Opinion
3:22-cv-00944-JR
06-05-2023
PAUL THOMAS, MD, Plaintiff, v. KATHLEEN HARDER, SAURABH GUPTA, ERIN CRAMER, ROBERT CAHN, JAMES LACE, CHARLOTTE LIN, PATTI LOUIE, JENNIFER LYONS, ALI MAGEEHON, CHERE PEREIRA, CHRIS POULSEN, ANDREW SCHINK, JILL SHAW, ANTHONY DOMENIGONI, PAULA LEE-VALKOV, RICK GOLDSTEIN, ERIC BROWN, JASON BOEMMELS, DAVID FARRIS, Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge.
Plaintiff, Dr. Paul Thomas, brings this action alleging violation of his civil rights against defendants who are current and former members of the Oregon Medical Board (OMB) and OMB staff members.
On February 8, 2023, the Court dismissed plaintiff's complaint because OMB members have absolute immunity with respect to OMB disciplinary decisions. However, the Court allowed plaintiff to seek leave to amend if he believes he has a basis for filing a second amended complaint. Order (ECF 15). Plaintiff now seeks leave to file a second amended complaint. For the reasons stated below, the motion for leave to amend should be denied.
BACKGROUND
Plaintiff alleges OMB board members maliciously and unjustifiably destroyed his pediatric medical practice by stripping him of his medical license because he provided his patients with accurate information about childhood vaccines with which they disagree.
The proposed second amended complaint provides scant new allegations with respect to the OMB member defendants. While plaintiff adds further allegations regarding the dangers of vaccines to children and plaintiff's actions to warn parents,he primarily focuses his amended allegations on the three non-board defendants: OMB investigators Eric Brown and Jason Boemmels, and their supervisor Dr. David Farris. With respect to these defendants, plaintiff alleges:
Proposed Second Amended Complaint (ECF 16-1) at ¶¶ 70, 75, 76, 77, 78, 79, 80.
Defendant Boemmels sent the December 26, 2018 letter notifying plaintiff of an investigation by OMB about a complaint, regarding a patient plaintiff alleges he has not treated, related to vaccinations not administered consistent with the CDC and evidence-based medicine practices. Proposed Second Amended Complaint (ECF 16-1) at ¶¶ 82, 84. Plaintiff alleges OMB members as well as defendants Boemmels and Farris have unique knowledge of who made the complaint and its basis but OMB maintains strict confidentiality of complaints and its investigations. Id. at ¶ 83. Plaintiff alleges Boemmels inquired why plaintiff's vaccination schedule for children differed from the CDC recommendations and focused not on the purported patient complaint but on a book written by plaintiff and plaintiff's website. Id. at ¶¶ 85-88.
Plaintiff alleges, in short, Boemmels' obliged plaintiff:
To prove that no vaccination is safer than vaccination. The requests ignore the fact that the manufacturers expressly state in documentation that comes with each vaccine that use of these vaccines on pregnant women has not been shown to be safe. Despite the lack of any testing on pregnant women, the Oregon Medical Board is only interested in pushing the vaccine schedule and it saw Dr. Thomas as a noncompliant obstacle that needed to be eliminated.Id. at ¶ 89.
Plaintiff then asserts the “nature of Jason Boemmels' complaint was a vindictive investigation into wrongthink rather than any complaint from a patient. Because Dr. Thomas' professional evidenced-based treatment of his patients did not comport with the “recommendations” of the CDC, Jason Boemmels was dispatched to search for a crime to pin on Dr. Thomas.” Id. at ¶ 90.
Plaintiff then claims, “upon information and belief,” the December 26, 2018 letter originated from inside OMB who instructed Boemmels to investigate plaintiff because of his book “The Vaccine Friendly Plan.” Id. at ¶ 91. Also “upon information and belief,” plaintiff contends Boemmels fabricated the factual allegations in the letter and would not have pursued this action on his own initiative. Id. at ¶ 92.
Plaintiff next alleges defendant Brown, “[o]n information and belief ... directed Jason Boemmels to pursue an investigation to find something to pin on Dr. Thomas. Under the guise of legal authority, Eric Brown and Jason Boemmels used this initial “complaint” about a child never treated by Dr. Thomas to investigate Dr. Thomas in search of a crime.” Id. at ¶ 93.
On December 4, 2020, OMB issued an emergency suspension of plaintiff's license on the basis that he was a danger to the public. Id. at ¶¶ 7, 99. Plaintiff asserts Brown:
wrote the letter transmitting a copy of the Board's emergency suspension order to Dr. Thomas. On information and belief, Eric Brown wrote the Order of Emergency Suspension (“Order”). On information and belief, Jason Boemmels contributed to
the contents of the Order. On information and belief, David Farris, due his position in management, approved the contents of the proposed order of Emergency Suspension before it was submitted to the Board.Id. at ¶ 113.
Plaintiff alleges, “on information and belief,” Brown and Boemmels concocted false facts as grounds for his suspension to aid OMB in silencing plaintiff. Id. at ¶¶114-142. Plaintiff further asserts:
On information and belief, the goal of Brown, Boemmels, and Farris was to shutdown Dr. Thomas' practice and false pretenses were sufficient to achieve that goal. On information and belief, Brown sought to create a semblance of a story using falsehoods, omissions, non sequitors, and innuendo to provide just enough cover for the Board's goal of shutting down Dr. Thomas.
The speed with which the Board acted after learning of Dr. Thomas' peer-reviewed paper would, on information and belief, require management participation and coordination. On information and belief, Farris directed Brown to write the Order with support from Boemmels.Id. at ¶¶ 145-46.
As with his First Amended Complaint, plaintiff alleges: defendants violated his: (1) First Amendment right to free speech, by imposing content-based restrictions on his professional speech; (2) Fourteenth Amendment right to procedural due process, by acting outside of their statutory authority to suspend his license, fabricating and supervising the fabrication of evidence, and relying on an unconstitutionally vague statute; and (3) Fourteenth Amendment right to substantive due process, by taking arbitrary and unreasonable action in suspending plaintiff's license. As noted above, the Court previously dismissed all claims except for the due process claim based on vagueness because the OMB members and the OMB staffers enjoyed absolute and qualified immunity and dismissed the due process claim based on vagueness finding none of the challenged statutes unconstitutionally vague. In addition, the Court found the allegations of supervisor liability insufficient to establish liability under 42 U.S.C. § 1983. Defendants assert the proposed amended complaint is futile because the new allegations are insufficient to overcome immunity, and nothing has changed with respect to the purported vagueness of the state statutes at issue.
DISCUSSION
A. OMB MEMBERS
Plaintiff intends to appeal the dismissal of the OMB members and thus continues to plead claims against them. Given that the claims against the defendant OMB members are barred by absolute prosecutorial immunity, the Court should find the claims against them are futile and decline to allow leave to amend to the extent the second amended complaint includes claims against them.
The Court previously determined the statutes at issue are not unconstitutionally vague. Thus, the Court should find that leave to amend to include the proposed Fifth Claim for Relief should also be denied as to all defendants.
B. PLEADING ON INFORMATION AND BELIEF
As noted above, plaintiff makes liberal use of pleading facts based on “information and belief.” Defendants assert these allegations simply hide the fact that plaintiff is merely pleading conclusions rather than facts upon which a trier of fact could find a plausible basis for relief. However, the Federal Rules of Civil Procedure allow parties to plead facts on “information and belief' if the facts “will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” Fed.R.Civ.Proc. 11(b)(3); Fed.R.Civ.Proc. 11, Advisory Committee's Note (“[S]ometimes a litigant may have good reason to believe that a fact is true ... but may need discovery ... to gather and confirm the evidentiary basis for the allegations”); United States v. Sequel Contractors, Inc., 402 F.Supp.2d 1142, 1154 (C.D. Cal. 2005) (“Rule 11(b)(3) authorizes ... pleading [on information and belief] where the party forms a belief, based on a reasonable inquiry, that the allegations are likely to have evidentiary support after a reasonable opportunity for further investigation” (internal quotation marks omitted)). This is not to say that pleading facts based on information and belief cannot be later sanctionable if discovery reveals no good faith basis for alleging the facts at the outset. See Mireskandari v. Daily Mail & Gen. Tr. PLC, 2013 WL 12129642, at *4 (C.D. Cal. July 31, 2013) (“Plaintiff is cautioned, however, that if defendants are later able to show that his allegations were made without reasonable inquiry and without a basis for believing that they had evidentiary support, the court will entertain an appropriate motion for sanctions under Rule 11.”). For now, such form of pleading does not provide a basis for finding futility.
C. OMB Staff
As noted above, the Court previously dismissed claims against OMB members and OMB staff finding all defendants enjoyed absolute immunity. The Court previously determined:
Defendants Brown and Boemmels were investigators for the OMB, and Defendant Farris is alleged to have been their supervisor. The Ninth Circuit generally does not apply absolutely immunity to investigatory conduct, but only to judicial or prosecutorial conduct. See Hardwick v. Cnty. of Orange, 844 F.3d 1112, 1115 (9th Cir. 2017) Garmon v. Cnty. of Los Angeles, 828 F.3d 837, 842-43 (9th Cir. 2016); Slater v. Clarke, 700 F.3d 1200, 1203 (9th Cir. 2012).
As noted above, however, Oregon has by statute imbued OMB investigators and staff with absolute immunity. ORS 677.335(1). Judges in this district court have applied this statute to provide absolute immunity to employees other than OMB members. See, e.g., Dover v. Haley, 2013 WL 6190165, at *3 (D. Or. Nov. 26, 2013), afFd, 616 Fed.Appx. 295 (9th Cir. 2015); Read v. Haley, 2013 WL 1562938, at *7 (D. Or. Apr.10, 2013). Thus, all Defendants are entitled to absolute immunity.
Order dated February 8, 2023 (ECF 15) at p. 7.
Plaintiff asserts the State cannot immunize its officials from claims under federal law. See McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968) (A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution ensures that the proper construction may be enforced.). However, the state statute at issue does not confer blanket immunity for OMB members and staff, it confers such immunity only when “they are acting similar to prosecutors to the same extent prosecutors and judicial officers enjoy immunity.” Or. Rev. Stat. § 677.335(1). Such immunity is recognized under federal law. See Butz v. Economou, 438 U.S. 47 (1978) (persons performing adjudicatory functions within federal agencies are entitled to absolute immunity from damages liability for their judicial acts as are agency officials who perform functions analogous to those of a prosecutor). Plaintiff's broad allegations of nefarious intent and fabrication of evidence fail to demonstrate that OMB staffers were acting in a capacity dissimilar to prosecutors or adjudicators. See, e.g., Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004) (members of the Idaho State Medical Board, the Board of Professional Development, their staff, and legal counsel were entitled to absolute immunity from suit by the plaintiff under § 1983 because their actions were “procedural steps involved in the eventual decision denying [plaintiff] her license requirement” and “such acts are inextricably intertwined with [defendants'] statutorily assigned adjudicative functions.”); Gambee v. Cornelius, 2011 WL 1311782, at *3, *6 (D.Or. Apr.1, 2011) (OMB staff members absolutely immune under federal common law for alleged due process violations in the license revocation process). Indeed, plaintiff specifically alleges these defendants wrote and directed the writing of the suspension order. Accordingly, given that plaintiff has failed to overcome the futility of his vagueness claim, the remaining claims against the non-OMB staffers is also futile given their absolute immunity. As such, the Court should deny the motion for leave to amend. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (“Futility of amendment can, by itself, justify the denial of a motion for leave to amend.”).
RECOMMENDATION
For the foregoing reasons, plaintiff s motion for leave to amend (ECF 16) should be denied. A judgment of dismissal should be entered.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.