ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KEVIN W. BETZ STEVE CARTER
MARK J. PIZUR Attorney General of Indiana
Betz & Associates
Deputy Attorney General
COURT OF APPEALS OF INDIANA
RANDY J. ROSS, R.N., )
INDIANA STATE BOARD OF NURSING, )
KAY ENGELBRECHT, R.N., in her individual )
Capacity, HILDA GLASS, L.P.N., in her ) No. 49A05-0206-CV-293
Individual capacity, KAY LEACH, R.N., in her )
Individual capacity, JUANITA RICHARDS, )
L.P.N., in her individual capacity, MARYA ROSE, )
In her individual capacity, MARSHA KING, R.N., )
In her individual capacity, and the HEALTH )
PROFESSIONS BUREAU, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable S.K. Reid, Judge
Cause No. 49D13-0001-CP-000127
OPINION - FOR PUBLICATION
June 13, 2003
The State of Indiana filed a complaint before the Indiana State Board of
Nursing alleging that Randy Ross, R.N. was unfit to practice due to a
mental disability and seeking disciplinary sanctions against him. In connection with the
Boards investigation of the States complaint, the Board ordered Ross to submit to
and pay for a psychiatric evaluation. Ross filed a motion to reconsider
the order imposing the costs of the examination on him, which the Board
denied. Ross then instituted an action in Marion County Court seeking review
of the Boards decision. On summary judgment, the trial court found for
Ross, but denied his request for attorneys fees. Ross appeals the denial
of his attorneys fees request; the Board cross-appeals the merits of the trial
courts decision. We affirm in part and reverse and remand in part.
Ross raises one issue for our review, which we restate as whether the
trial court properly determined that immunity precludes the assessment of attorneys fees against
In addition, the Board raises one issue on cross-appeal, which we restate as
whether the trial court properly granted summary judgment to Ross on finding that
the Boards imposition of costs against Ross prior to a determination of professional
misconduct was a violation of Ross constitutional rights.
Facts and Procedural History
Ross gained his nursing license in June of 1996. He worked as
a nurse on probationary status at St. Vincent Hospital from September 1996 through
February 1997, after which time the Hospital declined to extend his employment.
In February 1998, the State filed a complaint before the Board alleging that
Ross was unfit to practice due to a mental disability. Among the
allegations were that while employed at St. Vincent, he had mislabeled laboratory specimens
as belonging to the wrong patients; failed to administer medications on a timely
basis and falsified reports thereafter; and removed a chest tube from a patient
despite not being qualified or authorized to do so. Ross allegedly told
his supervisors that he might not have made the errors had he not
unilaterally decided to reduce or discontinue use of prescribed medications. The State
sought imposition of disciplinary sanctions and payment of all costs.
In connection with its complaint, the State filed a motion seeking an order
compelling Ross to submit to a psychiatric examination at his own expense.
The Board granted the motion. Ross filed a motion to reconsider the
order, contending that there was no statutory authority for the assessment of costs
against him and to do so was a violation of due process.
Following a hearing, the Board denied Ross motion to reconsider, and subsequently issued
a written order which states, in pertinent part, as follows:
The Health Professions Standards of Practice Act (Act) provides that a board may
order a practitioner to submit to a reasonable . . . mental examination
if the practitioners . . . mental capacity to practice safely is at
issue in a disciplinary proceeding. Ind. Code § 25-1-9-7. The parties
do not dispute the appropriateness of the exam itself but rather whether the
state or [Ross] shall make the initial payment for the exam.
The Act does not address the question of who shall make the initial
payment. But the statute does provide that if the State prevails in
this matter, the cost of an exam may be assessed against the practitioner
at the discretion of the Board. Ind. Code § 25-1-9-15(7). At
the hearing on the Motion to Reconsider, [Ross] counsel did not claim that
his client was indigent when the question was put to him directly by
the Board. In addition, the matter before the Board involves the question
of whether a licensed professional may safely practice nursing. The ability to
practice nursing is a privilege and not a fundamental right. It is
therefore not a denial of due process for the practitioner to make the
initial payment for his psychological exam.
Appellants Appendix at tab 9, page 2.See footnote
Ross subsequently filed a Petition for Review of Administrative Ruling and Complaint for
Injunctive Relief pursuant to § 1983 in Marion Superior Court, alleging that the
Boards policy of imposing costs of a State-requested and Board-ordered psychiatric examination prior
to a final determination is a denial of due process.See footnote Ross filed
a motion for summary judgment, which, according to the trial courts order, concerned:
whether the Board violated [Ross] rights, liberties and immunities secured and guaranteed him
under the due process clause of the Fourteenth Amendment to the Constitution of
the United States of America and the laws of the State of Indiana
when it imposed the costs of a State-requested medical examination pursuant to the
States investigation of [Ross] prior to the Boards determination of professional misconduct.
Appellants Appendix at tab 11, page 2.See footnote Following a hearing, the trial
court issued an order granting Ross motion for summary judgment. The order
reads, in pertinent part, as follows:
Mr. Ross, a licensed registered nurse, initiated this action against the Board pursuant
to 42 U.S.C. § 1983 seeking redress of the Boards deprivation of his
rights, liberties and immunities secured and guaranteed him under the Constitution and Laws
of the United States of America. Specifically, the Board, acting under the
color of state law, promulgated a rule imposing upon Mr. Ross the cost
of a State-requested and Board-ordered psychiatric examination prior to any determination of professional
* * *
The Court hereby FINDS and CONCLUDES that:
Mr. Ross has a recognized property interest in his duly issued nursing license
and may only be deprived of that license through due process of law;
The Boards imposition of the costs of the States investigation prior to any
determination of professional misconduct were a violation of Mr. Rosss federal constitutional due
process rights and the laws of the State of Indiana;
Pursuant to federal due process protections constitutionally guaranteed Mr. Ross and the Indiana
Rules of Trial Procedure, the State must bear the costs associated with its
investigation of Mr. Ross psychiatric status prior to a determination of professional misconduct
by the Board;
The Indiana General Assembly did not vest the Board with the authority to
impose costs of the States investigation of Mr. Ross prior to any determination
of professional misconduct. The Health Professions Standards of Practice Act, Ind. Code
et seq., does not vest the Board with the authority to
impose the costs of a State-requested medical examination upon a licensed practitioner prior
to any determination of professional misconduct. Ind. Code §§ 25-1-9-7 and 25-1-9-15,
which were cited by the Board in support of its premature imposition of
the costs associated with the State-requested medical examination upon Mr. Ross, are completely
devoid and silent as to any language that vests the Board with the
authority to impose costs on Mr. Ross for such a psychiatric examination prior
to any determination of professional misconduct. This cost must at least preliminarily
be borne by the Board, and may be imposed upon Mr. Ross only
after sanctions, if any are imposed upon Mr. Ross for professional misconduct.
Once a determination of professional misconduct is made, if it is made, then
the Board may impose such costs on Mr. Ross; and
As to attorney fees, this Court concluded that no attorney fees may be
awarded to Mr. Ross because the Board acted in a quasi-judicial capacity and
is therefore immune.
Appellants Appendix at tab 11, pages 2-3. Ross has appealed the trial
courts order regarding attorneys fees and the Board has cross-appealed regarding the merits
of the trial courts decision that it cannot assess costs against the practitioner
prior to a final determination.
Discussion and Decision
I. Summary Judgment
Our standard of review of a summary judgment order is well-settled: summary
judgment is appropriate if the designated evidentiary matter shows that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. Ind. Trial Rule 56(C).
Relying on specifically designated evidence, the moving party bears the burden of
making a prima facie showing that there are no genuine issues of material
fact and that the moving party is entitled to judgment as a matter
of law. I/N Tek v. Hitachi Ltd., 734 N.E.2d 584, 586 (Ind.
Ct. App. 2000), trans. denied. If the moving party meets these two
requirements, the burden shifts to the nonmovant to set forth specifically designated facts
showing that there is a genuine issue for trial. Id. A
genuine issue of material fact exists where facts concerning an issue which would
dispose of the litigation are in dispute or where the undisputed material facts
are capable of supporting conflicting inferences on such an issue. Gilman v.
Hohman, 725 N.E.2d 425, 428 (Ind. Ct. App. 2000), trans. denied. Even if
the facts are undisputed, summary judgment is inappropriate where the record reveals an
incorrect application of the law to the facts. Id.
On appeal, we are bound by the same standard as the trial court,
and we consider only those matters which were designated at the summary judgment
stage. Interstate Cold Storage v. General Motors Corp., 720 N.E.2d 727, 730
(Ind. Ct. App. 1999), trans. denied. We do not reweigh the evidence,
but we liberally construe all designated evidentiary material in the light most favorable
to the nonmoving party to determine whether there is a genuine issue of
material fact for trial. Estate of Hofgesang v. Hansford, 714 N.E.2d 1213,
1216 (Ind. Ct. App. 1999). The party that lost in the trial
court has the burden to persuade the appellate court that the trial court
erred. Id. Specific findings and conclusions by the trial court are
not required, and although they offer valuable insight into the rationale for the
judgment and facilitate our review, we are not limited to reviewing the trial
courts reasons for granting or denying summary judgment. Bernstein v. Glavin, 725
N.E.2d 455, 458 (Ind. Ct. App. 2000), trans. denied. A grant of
summary judgment may be affirmed upon any theory supported by the designated materials.
Id. In addition, where, as here, the parties filed cross-motions for
summary judgment, our standard of review is not altered. Circuit City Stores,
Inc. v. American Natl Ins. Co., 779 N.E.2d 62, 66 (Ind. Ct. App.
2002). We consider each motion separately to determine whether the moving party
is entitled to judgment as a matter of law. Id.
II. The Boards Issue: Imposition of Costs Pre-Determination
For ease of discussion, we will address first the Boards issue, as it
goes to the merits of the trial courts decision. If we find
for the Board on its cross-appeal, Ross issue regarding attorneys fees is moot.
The Board contends that the trial court erred in granting summary judgment to
Ross on finding that the Boards policy of imposing the costs of investigation
upon the practitioner prior to a final determination is unconstitutional. The Board
asserts first that the Board and the Health Professions Bureau are not persons
within the meaning of section 1983, leaving only the individual members of the
Board amenable to suit and section 1988 was not intended to award attorneys
fees against individuals. The Board also asserts that the trial court erred
on the merits of its decision.
A. Definition of Person
We note first that Ross complaint names the Indiana State Board of Nursing,
the Health Professions Bureau, and six members of the Board of Nursing in
their individual capacities. Appellants Appendix at tab 1, page 1. The
trial courts order refers to all parties collectively as the Board and enjoins
the Board from enforcing its unlawful and unconstitutional policy of imposing the costs
associated with . . . investigation of a licensed practitioners psychiatric status prior
to a final determination as to sanctions but does not assess costs against
the Board because of statutory prohibitions against assessing such costs against the State.
Appellants Appendix at tab 11, page 3.
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for redress
. . . .
42 U.S.C. § 1983 (emphasis added). Thus, it is first necessary
to determine whether a particular defendant is a person within the meaning of
the statute and thus, amenable to suit. 1. The Board and the Bureau
There are three factors to be considered in determining whether a particular entity
is a person for section 1983 purposes. First is the type of
governmental entity being sued. Second is whether the plaintiff seeks retrospective (monetary)
or prospective (injunctive) relief. Finally, if the suit is against a state
official, whether the suit is brought in an official or individual capacity.
Severson v. Board of Trustees of Purdue Univ., 777 N.E.2d 1181, 1188-89 (Ind.
Ct. App. 2002), trans. denied. Using these factors, five general rules have
emerged regarding whether an entity is a person within the meaning of section
1983: 1) a municipality, municipal official, or other local governmental unit or
political subdivision may be sued for retrospective or prospective relief; 2) a state
or state agency may not be sued under section 1983 regardless of the
type of relief requested; 3) a state official cannot be sued in his
official capacity for retrospective relief but can be sued for prospective relief; 4)
a state official can be sued in his individual capacity for retrospective relief;
and 5) an entity with Eleventh Amendment immunity in federal court is not
considered a section 1983 person in state court. Id. at 1190.
The Board contends that it and the Bureau are state agencies which cannot
be sued for any kind of relief under section 1983. The question
whether a particular state agency has the same kind of independent status as
a county or is instead an arm of the State within the meaning
of the Eleventh Amendment is a question of federal law requiring consideration of
the provisions of state law defining the agencys character. Id. at 1192.
There can be little doubt, and in fact Ross does not dispute, that
the Board and the Bureau are state agencies. The Board and Bureau
are both created by statute. See Ind. Code §§ 25-1-5 and 25-23-1.
The executive director of the Bureau and the eight members of the
Board are appointed by the governor. See Ind. Code § 25-1-5-5(a) (The
bureau shall be administered by an executive director appointed by the governor who
shall serve at the will and pleasure of the governor.); Ind. Code §
25-23-1-2(a) (There is established the Indiana state board of nursing consisting of eight
(8) members appointed by the governor, each to serve a term of three
(3) years subject to death, resignation, or removal by the governor.). The
Bureau performs all administrative functions, duties and responsibilities for the Board. Ind.
Code § 25-1-5-3(a). As state agencies, the Board and the Bureau are
not persons amenable to a suit seeking any type of relief under section
1983. See Severson, 777 N.E.2d at 1190.
2. The Board Members
The Board also contends that Ross sued its members in their individual capacities
alone and although its individual members are amenable to suit, section 1988 does
not contemplate assessment of fees against individuals. Ross concedes that the caption
of his complaint names the Board members in their individual capacities, but counters
that the substance of his complaint alleges a cause of action against them
in their official capacities as well.
One indicia of the capacity in which a government agent has been sued
under section 1983 is the language of the caption of the case.
Lake County Juvenile Court v. Swanson, 671 N.E.2d 429, 434 (Ind. Ct. App.
1996), trans. denied. Another indicia is the allegations and language used in
the body of the complaint. Id. If a plaintiff seeks to
sue public officials in their personal capacities or in both their personal and
official capacities, the plaintiff should expressly state so in the complaint. Id.
We also note that courts ordinarily assume that an official is sued
only in her official capacity when a plaintiff alleges that a state official
acted under the color of state law giving rise to liability under section
Reviewing Ross complaint, we hold that although he named the members of the
Board in their individual capacities in the caption, he nonetheless adequately alleged a
cause of action against the members of the Board in their official capacities.
Other than naming each Board member and his or her county of
residence, the substance of the complaint never mentions any conduct by the individual
members of the Board. Rather, each and every allegation is against the
Board as a whole. For instance, Ross alleges that [t]he Boards decision
imposing the costs of the State-requested Board-ordered psychiatric evaluation upon Mr. Ross is
in direct contravention of Mr. Ross constitutionally protected procedural due process rights.
Appellants Appendix at tab 1, page 9. He also alleges that [a]t
all times relevant herein, the [Board, Board members and the Bureau] were acting
under the color of state law. Id. at tab 1, page 15.
Finally, he seeks:
the Court to declare certain established policies and practices employed by the Board
as arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with
the law; contrary to constitutional right, power, privilege and immunity; in excess of
statutory jurisdiction, authority or limitation, or short of statutory right; without observance of
the procedure required by law; and a denial of due process. Further,
Mr. Ross requests this Court to enjoin further practice of the Boards policy
of imposing costs of a State-requested Board-ordered psychiatric examination upon the investigated practitioner
prior to a final determination of professional misconduct . . . .
Id. at tab 1, page 4. Ross allegations concern policies and actions
of the Board as a body, rather than any one Board member as
an individual. Thus, we hold that Ross complaint adequately states a claim
against the Board members in their official capacities, and Ross may accordingly seek
prospective relief against these persons in a section 1983 action. See Severson,
777 N.E.2d at 1190.Merits of Trial Courts Decision
1. Allocation of Financial Responsibility for Examination
The Board also contends that the trial court erred on the merits of
its decision. It asserts that it had the statutory authority to assess
the cost of the examination against Ross. Indiana Code section 25-1-9-7 provides:
The board may order a practitioner to submit to a reasonable physical
or mental examination if the practitioners physical or mental capacity to practice safely
is at issue in a disciplinary proceeding. The Board contends that because
the legislature empowered the Board to order an examination to obtain evidence regarding
the practitioners mental capability, and because a license is a privilege rather than
a right, it is reasonable to conclude that the legislature intended for the
practitioner to assume the cost of demonstrating his fitness to engage in the
practice of nursing by paying the cost of the examination even prior to
a disciplinary determination. Ross counters that the State bears the burden in
the proceeding before the Board to prove its case and should bear all
costs attendant thereto.
Our courts have not yet had occasion to consider the meaning of Indiana
Code section 25-1-9-7. Where a statute has not previously been construed, our
interpretation is controlled by the express language of the statute and the rules
of statutory construction. Crowe, Chizek, and Co., L.L.P. v. Oil Technology, Inc.,
771 N.E.2d 1203, 1206 (Ind. Ct. App. 2002), trans. denied. We engage
in statutory construction only if the statutory language is ambiguous, or susceptible to
more than one interpretation. Foster v. Evergreen Healthcare, Inc., 716 N.E.2d 19,
25 (Ind. Ct. App. 1999), trans. denied. When construing a statute, our
function is to determine and give effect to the legislative intent in enacting
the provision. Risner v. Indiana Parole Board, 779 N.E.2d 49, 51 (Ind.
Ct. App. 2002). The legislature is presumed to have intended the language
used in the statute to be applied logically and not to bring about
an unjust or absurd result. Indiana Ins. Guar. Assn v. Blickensderfer, 778
N.E.2d 439, 442 (Ind. Ct. App. 2002). We keep in mind the
purposes of the statute as well as the effect and repercussions of the
interpretation. Koppin v. Strode, 761 N.E.2d 455, 461 (Ind. Ct. App. 2002),
trans. denied. We will adopt an interpretation that renders the statute constitutional
and fully implements its provisions. Lincoln v. Board of Commrs of Tippecanoe
County, 510 N.E.2d 716, 724 (Ind. Ct. App. 1987). An important rule
of statutory construction is that it is just as important to recognize what
a statute does say as to recognize what it does not say.
Schafer v. Sellersburg Town Council, 714 N.E.2d 212, 215 (Ind. Ct. App. 1999),
In this case, the statute is silent as to who shall bear the
initial burden of the expense of a Board-ordered mental examination. Nonetheless, the
Board has always ordered the practitioner being investigated to pay for the examination.
See Appellants Appedix at tab 10, page 2 (the then-director of the
Board stating in an affidavit that it is her understanding that the Board
has always required the nurse to pay for the expenses associated with such
examinations.). [A]n agencys interpretation of the statutes and regulations which the agency
is charged to enforce is entitled to some weight [but] if an agencys
interpretation is erroneous, it is entitled to no weight. Aguilera v. City
of East Chicago Fire Civil Serv. Commn, 768 N.E.2d 978, 989 (Ind. Ct.
App. 2002), trans. denied (quoting Miller Brewing Co. v. Bartholomew County Beverage Co.,
674 N.E.2d 193, 200 (Ind. Ct. App. 1996), trans. denied). Ultimately .
. . courts are charged with the responsibility of resolving questions of statutory
interpretation and thus are not bound by an agencys interpretation of a statute
or rule. Id.
The Board contends that it has broad discretion to establish the disciplinary
procedure and because the overall statutory scheme places a great deal of responsibility
on the practitioner to maintain physical and mental fitness to practice, it is
reasonable and lawful for the Board to interpret the statute to require the
practitioner to assume the cost of the examination. The Board also contends
that it was Ross burden to demonstrate that he possessed the mental capability
to engage in the practice of nursing and that requiring the State to
bear the initial costs of a mental examination would put the burden of
establishing his defense to the disciplinary charges unfairly on the State.
We agree that the statutes require a person who applies for a nursing
license to be physically and mentally capable of and professionally competent to safely
engage in the practice of nursing . . ., Ind. Code § 25-23-1-11(a)(3),
and put the responsibility on the practitioner to conduct his practice in accordance
with the standards established by the [Board] . . . . Ind.
Code § 25-1-9-4(a). We disagree, however, that this necessarily means the practitioner
has the initial burden of proving his physical or mental fitness in a
disciplinary proceeding once he has his license. A practitioner is subject to
the exercise of disciplinary sanctions . . . if, after a hearing, the
board finds . . . a practitioner has continued to practice although the
practitioner has become unfit to practice due to . . . physical or
mental disability . . . . Ind. Code § 25-1-9-4(a)(4)(C). The
State, as the proponent of the disciplinary complaint, has the burden of proving
that discipline is appropriate. That includes, in this case, proving Ross is
suffering from a mental disability sufficient to impact his fitness to engage in
the practice of nursing. Although the Board contends that Ross is asking
for the State to pay to prove his defense, it could similarly be
said that the State is asking Ross to pay to prove its case.
In addition, Indiana Code section 25-1-9-15 provides for recovery of costs by the
Board: Practitioners who have been subjected to disciplinary sanctions may be required
by [the Board] to pay for the costs of the proceedings. Costs
for expert witnesses are among the allowable costs. Ind. Code § 25-1-9-15(7).
Thus, if the State bears the initial burden of paying for a
physical or mental examination and such examination is subsequently used as evidence supporting
a finding that disciplinary sanctions are appropriate, the Board can order the practitioner
to pay for the examination as part of the discipline and recoup the
cost. If, however, the practitioner is required to bear the initial burden
of paying for the examination and discipline is not imposed, he has no
similar recourse for recouping his costs.
Based upon the facts that the statute authorizing the Board to order a
physical or mental examination is silent as to who shall bear the initial
financial responsibility for the examination, that the burden of proof in a disciplinary
proceeding rests with the State, and that the legislature has provided a mechanism
for the Board to recoup costs after disciplinary sanctions are imposed, we hold
that the trial court properly determined that the Board does not have statutory
authority to impose costs on Ross prior to any determination of professional misconduct.
2. Violation of Ross Due Process Rights
A due process claim requires the consideration of two factors: first, there
must be the deprivation of a constitutionally protected property or liberty interest; and
second, a determination of what procedural safeguards are then required. City of
Indianapolis v. Tabak, 441 N.E.2d 494, 496 (Ind. Ct. App. 1982). Ross
based his claim on the deprivation of his property interest in his license
without due process. The trial court found that Ross had a recognized
property interest in his nursing license and that the Boards imposition of costs
prior to a disciplinary determination deprived him of due process.
Whether one has a property interest in a license depends upon whether an
individual has a legitimate claim of right to it, which in turn is
dictated by the amount of discretion given to the licensing authority. Indiana
Family and Soc. Servs. Admin. V. Jones, 691 N.E.2d 1354, 1356 (Ind. Ct.
App. 1998). Although the Board has some discretion in assessing an applicants
physical and mental capability and professional competence to engage in the practice of
nursing, once that assessment is made, and if all other objective requirements are
met, the Board shall issue to the applicant a license. Ind. Code
§ 25-23-1-11(a), (c). Thus, there is not a great deal of discretion
in the granting of a license. Accordingly, Ross had a property interest
in the nursing license issued to him. The Board does not seem
to dispute that Ross has a property interest in his license, but contends
that Ross did not show a property interest in not paying for his
psychiatric exam . . . . Brief of Appellees/Cross-Appellants at 20.
The Board attempts to draw too fine a distinction. Ross claim is
not that he had a property interest in not paying for the mental
examination. Rather, his claim is that by requiring him to pay for
the examination before a determination of professional misconduct was made, the Board denied
the procedural safeguards he was due to protect his property interest in his
license. We agree with Ross. Having been granted a license, he
was entitled to certain protections before it was revoked or suspended. One
of those protections is not being sanctioned before it is determined that sanctions
are appropriate. The order requiring him to pay the costs of a
State-requested mental examination which would be used in the States case against him
is basically a sanction. The trial court properly found that such a
requirement violated Ross due process rights and granted summary judgment to him.
III. Ross Issue: Immunity and Attorneys fees
Having determined that the trial court correctly decided this case on its merits,
we turn to Ross contention that the trial court erred in failing to
award him attorneys fees upon finding for him on the merits of his
complaint regarding the pre-discipline assessment of costs.
In a section 1983 action or proceeding, the court, in its discretion, may
allow the prevailing party, other than the United States, a reasonable attorneys fee
as part of the costs . . . . 42 U.S.C. §
1988(b). To qualify as a prevailing party, the plaintiff must obtain at
least some relief on the merits of his claim which directly benefits him
at the time of the judgment. Farrar v. Hobby, 506 U.S. 103,
111 (1992); Indiana State Bd. of Public Welfare v. Tioga Pines Living Center,
Inc., 622 N.E.2d 935, 946-47 (Ind. 1993), cert. denied, 510 U.S. 1195 (1994).
The trial courts order states that Ross is the prevailing party.
See Appellants Appendix at tab 11, page 3. Ross contends that because
he was the prevailing party, he is entitled to attorneys fees. The
Board does not dispute that, if the trial courts order stands, as we
have determined that it does, Ross was the prevailing party.
See footnote Rather, the
Boards sole counter-argument rests on the premise that the Board and the Bureau
are not section 1983 persons and that the Board members, sued in their
individual capacities only, are not subject to an award of attorneys fees.
As we have determined above that Ross complaint sufficiently stated a claim against
the Board members acting in their official capacities, the Boards counter-argument is unavailing.
We turn, then, to the trial courts finding that quasi-judicial immunity prevented
an award of attorneys fees.
The United States Supreme Court has stated that judicial immunity is no bar
to the award of section 1988 attorneys fees. Pulliam v. Allen, 466
U.S. 522, 544 (1984). The legislative history of section 1988 confirms that
Congress intended for attorneys fees to be available in any action to enforce
section 1983 regardless of whether damages would be barred or limited by immunity.
Id. at 543-44. Thus, whether the Board would be entitled to
immunity from an award of damages, an issue we need not address, it
is still subject to a section 1988 attorney fee award. We therefore
reverse that part of the trial courts order denying Ross request for attorneys
fees and remand to the trial court for a determination of the appropriate
amount of the award, including reasonable attorneys fees incurred in the preparation of
The trial court properly granted summary judgment for Ross on finding that the
Boards practice of imposing the costs of a pre-disciplinary physical or mental examination
on the practitioner denies the practitioner due process. The trial court erred,
however, in denying Ross request for attorneys fees. Attorneys fees are recoverable
pursuant to section 1988 regardless of any immunity to which the person might
otherwise be entitled. Thus, the trial courts order is affirmed inasmuch as
it grants summary judgment to Ross on the merits of his complaint, and
is reversed as to the denial of attorneys fees. This cause is
remanded to the trial court for further proceedings consistent with this opinion.
Affirmed in part and reversed and remanded in part.
FRIEDLANDER, J., and VAIDIK, J., concur.
Part of the motion to reconsider concerned the fact that Ross
was ordered to submit to a psychiatric examination by a particular doctor.
However, when he attempted to schedule an appointment, Ross was informed that the
doctor was not accepting new patients. This issue was resolved by Ross
and the Board and Ross did in fact submit to an examination by
Ross chose to place numbered tabs in his Appendix as dividers
between sections. The individual pages of the Appendix are not numbered sequentially.
Thus, we refer to each section by its tab number. However,
we note that Indiana Rule of Appellate Procedure 51(C) requires that appendices be
numbered at the bottom consecutively. We also note that Ross did not
include within his Appendix a copy of the Chronological Case Summary as required
by Appellate Rule 50(A)(2)(a).
Prior to the filing of Ross complaint, the Board held a
final hearing and determined that Ross license would be placed on indefinite probation.
Ross was not permitted to petition for modification or termination of the
probation for at least two years. During the probation period, he was
required to comply with several Board-ordered terms. Ross complaint alleged that the
Bureaus final written order on the Boards determination was not issued within sixty
days of the final hearing as required by statute and that the Boards
decision was arbitrary and capricious and the punishment unreasonable. Appellants Appendix at
tab 1, page 3. These issues are not before us.
Neither party has favored us with a copy of the actual
motion for summary judgment in the appendices. In addition, the Board apparently
filed a cross-motion for summary judgment. This motion was not provided to
Footnote: Ross contends that [a]ll of the Boards arguments in their Cross-Appeal
requesting this Court to reverse the Trial Courts order on the merits were
never presented below and are therefore waived. Brief of Appellant at 24.
However, because neither party has favored us with copies of the motions
for summary judgment or briefs in support thereof, we cannot independently determine what
issues were presented to the trial court and we therefore decline to decide
the Boards issue on the basis of waiver.
Footnote: Although Ross was ultimately disciplined, and thus could properly have been
ordered to pay the costs of the examination
after the disciplinary proceeding was
concluded, he did prevail on the claim presented: whether the Board could
order him to pay those costs prior to the disciplinary proceedings, and thus
he qualifies as a prevailing party.