 483 U.S. at 641.
Dr. Foster argues that Ball's deliberate suppression of the exculpatory AAA report violated his clearly established equal protection rights. See Geter v. Fortenberrv, 849 F.2d 1550, 1559 (5th Cir. 1988) (ruling that if a police officer had concealed exculpatory evidence, he would not enjoy a qualified immunity as such conduct would violate constitutional principles). However, the facts here are distinguishable from those before the court in Geter. Far from deliberately concealing evidence he knew to be helpful to Dr. Foster, Ball simply made a decision that the AAA report was irrelevant because it represented a separate legal proceeding having nothing to do with his responsibilities to the Medical Board under the Medical Practice Act. He made no effort to conceal the report; rather, he simply did not include it in his file. Moreover it would have violated Medical Board policy to have included the AAA report in the file given Dr. Van Giesen. Beyond a "general conclusory allegation" deemed insufficient by the Backlund court, it is not at all clear that Foster has met his burden of establishing a constitutional violation. Backlund, 778 F.2d at 1389.
Ball asserts that he is a peace officer and that as such, his postition is similar to the position of a police officer. Nevertheless, even assuming for the sake of argument that Ball was acting as a type of police officer, the court finds that he did not conceal evidence. In addition, even if Ball's status as a peace officer is relevant, his decision not to include the AAA report was objectively reasonable.
Even if Dr. Foster could establish that the omission of the AAA report violated his constitutional rights, he fails to show that Ball was unreasonable in his belief that his conduct was lawful. Dr. Foster's argument seems to be that because Ball relied on information from Dr. Prall, and because Ball had been told by Dr. Foster that Dr. Prall was a racist, Ball himself demonstrated enough racial animosity to show either that he knew that he was violating Dr. Foster's constitutional rights, or at least that his belief that his conduct was lawful was unreasonable.
This argument requires a series of assumptions not supported by the evidence. There is no evidence that Ball substituted Dr. Prall's allegations for what his own investigation revealed; Ball's report included Dr. Prall's medical opinion, but it similarly included numerous other medical opinions. Nor did Ball have any evidence as to Dr. Prall's alleged racism — the only evidence of that charge comes from Dr. Foster's unsupported allegation.
Moreover, Ball's supervisor approved his recommendation. This fact supports a finding that a reasonable official would have acted in the same fashion. See Sweaney, 119 F.3d at 1388-89. At worst, Ball's omission of the AAA report appears to be a mistake of judgment, and not a deliberate and unlawful violation of Dr. Foster's constitutional rights. Given the Supreme Court's ruling in Hunter protecting "all but the plainly incompetent or those who knowingly violate the lawl[,]" Hunter 502 U.S. at 229, the court finds that Ball is entitled to qualified immunity.
III DR. FOSTER'S § 1983 CLAIM
A. Standard of Review
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case."Celotex, 477 U.S. at 323. Once the moving party meets its initial burden, the non-moving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
The only claim remaining in this case is Dr. Foster's § 1983 claim for malicious prosecution asserting a violation of his equal protection rights. In the Ninth Circuit, a malicious prosecution claim asserted under § 1983 must combine allegations of the traditional elements of the tort under state law, along with allegations that the prosecution was carried out with the intention of depriving him of equal protection. Usher v. City of Los Angeles, 828 F.2d 556, 562 (9th Cir. 1987).
To survive this summary judgment motion, Dr. Foster must present evidence sufficient to support a claim of malicious prosecution under California law, as well as offer evidence that Ball was motivated by racial animus towards him. Usher, 828 F.2d at 562; Sheldon Appel Co. v. Albert Oliker, 47 Cal.3d 863, 871 (1989).
In order to satisfy the elements of a malicious prosecution claim under California law, Dr. Foster must prove that Ball initiated the Medical Board proceeding by sending the case to the AGO (1) without probable cause, (2) with malice and (3) that the action was terminated in Dr. Foster's favor. Id. Since the Medical Board eventually withdrew its Accusation, the third of the above elements is not disputed.
B. Probable Cause
1. Question of Law or Fact?
As a preliminary matter, the court must determine whether the existence of probable cause is a question of law or a question of fact. In California, the court usually decides the issue. Sheldon Appel Co., 47 Cal.3d at 875. "If the facts upon which the defendant acted are undisputed, the question is . . . one of law to be determined by the court from the facts established in the case." Id. (quoting Ball v. Rawles, 93 Cal. 222, 227 (1892)). However, when "there is evidence that the defendant may have known that the factual allegations on which his action depended were untrue, the jury must determine what facts the defendant knew before the trial court can determine the legal question whether such facts constituted probable cause." Id. at 881.
Dr. Foster argues that a jury should decide whether probable cause existed for Ball to send his report to the AGO for action. Because Ball omitted the AAA findings from his report, a question may exist as to what facts Ball knew to be true. It is not for this court, argues Dr. Foster, to determine the set of facts that existed upon which to base a finding of probable cause.
Whether or not Ball acted unreasonably in omitting the AAA findings is a separate issue from what facts Ball knew at the time he decided to forward his report to the AGO. There is no dispute as to the factual material Ball discovered during his investigation. Thus, whether Ball acted with probable cause is a question of law for this court to decide.
2. Did Probable Cause Exist?
Ball had ample evidence to support his decision to refer Dr. Foster's case to the AGO. He obtained copies of all medical records on the Hernandez surgery from both the SJMC and the hospital where the surgery was performed. He interviewed, or obtained reports, from all participants and observers to the surgery. Moreover, his report was reviewed and approved both by his supervisor as well as a Deputy Attorney General before being transmitted to the AGO. Most important, he sought a consulting opinion from a board-certified urologist, Dr. Van Geisen, who similarly had access to the complete records of the Hernandez surgery. Dr. Van Geisen's opinion was that Dr. Foster had significantly departed from the applicable standard of practice. Dr. Foster's only argument against a finding of probable cause is that Ball failed to inform either Dr. Van Geisen or the AGO of the AAA outcome before he completed his investigation. Dr. Foster asks how Ball could have had probable cause to submit an investigation report that failed to include "exculpatory evidence."
At the heart of this dispute is the fact that the Medical Board, after a year-long investigation conducted by a professional investigator, reached an opposite conclusion from that of the AAA, a private non-governmental body. Foster claims, without any evidentiary support, that the only explanation for such a difference is Ball's racist concealment of evidence. However, it is not surprising that medical opinions should differ. Given such a contradiction, Ball had the power to exercise his discretion and judgment, based on his own investigation, as to whether or not to forward his report to the AGO. His position is supported by legal authority.
In denying a malicious prosecution claim in a case involving a similar clash of expert opinion, a California court found that a decision to prosecute based on a thorough investigation was based upon substantial concerns and was not arbitrary or capricious. Nicholson v. Lucas, 21 Cal.App.4th 1657, 1666-69 (1994). Similarly, in Arnett v. Dal Cielo, 14 Cal.4th 4, 9-12 (1996), the California Supreme Court ruled that the Medical Board, as a public agency with the mandate to protect the health and safety of the public, had the power to make decisions based on its own investigation and did not have to rely on private entities.
Whether or not it was prudent to do so, Ball had the discretion to ignore the AAA report. That he chose to do so does not mean that probable cause did not exist, based on his investigation, for Ball to forward his Investigation Report to the AGO.
B. Racial Animus
Dr. Foster argues that since overt declarations of racial hatred are unusual, at least in the San Francisco Bay Area, circumstantial evidence is sufficient to create an inference of racism sufficient to prove the element of malice required for a malicious prosecution claim. Dr. Foster alleges that Ball must have known that Dr. Foster thought that Dr. Prall was a racist. Not only did Dr. Foster tell him so, but the AAA report mentions Dr. Foster's allegations. Dr. Foster contends that Ball's knowledge of Dr. Prall's true motivation therefore taints his own actions. Dr. Foster further alleges that Ball adopted Dr. Prall's racially motivated conclusions and passed them off as his own. Dr. Foster urges this court to ask what reason, besides racial animosity, could have motivated Ball, knowing what he did about Dr. Prall, to act in such a suspicious fashion.
Ball responds convincingly. First, he had no proof beyond Dr. Foster's unsupported allegations to support the charge of racism directed at Dr. Prall. Ball emphasizes that he had a duty to investigate Dr. Foster and that he would have been wrong to abandon that duty based solely on Dr. Foster's allegation against Dr. Prall. Second, Ball is correct in saying that he did not substitute Dr. Prall's conclusions for his own investigation. His report included Dr. Prall's findings just as it did the conclusions reached by all the other doctors present at the Hernandez surgery. There was no special emphasis placed on Dr. Prall's opinion.
Furthermore, Dr. Foster has no evidence beyond his guilt-by-association theory of Ball's racism. No evidence exists showing that Ball ever used racist language. No evidence exists that Ball had ever targeted African-American doctors in a similar fashion. In fact, Ball had once before investigated a complaint against Dr. Foster on an unrelated matter and had cleared him of any wrongdoing. Beyond the fact that Ball talked to Dr. Prall as part of his investigation, there is no evidence to conclude that Ball acted with any racial animus.
CONCLUSION
Not only does Ball enjoy a qualified immunity from prosecution, but Dr. Foster can not survive summary judgment on the merits. No triable issues of fact exist to support the claims that Ball lacked probable cause to submit his report to the AGO, or that Ball acted with any racial animosity towards Dr. Foster. Ball's decision not to include the AAA report in his case file did not transform his thorough investigation into a racially motivated malicious prosecution. This court therefore GRANTS defendant's motion for summary judgment.
The pretrial and trial dates are VACATED. This order fully adjudicates the motion listed at number 51 on the clerk's docket for this case, and closes the case and terminates all pending motions.
IT IS SO ORDERED.