10-17098 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FARZANZA SHEIKH , Plaintiff and Appellant, v. MEDICAL BOARD OF CALIFORNIA, et al., Defendants and Appellees. On Appeal from the United States District Court for the Eastern District of California No. 2:10-cv-00213-FCD-GGH (PS) The Honorable Frank C. Damrell, Jr., Judge APPELLEES’ ANSWERING BRIEF KAMALA D. HARRIS Attorney General of California DAVID S. CHANEY Chief Assistant Attorney General CARLOS RAMIREZ Senior Assistant Attorney General JOSE R. GUERRERO Supervising Deputy Attorney General SUSAN K. MEADOWS Deputy Attorney General State Bar No. 115092 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5552 Fax: (415) 703-5480 Email: [email protected]Attorneys for Appellees Medical Board of California and State of California Case: 10-17098 04/18/2011 Page: 1 of 66 ID: 7719802 DktEntry: 27-1
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10-17098
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FARZANZA SHEIKH ,
Plaintiff and Appellant,
v.
MEDICAL BOARD OF CALIFORNIA, et al.,
Defendants and Appellees.
On Appeal from the United States District Court for the Eastern District of California
No. 2:10-cv-00213-FCD-GGH (PS) The Honorable Frank C. Damrell, Jr., Judge
APPELLEES’ ANSWERING BRIEF
KAMALA D. HARRIS Attorney General of California DAVID S. CHANEY Chief Assistant Attorney General CARLOS RAMIREZ Senior Assistant Attorney General JOSE R. GUERRERO Supervising Deputy Attorney General SUSAN K. MEADOWS Deputy Attorney General State Bar No. 115092
455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5552 Fax: (415) 703-5480 Email: [email protected]
Attorneys for Appellees Medical Board of California and State of California
I. Sheikh’s Entire Action Is Barred By The Eleventh Amendment To The Constitution ........................................... 21
II. The District Court Did Not Err In Taking Judicial Notice Of The MBOC Decision, The Statement Of Issues, And Amended Statement Of Issues Filed By The MBOC Nor Did Judicial Notice Of The Documents Convert Sheikh’s Motion To Dismiss To A Motion For Summary Judgment. ................................................................................ 25
III. The District Court Properly Found That Sheikh’s FAC Fails To, And Cannot, State A Plausible Claim Against The Defendants Under Section 1983 ...................................... 27
IV. Sheikh’s Claim That She Was Denied Due Process By Allegedly Being Removed From A Residency Training Program By The MBOC Has Been Waived, And In Any Event Is Moot .......................................................................... 35
A. Sheikh Has Waived The Claim By Failing To Raise It In The District Court. ...................................... 35
B. Sheikh’s Due Process Claim Based On Alleged Removal From The Residency Program Is Moot. ........ 38
V. California Business And Professions Code Section 2227 Does Not Violate The Eighth Amendment Prohibition Of Cruel And Unusual Punishments ............................................ 39
VI. The District Court Did Not Err In Dismissing Sheikh’s Motion To Compel Discovery As Moot ................................. 40
VII. The District Court Did Not Err In Construing Sheikh’s Pleading As A Complaint........................................................ 41
VIII. Sheikh Did Not File A Timely Opposition To The MBOC’s Motion To Dismiss And Did Not File Objections To The Magistrate Judge’s Recommendations And Findings Despite An Opportunity To Do So. ................. 43
IX. The District Court Did Not Deny Sheikh An Article III Judge By Assigning The Case To A Magistrate Judge To Prepare Findings And Recommendations ............................... 46
X. The District Court Did Not Abuse Its Discretion In Denying Sheikh’s Motion For Relief From Final Judgment Under Rule 60(B) ................................................... 47
XI. The Court Did Not Abuse Its Discretion By Terminating Sheikh’s E-Filing Privileges ................................................... 49
XII. The District Court Did Not Err In Denying Sheikh’s Motion For Disqualification .................................................... 50
XIII. The Ninth Circuit Court Of Appeal Lacks Jurisdiction To Hear And Grant Sheikh’s Petition For Approval Of Her Application For Physician’s And Surgeon’s License ............. 50
Coffin v. Department of Alcoholic Beverage Control 139 Cal.App.4th 471 (2006) ................................................................ 8
Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc. 911 F.2d 242 (9th Cir.1990) (per curiam) ............................. 19, 24, 35
Dept. of Health & Rehabilitative Servs. v. Florida Nursing Home Assn., Florida 450 U.S. 147 (1981) ................................................... 23
Dream Palace v. County of Maricopa 384 F.3d 990 (9th Cir. 2004) ............................................................. 37
Edelman v. Jordan 415 U.S. 651 (1974) overruled on other grounds by ........................ 22
Estate of Conners by Meredith v. O'Connor 6 F.3d 656 (9th Cir. 1993) ................................................................. 46
Ex parte Young 209 U.S. 123 (1980)........................................................................... 24
Forster, M.D. v. County of Santa Barbara 896 F.2d 1146 (9th Cir. 1990) ........................................................... 23
In Braniff Airways, Inc. v. C. A. B. 379 F.2d 453 (D.C. Cir. 1967) ........................................................... 30
In Cooper v. State Bd. of Medical Examiners of Dept. of Professional and Vocational Standards of Cal. 35 Cal.2d 242 (1950) ................................................................... 30, 31
Martin v. Alcoholic Beverage Control Appeals Bd. of Cal. 52 Cal.2d 259 (1959) ........................................................................... 8
Mathews v. Eldridge 424 U.S. 319 (1976)........................................................................... 28
Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy 506 U.S. 139 (1993)........................................................................... 22
Quern v. Jordan 440 U.S. 332 (1979)........................................................................... 23
Raygor v. Regents of the University of Minnesota 534 U.S. 533 (2002)........................................................................... 24
Romano v. Bible 169 F.3d 1182 (9th Cir. 1999) ........................................................... 22
Ruvalcaba v. City of Los Angeles 167 F.3d 514 (9th Cir. 1999) ............................................................. 38
Sanders v. Brown 504 F.3d 903 (9th Cir. 2007) ............................................................. 20
Thompson v. City of Los Angeles 885 F.2d 1439 (9th Cir. 1989) overruled on other grounds by Bull v. City and County of San Fran cisco, 595 F.3d 964 (9th Cir. 2010) ................................................... 23
United States v. 14.02 Acres of Land More or Less in Fresno County 547 F.3d 943 (9th Cir. 2008) ....................................................... 19, 27
United States v. Patron 575 F.2d 708 (9th Cir.1978.) ................................................. 20, 37, 39
United States v. Ritchie 342 F.3d 903 (9th Cir. 2003) ....................................................... 20, 26
United States v. Wilson 631 F.2d 118 (9th Cir. 1980) ............................................................. 26
Verner v. State of Colorado 533 F.Supp. 1109 (D.Colo. 1982), aff'd, 716 F.2d 1352 (10th Cir. 1983) .................................................................................................. 40
Will v. Michigan Dept. of State Police 491 U.S. 58 (1989) ....................................................................... 22, 23
Yakus v. United States 321 U.S. 414 (1944)........................................................................... 33
Defendant Medical Board of California1 (“MBOC” or “Board”) denied
Plaintiff/Appellant Farzana Sheikh’s (“Sheikh”) application for a physician’s
and surgeon’s license because she made false statements on her application.
Pursuant to California law, Sheikh was afforded a hearing before an
Administrative Law Judge (“ALJ”). Although provided with notice, Sheikh
did not appear at the hearing. After taking evidence, the ALJ found that
Sheikh had lied on her application and recommended that she be denied a
license. The MBOC adopted the ALJ’s decision. Instead of following the
normal procedure of seeking review in the California Superior Court by way
of a petition for administrative mandamus under California Code of Civil
Procedure § 1094.5, Sheikh filed this pro per action in the district court. Her
“Amended Petition for Review,” which the district court construed as an
amended complaint, seeks to allege constitutional violations (primarily
denial of due process) pursuant to 42 U.S.C.A §1983 and a supplemental
state law claim under section 1094.5. The district court granted defendants’
1 Plaintiff and Appellant Farzana Sheikh will be referred to in this
document as “Sheikh.” Defendant and Appellee Medical Board of California will be referred to as “the MBOC.” When it will not result in confusion or misapprehension, “the MBOC” will also be used to refer to the Defendants and Appellees, State of California and Medical Board of California, collectively.
77) In March 2009, the Board filed a Statement of Issues under the
2 The designation “ER” refers to Appellees’ Excerpts of Record since
no excerpts of record were timely submitted by Sheikh when she filed her AOB. Sheikh filed excerpts of record with this court on or about March 28, 2011, approximately one and a half months after the due date.
3 The district court took judicial notice of the MBOC’s Statements of Issues and Decision denying Sheikh’s application for licensure as official public records of the MBOC. (ER 16-17.) They are also referenced in Sheikh’s FAC.
The Amended Statement of Issues was tried, pursuant to California
Government Code § 11520 (a), before ALJ Ann Elizabeth Sarli of the OAH.
(ER 69-74.) Evidence was taken even though under § 11520(a) the agency
may act without taking evidence when a respondent fails to appear at the
hearing and when, as here, “the burden of proof is on the respondent to
establish that the respondent is entitled to the agency action sought.”4 (ER
69-74.)
ALJ Sarli issued a proposed decision denying Sheikh’s application for
a physician’s and surgeon’s certificate. (ER 69-74.) The decision found that
Sheikh had failed to provide a written explanation for a leave of absence
from her postgraduate training program as required in the application’s
instructions, and that Sheikh failed to disclose on her application that (1) her
postgraduate training program contract was not renewed by the Austin
Medical Education Program; (“AMEP”); (2) that in early 2006, AMEP
required her to undergo remediation for sub par performance during her
internal medicine rotation; and, (3) that her second and third rotations in
4 As a proceeding on an application for a license to practice medicine, the burden of proof was on Sheikh. Martin v. Alcoholic Beverage Control Appeals Bd. of Cal., 52 Cal.2d 259, 265 (1959) (the “burden of proof may properly be placed upon the applicant in application proceedings”; accord, Coffin v. Department of Alcoholic Beverage Control, 139 Cal.App.4th 471, 477 (2006).
3. The district court’s decision whether to take judicial notice is
reviewed for an abuse of discretion. United States v. 14.02 Acres of Land
More or Less in Fresno County, 547 F.3d 943, 955 (9th Cir. 2008)
4. A dismissal for failure to state a claim pursuant to Rule 12(b)(6) is
reviewed de novo. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).5
5 On a Rule 12(b)(6) motion, all allegations of material fact are taken
as true and construed in the light most favorable to the nonmoving party. Knievel v. ESPN, supra, 393 F.3d. at 1072. A district court does not abuse its discretion by denying leave to amend where amendment would be futile. Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242,
5. Whether a district court has supplemental jurisdiction is reviewed
de novo. Hoeck v. City of Portland, 57 F.3d 781, 784-85 (9th Cir. 1995).
6. Issues raised for the first time on appeal are ordinarily not
considered on appeal. James v. Wal-Mart Stores, Inc., 279 F.3d 883, 888 n.
4 (9th Cir. 2002); United States v. Patron, 575 F.2d 708, 712 (9th Cir.1978.)
7. Whether a magistrate judge has jurisdiction is reviewed de novo.
Irwin v. Mascott, 370 F.3d 924, 929 (9th Cir. 2004).
8. The district court’s compliance with local rules is reviewed for an
abuse of discretion. Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir. 2007).
Broad deference is owed to the district court’s interpretation of its local
rules. Id.
(…continued) 247 (9th Cir.1990) (per curiam). Conclusory allegations and unwarranted inferences are insufficient to defeat a motion to dismiss. See Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). To survive a Rule 12(b)(6) motion, the complaint must state a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court may consider documents attached to the complaint by plaintiff, documents incorporated by reference in the complaint, and matters of judicial notice, without converting a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)
The Eleventh Amendment bar to Sheikh’s section 1983 claims and her
section 1094.5 claim cannot be cured by amending her complaint to name a
state officer as a defendant. With respect to the section 1983 claims, such an
amendment is theoretically possible because federal courts may hear federal
claims against state officers. Ex parte Young, 209 U.S. 123, 159-160 (1980).
However, as the discussion below of the merits demonstrates, even if an
officer is named, an attempted amendment to state a plausible section 1983
claim would be futile and therefore need not be permitted as the district
court recognized when it granted the MBOC’s Motion to Dismiss. Cook,
Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247
(9th Cir. 1990) (per curiam).
With respect to the section 1094.5 claim, the Eleventh Amendment
precludes federal courts from hearing supplemental (pendent) state law
claims against state officers. Pennhurst, 465 U.S. at 120-121; Raygor v.
Regents of the University of Minnesota, 534 U.S. 533, 541-542 (2002).
(…continued)
7 Sheikh’s section 1983 causes of action are additionally barred because the State and its entities are not “persons” under section 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66, 71, (1989); Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989) overruled on other grounds by Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir. 2010).
provides that, in proceedings against persons not already holding a license,
an ALJ’s proposed decision after hearing “shall be acted upon by the board .
. . in accordance with Section 11517(c)(2) of the California Government
Code.”8 Under § 11517(c)(2)(A), the MBOC may, as it did in this case,
adopt in its entirety the ALJ’s proposed decision without independently
reviewing the record.9 The district court correctly held that this procedure
does not violate Sheikh’s due process rights.
As the district court stated, the fundamental requirement of due process
is to be afforded an opportunity to be heard at a meaningful time and in a
meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). (ER
20-22.) The district court went on to first explain that a meaningful hearing
does not require that the hearing be held before the authority with final
responsibility for the decision, in this case denial of a license. (ER 20-23.)
The district court then explained why the hearing that was accorded Sheikh
8 Section 2230 of the Cal. Govt. Code provides, in pertinent part, that
all proceedings against an applicant for licensure for unprofessional conduct or cause, shall be conducted in accordance with the Administrative Procedure Act commencing with Section 11500 of the California Government Code.
9 Only if the MBOC rejects the proposed decision is it required to independently review the record. Cal. Govt. Code § 11517(c)(2)(E).
chose not to exercise her right to call witnesses, cross-examine witnesses,
and introduce and rebut evidence.10 Cal. Govt. Code § 11513. (ER 19-23.)
The district court was also correct in its response to Sheikh’s other
allegations relating to due process. (ER 22-23.) The district court addressed
various claims that Sheikh made in the context of her § 1094.5 claim that
were not identified as § 1983 violations but that could conceivably be
considered allegations of denial of due process. (ER 22-23.) The court
properly found that these additional claims were without merit as well. (ER
22-23.)
The first of these allegations considered by the court is that the MBOC
brings accusations without testing their credibility. (ER 22-23, 124.) As
aptly pointed out by the district court, because Sheikh is applying for a
license, there is no need for the MBOC to hold a full administrative trial
10 Despite Sheikh’s bearing the burden of proof on her application for
licensure and her failing to attend the hearing, evidence was nonetheless taken before a decision was rendered even though the MBOC could have acted without the taking of evidence. Cal. Govt. Code § 11520 (a). Sheikh appears to believe that she has a “vested” right to practice medicine and that the burden is therefore on the Board to prove by “clear and convincing” evidence that her application should be denied. A “vested” right, however, refers to a right, such as a license, “already possessed by the individual.” Bixby v. Pierno, 4 Cal.3d 130, 146 (1971). A lower standard of review and a lesser burden of proof attend the denial of a license application than a decision to discipline a license already issued. Id.
MBOC’s Motion to Dismiss raising this issue, nor did she articulate any
facts or arguments to the district court regarding this constitutional claim
post judgment in her Motion for Reconsideration to the district court. (ER
50-56.)11 Issues raised for the first time on appeal are ordinarily not
considered on appeal James v. Wal-Mart Stores, Inc., 279 F.3d 883, 888 n.
4 (9th Cir. 2002); United States v. Patrin, 575 F.2d 708, 712 (9th Cir.1978).
There are some narrow exceptions to this rule including where “the issue is
purely one of law, does not affect or rely upon the factual record developed
by the parties, and will not prejudice the party against whom it is raised.”
Dream Palace v. County of Maricopa, 384 F.3d 990, 1005 (9th Cir. 2004).
(Citations omitted.) That exception does not apply here. Sheikh is
advancing an entirely new legal theory and relies on multiple unverified,
unsupported facts that were not properly presented to the district court.
11 In an effort to overcome her failure to plead or raise these facts and
arguments in a timely fashion in the district court, Sheikh has referenced documents that she improperly filed under the guise of “Requests for Judicial Notice” and “Requests for Admissions” after judgment was entered and after the case was closed. (ER 143, Dckt. 62-77.) These documents contain hearsay statements and unverified facts that were improperly filed by Sheikh in the proceeding below, after judgment, and cannot now be considered on appeal.
Review” exactly fourteen days after the recommended Order was served.
(ER 60-62.) In the absence of any document with “objections” in the title,
the district court gave Sheikh the benefit of the doubt, construed this
document to be her objections, and considered them before adopting the
Magistrate Judge’s recommended order.13 (ER 13.) There is no basis for
Sheikh’s claim that she was denied the opportunity to file objections to the
magistrate’s orders.
IX. THE DISTRICT COURT DID NOT DENY SHEIKH AN
ARTICLE III JUDGE BY ASSIGNING THE CASE TO A
MAGISTRATE JUDGE TO PREPARE FINDINGS AND
RECOMMENDATIONS
Under 28 U.S.C. § 636(b)(1)(B), a district judge may designate a
magistrate judge to hear motions excepted under subparagraph (A),
including a motion to dismiss, and to submit proposed findings of fact and
recommendations for the disposition of such a motion. Hunt v. Pliler, 384
F.3d 1118, 1123 (9th Cir. 2004); Estate of Conners by Meredith v.
O'Connor, 6 F.3d 656, 658 (9th Cir. 1993). Where a party files written
objections to the proposed disposition, “[t]he district judge to whom the case
13 The final Order dismissing the FAC refers to this document as a
“reply.” (ER 13.) While it was electronically filed under the category “reply,” Sheikh had actually entitled the document “Plaintiff’s Motion to Dismiss Defendants’ Motion for Dismissal of Plaintiff’s Petition for Administrative Review.” (ER 60-62, 143, Dckt 56.)
60(b). (ER 1-8.) Liberally construing Sheikh’s motion, the court concluded
that she was attempting to obtain relief from judgment under Rule 60(b)(2)
[newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Federal Rules of Civil
Procedure, Rules 59(e)] and Federal Rules of Civil Procedure, Rule 60(b)(4)
[the judgment is void]. (ER 5-7.)14
The district court properly held that the documents that Sheikh had
filed post-judgment (ER 144, Dckt. 70, 71, 73, 74, 75, 76 & 77)15 did not
satisfy Rule 60(b)(2) because Sheikh failed to demonstrate that the
documents were “newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial under Federal
Rules of Civil Procedure, Rule 59(e).” (ER 7-8.) Rather, as correctly noted
by the district court, the documents upon which she was allegedly relying
were in existence well before the time required for her to make a Rule 59(e)
and Rule (60)(b) motion. (ER 7-8.)
14 Sheikh claims that she also asked for relief under Rule 60(b)(1) [mistake, inadvertence, surprise, or excusable neglect]. In fact, she did not even mention Rule 60(b)(1) in her moving papers (ER 50-56) and did no more than recite the words in her reply brief (ER 145, Dckt. 90). The district court properly limited its review to subdivision (b)(2) and (b)(4).
15 These filings consisted of several Requests for Judicial Notice—to which the MBOC filed objections (ER 145, Dckt. 87)—and discovery requests in the form of Request for Admissions (ER 144, Dckt. 72-73.)
Sheikh filed this matter as an appeal from the final decision of the district
court dismissing her complaint against the MBOC. (ER 48-49.) This Court
is limited to a review of the district court’s decision.
CONCLUSION
For the reasons stated above, Defendants/Appellees State of California
and MBOC respectfully request that the Court affirm the district court’s
judgment dismissing Plaintiff’s pleadings with prejudice.
Dated: April 18, 2011
Respectfully submitted, KAMALA D. HARRIS Attorney General of California DAVID S. CHANEY Chief Assistant Attorney General CARLOS RAMIREZ Senior Assistant Attorney General JOSE R. GUERRERO Supervising Deputy Attorney General /S/ SUSAN K. MEADOWS SUSAN K. MEADOWS Deputy Attorney General Attorneys for Appellees Medical Board of California and State of California
To the best of our knowledge, there are no related cases.
Dated: April 18, 2011
Respectfully Submitted, KAMALA D. HARRIS Attorney General of California DAVID S. CHANEY Chief Assistant Attorney General CARLOS RAMIREZ Senior Assistant Attorney General JOSE R. GUERRERO Supervising Deputy Attorney General /S/ SUSAN K. MEADOWS SUSAN K. MEADOWS Deputy Attorney General Attorneys for Appellees Medical Board of California and State of California
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