United States Court of Appeals,

Fifth Circuit.

No. 96-60389.

Irene Stone O'NEAL; Linda T. Hughes, Plaintiffs-Appellants,

v.

MISSISSIPPI BOARD OF NURSING; Marcella L. McKay, R.N., M.S.N., Executive Director;

Laura Kelley, R.N., President, individually and in her official capacity as member of the Mississippi

Board of Nursing; Barbara Hayman, R.N., Secretary, individually and in her official capacit y as

member of the Mississippi Board of Nursing; Gladys Hughes, L.P.N., Treasurer, individually and in

her official capacity as member of the Mississippi Board of Nursing; Iva Mae Blackledge, L.P.N.,

individually and in her official capacity as member of the Mississippi Board of Nursing; Peggy Brady,

L.P.N., individually and in her official capacity as member of the Mississippi Board of Nursing; Mary

Patricia Curtis, R.N., F.N.P., individually and in her official capacity as member of the Mississippi

Board of Nursing; Cleopatra Hudson, L.P.N., individually and in her official capacity as member of

the M ississippi Board of Nursing; Thelma Latham, Consumer; individually and in her official

capacity as member of the Mississippi Board of Nursing; Karen Saucier Lundy, R.N., individually

and in her off

icial capacity as member of the Mississippi Board of Nursing; LaDonna Kay

Northington, R.N., individually and in her official capacity as member o f t he Mississippi Board of

Nursing; Renee Williams, R.N., individually and in her official capacity as member of the Mississippi

Board of Nursing; Charlotte Wood, R.N., individually and in her official capacity as member of the

Mississippi Board of Nursing, Defendants-Appellees.

May 29, 1997.

Appeal from the United States District Court for the Southern District of Mississippi.

Before REYNALDO G. GARZA, HIGGINBOTHAM and JONES, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Background

Plaint iffs, Irene Stone O'Neal and Linda Hughes, b rought this § 1983 action against the

Mississippi State Board of Nursing, its executive director, and the board members in their official and

individual capacities, for allegedly violating their Fourteenth Amendment Due Process rights when

their license to practice nursing was revoked following adjudicatory hearings. Each plaintiff's license

was rescinded for "falsifying, or in a repeatedly negligent manner making incorrect entries on

records." The Board's decision was initially affirmed after an appeal to the Chancery Court, but later

reversed by the Mississippi Court of Appeals on the grounds that there was no substantial evidence

in the record of either case to establish that either plaint iff acted with fraudulent intent, carelessness,

or inattentiveness. Plaintiffs subsequently sued defendants in federal court under § 1983 for alleged1 In light of plaintiffs' concessions and the fact that they assert that they may proceed against

the members and officials of the board merely in their "individual capacities", we can only assume

that they also abandoned their claims against the members and officials in their official capacities

as these too would have been barred under the Will doctrine. violations of their constitutional rights. They contended that these rights were violated when the

Board init ially revoked their licenses and by unreasonably delay ing t heir reinstatement once the

board's decision was overturned.

Defendants' moved for summary judgment asserting that any action against the Board or i ts

Officials in their official capacities was barred by the doctrine set out by the Supreme Court in Will

v. Michigan Dept. Of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), and the

Eleventh Amendment. Additionally, defendants' claimed that the individual members of the Board,

in their i ndividual capacities, were entitled to absolute quasi-judicial immunity. In their response,

plaint iffs conceded that the action against the Board, as an entity, was barred by the Will doctrine.

However, they claimed that they were entitled to proceed against "the Board's o fficials and members

in their individual capacities" under § 1983. 1 They contended that individual members of the Board,

along with its Director, were only entitled to qualified immunity [not absolute immunity] and, thus,

precluded from a judgment as a matter of law.

Judge Tom S. Lee, of the Southern District of Mississippi, found that the Board o fficials and

members were entitled to absolute quasi-judicial immunit y and accordingly granted d efendants'

mo t io n. In his Memorandum Opinion, Judge Lee observed that public officials were entitled t o

absolute quasi-judicial immunit y when they engaged in acts that were adjudicatory in nature. R. 85.

He also noted that the plaintiffs' hearings took place in a context of procedural safeguards and that

the Board decisions were subject to review. Id.

Appellants timely filed their notice of appeal from this final judgment.

Discussion

The Supreme Court has recognized two kinds of immunit y under a § 1983 claim: "qualified

immunit y" and "absolute immunit y." Under "qualified immunity," government officials are not subject

to liab ilit y fo r the performance of their discretionary actions unless their conduct violates clearlyestablished statutory or constitutional rights which a reasonable person would have known. H arlow

v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). "Absol ute

immunit y" denies a person whose federal rights have been violated by a government official any type

of remedy, regar dless o f t he co nduct. As such the Supreme Court has been "quite sparing" in

recognizing a bso lute immunity. F orrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542, 98

L.Ed.2d 555 (1988).

Although the Supreme Court has been rather conservative in its grants of absolute immunit y,

it has recognized that t here are some officials whose duties require a full exemption from liability.

Such o fficials include judges performing judicial acts within their jurisdiction, Bradley v. Fisher, 13

Wall. 335, 80 U.S. 335, 20 L.Ed. 646 (1871), pro secut o rs in t he performance of their official

functions, Yaselli v. Goff, 275 U.S. 503, 48 S.Ct. 1 55, 72 L.Ed. 395 (1927), and certai n

"quasi-judicial" agency o fficials who, irrespective of their title, perform functions essentially similar

to those of judges or prosecutors, in a setting similar to that of a court. B utz v. Economou, 438 U.S.

478, 511-17, 98 S.Ct. 2894, 2913-16, 57 L.Ed.2d 895 (1978). Naturally, the defendants claim that

they fall within this latter category, while the plaint iffs feel that their opposition's reliance on Butz is

misplaced.

Applying the Supreme Court 's jurisprudence, this court recently held that in order to

determine whether a government official is absolutely immune from suit, the proper focus should not

be the ident it y o f t he part y claiming the immunity, but rather his "role in the context of the case."

Mays v. Sudderth, 97 F.3d 107, 110 (5th Cir.1996). In other words, immunity attaches to particular

official functions, not to particular offices. Forrester, 484 U.S. at 229, 108 S.Ct. at 545 (1988). If

the functi o ns are o f a judicial nature then we must weigh the costs and benefits of denying or

affording absolute immunit y. M ylett v. Mullican, 992 F.2d 1347, 1352 (5th Cir.1993). The following

factors are characteristic of the ju dicial process and are variables to be considered in determining

absolute as contrasted with qualified immunity:

1. the need to assure t hat t he individual can perform his functions without harassment or

intimidation;

2. the presence of safeguards that reduce the need for private damages actions as a means of2 The Mississippi State Board of Nursing is a state agency which consists of thirteen health

service professionals appointed by the governor. M ISS .C ODE A NN . § 73-15-9. The Board, inter

alia, conducts adjudicatory disciplinary proceedings regarding nurses licensed to practice in

Mississippi. See M ISS .C ODE A NN . § 73-15-1, et seq. The statutory function of the Board

includes the duty to "issue subpoenas, require attendance of witnesses, and administer oaths of

persons giving testimony," M ISS .C ODE A NN . § 73-15-17(c), and to "conduct hearings upon

charges calling for discipline of a licensee or revocation of a license," § 73-15-17(e). The statute

establishes a detailed procedure for disciplinary proceedings before the Board. Charges may be

brought on a sworn affidavit; the Board must provide notice at least 15 days before a hearing;

the Board enjoys subpoena power on its own behalf and on behalf of the accused; and the

accused enjoys a right of counsel at the hearing, may produce witnesses at the hearing, and may

cross-examine witnesses. M ISS .C ODE A NN . § 73-15-31(1)-(4). Furthermore, nurses who lose

before the board may appeal their cases in the state court system. M ISS .C ODE A NN . § 73-15-

31(9). controlling unconstitutional conduct;

3. insulation from political influence;

4. the importance of precedent;

5. the adversary nature of the process; and

6. the correctability of error on appeal.

Cleavinger v. Saxner, 474 U.S. 193, 202, 106 S.Ct. 496, 501, 88 L.Ed.2d 507 (1985) ( citing Butz,

438 U.S. at 512, 98 S.Ct. at 2913-14). No one factor is controlling and the list of considerations is

not intended to be exclusive. Mylett, 992 F.2d at 1352.

The nursing board undisputedly functions as an adjudicatory body in many si tuati ons,

including the present case. 2 The Board's functions are judicial in nature and its members' role

comparable to that of a judge. The Board and its members administer oaths, compel the attendance

of witnesses, allow parties to present the testimony of witnesses as well as cross-examine witnesses

who testify

against them, permit parties to be represented by counsel, and most importantly make

findings of fact and assess punishments or accolades in accordance with these findings. The board

director and its members were acting in their "quasi-judicial", i.e. adjudicatory, capacity when they

revoked the plaintiffs' licenses.

In applying the Butz factors, it is apparent that a t least five out of the six factors are

sufficiently satisfied, with the one exception being merely questionable. First, it is imperative that the

members of the Board, including the Director, be allowed to perform their duties free from potential3 In Butz, the Supreme Court held that Federal Hearing Examiners were guided by safeguards

that could be found in the Administrative Procedure Act (APA). However, the Court also

indicated that unless Congress should direct it otherwise, it would be "incongruous and

confusing" to distinguish between state and federal officials in deciding on immunity from § 1983

actions. Butz, 438 U.S. at 499, 98 S.Ct. at 2907. "It would seem to follow, therefore, that state

officials subject to restraints comparable to those imposed by the APA and performing

adjudicatory functions in resolving potentially heated controversies are entitled to absolute

immunity from damages liability for their judicial acts." Watts v. Burkhart, M.D., et al., 978 F.2d

269, 273 (6th Cir.1992) (emphasis added). Such is the present situation. The Board was

restrained by Mississippi statutes that were comparable to the APA. harass ment o r intimidation (i.e. a lawsuit). The Board is empowered to make difficult and

controversial decisions, such as the one made in this case, which may negatively affect an individual's

life. It's only natural that these individuals may want some kind of redress. It's important that the

members of the board make these decisions free from th e t hreat of incurring personal liability for

every decision they hand down.

Second, as is evident under the Mississippi statutes and according to Judge Lee's finding, there

are a multitude of safeguards which reduce the need for private damages. Procedural safeguards such

a s t he right to counsel, adequate notice of a hearing, and the opportunity to present and

cross-examine witnesses are all readily available to any person charged by the board. It was the lack

of these safeguards in the two main cases relied on by the appellants which persuaded the Supreme

Court to hold that school board members, in the context of student disciplinary hear i ngs, Wood v.

Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), and prison official who served on

an "Institutional Discipline Committee," Cleavinge r v. Saxner, 474 U.S. 193, 106 S.Ct. 496, 88

L.Ed.2d 507 (1985), to be granted only qualified immunity rather than absolute immunity. 3

Third, as previously mentioned, members of the Board are appointed by the Governor and

are, therefore, to some extent shielded from political influence. Additionally, members are appointed

for staggered terms for four years and no member may serve more than two consecutive terms.

M ISS .C ODE A NN

. § 73-15-9(3). The members of the board are neutral and independent members and

are under no pressure to resolve disputes in favor of one party or another.

Fourth, while the record is unclear as to whether the board was bound by precedent, we

nevertheless feel that this one factor is not controlling and is greatly overshadowed by the convincingnature of the five other variables.

Fifth, given the fact that parties have a right to counsel, are able to presen t witnesses, and

cross-examine adverse witnesses, the process seems inherently adversarial.

Finally, as expressly stated in the Mississippi code and, again, as is obvious in the present case,

there is more than adequate opportunity to correct any error made by the board on appeal.

Before weighing all these factors, it is also important to note the decision of other circuits.

Not only has the Supreme Court, in Butz, extended absolute immunit y to " quasi-judicial" officials

whose duties are functionally comparable to those of a judge (i.e. federal hearing examiners), but at

least three of our sister courts have found medical/health profession boards and their members to be

absolutely immun e from liability when performing adjudicatory actions. B ettencourt v. Board of

Registration in Medicine of the Commonw ealth of Massachusetts, 904 F.2d 772 (1st Cir.1990 ) ;

Horwitz v. State Board of Medical Examiners o f the State of Colorado, 822 F.2d 1508 (10th

Cir.1987); W

atts v. Burkhart, M.D., et al., 978 F.2d 269 (6th Cir.1992). In light of the benefits

outweighing the costs of granting absolute immunity as well as the informed decisions of our sister

courts, it would be an injustice not to hold the Board members and the Director absolutely immune.

Conclusion

Accordingly, we find that all member s of the Board and the Director, in their individual

capacities, should be entitled to absolute immunity. AFFIRMED.