|||U.S. Court of Appeals, Fourth Circuit
|||No. 98-1717, No. 98-1809
|||177 F.3d 245, 1999.C04.43450 <http://www.versuslaw.com>
|||May 24, 1999
|||ADAM OSTRZENSKI, M.D., PLAINTIFF-APPELLANT,
MARK S. SEIGEL, M.D., DEFENDANT-APPELLEE. ADAM OSTRZENSKI, M.D., PLAINTIFF-APPELLEE,
MARK S. SEIGEL, M.D., DEFENDANT-APPELLANT.
|||Appeals from the United States District Court for the District of Maryland,
at Greenbelt. Deborah K. Chasanow, District Judge. (CA-97-1823-DKC)
|||Counsel Argued: Chester Alexander Hewes, Jr., Hewes, Gelband, Lambert
& Dann, Washington, D.c., for Appellant. Andrew Howard Baida, Assistant
Attorney General, Baltimore, Maryland, for Appellee. ON Brief: J. Joseph
Curran, Jr., Attorney General of Maryland, Thomas W. Keech, Assistant Attorney
General, Baltimore, Maryland, for Appellee.
|||Before Wilkins and Williams, Circuit Judges, and Lee, United States District
Judge for the Eastern District of Virginia, sitting by designation.
|||The opinion of the court was delivered by: Wilkins, Circuit Judge
|||Argued: March 3, 1999
|||Affirmed by published opinion. Judge Wilkins wrote the opinion, in which
Judge Williams and Judge Lee joined.
|||Dr. Adam Ostrzenski brought this action pursuant to 42 U.S.C.A. § 1983
(West Supp. 1998) against Dr. Mark S. Seigel, who conducted a peer review
of Ostrzenski at the behest of the Maryland Board of Physician Quality Assurance
(the Board). Ostrzenski alleged that Seigel denied him due process under
the Fifth and Fourteenth Amendments as a result of procedural irregularities
in the peer review process. In addition, Ostrzenski brought a claim for
false light invasion of privacy under Maryland law. The district court dismissed
Ostrzenski's action for failure to state a claim upon which relief could
be granted, see Fed. R. Civ. P. 12(b)(6), reasoning that Seigel was entitled
to absolute quasi-judicial immunity from prosecution on Ostrzenski's § 1983
claim and that Ostrzenski had alleged the publication of no facts that could
be considered "highly offensive" to Ostrzenski as required for
a Maryland false light claim. J.A. 40 (internal quotation marks omitted).
Because we conclude that Seigel is entitled to absolute quasi-judicial immunity
on both the § 1983 and the false light claims, we affirm.
|||The Maryland Medical Practice Act governs the licensing and disciplining
of physicians in Maryland. See Md. Code Ann. Health Occ. §§ 14-101 to 14-702
(1994 & Supp. 1998). The Board, the state regulatory agency charged
with carrying out the provisions of the Act, is authorized to investigate
allegations of violations of the Act, including accusations that a physician
has "[f]ail[ed] to meet appropriate standards as determined by appropriate
peer review for the delivery of quality medical and surgical care performed
in ... any ... location in this State." Id. § 14-404(a)(22). The Act
instructs that after conducting a preliminary investigation, "the Board
shall refer any allegation involving standards of medical care ... to the[Maryland
Medical and Chirurgical] Faculty for further investigation and physician
peer review within the involved medical specialty." Id. § 14-401(c)(2)(i).
The Faculty may in turn "refer the allegation for investigation and
report to the appropriate ... [c]county medical society ... or ... [c]committee
of the Faculty." Id.§ 14-401(c)(2)(ii). The investigating society or
committee is required to submit a "report to the Board on its investigation"
that "contain[s] the information and recommendations necessary for
appropriate action by the Board." Id. § 14-401(e)(1)(i), (e)(2). Upon
"receipt of the report, the Board shall consider the recommendations
made in the report and take the action ... that it finds appropriate under
this title." Id. § 14-401(e)(3). The Board is authorized to impose
a variety of sanctions, including license revocation. See id. § 14-404(a).
|||In 1991, Holy Cross Hospital in Maryland decided to restrict the privileges
of Ostrzenski, a gynecological surgeon trained in laparoscopic techniques.
The hospital notified the Board of its decision, sparking an investigation
of Ostrzenski. The Board requested that the Faculty advise it on whether
a formal charge against Ostrzenski should be pursued. And, the Faculty in
turn referred the matter to the Montgomery County Medical Society, which
assigned peer reviewers Drs. Mark S. Seigel and Ronald Orleans to review
Ostrzenski's practice. In February 1993, Seigel and Orleans visited Ostrzenski's
office and selected ten files for review. Based on their review, they submitted
a report to the Board in March 1993. In June 1994, the Board issued charges
|||In May 1997, Ostrzenski brought this action against Seigel. The first
count alleged that Seigel had deprived Ostrzenski of due process in violation
of the Fifth and Fourteenth Amendments through various procedural irregularities
in the peer review process and the report. The second count alleged a false
light claim under Maryland law, charging that Seigel had knowingly or recklessly
included false information in the report. Prior to answering the complaint,
Seigel filed a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), and the district court dismissed the action with prejudice. See
Carter v. Norfolk Community Hosp. Ass'n, 761 F.2d 970, 974 (4th Cir. 1985)
(explaining that a dismissal by the district court for failure to state
a claim is with prejudice unless the court specifically orders dismissal
without prejudice). The court held that Seigel's duties as a peer reviewer
were quasi-judicial and thus that he was immune from§ 1983 liability. In
addition, the district court ruled that Ostrzenski's lone allegation of
falsehood in the report was that Seigel had misrepresented that he had no
conflicts of interest with Ostrzenski and that this representation was "not
even mildly offensive, let alone `highly offensive' as required by Maryland
law." J.A. 40. Ostrzenski challenges the ruling of the district court
with respect to both of these causes of action. We address them seriatim.
|||"Suits for monetary damages are meant to compensate the victims of
wrongful actions and to discourage conduct that may result in liability."
Forrester v. White, 484 U.S. 219, 223 (1988). The prospect of liability
for damages encourages public officials to perform their assignments appropriately
and in a manner that does not injure others. See id. Because generally actions
for damages serve this laudable goal, the Supreme Court has been very sparing
in its grants of absolute immunity from damages for constitutional violations
in § 1983 actions. See id. at 224. In some situations, however, the threat
of liability for damages hinders, rather than advances, the prospects that
public officials will perform their duties in the public interest. See id.
at 223-24. The special functions of some governmental officials require
that they be exempted completely from such liability. See Butz v. Economou,
438 U.S. 478, 508 (1978) (recognizing "that there are some officials
whose special functions require a full exemption from liability").
Such officials include Judges performing judicial acts within their jurisdiction,
see Pierson v. Ray , 386 U.S. 547, 553-54 (1967), prosecutors performing
acts "intimately associated with the judicial phase of the criminal
process," Imbler v. Pachtman, 424 U.S. 409, 430 (1976), and "quasi-judicial"
agency officials whose duties are comparable to those of Judges or prosecutors
when adequate procedural safeguards exist, see Butz, 438 U.S. at 511-17.
The question here is whether the district court correctly determined that
Seigel's duties as a peer reviewer fell within this latter category.
|||Every court of appeals that has addressed the issue has concluded that
members of a state medical disciplinary board are entitled to absolute quasi-judicial
immunity for performing judicial or prosecutorial functions. See O'Neal
v. Mississippi Bd. of Nursing, 113 F.3d 62, 65-67 (5th Cir. 1997); Wang
v. New Hampshire Bd. of Registration in Med., 55 F.3d 698, 701 (1st Cir.
1995); Watts v. Burkhart, 978 F.2d 269, 272-78 (6th Cir. 1992) (en banc);
Bettencourt v. Board of Registration in Med., 904 F.2d 772, 782-84 (1st
Cir. 1990); Horwitz v. State Bd. of Med. Exam'rs, 822 F.2d 1508, 1512-16
(10th Cir. 1987). The rationale underlying these decisions is that medical
disciplinary boards satisfy the criteria set forth in Butz as justifying
absolute immunity because (1) the boards perform essentially judicial and
prosecutorial functions; (2) there exists a strong need to ensure that individual
board members perform their functions for the public good without harassment
and intimidation; and (3) there exist adequate procedural safeguards under
state law to protect against unconstitutional conduct by board members without
reliance on private damages lawsuits. See, e.g., O'Neal, 113 F.3d at 66;
Bettencourt, 904 F.2d at 783.
|||Although Seigel is not a Board member, and thus he is one step removed
from the "judicial" functions of the Board, he nevertheless may
be entitled to absolute quasi-judicial immunity if he is engaged in a protected
prosecutorial function. See Butz , 438 U.S. at 515 (holding "that agency
officials performing certain functions analogous to those of a prosecutor
should be able to claim absolute immunity with respect to such acts");
Wang, 55 F.3d at 701-02 (holding medical board and its attorneys who investigated
the charges were entitled to absolute immunity); see also Kwoun v. Southeast
Mo. Prof'l Standards Review Org., 811 F.2d 401, 406-09 (8th Cir. 1987) (holding
that state peer review groups, which were relied upon by the U.S. Department
of Health and Human Services to make recommendations concerning whether
physicians were entitled to participate in the Medicare program, were entitled
to absolute immunity); cf. Kalina v. Fletcher, 118 S. Ct. 502, 508 (1997)
(explaining "that the absolute immunity that protects the prosecutor's
role as an advocate is not grounded in any special esteem for those who
perform these functions, and certainly not from a desire to shield abuses
of office, but because any lesser degree of immunity could impair the judicial
process itself," and thus, in determining immunity, a court must "examine
the nature of the function performed, not the identity of the actor who
performed it" (internal quotation marks omitted)). A prosecutor performing
the duties of initiating a prosecution or presenting a case is entitled
to absolute immunity in an action for damages claiming that the prosecutor
violated the plaintiff's constitutional rights. See Imbler, 424 U.S. at
431. However, this absolute immunity does not encompass all of a prosecutor's
official activities. See Burns v. Reed, 500 U.S. 478, 492-96 (1991). Thus,
although absolute immunity applies to activities "intimately associated
with the judicial phase of the criminal process" because the reasons
underlying the grant of the immunity apply to those activities by a prosecutor,
absolute immunity is not required for "those aspects of the prosecutor's
responsibility that cast him in the role of an administrator or investigative
officer rather than that of advocate." Imbler, 424 U.S. at 430-31.
Accordingly, a prosecutor's appearance in court in support of an application
for a search warrant and the presentation of evidence at that hearing are
protected by absolute immunity. See Burns , 500 U.S. at 491-92. Likewise,
"acts undertaken by a prosecutor in preparing for the initiation of
judicial proceedings or for trial, and which occur in the course of his
role as an advocate for the State, are entitled to the protections of absolute
immunity." Buckley v. Fitzsimmons , 509 U.S. 259, 273 (1993). But,
a prosecutor is not entitled to absolute immunity for giving legal advice
to law enforcement officers because the risk of vexatious lawsuits as a
result of this activity is slight, the giving of legal advice is not related
to the prosecutor's responsibilities to screen cases for prosecution and
to safeguard the judicial process, and insufficient checks exist to restrain
a prosecutor's activities in this area. See Burns, 500 U.S. at 492-96. And,
absolute immunity is unavailable when a prosecutor conducts a press conference
or when he fabricates evidence concerning an unsolved crime. See Buckley,
509 U.S. at 272-78. The Supreme Court has explained:
|||"There is a difference between the advocate's role in evaluat ing
evidence and interviewing witnesses as he prepares for trial, on the one
hand, and the detective's role in searching for the clues and corroboration
that might give him probable cause to recommend that a suspect be arrested,
on the other hand. When a prosecutor performs the investigative func tions
normally performed by a detective or police officer, it is neither appropriate
nor justifiable that, for the same act, immunity should protect the one
and not the other." Id. at 273 (internal quotation marks omitted).
|||Ostrzenski maintains that Seigel was acting in the role of an investigator
in preparing the report as a peer reviewer for the Board and that therefore
he is not entitled to immunity. Seigel, on the other hand, asserts that
his activities were analogous to those in which a prosecutor must engage
in evaluating whether charges are to be pursued and that therefore he is
entitled to immunity.
|||Undoubtedly, Seigel's preparation of the peer review report involved an
examination of Ostrzenski's practice and files. But, not all activities
by a prosecutor involving a review of evidence fall outside his duties as
an advocate. Clearly, some evidentiary review is necessary to determine
whether to pursue charges, and a prosecutor is held to be absolutely immune
from liability for performing such duties. See id. Seigel's duties as a
peer reviewer were analogous to those of a prosecutor reviewing the evidence
to determine whether to recommend prosecution.
|||Additionally, there is a strong need to ensure that peer reviewers perform
their functions for the public good without harassment and intimidation.
Peer reviewers exercise their professional discretion in determining whether
one of their fellow physicians has deviated from the standard of professional
care in a manner requiring the Board to intervene. If peer reviewers were
to face the prospect of civil liability for damages, the exercise of that
discretion might be distorted. See Butz, 438 U.S. at 515. Although a peer
reviewer would not likely be hounded with litigation if he were to decide
that a physician has committed no wrongdoing, there is a real risk that
a peer reviewer who concluded that charges against a physician should be
pursued would meet with a retaliatory response. See id. A physician anticipating
disciplinary action, including the loss of a license to practice medicine,
may well seek vengeance.
|||Furthermore, there are adequate procedural safeguards under state law
to protect against unconstitutional conduct by peer reviewers without reliance
on private damages lawsuits. Prior to taking disciplinary action against
a physician, the Board must give the physician notice and an opportunity
for a hearing before a hearing officer conducted in accordance with the
Maryland Administrative Procedures Act. See Md. Code Ann. Health Occ. §
14-405(a)-(b). The physician may call witnesses, offer evidence, cross-examine
witnesses, and present argument. See Md. Code Ann. State Gov't § 10-213(f)
(1995). Charges must be proven by clear and convincing evidence. See Md.
Code Ann. Health Occ. § 14-405(b). At the Conclusion of the hearing, "the
hearing officer shall refer proposed factual findings to the Board for the
Board's Disposition." Id. § 14-405(e). A physician is entitled to seek
judicial review of an adverse decision. See id. § 14-408; Md. Code Ann.
State Gov't § 10-222 (1995).
|||In sum, a physician requested by the Board to conduct a peer review performs
a function analogous to a prosecutor reviewing evidence to determine whether
charges should be brought. As such, absolute immunity is necessary to foster
an atmosphere in which the peer reviewer can exercise his professional judgment
without fear of retaliation. An action for damages is not necessary to safeguard
against the inappropriate exercise of that discretion since other protections
are provided through review by the hearing officer, the Board, and ultimately
the judiciary. Consequently, we conclude that Seigel is entitled to absolute
quasi-judicial immunity on Ostrzenski's § 1983 claim.
|||The district court dismissed Ostrzenski's claim of false light invasion
of privacy under Maryland law for failure to state a claim upon which relief
could be granted. Federal Rule of Civil Procedure 8(a) requires "a
short and plain statement of the claim showing that the pleader is entitled
to relief." Fed. R. Civ. P. 8(a)(2). "This portion of Rule 8 indicates
the objective of the rules to avoid technicalities and to require that the
pleading discharge the function of giving the opposing party fair notice
of the nature and basis or grounds of the claim ...." 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1215 (2d
ed. 1990) (footnote omitted). Under Rule 8(a)(2), a claim is acceptable
if "a plaintiff colorably states facts which, if proven, would entitle
him to relief." Adams v. Bain, 697 F.2d 1213, 1216 (4th Cir. 1982).
But, a claimant need not set out in detail all of the facts upon which the
claim for relief is based; rather, he need only provide a statement sufficient
to put the opposing party on fair notice of the claim and the grounds supporting
it. See Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S. 557, 568
n.15 (1987); Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1227 (4th
Cir. 1998); Gilbane Bldg. Co. v. Federal Reserve Bank, 80 F.3d 895, 900
(4th Cir. 1996).
|||This court reviews a dismissal of a claim by the district court under
Rule 12(b)(6) de novo. See Mylan Lab., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993). On appeal from an order granting a Rule 12(b)(6) motion
to dismiss, this court accepts as true the facts as alleged in the complaint,
views them in the light most favorable to the plaintiff, and recognizes
that dismissal is inappropriate "unless it appears to a certainty that
the plaintiff would be entitled to no relief under any state of facts which
could be proved in support of his claim." Id. at 1134 & n.4 (internal
quotation marks omitted); see Hishon v. King & Spalding, 467 U.S. 69,
73 (1984) (explaining that dismissal for failure to state a claim is proper"only
if it is clear that no relief could be granted under any set of facts that
could be proved consistent with the allegations").
|||Ostrzenski's false light count alleged the following:
|||"[Seigel] has published false statements about the Plaintiff to others
in the form of, inter alia, the peer review report issued to the Montgomery
County Medical Society[. Seigel] knew those statements were false when he
made them, or he made them with reckless disregard as to their falsity.
The statements were highly offensive to any reasonable person and they placed
[Ostrzenski] in a false light." J.A. 20.
|||Earlier in the complaint, Ostrzenski alleged:
|||"The Report, signed by [Seigel], contained misrepresenta tions and
alleged facts that [Seigel] knew, or should have known were untrue. Among
others, the Report falsely reported that [as a peer reviewer, Seigel reported
that he did not have a conflict of interest with Ostrzenski]." J.A.
|||The tort of false light is a type of action claiming an invasion of privacy.
Under Maryland law:
|||"One who gives publicity to a matter concerning another that places
the other before the public in a false light is sub ject to liability to
the other for invasion of his privacy, if"
|||"(a) the false light in which the other person was placed would be
highly offensive to a reasonable person, and"
|||"(b) the actor had knowledge of or acted in reckless disregard as
to the falsity of the publicized matter and the false light in which the
other would be placed." Bagwell v. Peninsula Reg'l Med. Ctr., 665 A.2d
297, 318 (Md. Ct. Spec. App. 1995) (quoting Restatement (Second) of Torts
§ 652E (1977)).
|||The district court dismissed Ostrzenski's complaint, reasoning that the
only allegation of falsity made by Ostrzenski was that Seigel misrepresented
in the report that he did not have a conflict of interest and that this
"falsity" could not be highly offensive. Although the district
court was correct that an allegation that Seigel lacked a conflict of interest
that would prohibit him from conducting the peer review does not satisfy
the "highly offensive" standard, the complaint also alleges that
the report "contained misrepresentations and alleged [false] facts."
J.A. 13. The district court ignored this allegation of falsity. Because
the report was not incorporated into the complaint, and since Seigel has
not yet answered, the report is not before the court. We cannot say that
it is clear that Ostrzenski cannot prove that some factual assertion in
the report is highly offensive.
|||Seigel also asserts that the allegations contained in Ostrzenski's complaint
do not "`set forth enough details so as to provide [him] and the court
with a fair idea of the basis of the complaint and the legal grounds claimed
for recovery.'" Karpel, 134 F.3d at 1227 (quoting Self Directed Placement
Corp. v. Control Data Corp. , 908 F.2d 462, 466 (9th Cir. 1990)). Although
we doubt that Ostrzenski's complaint fails to satisfy this modest requirement,
even if we were to agree that the allegations of Ostrzenski's complaint
were inadequate because there should have been an explicit mention of the
matters contained in the report that were "highly offensive,"
the district court should not have dismissed the complaint with prejudice
without permitting Ostrzenski an opportunity to amend.
|||A dismissal under Rule 12(b)(6) generally is not final or on the merits
and the court normally will give plaintiff leave to file an amended complaint.
The federal rule policy of deciding cases on the basis of the substantive
rights involved rather than on technicalities requires that plaintiff be
given every opportunity to cure a formal defect in his pleading. This is
true even though the court doubts that plaintiff will be able to overcome
the defects in his initial pleading. Amendment should be refused only if
it appears to a certainty that plaintiff cannot state a claim. The better
practice is to allow at least one amendment regardless of how unpromising
the initial pleading appears because except in unusual circumstances it
is unlikely that the court will be able to determine conclusively on the
face of a defective pleading whether plaintiff actually can state a claim.
|||5A Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1357, at 360-67 (2d ed. 1990) (emphasis added) (footnotes omitted); see
id. at 361 n.81 (collecting cases). There is no indication from any source
that Ostrzenski could not have amended his complaint to allege representations
in the report that were highly offensive. Consequently, we cannot conclude
that an amendment would have been futile. See Foman v. Davis, 371 U.S. 178,
182 (1962) (noting that a court properly may refuse to allow leave to amend
pleadings when, inter alia, the proposed changes would be futile).
|||Nevertheless, we may affirm the dismissal by the district court on the
basis of any ground supported by the record even if it is not the basis
relied upon by the district court. See United States v. Swann, 149 F.3d
271, 277 (4th Cir. 1998). Our research discloses that Maryland law recognizes
absolute immunity for prosecutors when evaluating whether charges should
be brought. See Gill v. Ripley, 724 A.2d 88, 96-98 (Md. 1999); see also
Parker v. State , 653 A.2d 436, 442-43 (Md. 1995) (recognizing that judicial
immunity is broader than public official immunity in that the former immunizes
officials from civil liability for violations of the Maryland Constitution
and for intentional torts in addition to other state-law causes of action).
Moreover, Maryland law recognizes absolute immunity in quasi-judicial administrative
proceedings when the nature of the public function of the proceedings is
sufficiently compelling and procedural safeguards are adequate to minimize
the potential for injury at the hands of the immunized official. See Odyniec
v. Schneider, 588 A.2d 786, 790 (Md. 1991); Gersh v. Ambrose, 434 A.2d 547,
551-52 (Md. 1981). For the reasons set forth above concerning why Seigel
is absolutely immune from liability for damages under § 1983, we conclude
that Seigel is entitled to absolute quasi-judicial immunity under Maryland
law from Ostrzenski's false light claim.
|||In sum, we conclude that Seigel's activities as a peer reviewer were analogous
to those of a prosecutor in determining whether to press charges and thus
were intimately associated with the judicial process. Accordingly, Seigel
was entitled to absolute quasi-judicial immunity from liability, and the
district court properly dismissed Ostrzenski's action for failure to state
a claim upon which relief can be granted.
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