MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Bharanidharan Padmanabhan, M.D., Ph.D., appeals from a Superior Court judgment dismissing his complaint against the Board of Registration in Medicine (board) for failure to state a claim on which relief can be granted. We affirm.
Background. The complaint, the allegations of which we take as true, Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011), asserted that in 2017, the board indefinitely suspended the plaintiffs license to practice medicine. In 2019, this court decided Bloomstein v. Department of Pub. Safety, 96 Mass. App. Ct. 257 (2019), which held that a State agency had violated certain procedural provisions of G. L. c. 30A, § 11 (7) & (8), in suspending Bloomsteins construction supervisor license. Id. at 258, 261-262. The plaintiff here, believing that the board had committed the same or similar procedural violations in suspending his medical license, petitioned the board to reinstate his license. After some time passed without the board doing so, the plaintiff filed an action seeking damages for violations of his constitutional rights and for “consciously tortious” actions.
On the boards motion to dismiss, a judge ruled that the plaintiffs Federal constitutional claims, asserted under 42 U.S.C. § 1983, and his State constitutional claims, asserted under the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, §§ 11H, 11I, failed because the board is not a “person” within the meaning of either of those statutes and thus retained sovereign immunity to liability thereunder. The judge further ruled that because the board was a public employer under the Massachusetts Tort Claims Act (MTCA), G. L. c. 258, it retained sovereign immunity from intentional tort claims. This appeal followed.
Discussion. We review the sufficiency of the complaint de novo. Curtis, 458 Mass. at 676. On appeal, the plaintiff argues that the board is not the type of State entity that is immune from liability under § 1983 or the MCRA, or immune from intentional tort liability under the MTCA. We are unpersuaded.
1. Constitutional claims. It is settled that “[a]n agency of the Commonwealth is not a ‘person’ subject to suit for monetary damages under § 1983.” Laubinger v. Department of Revenue, 41 Mass. App. Ct. 598, 601 (1996), citing Will v. Michigan Dept of State Police, 491 U.S. 58, 70–71 (1989).
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Likewise, as to the MCRA, “the Commonwealth, including its agencies, is not a ‘person’ subject to suit pursuant to G. L. c. 12, § 11H.” Williams v. OBrien, 78 Mass. App. Ct. 169, 173 (2010). See Commonwealth v. ELM Med. Lab., Inc., 33 Mass. App. Ct. 71, 75-80 & n.9 (1992) (MCRA did not waive sovereign immunity of State agencies).
Here, the board is a State agency exercising delegated legislative authority. See Levy v. Board of Registration & Discipline in Med., 378 Mass. 519, 522-526 (1979) (evaluating boards action based on principles generally applicable to public administrative agencies).
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“The [b]oard ․ is a state agency,” and thus is entitled to the Commonwealths immunity under the Eleventh Amendment to the United States Constitution against suit in Federal court.
5
Bettencourt v. Board of Registration in Med. of the Commonwealth of Massachusetts, 721 F. Supp. 382, 384 (D. Mass. 1989), affd, 904 F.2d 772 (1st Cir. 1990). “[T]he doctrine of sovereign immunity bars the recovery of damages from the [b]oard, and the [b]oard members and their staff in their official capacities.” Bettencourt v. Board of Registration in Med. of the Commonwealth of Massachusetts, 904 F.2d 772, 781 (1st Cir. 1990).
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Numerous statutory provisions show that the board is a State agency. Under G. L. c. 13, § 10, the boards members are appointed by the Governor, who may remove them “for neglect of duty, misconduct, malfeasance or misfeasance in office.”
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Under G. L. c. 13, § 9 (a), the board serves in the Department of Public Health. Under G. L. c. 13, § 10A, the boards proposed regulations may be reviewed and approved or disapproved by the Commissioner of Public Health (commissioner). A variety of other statutes control the boards activities. See G. L. c. 13, § 9B; G. L. c. 112, §§ 2, 3-9B.
The plaintiff nevertheless asserts that G. L. c. 112, § 1, provides the defendant board with “statutory independence from the State,” because that statute provides that the commissioner “supervises” the work of various other boards of registration, but merely “consults with” the chair of the defendant board. In view of the other statutes cited above, the words of G. L. c. 112, § 1, create no such independence.
The plaintiff next suggests that the board is not subject to sufficient State control to entitle the board to State-action antitrust immunity, as is required under North Carolina State Bd. of Dental Examiners v. Federal Trade Commn, 574 U.S. 494, 503-504 (2015) (Dental Examiners). The plaintiff fails to explain, however, why a boards entitlement to antitrust immunity is necessarily coextensive with or determinative of that boards entitlement to sovereign immunity.
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The plaintiff also argues that, under G. L. c. 10, § 35M, the board is ensured “financial independence,” and that this weighs against treating the board as a State agency entitled to sovereign immunity. See, e.g., Walter E. Fernald Corp. v. Governor, 471 Mass. 520, 524 (2015) (sovereign immunity serves, in part, to protect public treasury). The cited statute, however, does not by its terms give the board such independence; it allows the board to keep and expend specified portions of various revenue streams, but it does not allow the board to retain all of its revenues. Nor does it require the board to operate without annual appropriations from the State treasury; to the contrary, the board receives such appropriations. See, e.g., St. 2021, c. 24, § 2, item 4510-0723 (appropriating money from States general fund for certain operations of board for fiscal year 2022).
In sum, the board retains State sovereign immunity. As an arm of the State, it is not a “person” and thus cannot be liable under § 1983 or the MCRA. The plaintiffs claims for damages for constitutional violations were correctly dismissed.
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2. Intentional tort claims. The plaintiffs claims against the board for intentional torts also fail. The board falls within the MTCAs definition of “[p]ublic employer,” which includes, as relevant here, “the commonwealth ․ and any department, office, commission, committee, council, board, division, bureau, institution, agency or authority thereof” (emphasis added).
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G. L. c. 258, § 1. The provisions of G. L. c. 258, §§ 1-8, waive a public employers sovereign immunity to claims based on the negligence of that employers public employees,
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but do not waive immunity to intentional tort claims. See G. L. c. 258, § 10 (c). See also Shapiro v. Worcester, 464 Mass. 261, 270 (2013) (MTCA is not a blanket waiver; “[i]t specifically exempts certain categories of conduct that continue to enjoy the protection of sovereign immunity”). The intentional tort claims against the board were therefore properly dismissed.
We have not overlooked the plaintiffs remaining arguments, including that § 1983 claims do not require the exhaustion of administrative remedies, and that Bloomstein, 96 Mass. App. Ct. 257, rendered the boards indefinite suspension decision void. Rather, “[w]e find nothing in [those arguments] that requires discussion,” given the separate grounds on which we have concluded above that the plaintiffs complaint was defective. Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.
FOOTNOTES
3
. In Will, the United States Supreme Court interpreted the word “person” in § 1983 in light of, among other things, Congresss intention to preserve State sovereign immunity. 491 U.S. at 67.
4
. We reject the plaintiffs claim that because at the time Levy was decided, the name of the board included the phrase “and [d]iscipline,” but no longer does, Levy is inapplicable. Contrary to the plaintiffs claim, the statute that removed that phrase from the boards name made no changes in the boards powers, duties, or status as a state agency. See St. 1979, c. 58.
5
. The Eleventh Amendment affirms “the fundamental principle of sovereign immunity.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984).
6
. In Padmanabhan v. Cambridge, 99 Mass. App. Ct. 332, 340-341 (2021), relying on reasoning in Bettencourt, our court concluded that the boards members and certain staff are entitled to quasi judicial absolute immunity -- an immunity not commonly extended to non-state actors.
7
. We are at a loss to understand the plaintiffs argument based on the language of G. L. c. 13, § 10, to the effect that the board “consist[s] of” seven persons appointed by the Governor. The plaintiff fails to explain how this language renders the board any less a State entity than other boards that have similar language in their enabling statutes. See, e.g., G. L. c. 13, § 16 (board of registration in optometry); G. L. c. 13, § 64 (board of registration of chiropractors).
8
. We need not and do not imply any view on whether the board here is entitled to antitrust immunity.
9
. To whatever extent the plaintiff sought to assert his State constitutional claims directly under the State Constitution rather than under the MCRA, dismissal of the claims was also proper. See Doe, Sex Offender Registry Bd. No. 474362 v. Sex Offender Registry Bd., 94 Mass. App. Ct. 52, 64-65 (2018).
10
. We reject the plaintiffs argument, based on FBT Everett Realty, LLC vs. Massachusetts Gaming Commn, 489 Mass. 702, 719-720 (2022) (FBT), that the board enjoys the same level of financial and political independence as the Massachusetts Port Authority (MassPort) and therefore is an “independent body politic and corporate” that is excluded from the definition of “public employer” in G. L. c. 258, § 1. MassPorts organic statute expressly establishes it as a “body politic and corporate,” St. 1956, c. 465, § 2, with the power to sue and be sued in its own name, to issue revenue bonds, to represent itself in litigation, and to acquire real property in its own name. See FBT, supra at 720-722. None of these things is true of the board. The plaintiff also asks us to take judicial notice of the principles of statutory interpretation set forth in Markham v. Pittsfield Cellular Tel. Co., 101 Mass. App. Ct. 82 (2022). We have considered those principles in reaching our decision.
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. Notably, under G. L. c. 13, § 9C, “[t]he members of the boards of registration shall be public employees for the purposes of chapter 258 for all acts or omissions within the scope of their duties as board members.”