Ralph Lewis Read v. Kathleen Haley

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RALPH LEWIS READ,
Plaintiff - Appellant,
v.
KATHLEEN HALEY; WARREN G.
FOOTE; DOVE GUTMAN; DOUGLAS
KIRKPATRICK, Dr.; LISA
CORNELIUS, Dr.; UNKNOWN
MEMBERS OF THE OREGON
MEDICAL BOARD; UNKNOWN
EMPLOYEES OF THE OREGON
MEDICAL BOARD,
Defendants - Appellees.
No. 13-35330
D.C. No. 3:12-cv-02021-MO
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, Chief District Judge, Presiding
Submitted May 4, 2016**
Portland, Oregon
FILED
MAY 25 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Before: TASHIMA, TALLMAN, and HURWITZ, Circuit Judges.
Ralph Lewis Read appeals pro se from the district court’s judgment dismissing
his 42 U.S.C. § 1983 action arising from the revocation of his medical license by the
Oregon Medical Board. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court correctly concluded that it lacked subject matter
jurisdiction over Read’s first “non-fraud” claim under the Rooker-Feldman doctrine.
See Noel v. Hall, 341 F.3d 1148, 1165 (9th Cir. 2003) (holding that Rooker-Feldman
doctrine bars federal jurisdiction “when a plaintiff’s suit in federal district court is at
least in part a forbidden de facto appeal of a state court judgment, and an issue in that
federal suit is ‘inextricably intertwined’ with an issue resolved by the state court
judicial decision from which the forbidden de facto appeal is taken”). By challenging
the Oregon Medical Board’s Order of Evaluation, Read’s first “non-fraud” claim
alleges an error by the Oregon Court of Appeals, which affirmed the Board’s
conclusion that Read violated the Order. See Read v. Or. Med. Bd., 260 P.3d 771,
776-77 (Or. Ct. App. 2011).
Read’s second and third non-fraud claims, however, are not barred by Rooker-
Feldman if we view them as facial, rather than as-applied, challenges1 to the Board’s
1 Mindful that we construe pro se pleadings liberally, see Litmon v. Harris,
768 F.3d 1237, 1241 (9th Cir. 2014), we view Read’s claims as facial attacks that
are not barred by Rooker-Feldman. Given Read’s prolix, we can understand why
the district court considered his Complaint to assert “as applied” challenges.
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authority to issue orders and levy fines. Mothershed v. Justices of Supreme Court,
410 F.3d 602, 606 (9th Cir. 2005) (“The [Rooker-Feldman] doctrine does not . . .
prohibit a plaintiff from presenting a generally applicable legal challenge to a state
statute in federal court, even if that statute has previously been applied against him in
state court litigation.”). Even if the district court had subject matter jurisdiction over
Read’s second and third non-fraud claims, however, it would have been required to
dismiss the claims because Read lacks standing to pursue them. See Stormans, Inc.
v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) (“Questions of standing . . . may be
raised and considered for the first time on appeal.”).
Read’s second and third non-fraud claims challenge the constitutionality of the
Board’s authority to issue orders and impose fines. He repeatedly emphasizes that he
seeks to enjoin the Board from exercising its allegedly unconstitutional authority
against him or others. But Read only has standing to pursue injunctive relief if he can
show: (1) that he “suffered or is threatened with a concrete and particularized legal
harm;” and (2) a “sufficient likelihood that he will again be wronged in a similar
way.” Canatella v. California, 304 F.3d 843, 852 (9th Cir. 2002) (citations and
internal quotation marks omitted). Read has done neither. His assertion that an
injunction is necessary to protect his rights “if” he obtains a medical license in the
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future is exactly the “conjectural or hypothetical” injury the standing requirement is
designed to preclude. Id. Because Read lacks standing to bring his second and third
non-fraud claims, we affirm the dismissal of those claims.
Additionally, contrary to Read’s argument in support of his second non-fraud
claim, Oregon’s statutory scheme governing the Board and its authority does not
amount to a bill of attainder. See Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468
(1977) (explaining that a statute has the key features of a bill of attainder if it: (1)
“legislatively determines guilt and inflicts punishment,” (2) “upon an identifiable
individual,” and (3) “without provision of the protections of a judicial trial”). The
enabling act establishing the Board and its duties does not meet these criteria.
2. The district court properly dismissed Read’s claims against Administrative
Law Judge Gutman on the basis of judicial immunity. Read failed to allege facts
sufficient to show that Gutman took non-judicial actions against him, or that
Gutman’s judicial actions were taken in the complete absence of all jurisdiction. See
Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999) (explaining that “[a]
judge is not deprived of immunity because he takes actions which are in error, are
done maliciously, or are in excess of his authority”).
3. The district court also properly dismissed Read’s claims against Senior
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Assistant Attorney General Foote on the basis of prosecutorial immunity. Read failed
to allege facts sufficient to show that Foote’s actions did not relate to Foote’s
preparation for the initiation of a judicial proceeding, or the presentation of the state’s
case. See Fry v. Melaragno, 939 F.2d 832, 837-38 (9th Cir. 1991) (holding that
government attorney performing acts intimately associated with the judicial phase of
litigation is entitled to absolute immunity).
4. Dismissing Read’s claims against members of the Oregon Medical Board
was not error. The district court properly applied Butz v. Economou, 438 U.S. 478
(1978), and Mishler v. Clift, 191 F.3d 998 (9th Cir. 1999), in determining that the
Board members’ functions were sufficiently analogous to those of a judge or
prosecutor.2 See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922-29 (9th Cir.
2004) (holding that members of Idaho State Board of Medicine, their staff, and their
counsel were entitled to absolute immunity under Butz and Mishler); see also Mishler,
191 F.3d at 1009 (concluding that members of Nevada medical board were entitled
to absolute immunity).
5. The fraud claims against unknown employees of the Oregon Medical Board
were properly dismissed for failure to plead fraud with particularity under Federal
2 Because Read insists on appeal that his action alleged only federal claims,
we do not review the dismissal of the claims the district court construed as state
law claims.
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Rule of Civil Procedure 9(b).
6. The district court did not err in declining to order the defendants to answer
Read’s complaint. Federal Rule of Civil Procedure 12(b) required the defendants to
file their motion to dismiss before filing an answer. Nor did the district court abuse
its discretion in denying Read’s request for default judgment against defendants
Haley, Foote, Gutman, and Cornelius. See, e.g., Eitel v. McCool, 782 F.2d 1470,
1471-72 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d 1089, 1092-93 (9th Cir. 1980)
(affirming denial of default judgment after defendants failed to timely answer
complaint).
Each party shall bear its own costs on appeal.
AFFIRMED.
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