Applewhite v. Briber, et al

06-1923-cv
Applewhite v. Briber, et al
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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August Term, 2007
(Argued: October 22, 2007 Decided: October 29, 2007)
Docket No. 06-1923-cv
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MONICA J. APPLEWHITE,
Plaintiff-Appellant,
—v.—
ROBERT BRIBER, ET AL,
Defendant-Appellee.
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B e f o r e :
FEINBERG, WINTER and STRAUB, Circuit Judges.
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Appeal from a judgment of the United States District Court for the Western District of
New York (John T. Curtin, Judge) granting defendants’ motions to dismiss under Fed. R. Civ. P.
12(b)(6).
Affirmed.
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JAMES P. DAVIES, Buffalo, New York, for Plaintiff-Appellant.
NANCY A. SPIEGEL, Special Assistant Solicitor General (Eliot Spitzer, Attorney General of
the State of New York, Julie S. Mereson, Assistant Solicitor General), Albany, New York,
for Defendants-Appellees.

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Per Curiam:
Plaintiff-Appellant Monica J. Applewhite appeals from a judgment of the Western
District of New York (John T. Curtin, Judge), dismissing her action on motions to dismiss of all
Defendants-Appellees. Applewhite claims that Defendants-Appellees deprived her of property
in the form of her medical license without due process in violation of 28 U.S.C. §§ 1981, 1983.
In addition, Applewhite claims that Defendants-Appellees engaged in race discrimination against
her in violation of § 1983. The District Court granted Defendants-Appellees’ motions to dismiss
on the grounds of absolute judicial immunity, statute of limitations and failure to state a claim.
For substantially the reasons stated by the District Court, we hereby affirm the District
Court’s opinion. We write only to note that absolute judicial immunity attaches to a state
medical review board’s disciplinary proceeding where, as here, the individual charged has the
right to be represented by counsel, to present evidence and to cross-examine witnesses, and
where the board articulates its findings and conclusions in a binding order – as opposed to a
mere recommendation – under a preponderance of the evidence standard. See N.Y. Public
Health Law §§ 230(10)(c), (e), (f), (g). Our sister circuits that have considered claims of judicial
immunity in similar contexts have reached the same conclusion. See, e.g., Guttman v. Khalsa,
446 F.3d 1027, 1032-34 (10th Cir. 2006); Olsen v. Id. State Bd. of Med., 363 F.3d 916, 923-26
(9th Cir. 2004); Wang v. N.H. Bd. of Registration in Med., 55 F.3d 698, 701 (1st Cir. 1995).
Applewhite relies on our decision in DiBlasio v. Novello, 344 F.3d 292, 296-302 (2d Cir.
2003), cert. denied, 541 U.S. 988 (2004), to argue that the disciplinary proceeding at issue in this
case should not receive absolute judicial immunity. However, DiBlasio did not involve the
revocation of a medical license. Instead, the plaintiff in DiBlasio challenged the decision by the

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1 Our decision in DiBlasio is apposite only as far as Defendant-Appellee Novello’s decision to
suspend Applewhite’s license is concerned. However, Defendants-Appellees do not argue that
Defendant Novello is entitled to absolute judicial immunity. In any case, the claims against
Novello were properly dismissed by the District Court on statute of limitations grounds.
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New York State Department of Health to suspend his license. 344 F.3d at 295. In concluding
that officials involved in such a proceeding do not deserve absolute judicial immunity, we stated
that the procedures governing such summary suspensions “lack[ed] the hallmarks and safeguards
of a judicial proceeding that would render absolute immunity for those officials involved
appropriate.” Id. at 299 (examining the factors relevant to applying judicial immunity discussed
in Butz v. Economou, 438 U.S. 478 (1978)).1
We conclude that DiBlasio does not control here because summary suspensions and
revocations of medical licenses in New York involve altogether separate and distinguishable
proceedings. Compare N.Y. Public Health Law § 230(10) (providing procedures for revocations
of medical licenses) with § 230(12) (summary suspensions). While a board independent of the
Commissioner of the Department of Health (the “commissioner”) decides whether to revoke a
medical license, the commissioner exercises her “virtually unfettered authority” to accept the
recommendation of the suspension hearing committee – a panel appointed predominantly by the
commissioner. DiBlasio, 344 F.3d at 299 (discussing the “absence of meaningful safeguards
against arbitrary executive action in a summary suspension proceeding”). Furthermore, in
contrast to the administrative review available after a license revocation, see N.Y. Public Health
Law § 230(10)(i), there is no “meaningful review of the summary suspension because . . . the
commissioner is free to ignore” any later recommendation by the same committee to terminate
the suspension. DiBlasio, 344 F.3d at 299. Therefore, our conclusion here that absolute judicial

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immunity attaches to medical license revocation proceedings pursuant to New York Public
Health Law § 230(10) does not affect our earlier conclusion that such immunity does not attach
to summary suspension proceedings under § 230(12).
For the foregoing reasons, we AFFIRM the judgment of the District Court.

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