[No. 57850-2-I. Division One. June 4, 2007.]
[1] Judgment Summary Judgment Review Standard of Review. A summary judgment is reviewed de novo, with the court viewing the facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. [2] Judgment Summary Judgment Issues of Fact Material Fact What Constitutes. For purposes of a summary judgment proceeding, a material fact is one upon which the outcome of the litigation depends. [3] Trial Issues of Fact Determination as a Matter of Law. Questions of fact may be determined as a matter of law if reasonable minds can reach only one conclusion. [4] Government Torts Action Against Public Officer Immunity Absolute Immunity Question of Law or Fact. Whether a government official is entitled to absolute immunity for an official act is a question of law that can be decided by summary judgment. [5] Medical Treatment Pharmacist Board of Pharmacy Adjudicative Procedures Governing Law. The Administrative Procedure Act (chapter 34.05 RCW) governs the adjudicative procedures of the Board of Pharmacy. [6] Government Torts Action Against Public Officer Immunity Absolute Immunity Prosecutorial Functions. An administrative agency official performing functions analogous to the acts a prosecutor performs in the course of deciding whether to prosecute and initiate prosecution is entitled to absolute immunity for those functions. Functions analogous to those of a prosecutor include initiating administrative enforcement proceedings, making charging decisions and filing a statement of charges, and recommending or deciding to summarily suspend a license or privilege pending the outcome of adjudicatory proceedings. An official need not perform all functions performed by a prosecutor to be entitled to absolute immunity for engaging in a prosecutorial type function. [7] Government Torts Action Against Public Officer Immunity Qualified Immunity Purpose. The purpose of qualified immunity for government officials is to protect them from insubstantial and harassing litigation without foreclosing suits for damages that may be the only avenue for the vindication of constitutional rights. Qualified immunity is a judicially created doctrine that stems from the premise that few people would enter public service if it entailed the risk of personal liability for official decisions. Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. [8] Government Torts Action Against Public Officer Immunity Effect. Immunity for public employees, whether absolute or qualified, spares a public employee not only unwarranted liability but also unwarranted demands customarily imposed on those defending long, drawn out lawsuits. [9] Civil Rights Deprivation Immunity Governmental Officials Summary Judgment Test. A public employee's qualified immunity from suit under 42 U.S.C. § 1983 may be established as a matter of law on a motion for summary judgment if (1) the plaintiff's complaint fails to state a claim; (2) in light of clearly established principles governing the public employee's conduct, the public employee objectively could have believed that his or her conduct was lawful; or (3) there is no genuine issue of material fact as to whether the public employee engaged in conduct violating the plaintiff's clearly established constitutional right. Once the public employee asserts qualified immunity, the plaintiff must establish that the public employee violated a clearly established constitutional right in order to survive summary judgment. [10] Licenses Medical Treatment Pharmacist Discipline Summary Suspension of License Validity. Under RCW 34.05.479, RCW 18.130.050(7), WAC 246-869-190, and WAC 246-11-300, the Board of Pharmacy may inspect a pharmacy and take emergency action by summarily suspending a pharmacist's license pending further disciplinary proceedings if, after viewing the evidence discovered during the inspection, the board determines that summary action is necessary to address an immediate danger to public health, safety, or welfare. [11] Constitutional Law Due Process Property Interest Procedural Safeguards Necessity. Due process of law requires notice and a meaningful opportunity to be heard before a person may be deprived of a constitutional property interest. [12] Constitutional Law Due Process Procedural Due Process Scope Factors. A determination of what process is due in a particular case requires consideration of (1) the gravity of the private interest affected, (2) the risk of an erroneous deprivation of that interest through the current procedure, (3) the probable value, if any, of additional procedural safeguards, and (4) the government's interest, including the burdens of additional or substitute procedures. [13] Licenses Medical Treatment Pharmacist Discipline Summary Suspension of License Waiver of Prompt Hearing Stipulation to Suspension Due Process. A pharmacist whose license to practice pharmacy is summarily suspended by the Board of Pharmacy pending further disciplinary proceedings based on a finding of immediate danger to the public health, safety, or welfare is afforded all of the process that is constitutionally due where the pharmacist is given notice of the summary suspension and of all subsequent charges and hearings associated with the status of the license, is represented by counsel with respect to all charges and hearings, chooses to file a motion to stay and modify the summary suspension order rather than request a prompt adjudicative hearing within 10 days of receiving notice of the summary suspension under WAC 246-11-330, and waives the opportunity for an adjudicative hearing on the merits by stipulating to a prolonged license suspension. Once the pharmacist waives the right to request a prompt adjudicative hearing under WAC 246-11-330 and the matter is placed on the regular adjudicative proceeding schedule, due process of law does not require the board to grant a subsequent motion for an expedited hearing. [14] Judgment Summary Judgment Determination Role of Trial Court Resolution of Factual Issue Validity. A trial court's function in a summary judgment proceeding is to determine whether a genuine issue of material fact exists, not to resolve an existing factual issue. [15] Judgment Summary Judgment Matters Considered Inadmissible Evidence. A court may not consider inadmissible evidence when ruling on a motion for summary judgment. [16] Administrative Law Judicial Review Exhaustion of Administrative Remedies Necessity. When an administrative agency's rules set out a clearly defined process for resolving an aggrieved party's complaint, a party aggrieved by a decision of the agency must exhaust available administrative remedies before filing suit unless the party can establish that doing so would be futile. This doctrine is based on the principle that the judiciary should give proper deference to agency expertise and allow the agency to develop the necessary factual background in order to correct its own errors. The aggrieved party's claim may be dismissed if appropriate administrative appeal procedures are not exhausted. [17] Administrative Law Judicial Review Exhaustion of Administrative Remedies Futile Effort Futility Caused by Aggrieved Party. A party aggrieved by an administrative agency's decision may not claim that exhausting administrative remedies before filing suit would be futile if such alleged futility was caused by the party's own strategic decisions. Nature of Action: A pharmacist whose license to practice pharmacy was summarily suspended in an administrative disciplinary proceeding sought damages and injunctive relief from the Department of Health, the executive director of the Board of Pharmacy, and two board investigators on several tort theories and for violation of civil rights under 42 U.S.C. § 1983. Superior Court: The Superior Court for Snohomish County, No. 02-2-08819-6, Eric Z. Lucas, J., on February 9 and May 17, 2006, granted partial summary judgment in favor of the defendants on some of the claims and denied summary judgment to the defendants on the remaining claims, ruling that none of the individual defendants was entitled to immunity and that the plaintiff was not precluded by a prior stipulation from asserting tort claims against the department. Court of Appeals: Holding that the executive director of the Board of Pharmacy was entitled to absolute immunity, that the civil rights claim should have been dismissed because the two board investigators were entitled to qualified immunity, and that the state law tort claims should have been dismissed because the plaintiff failed to exhaust available administrative remedies, the court reverses the denial of summary judgment and dismisses the remaining claims. Robert M. McKenna-, Attorney General, and Catherine Hendricks- and John R. Nicholson-, Assistants, for petitioners. D. Murphy Evans- (of Brownlie Evans Wolf & Lee, LLP), for respondent. Ά1 AGID, J. Michael Jones purchased a pharmacy franchise in Marysville, obtained a pharmacy license for it, and became its sole licensed pharmacist. From 1996 through 2000, the Washington State Board of Pharmacy (Board) inspected Jones' pharmacy on several occasions. Because he received two consecutive unsatisfactory inspection scores and had violations the Board found were an immediate danger to the public, it summarily suspended Jones' licenses. He eventually entered into a stipulated order agreeing to a five year suspension of his pharmacy license. Jones later sued the Board; Donald Williams, the Board's Executive Director; and investigators Phyllis Wene and Stan Jeppesen for numerous torts and violation of his civil rights under 42 U.S.C. § 1983. On summary judgment, the trial court denied the Department of Health's (Department) motion to dismiss Jones' claims and ruled that none of the individual defendants were entitled to immunity. We granted discretionary review of these rulings. Ά2 We hold there was no basis in law to deny immunity to the individual defendants. Williams, who functioned as a prosecutor when filing the summary suspension and statement of charges against Jones, was entitled to absolute immunity. Because Jones failed to establish any violation of a constitutional right, Wene and Jeppesen should have been granted qualified immunity and the section 1983 claims dismissed. Finally, the trial court erroneously denied the Department's motion for summary judgment on the state law torts because Jones failed to exhaust available administrative remedies. Ά3 We therefore reverse and remand for entry of an order granting the Department's motion dismissing Jones' suit. FACTS Ά4 In 1995, Michael Jones, a licensed pharmacist, purchased a pharmacy franchise, The Medicine Shoppe, and obtained a pharmacy license. Jones was the only licensed pharmacist at this pharmacy. On December 17, 1998, the Board inspected The Medicine Shoppe and gave it a failing inspection score of 79. This inspection uncovered the following violations: [(1)] Failing to obtain chronic conditions on patients of the pharmacy; [(2)] Dispensing the majority of prescriptions in non child-resistant containers without a written request from either the patient or the prescriber; [(3)] Various records required by state and federal law were either inaccurate, incomplete or not available; [(4)] There was a box of filled prescription containers, many unlabeled, on the floor of the pharmacy. [(5)] Investigator Wene discovered a prescription filling error in the will call area. . . . ; [(6)] Many of the prescriptions in the will call area had labeled expiration dates exceeding the manufacturer's expiration date; [(7)] Most of the prescriptions in the will call area contained the incorrect NDC [National Drug Code] number for the product in the prescription container. Board of Pharmacy Investigator Phyllis Wene reinspected the pharmacy on February 3, 1999, and gave it a passing score of 94. The inspectors deducted points for inaccurate, incomplete, or missing records. Ά5 On July 12, 1999, Inspectors Wene and Stan Jeppesen inspected The Medicine Shoppe and gave it an unsatisfactory score of 48 for the following violations: [(1)] Failing to obtain chronic conditions and allergies on patients of the pharmacy. Disease state management . . . not readily readable by the Pharmacist[;] [(2)] Numerous (greater than 10) prescriptions were labeled with a different generic product than indicated on the label or NDC Code. Several of these prescriptions were dispensed in the presence of Board of Pharmacy Investigators[;] [(3)] Dispensing the majority (in excess of 90%) of prescriptions in non child-resistant containers without a written request from either the patient or the prescriber for non child-resistant packaging[;] [(4)] Thirty-eight (38) drug products were outdated. Of those, 18 drugs were legend or controlled substances and 20 were OTC [over the counter] products[;] [(5)] Various records required by federal law (DEA [Drug Enforcement Administration]) were either inaccurate, incomplete or not available. DEA order forms and invoices could not be reconciled. Respondent was unable to locate several required DEA forms. There was poor organization of DEA inventory records, including non-sequential filing. Several DEA records did not include date and amount received on DEA 222 forms[;] [(6)] DEA Inventory incomplete, DEA inventory for Schedules III-V was missing. Respondent was unable to generate reports for Schedule II drugs. The daily refill reports were not signed, stored in various locations, out of sequence, with several months not located[;] [(7)] Facts and Comparisons, the only reference source in the pharmacy, had not been updated for at least nine (9) months[;] [(8)] Pharmacy Assistant did not have a name badge and none had been ordered. No Pharmacy Assistant certificate has been generated or signed. Modifications to the Pharmacy Assistant Utilization Plan were in place without Board approval[;] [(9)] The prescription records were inaccurate, missing and poorly organized. Examples include prescription files with non-sequential order. Several prescriptions, both C-II and other drugs were unaccounted for. Prescription files were kept with no organization. Respondent Jones was unable to locate files in a timely manner[;] [(10)] Minimum procedures for utilization of the patient medication system were inadequate[;] [(11)] During the inspection, patient returned a prescription so that Respondent Jones could correct the instructions for use. The correction was made but no audit trail of the change was entered in the pharmacy computer[;] [(12)] The pharmacy was generally disorganized and dirty. The pharmacy sink and immediate area were dirty and with numerous dirty food dishes. Ά6 Wene and Jeppesen reinspected the pharmacy on August 10, 1999, and gave it another unsatisfactory score of 56 based on several wrongly filled prescriptions and the following nonexhaustive list of violations: [(1)] Six prescriptions selected randomly in the will call area did not have allergy or chronic conditions noted in the patient profile. The disease statedrug interaction fields [on the computer] had been turned off. Respondent Jones was unable to explain the purpose or the clinical significance of the clinical interaction levels that appeared for drug interaction messages[;] [(2)] Three prescriptions selected randomly from the will call area were labeled with a different generic product than indicated on the label and/or NDC Code[;] [(3)] Forty-one (41) prescriptions were located in the will call area. Of those, forty (40) were packaged in non child-resistant containers and the one that was in a child resistant container was in a container supplied by the manufacturer[;] [(4)] Eleven legend or controlled substances on the shelf were beyond the manufacturer's expiration date[;] [(5)] As in the July 12, 1999 inspection, various records required by federal law (DEA) were either inaccurate, incomplete or not available. . . . [(6)] DEA Inventory records were incomplete. . . . [(7)] Five prescriptions which had been filled and returned to the stock area were checked for accuracy of product on the label and against correct NDC numbers. All five prescriptions failed to comply with state and/or federal law. . . . Ά7 On August 16, 1999, Board Executive Director Donald Williams filed a statement of charges and an ex parte motion for an order of summary suspension of Jones' and The Medicine Shoppe's licenses and with the Board. The next day, the Board granted the summary suspension motion, and Wene served Jones with the statement of charges, ex parte order of summary action and a notice of opportunity of settlement and hearing. Ά8 On August 30, 1999, Jones filed a motion to modify and stay the summary suspension, contesting the allegations. To support this motion, he filed his own declaration and one from his attorney, which stated that the inspectors acted unprofessionally during their inspection and assured the Board that he held his patients' safety in the highest regard. He argued that, while he may have been disorganized, his actions did not constitute unprofessional conduct or represent any threat to the health, safety, or welfare of his customers. He also claimed that portions of the inspection report were inaccurate. For example, he asserted the August 1999 report penalized him twice for prescriptions without proper NDC numbers because those same prescriptions had been in the pickup bin since the time of the first inspection. He maintained that his recordkeeping on non-child-resistant caps may have been difficult to verify but did not pose a safety concern. He demanded immediate reinstatement of his licenses in order to avoid severe financial hardship. Effective August 31, 1999, The Medicine Shoppe International terminated Jones' franchise because of the summary suspensions. Ά9 On September 2, 1999, the presiding officer conducted a telephone conference with the parties. During this conference, Jones asked the Board to consider his motion as soon as a meeting time could be arranged, but he elected not to present oral argument. The Presiding Officer told Jones that by filing a written motion he had waived his right to the prompt hearing set for September 10, 1999, but he could move for an expedited hearing if his motion was denied. Ά10 On September 7, 1999, a three member panel of the Board denied Jones' motion, finding that he had committed serious violations by operating the pharmacy below the standard of care. The Board ruled that the summary suspension would remain effective because Jones had a history of violating pharmacy laws, correcting those violations, and later violating other pharmacy laws. Ά11 On September 13, 1999, Jones petitioned for an expedited hearing, asserting that he would suffer financial ruin if he could not resolve the matter and immediately reopen his pharmacy. In his motion, Jones acknowledged that he was no longer entitled to have the matter heard on the prompt hearing calendar. The Department objected to his request to set the matter outside the Board's regularly scheduled hearing dates because he had waived his right to a prompt hearing. Although the Board's presiding officer granted Jones' motion and scheduled the hearing for October 21, 1999, he also noted that Jones had waived his right to a prompt hearing in his answer. Ά12 On September 22, 1999, Jones requested an immediate settlement conference to resolve the charges. The parties met at an October 13 prehearing conference, at which time another prehearing conference was set in order to allow the Department time to amend the statement of charges against Jones. The Department also moved for a continuance to the Board's next regularly scheduled meeting on December 2, 1999. Jones opposed the motion on the ground that additional delay would cause him greater financial hardship. The presiding officer granted the Department's motion to continue because the later hearing date would further judicial economy by allowing joinder of additional pending charges. The presiding officer also ruled that Jones' actions were a risk to the public. He rescheduled the hearing to the Board's next meeting date. A new prehearing conference was scheduled for November 11, 1999. Ά13 On January 11, 2000, Jones entered into stipulated findings of fact, conclusions of law, and an agreed order, under which he agreed that the facts contained in the investigators' reports from December 1998, July 1999, and August 1999 constituted unprofessional conduct. Under the terms of the order, the Board revoked Jones' pharmacy license for The Medicine Shoppe and suspended his professional license for five years from February 17, 2000. Ά14 Jones filed a complaint in Snohomish County Superior Court against Executive Director Williams, investigators Wene and Jeppesen, the State, the Department of Health and the Board seeking injunctive relief and monetary damages for negligence, reckless investigation, tortious interference with a business expectancy, and violation of his due process rights under 42 U.S.C. § 1983. The Department moved for summary judgment, arguing that Executive Director Williams was entitled to absolute prosecutorial immunity and that all individual defendants were entitled to qualified immunity on Jones' civil rights claims. It moved for summary dismissal of all of Jones' state law claims because he had agreed to the license suspension and waived additional hearing rights when he signed the stipulated order. The Department also filed a motion to strike portions of Jones' declarations as hearsay. These included Jones' rendition of out-of-court statements by pharmacists Sharla Keeling and Claudia Tomlinson and conversations between his attorney, Bernie Bauman, and members of the Board. Ά15 The court partially granted the Department's motion for summary judgment, dismissing Jones' claims for negligent investigation and injunctive relief. DISCUSSION Ά17 The Department asserts that the trial court made an error of law by failing to grant its motion for summary judgment and dismiss all claims against Williams, Wene, and Jeppesen. It argues that these defendants were entitled to immunity and that RCW 18.130.050 expressly authorized the Board to summarily suspend Jones' licenses because his violations posed a danger to the public. According to the Department, Williams, Wene, and Jeppesen are entitled to immunity because pharmacy regulators must be allowed to act independently and without fearing liability when performing their duty to ensure that Washington pharmacists comply with state and federal health and safety laws. I. Absolute Immunity Ά18 The Department argues that the trial court erred as a matter of law by not conferring absolute immunity on Executive Director Williams and dismissing all claims against him because Jones' claims against him are premised on prosecutorial conduct. The Department asserts that absolute prosecutorial immunity is not limited to prosecuting attorneys but extends to administrative agency officials who initiate disciplinary proceedings. We agree. Ά20 Jones argues that Hannum does not apply because DOL agents are authorized by statute to summarily suspend driver's licenses and the executive director of the Board is not. He also asserts that Williams' role was investigatory, not prosecutorial, because an assistant attorney general prosecuted the case. Ά21 Absolute prosecutorial immunity is proper when an official's conduct is the functional equivalent of the acts a prosecutor would perform in the course of deciding whether to prosecute and initiating prosecution. The official need not do everything a prosecutor would do. II. Qualified Immunity § 1983 Claims Ά22 The Department argues that all three defendants were entitled to qualified immunity, and the trial court should have dismissed them on that basis because Jones failed to show the violation of a clearly established constitutional right. It also contends the trial court should have dismissed this action because RCW 18.130.050(7) expressly authorizes summary suspension, without a predeprivation hearing, under emergency circumstances. While it is not entirely clear what constitutional right Jones relies on for his section 1983 claims, his allegations and briefing appear to allege that he was denied procedural due process. Ά27 Once a summary suspension is filed, under WAC 246-11-330 a pharmacist can respond in several ways: (1) Request a prompt adjudicative proceeding conducted in accordance with this chapter; or (2) Waive the prompt adjudicative proceeding and request a regularly scheduled adjudicative proceeding conducted in accordance with this chapter; (3) Waive the right to an adjudicative proceeding and submit a written statement to be considered prior to the entry of the final order; or (4) Waive the opportunity to be heard. Ά28 By filing his motion to stay and modify the order and failing to request a prompt hearing within 10 days of service, Jones waived his right to a prompt hearing and knew that he was doing so when he filed his motion. Had he sought a prompt hearing, Jones would have had an opportunity to meet with the Board in mid-September and may have avoided the damages he now alleges. Nor did the Department violate his right to due process simply because it opposed his later motion for an expedited hearing. Finally, Jones also waived his opportunity for a more extensive hearing on the merits of his suspended licenses by stipulating to a five year suspension before the scheduled hearing could take place. No further process would have protected Jones' rights, even if he had not waived his right to an early hearing. Jones failed to raise a material issue of fact or to establish that he was entitled to more process than he received. Under the Mathews test, III. Evidentiary Rulings Ά29 The Department asserts the trial court erred by ruling there were genuine issues of material fact based on Jones' declaration because it contained inadmissible hearsay and contradicted the earlier declarations he submitted to the Board, a quasi-judicial body. It also asserts that the trial court should have applied the doctrine of judicial estoppel to Jones' declaration because it contradicted earlier declarations. Jones asserts that the declarations were admissible because evidence not offered for the truth of the matter asserted is not hearsay under ER 801(c). We disagree with Jones' position. IV. Exhaustion of Administrative Remedies Ά31 The Department next asserts the trial court erred as a matter of law by holding that Jones' state law claims were not precluded by his stipulations. Relying on Laymon v. Department of Natural Resources, Ά32 Jones argues that he was not required to exhaust his administrative remedies because doing so would not have mitigated his damages. He claims the defendants issued false investigation reports against him and his pharmacy, and the Department opposed his effort to effectively use the administrative process to challenge the summary suspension by opposing his motion for an expedited hearing. Because he had lost his pharmacy franchise, commercial lease, and business before the scheduled hearing, Jones contends that the administrative remedies available to him would not have prevented the harm he suffered. He asserts he entered into the stipulated order because he could not afford to proceed against the Board. And he argues that he neither admitted to the facts nor waived his right to sue the defendants by agreeing to the stipulated order. Ά34 Jones argues that Laymon is distinguishable because, even if Jones had pursued administrative remedies, he could not have saved his business. But Jones' arguments are not supported by the record. He waived his right to a prompt hearing when he failed to request one and file a written response to the summary license suspension within the 10 day time limit. Ά35 Under our holding in Phillips v. King County, plaintiffs must exhaust their administrative remedies when an agency's rules set out a clearly defined process for resolving the aggrieved party's complaint. CONCLUSION Ά36 We reverse and remand for entry of an order granting the Department's motion dismissing Jones' suit. BAKER and ELLINGTON, JJ., concur.