Alan J. Mishler, M.D. v. Nevada State Board of Medical Examiners Robert C. Clift, M.D.

Allan J. Mishler brought suit under 42 U.S.C. § 1983 against the Nevada State Board of Medical Examiners, the State of Nevada, and nine individuals who were members of the Nevada Board. The district court dismissed his suit for failure to state a claim. We reverse and remand for trial.

ALLEGATIONS

Mishler alleges that he has been a physician of 25 years, specializing in neurosurgery and certified as a specialist in that field by the American Board of Neurological Surgery. He is licensed to practice in five states, including Nevada. In April 1985, then practicing in Nevada, he was offered a position in Ohio. Intending to accept the offer, he closed his practice in Nevada and moved to Ohio. It became necessary for him to obtain a license to practice in Ohio.

Upon his application for the Ohio license the Ohio Board of Medical Examiners in April 1985 inquired of the medical boards of the five states in which he was already licensed whether he was in good standing. Four boards replied promptly, issuing a letter of verification stating that he was. The Nevada State Board of Medical Examiners (the Board) did not reply. Mishler checked and in July 1985 it informed him that a letter of…

dissenting:

Mishler brought the present action under 42 U.S.C. § 1983 (1982), alleging that “[t]he procedures that the Board followed during its investigation of the plaintiff were unduly protracted, manipulative, and unnecessarily deleterious, and violated rights guaranteed to the plaintiff by the Fourteenth Amendment to the United States Constitution.” Complaint at 1-2. The named defendants were the Nevada Board of Medical Examiners (“the Board”) and various members of the Board, in their individual and official capacities. Id. at 2-3 .

Mishler’s right to relief cannot be based on section 1983 itself. It is well-established that a section 1983 complainant must establish a claim for relief grounded on some constitutional or statutory right other than section 1983. “[O]ne cannot go into court and claim a ‘violation of § 1983’—for § 1983 does not protect anyone against anything.” Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 , 99 S.Ct. 1905, 1915 , 60 L.Ed.2d 508 (1979). Rather, “[section 1983] merely provides a remedy for the violation of rights conferred by the Constitution or other statutes.” Maher v. Gagne, 448 U.S. 122, 129 , 100 S.Ct. 2570, 2574 , 65 L.Ed.2d 653…

896 F.2d 408 58 USLW 2514 Alan J. MISHLER, M.D., Plaintiff-Appellant, v. NEVADA STATE BOARD OF MEDICAL EXAMINERS; Robert C. Clift, M.D., et al., Defendants-Appellees. No. 87-2890. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 12, 1989. Decided Feb. 16, 1990. Stephen L. Pevar, American Civil Liberties Union, Denver, Colo., and Peter J. Smith, Carson City, Nev., for plaintiff-appellant. Daniel H. Haight, Deputy Atty. Gen., Las Vegas, Nev., for defendants-appellees. Appeal from the United States District Court for the District of Nevada. Before HALL, NOONAN and LEAVY, Circuit Judges. NOONAN, Circuit Judge: 1 Allan J. Mishler brought suit under 42 U.S.C. Sec. 1983 against the Nevada State Board of Medical Examiners, the State of Nevada, and nine individuals who were members of the Nevada Board. The district court dismissed his suit for failure to state a claim. We reverse and remand for trial. ALLEGATIONS 2 Mishler alleges that he has been a physician of 25 years, specializing in neurosurgery and certified as a specialist in that field by the American Board of Neurological Surgery. He is licensed to practice in five states, including Nevada. In April 1985,…