NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 4 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL THOMAS, MD, No. 23-35456

Plaintiff-Appellant, D.C. No. 3:22-cv-00944-JR

v.

MEMORANDUM*

KATHLEEN HARDER, MD; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Jolie A. Russo, Magistrate Judge, Presiding

Argued and Submitted August 21, 2024 Portland, Oregon

Before: CHRISTEN, NGUYEN, and HURWITZ, Circuit Judges.

Plaintiff Paul Thomas, M.D., appeals the district court’s orders granting

Defendants’ motion to dismiss the operative complaint and denying leave to

amend. Because the parties are familiar with the facts, we do not recount them

here. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review the

district court’s dismissal de novo and its denial of leave to amend for abuse of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. discretion. Garmon v. County of Los Angeles, 828 F.3d 837, 842 (9th Cir. 2016).

We affirm.

1. The absolute immunity that is “generally accorded to judges and

prosecutors functioning in their official capacities” may also “extend[] to agency

representatives performing functions analogous to those of a prosecutor or judge.”

Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922-23 (9th Cir. 2004). To assess

whether a function is comparable to that of a judge, and thus entitled to absolute

immunity, we consider six nonexclusive factors. Buckwalter v. Nev. Bd. of Med.

Exam’rs, 678 F.3d 737, 740 (9th Cir. 2012).1 This inquiry focuses on the “nature

of the function performed, not the identity of the actor who performed it.” Id.

(quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)).

We have repeatedly concluded that members of state medical boards are

entitled to absolute immunity for actions undertaken in connection with

disciplinary proceedings. See Olsen, 363 F.3d at 924-26; Buckwalter, 678 F.3d at

741-46; Mishler v. Clift, 191 F.3d 998, 1003-09 (9th Cir. 1999). Having analyzed

the facts and circumstances of this case in light of the Butz factors, we reach the

1 These Butz factors include: “(a) the need to assure that the individual 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) (citing Butz v. Economou, 438 U.S. 478, 512 (1978)).

2 same conclusion here about the members of the Oregon Medical Board (OMB).

Dr. Thomas argues that even if the Butz factors favor a finding of absolute

immunity, OMB members are not entitled to absolute immunity because they

violated state law, Or. Rev. Stat. § 677.205(3), by issuing an emergency

suspension before formally filing a verified complaint. See Chalkboard, Inc. v.

Brandt, 902 F.2d 1375, 1379 (9th Cir. 1989). But unlike in Chalkboard, where

Arizona executive officials lacked any authority to impose summary suspensions

of day care centers, the OMB indisputably possesses the authority to suspend

medical licenses on an emergency basis. See Or. Rev. Stat. § 677.205(3). Even if

the OMB did not follow the proper procedures under state law—a question we do

not decide—its actions “are no less judicial . . . because they may have been

committed in error.” Mishler, 191 F.3d at 1006.2

2. We next consider whether Dr. Thomas alleged sufficient facts to state

a claim against the OMB’s staff members. “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

2 We similarly reject Dr. Thomas’s argument that the OMB violated state law because it lacked evidence that his practice of medicine was “an immediate danger to the public,” Or. Rev. Stat. § 677.205(3). The OMB’s exercise of a judicial function renders the OMB members absolutely immune even if that “exercise of authority is flawed by the commission of grave procedural errors.” Mishler, 191 F.3d at 1006 (quoting Stump v. Sparkman, 435 U.S. 349, 359 (1978)).

3 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Here, the amended complaint does not allege any facts in support of the

conclusory assertion that OMB staff investigators Boemmels and Brown “wrote

false and misleading allegations.” Nor does the amended complaint elaborate on

how Boemmels and Brown engaged in the “[f]abrication of evidence.” Similarly,

with respect to supervisory liability, the amended complaint summarily concludes

that OMB Medical Director Farris either “participated in or directed the fabrication

of evidence” or “failed to act to prevent it,” but advances no facts in support of

these assertions. These conclusory allegations do not suffice to state a plausible

claim for relief. See Iqbal, 556 U.S. at 678.

3. The district court did not abuse its discretion by denying Dr. Thomas

leave to amend in order to allege additional facts concerning the OMB staff

members. “Futility of amendment can, by itself, justify the denial of a motion for

leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Based on

the allegations advanced in Dr. Thomas’s proposed Second Amended Complaint

(SAC), we conclude that amendment would be futile because the staff members are

entitled to qualified immunity.

Qualified immunity protects public officials from § 1983 liability unless a

plaintiff shows “(1) that the official violated a statutory or constitutional right, and

(2) that the right was ‘clearly established’ at the time of the challenged conduct.”

4 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citation omitted). To assess

qualified immunity at the motion to dismiss stage, “we consider whether the

complaint alleges sufficient facts, taken as true, to support the claim that the

officials’ conduct violated clearly established constitutional rights.” Keates v.

Koile, 883 F.3d 1228, 1235 (9th Cir. 2018). Here, the proposed SAC fails to

adequately allege a constitutional violation. The SAC repeatedly concludes that

the OMB staff members fabricated evidence, or supervised the fabrication of

evidence, but it lacks sufficient factual allegations to support a claim to relief. See

Iqbal, 556 U.S. at 678. Moreover, even if Dr. Thomas had alleged a plausible

constitutional violation, he identifies no precedent that clearly establishes “the

violative nature of [this] particular conduct . . . in light of the specific context of

the case.” Mullenix v. Luna, 577 U.S. 7, 13 (2015) (per curiam) (citations

omitted).

AFFIRMED.

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