Lloyd G White v. Kamala Harris et al
Filing
31
MINUTES OF DEFENDANT TAMARA GARVER'S MOTION TO DISMISS 26 Hearing held before Judge Christina A. Snyder. In accordance with the foregoing, Garver's motion to dismiss is GRANTED IN PART and DENIED IN PART. Specifically, the motion is g ranted insofar as it seeks to (1) dismiss plaintiff's claims against Garver in her official capacity; (2) dismiss as timebarred plaintiff's claims based on conduct predating March 10, 2012; and (3) dismiss plaintiff's Eighth Amendment claim. The motion is otherwise denied. Garver shall have until April 16, 2015 to file an answer to the SAC. IT IS SO ORDERED.Court Reporter: Laura Elias. (lom)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
2:13-6171-CAS(MANx)
Title
LLOYD G. WHITE v. KAMALA HARRIS, ET AL.
Present: The Honorable
Date
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CHRISTINA A. SNYDER
Catherine Jeang
Deputy Clerk
Laura Elias
Court Reporter / Recorder
N/A
Tape No.
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants:
Lloyd White
Raymond Fitzgerals
Proceedings:
I.
DEFENDANT TAMARA GARVER’S MOTION TO DISMISS
(Dkt. No. 26, filed January 14, 2015).
INTRODUCTION
Plaintiff Lloyd G. White, M.D. filed the instant civil rights action on August 22,
2013. Dkt. No. 1. On November 19, 2014, plaintiff filed the operative Second Amended
Complaint (“SAC”). Dkt. No. 20. Plaintiff brings claims against defendants Tamara
Garver (“Garver”) and Verdeen Richardson (“Richardson”), two employees of the
Medical Board of California (the “Medical Board”), as well as Does 1 through 50, under
42 U.S.C. § 1983 for alleged violations of various constitutional rights.1 Both defendants
are sued in their personal and official capacities. SAC ¶¶ 6, 7.
On January 14, 2015, Garver filed a motion to dismiss the SAC. Dkt. No. 26.
Plaintiff filed an opposition on February 25, 2015. Dkt. No. 27. Garver replied on
March 9, 2015. Dkt. No. 30. On March 16, 2015, the Court held a hearing on the
motion. For the reasons stated below, the motion is granted in part and denied in part.
II.
FACTUAL BACKGROUND
The SAC alleges the following facts, the truth of which the Court assumes for the
purposes of this motion only. Plaintiff became a California-licensed physician on June
30, 1978. SAC ¶ 8. Although plaintiff successfully practiced medicine for more than
1
Garver was originally sued as “Tamara Jazzie.” The SAC does not state Garver’s
precise job title, but alleges that Garver and Richardson “are employees and not decsionmakers and not judges or prosecutors or members of the Board.” SAC ¶ 38.
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three decades, disciplinary action against him arose from “an alleged inadequacy of the
documentation in one patient’s chart in 1990.” Id. ¶¶ 9, 11. Plaintiff contends that
neither “the hospital nor the insurance companies which paid for the operations found the
report inadequate.” Id. ¶ 11.
Nevertheless, the Medical Board placed plaintiff on probation by stipulated
settlement for a period of three years, later extended to six years. Id. ¶ 12. This
probation required plaintiff to perform twenty-four proctored surgeries, see a Medical
Board officer every three months, and complete one hundred units of continuing medical
education. Id. ¶¶ 13, 14. Plaintiff contends that the proctored surgery requirement
violated the Medical Board’s bylaws because plaintiff had “never had a surgical violation
or misadventure,” and the punishment therefore lacked any nexus to the alleged violation.
Id. ¶ 15. Plaintiff also avers that he has checked the Medical Board’s website and has not
found any other physician who was punished with more than sixty units of continuing
medical education. Id.
Plaintiff completed eight proctored surgeries at significant expense, and reported
those surgeries as required. Id. ¶ 16. Nevertheless, Garver claimed to have lost those
reports, and told the Medical Board that plaintiff “did not have any proctored surgery.”
Id. Garver then stopped plaintiff from performing additional surgeries during a fivemonth evaluation of his proctor. Id. ¶ 17. Plaintiff also alleges that Garver described
plaintiff as “an incompetent physician” without any supporting evidence, and engaged in
this “arbitrary” conduct against him because plaintiff is African-American. Id. ¶¶ 20, 21.
Plaintiff alleges that Garver was “aware of,” and by delaying plaintiff’s
probationary process “further exacerbated,” issues in plaintiff’s personal life, including a
separation from plaintiff’s wife, who froze plaintiff’s assets, leaving him unable to afford
malpractice insurance, and therefore unable to perform surgery and obtain patient
referrals. Id. ¶ 18. Additionally, plaintiff formerly had a lucrative contract to provide
medical services to nursing home residents in Northern California. Plaintiff contends that
he lost this opportunity because Garver gave plaintiff “a letter to give to each nursing
home stating he was on probation without indicating why,” which caused the nursing
homes to believe that plaintiff had “done something outrageous.” Id. ¶ 19. Plaintiff
declared bankruptcy in 2007. Id.
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At some point, Garver demanded that plaintiff give a urine sample for a drug test,
which involved plaintiff’s exposing his “pelvic area and private parts to” Garver, even
though Garver had no grounds to suspect plaintiff of drug use. Id. ¶ 22–23. Plaintiff
avers that he “neither smokes nor drinks alcohol,” and that Garver had no basis for
thinking that plaintiff looked “spacey” or otherwise believing that a drug test was
justified. Id. ¶¶ 25, 26. Garver subsequently ignored plaintiff’s request for the results of
the drug test. Id. ¶ 26. Plaintiff alleges that Garver subjected him to this mistreatment
because he is African-American, and with the intention of humiliating plaintiff and
preventing him from meeting the requirements of his probation. Id. ¶¶ 24, 27.
On January 14, 2010, the Medical Board filed an “Accusation and Petition to
Revoke” plaintiff’s probation, alleging failure to comply with certain terms and
conditions of the probation. Id. ¶ 29. This petition was sent to plaintiff’s prior address,
and was returned to the Medical Board marked “unclaimed.” Id. On April 27, 2010,
plaintiff met with five Medical Board probation officers who informed him that the State
of California intended to move to revoke plaintiff’s medical license. Id. ¶ 30. Plaintiff
alleges that “[d]efendants failed to inform [him] of the importance of the meeting,” so
that he did not have an attorney attend the meeting. At this meeting, Richardson “handed
Plaintiff an envelope” that contained the Accusation and Petition to Revoke. Plaintiff
“expected the State to move against him by serving him with papers,” but there was no
such further service. Id. Plaintiff explains that although he read the document at that
time, he “did not appreciate its significance,” and was “waiting for action by the
California Attorney General which Defendants had told him would be forthcoming.” Id.
¶ 73. Plaintiff alleges that, due to this misunderstanding, he did not timely file a notice of
defense or request for a hearing by the deadline of May 12, 2010. Id. ¶ 32.
One June 2 or 22, 2010, the Medical Board filed a default decision and order to
revoke plaintiff’s license effective July 22. Id. ¶¶ 10, 33. The Medical Board did not
inform plaintiff of the default prior to filing this default decision. Id. ¶ 33. Plaintiff did
not immediately see the notice of default decision because he was in Florida visiting his
terminally ill uncle. Id. ¶ 34. Following his return to California, plaintiff reviewed the
notice and moved to set aside the default decision by motion filed on July 14, 2010. This
motion was denied. Id. ¶ 35. Plaintiff petitioned the California Superior Court for a writ
of mandate on November 3, 2010. The Superior Court remanded the matter to the
Medical Board for a clarification of what evidence supported its findings. Id. ¶ 36. The
Superior Court apparently rejected the Board’s decision a second time, but then affirmed
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the default on November 9, 2011. Id. ¶¶ 37, 39. Plaintiff alleges that during these
proceedings, the Superior Court precluded him from presenting a defense or examining
witnesses, but permitted defendants to present new evidence when plaintiff was not
present. Id. ¶ 37.2 Plaintiff appealed the Superior Court’s decision to the California
Court of Appeal, and then the California Supreme Court. The California Supreme Court
denied plaintiff’s writ on July 14, 2012. Id. ¶ 40.
In December 2013, plaintiff applied to the Medical Board for reinstatement of his
license. Id. ¶ 43. Two doctors recommended that plaintiff’s license be restored. Plaintiff
alleges that shortly thereafter, “Defendants contacted these physicians and cautioned
them about recommending that [his] license be restored.” Id.
Plaintiff alleges violations of three constitutional rights. First, he asserts that
defendants violated the Eighth Amendment by imposing arbitrary and excessive
penalties. SAC ¶¶ 48–58. Second, plaintiff alleges that defendants imposed excessive
penalties and otherwise discriminated against him due to his race, violating equal
protection. Id. ¶¶ 59–66. Third, plaintiff contends that defendants’ handling of his
probation and license proceedings deprived him of property without due process of law.
Id. ¶¶ 67–84. He seeks compensatory and punitive damages, as well as a list of all
medical doctors disciplined by the Medical Board over the past ten years and associated
information including the punishment, race, and gender of each doctor disciplined.
III.
LEGAL STANDARDS
A.
Federal Rule of Civil Procedure 12(b)(1)
A motion to dismiss an action pursuant to Fed. R. Civ. P. 12(b)(1) raises the
objection that the court has no subject matter jurisdiction to hear and decide the case.
This defect may exist despite the formal sufficiency of the allegations in the complaint.
2
Plaintiff also alleges that Richardson, along with her non-defendant bosses
Barbara Johnson (“Johnson”) and Linda Whitney (“Whitney”), “used trickery” in May
2012 to deny plaintiff an administrative hearing while he was in Florida caring for a
dying relative. Id. ¶ 28. Plaintiff alleges that because he was “prevented from being in
court . . . there was no opportunity to raise other issues other than revocation.” Id.
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T.B. Harms Co. v. Eliscu, 226 F. Supp. 337, 338 (S.D.N.Y. 1964), aff'd 339 F.2d 823 (2d
Cir. 1964). When considering a Rule 12(b)(1) motion challenging the substance of
jurisdictional allegations, the Court is not restricted to the face of the pleadings, but may
review any evidence, such as declarations and testimony, to resolve any factual disputes
concerning the existence of jurisdiction. See McCarthy v. United States, 850 F.2d 558,
560 (9th Cir. 1988). The burden of proof in a Rule 12(b)(1) motion is on the party
asserting jurisdiction. See Sopcak v. N. Mountain Helicopter Serv., 52 F.3d 817, 818
(9th Cir. 1995).
B.
Federal Rule of Civil Procedure 12(b)(6)
A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the claims asserted in a complaint. Under this Rule, a district court
properly dismisses a claim if “there is a ‘lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.’ ” Conservation Force v.
Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balisteri v. Pacifica Polic Dep’t,
901 F.2d 696, 699 (9th Cir. 1988)). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[F]actual allegations must
be enough to raise a right to relief above the speculative level.” Id.
In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all
material allegations in the complaint, as well as all reasonable inferences to be drawn
from them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be
read in the light most favorable to the nonmoving party. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). However, “[i]n keeping with these
principles a court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth. While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (“[F]or a
complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and
reasonable inferences from that content, must be plausibly suggestive of a claim entitling
the plaintiff to relief.”). Ultimately, “[d]etermining whether a complaint states a plausible
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claim for relief will . . . be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Unless a court converts a Rule 12(b)(6) motion into a motion for summary
judgment, a court cannot consider material outside of the complaint (e.g., facts presented
in briefs, affidavits, or discovery materials). In re American Cont’l Corp./Lincoln Sav. &
Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court
may, however, consider exhibits submitted with or alleged in the complaint and matters
that may be judicially noticed pursuant to Federal Rule of Evidence 201. Lee v. City of
Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).
“A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by
the applicable statute of limitations,” but “only when ‘the running of the statute is
apparent on the face of the complaint.’ ” Von Saher v. Norton Simon Museum of Art,
592 F.3d 954, 969 (9th Cir. 2009) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d
992, 997 (9th Cir. 2006)).
As a general rule, leave to amend a complaint which has been dismissed should be
freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when “the
court determines that the allegation of other facts consistent with the challenged pleading
could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture
Co., 806 F.2d 1393, 1401 (9th Cir. 1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th
Cir. 2000).
IV.
ANALYSIS
A.
The Rooker-Feldman Doctrine
Garver argues that consideration of the entire SAC is barred by the RookerFeldman doctrine, which stems from the principle that “[f]ederal district courts may
exercise only original jurisdiction; they may not exercise appellate jurisdiction over state
court decisions.” Dubinka v. Judges of Sup. Ct., 23 F.3d 218, 221 (9th Cir. 1994) (citing
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482–86 (1983), and
Rooker v. Fidelity Trust Co., 263 U.S. 413, 415–16 (1923)). “This rule applies even
when the state court judgment is not made by the highest state court, and when the
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challenge to the state court action involves federal constitutional issues.” Dubinka, 23
F.3d at 221 (citations omitted).
Rooker-Feldman bars not just direct attempts to appeal a state court’s decision, but
also “de facto” appeals. A forbidden de facto appeal is generally of two types: (1) the
federal plaintiff “complain[s] of harm caused by a state court judgment that directly
withholds a benefit from (or imposes a detriment on) the federal plaintiff, based on an
allegedly erroneous ruling by that court,” or (2) the federal plaintiff “complain[s] of a
legal injury caused by a state court judgment, based on an allegedly erroneous legal
ruling, in a case in which the federal plaintiff was one of the litigants.” Noel v. Hall, 342
F.3d 1148, 1163 (9th Cir. 2003). When a plaintiff brings an improper de facto federal
appeal, the federal court may not rule on issues that are “ ‘inextricably intertwined’ with
the state court judicial decision from which the forbidden judicial appeal is brought.”
Noel v. Hall, 342 F.3d at 1157. As the Ninth Circuit has explained:
If a federal plaintiff asserts as a legal wrong an allegedly erroneous
decision by a state court, and seeks relief from a state court judgment
based on that decision, Rooker–Feldman bars subject matter
jurisdiction in federal district court. If, on the other hand, a federal
plaintiff asserts as a legal wrong an allegedly illegal act or omission
by an adverse party, Rooker–Feldman does not bar jurisdiction.
Kougasian v. TMSL, 359 F.3d 1136, 1140 (9th Cir. 2004) (quoting Noel, 341 F.3d at
1164). The Kougasian court explained that to fall within that doctrine, “a plaintiff must
seek not only to set aside a state court judgment; he or she must also allege a legal error
by the state court as the basis for that relief.” Id. Accordingly, a “plaintiff alleging
extrinsic fraud on a state court” is not barred by Rooker-Feldman because he or she “is
not alleging a legal error by the state court; rather, he or she is alleging a wrongful act by
the adverse party.” Id. at 1140–41.
The Supreme Court subsequently explained that Rooker-Feldman does not
stop a district court from exercising subject-matter jurisdiction simply
because a party attempts to litigate in federal court a matter previously
litigated in state court. If a federal plaintiff “present[s] some
independent claim, albeit one that denies a legal conclusion that a
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state court has reached in a case to which he was a party . . . , then
there is jurisdiction and state law determines whether the defendant
prevails under principles of preclusion.”
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005) (quoting
GASH Assocs. v. Rosemont, 995 F.2d 726, 728 (7th Cir. 1993)).
Garver argues that a “fair reading” of the SAC shows that this case is “a pretense to
obtain federal review and relief for damages Plaintiff allegedly suffered as a result of
unfavorable state court proceedings.” Garver contends that it is clear that plaintiff’s
complaints regarding injuries caused by the state court’s rulings fall under the doctrine,
and that plaintiff’s “contentions that he was somehow denied federal constitutional rights
in state court litigation are conclusory.” Mot. at 4.
Although the SAC makes clear that plaintiff disagrees with the dismissal of his
appeals by the state courts, the SAC’s actual claims against Garver, read in the light most
favorable to plaintiff, concern improper conduct that led up to the state administrative and
court proceedings. The allegations also include efforts to prevent plaintiff from
presenting a defense or submitting evidence in those proceedings, which are akin to
allegations of extrinsic fraud, and efforts to hinder plaintiff’s attempt to have his license
reinstated after the conclusion of the state court litigation. These are allegations of illegal
acts by an adverse party, not legal errors by the state courts, and whether these
contentions are “conclusory” is a merits question, not one of subject matter jurisdiction.
For these reasons, the Court concludes that the Rooker-Feldman doctrine does not bar the
Court from considering plaintiff’s claims against Garver.
B.
The Eleventh Amendment
Garver argues that the Eleventh Amendment to the United States Constitution bars
plaintiff’s suit against her in her official capacity. The Eleventh Amendment to the
United States Constitution provides: “The Judicial Power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.” As interpreted by the Supreme Court, the amendment prohibits federal courts
from hearing suits brought by private citizens against state governments without the
state's consent or congressional abrogation of sovereign immunity. See Hans v.
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Louisiana, 134 U.S. 1, 15 (1890). This immunity “bars suit against a state or its agencies,
regardless of the relief sought, unless the state unequivocally consents to a waiver of its
immunity.” Yakama Indian Nation v. Wash. Dep’t of Revenue, 176 F.3d 1241, 1245 (9th
Cir. 1999).
Under the Ex parte Young exception to Eleventh Amendment immunity, a plaintiff
may bring suit in federal court against a state officer acting in violation of federal law for
prospective injunctive or declaratory relief. Ex parte Young, 209 U.S. 123, 159–60
(1908); see also Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 102–106
(1984). But “[t]his exception is narrow: It applies only to prospective relief, does not
permit judgments against state officers declaring that they violated federal law in the past,
and has no application in suits against the States and their agencies, which are barred
regardless of the relief sought.” Puerto Rico Aqueduct, 506 U.S. at 146; Edelman v.
Jordan, 415 U.S. 651, 678 (1974) (holding that a federal court may enjoin an official's
future conduct, but may not award retroactive monetary relief).
Under these principles, Garver is immune from plaintiff’s claims against her in her
official capacity. To the extent plaintiff seeks damages from Garver in her official
capacity, such efforts are clearly barred by the Eleventh Amendment. Although plaintiff
also alleges that he seeks declaratory and injunctive relief, those requests for relief are
based on alleged past violations of federal law, which are not cognizable under the Ex
parte Young exception. The Court pointed out in its order dismissing the FAC that
plaintiff had not pleaded a claim under Ex parte Young against Garver in her official
capacity. Dkt. No. 19 at 10. In granting plaintiff leave to amend, the Court explained
that “any amended complaint should state what, if any, prospective relief plaintiff seeks
in Garver in her official capacity, based on which continuing violations of federal law.”
Id. at 11 (emphasis in original). Because plaintiff has failed to remedy these deficiencies
despite an explicit invitation to do so, his claims against Garver in her official capacity
are dismissed without leave to amend.
The Eleventh Amendment, however, does not bar plaintiff’s suit against Garver in
her personal capacity. See Hafer v. Melo, 502 U.S. 21, 30–31 (1991) (“[T]he Eleventh
Amendment does not erect a barrier against suits to impose ‘individual and personal
liability’ on state officials under § 1983 . . . . nor are state officers absolutely immune
from personal liability under § 1983 solely by virtue of the ‘official’ nature of their
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acts.”). The Court therefore considers whether plaintiff has stated any claim against
Garver in her personal capacity.
C.
Statute of Limitations
State personal injury limitation statutes govern § 1983 claims. See Wallace v.
Kato, 549 U.S. 384, 387 (2007) (explaining that the applicable statute of limitations “is
that which the State provides for personal-injury torts”); Taylor v. Regents of Univ. of
Cal., 993 F.2d 710, 711 (9th Cir. 1993) (citing Wilson v. Garcia, 471 U.S. 261, 275
(1985)). “In California, personal injury claims that accrued after January 1, 2003, are
subject to a two-year statute of limitations.” Colony Cove Props., LLC v. City of Carson,
640 F.3d 948, 956 (9th Cir. 2011) (citing Cal. Code Civ. Proc. § 335.1). The “accrual
date of a § 1983 cause of action,” however, “is a question of law that is not resolved by
reference to state law.” Wallace, 549 U.S. at 388 (emphasis in original). A “claim
accrues when the plaintiff knows or has reason to know of the injury which is the basis of
action.” Azer v. Connell, 306 F.3d 930, 936 (9th Cir. 2002) (quoting Morales v. City of
Los Angeles, 214 F.3d 1151, 1154 (9th Cir. 2000)). State tolling rules apply unless they
are incompatible with federal law. Azer, 306 F.3d at 936.
Although it is difficult to discern when some of Garver’s alleged misconduct
occurred, it is clear that (with one exception discussed below), it took place no later than
July 2010, and likely no later than April 27, 2010. The SAC expressly alleges that
“[m]ost of the violations occurred between 2007–2010,” ¶ 46, and some of Garver’s
alleged misconduct must have preceded 2007, as plaintiff filed for bankruptcy allegedly
precipitated by that conduct in that year. The only post-2010 conduct that could be
construed as alleged against Garver is that in December 2013 or shortly thereafter,
“Defendants” contacted physicians who had recommended that plaintiff’s license be
reinstated and “cautioned them about recommending that [plaintiff’s] license be
restored.”3 Garver was first named as a defendant when the First Amended Complaint
3
Allegations of “trickery” used in May 2012 to deny plaintiff an administrative
hearing are limited to Richardson and two non-parties. Id. ¶ 28.
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(“FAC”) was filed on March 10, 2014.4 Thus, unless some form of tolling or delayed
accrual applies, claims based on any conduct occurring before March 10,
2012—including all of plaintiff’s allegations against Garver with the exception of the
2013 warnings not to support plaintiff’s reinstatement—are time-barred.
Plaintiff argues that his claim did not accrue until July 14, 2012, when the
California Supreme Court refused to hear the appeal of his medical license revocation.
See SAC ¶ 45 (“With that decision [by the California Supreme Court] the cause of action
was complete.”). But it is not clear how plaintiff would not have known of the injuries
caused by Garver’s alleged mistreatment of him until that time. Azer, 306 F.3d at 936.
Indeed, a conclusion that plaintiff’s claims did not accrue until the California Supreme
4
Plaintiff first filed a complaint in this action on August 22, 2013. The original
complaint named as defendants only “Kamala Harris, Attorney General” and “Sanford
Feldman, Deputy Attorney General.” Dkt. No. 1. Plaintiff filed the FAC on March 10,
2014. Dkt. No. 4. The FAC named as a defendant “Tamara Jazzie,” which plaintiff
asserts is Garver’s maiden name; Garver was served in July 2014, and joined in a motion
to dismiss the FAC. Dkt. Nos. 10, 12. Because Garver was not named in and does not
appear to have been served with the original complaint that was filed on August 22, 2013,
she cannot be said to have been on notice of plaintiff’s claims against her prior to the
filing of the FAC. See Fed. R. Civ. P. 15(c)(1) (providing that an amended complaint
changing a defendant relates back to the original complaint only if the defendant
“received such notice of the action that it will not be prejudiced in defending on the
merits” and “knew or should have known that the action would have been brought against
it, but for a mistake concerning the proper party’s identity”). Therefore, to the extent
plaintiff argues that his claims against Garver relate back to the filing of the original
complaint on August 22, 2013, the Court disagrees. This point is, however, immaterial:
because a two-year statute of limitations applies, and the allegations in question took
place in July 2010 and earlier, the allegations would be time-barred even if plaintiff’s
claims against Garver were deemed to relate back to the August 22, 2013 filing of his
original complaint, or even to plaintiff’s alleged attempt to file this action with a fee
waiver in March 2013.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
2:13-6171-CAS(MANx)
Date
Title
‘O’
March 16, 2015
LLOYD G. WHITE v. KAMALA HARRIS, ET AL.
Court declined to hear plaintiff’s appeal would implicate the Rooker-Feldman bar against
suits for injuries caused by an adverse state court judgment.5
To the extent that plaintiff argues that the allegations supporting his § 1983 claims
should be deemed tolled by his appeal of his medical license revocation, that argument is
unavailing. For the pendency of prior judicial proceedings to equitably toll the statute of
limitations, there must be “(1) timely notice to the defendant in filing the first claim; (2) a
lack of prejudice to defendant in gathering evidence to defend against the second claim;
and, (3) good faith and reasonable conduct by the plaintiff in filing the second claim.”
Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1137 (9th Cir. 2001) (en
banc) (quoting Collier v. City of Pasadena, 142 Cal. App. 3d 917, 923 (1983)). The
“timely notice” element requires that the plaintiff have filed, within the applicable
statutory period, a claim that “alert[s] the defendant in the second claim of the need to
begin investigating the facts which form the basis for the second claim.” Collier, 142
Cal. App. 3d at 924. “To satisfy the second requirement ‘the facts of the two claims
[should] be identical or at least so similar that the defendant’s investigation of the first
claim will put him in a position to fairly defend the second.’ ” Daviton, 241 F.3d at 1139
(quoting Collier, 142 Cal. App. 3d at 925). Accordingly, “California has long refused . . .
to toll the statute of limitations on a claim for a distinct wrong that was not the basis of
the earlier proceeding.” Id. at 1141 (emphasis in original).
Plaintiff alleges that he appealed the Medical Board’s default decision, and that his
case was remanded multiple times “for clarification as to what evidence . . . [the Medical
Board] relied on to support its findings.” SAC ¶ 36.6 Plaintiff has not alleged that the
allegations of racial discrimination supporting his § 1983 claim were raised in the state
court proceedings; in fact, he expressly alleges that the issues he raises in federal court
5
The Court noted this problem in dismissing the FAC with leave to amend. See
Dkt. No. 19 at 8–9 & n.6.
6
To the extent that plaintiff argues that he would not have been able to bring a
federal suit for Garver’s alleged constitutional torts until he had exhausted his state court
remedies, the “exhaustion of state administrative remedies” is not “required as a
prerequisite to bringing an action pursuant to § 1983.” Patsy v. Bd. of Regents, 457 U.S.
496, 516 (1982).
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UNITED STATES DISTRICT COURT
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CIVIL MINUTES - GENERAL
Case No.
2:13-6171-CAS(MANx)
Date
Title
‘O’
March 16, 2015
LLOYD G. WHITE v. KAMALA HARRIS, ET AL.
were not “raised in state court.” SAC ¶ 28. Thus, the instant allegations are “far afield
from the facts of the administrative proceedings—too different to toll the statute of
limitations based on pursuit of other remedies.” Walia v. Cal. Veterinary Med. Bd., Civ.
No. S-09-1716 FCD GGH PS, 2010 WL 2553992, at *4 (E.D. Cal. June 18, 2010)
(holding statute of limitations for § 1983 claims based on ethnic discrimination was not
tolled while veterinarian sought administrative review of state board decision denying his
license application). The fact that plaintiff contested the default decision to revoke his
medical license, and then appealed that decision to the California courts, would not have
put Garver on notice that she would be sued for violating plaintiff’s constitutional rights
through discriminatory actions dating back several years.
Plaintiff also appears to assert that his claims are timely because it was not until
after the California Supreme Court denied his writ that he went to a law library and
“discovered Ex parte Young which gives [him] a federal claim.” Id. ¶ 46. But where the
plaintiff is aware of the facts underlying his claim, “[t]he plaintiff’s ignorance of the
cause of action . . . does not toll the statute” of limitations.” El Pollo Loco, Inc. v.
Hashim, 316 F.3d 1032, 1039 (9th Cir. 2003) (citing April Enter., Inc. v. KTTV &
Metromedia, Inc., 147 Cal. App. 3d 805 (1983); accord Garabedian v. Skochko, 232 Cal.
App. 3d 836, 840 (1991).
Finally, plaintiff argues that the “continuous accrual doctrine permits Plaintiff to
pursue his claims.” Opp’n at 2. But this doctrine “applies where there is ‘no single
incident’ that can ‘fairly or realistically be identified as the cause of significant harm.’ ”
Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 2002) (quoting Page v. United States,
729 F.2d 818, 821 (D.C. Cir. 1984)). In a § 1983 case, “ ‘discrete discriminatory acts are
not actionable if time barred, even when they are related to acts alleged in timely filed
charges.’ ” Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822,
828 (9th Cir. 2003) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002)); see RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1061 (9th Cir. 2002)
(explaining in § 1983 case that Morgan “overruled previous Ninth Circuit authority
holding that, if a discriminatory act took place within the limitations period and that act
was ‘related and similar to’ acts that took place outside the limitations period, all the
related acts—including the earlier acts—were actionable as part of a continuing
violation”). Under Morgan, “the statute of limitations runs separately from each discrete
act” of which a plaintiff complains. RK Ventures, 307 F.3d at 1061. Additionally, a
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UNITED STATES DISTRICT COURT
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Date
Title
‘O’
March 16, 2015
LLOYD G. WHITE v. KAMALA HARRIS, ET AL.
“continuing violation is occasioned by continual unlawful acts, not by continual ill effects
from an original violation.” Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981).
That Garver allegedly cautioned physicians against supporting plaintiff’s
reinstatement in 2013 does not make actionable otherwise time-barred conduct occurring
in 2010 and earlier. First, plaintiff alleges discrete instances of misconduct by
Garver—for example, that she imposed excessive probation requirements, informed
nursing homes that plaintiff had been disciplined for unstated reasons, and subjected
plaintiff to an unnecessary and humiliating drug test. Each of these actions is a discrete
wrong, which injured plaintiff at the time it was committed. See Williams v. Univ. Med.
Ctr. of S. Nev., No. 2:09-cv-00554-PMP-PAL, 2010 WL 3001707, at *2 (D. Nev. July
28, 2010) (finding to be “discrete” alleged acts relating to anesthesiologist’s suspension,
including inadequate notice of summary suspension, failure to turn over documents to
enable preparation for a hearing, and other conduct “throughout the disciplinary
proceedings up to and including the Board’s decision”). But even assuming that Garver’s
“course of conduct throughout the disciplinary proceedings up to and including the
[Medical] Board’s decision could be considered continuing conduct, the [Medical] Board
issued its decision” in July 2010, at which point injuries from misconduct intended to
strip plaintiff of his license would have accrued if they had not already. Id.; see Olsen v.
Idaho State Bd. Of Med., 363 F.3d 916, 927 (9th Cir. 2004) (holding that claims for
constitutional violations related to denial of physician assistant’s license reinstatement
application accrued when plaintiff received notification of board’s proposal to deny her
license reinstatement). Garver’s alleged post-filing interference with plaintiff’s separate
reinstatement action cannot restart the clock on those already accrued claims. See
Womack v. McTeague, No. 2:10-cv-332-SU, 2012 WL 3011006, at *6–10 (D. Or. June
11, 2012) (treating separately time-barred allegations pertaining to improper revocation
of chiropractor’s license, and timely allegations pertaining to request for reinstatement).
For these reasons, plaintiff’s claims against Garver for conduct predating March 10, 2012
are time-barred.
In dismissing the FAC with leave to amend, the Court explained that plaintiff’s
claims were time-barred as pled to the extent they concern events predating March 10,
2012. Dkt. No. 19 at 8. The Court admonished plaintiff that “any amended pleading
should contain sufficient specific factual matter—including, to the extent possible,
relevant dates—to show that plaintiff’s claims against Garver in her individual capacity
are not barred by the two-year statute of limitations.” Id. at 11. Despite this admonition,
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
2:13-6171-CAS(MANx)
Date
Title
‘O’
March 16, 2015
LLOYD G. WHITE v. KAMALA HARRIS, ET AL.
plaintiff has failed to plead facts that suggest that Garver’s conduct in 2010 and prior
years does not fall outside of the statute of limitations. Accordingly, the time-barred
claims are dismissed without leave to amend.
D.
Whether the Timely Allegations State a Claim
As indicated above, the only factual allegation against Garver that is not timebarred is that, in December 2013 or shortly thereafter, Garver discouraged physicians
from “recommending that [plaintiff’s] license be restored.” SAC ¶ 43. With this in
mind, the Court determines whether plaintiff has timely stated any cognizable claim for
relief. Each of plaintiff’s claims arises under 42 U.S.C. § 1983. To state a constitutional
claim under that statute, “a plaintiff must allege that (1) he or she was deprived of a right
secured by the Constitution or federal law; and (2) the defendant acted ‘under color of
state authority’ in depriving the plaintiff of this right.” Franklin v. Terr, 201 F.3d 1098,
1100 (9th Cir. 2000).
1.
Plaintiff Eighth Amendment Claim
Plaintiff’s first claim for relief is brought under the Eighth Amendment, which
applies only to governmental conduct intended to punish criminal or quasi-criminal
activity. See Ingraham v. Wright, 430 U.S. 651, 668–69 (1977) (“Eighth Amendment
scrutiny is appropriate only after the State has complied with the constitutional
guarantees traditionally associated with criminal prosecutions.”); Shah v. County of Los
Angeles, 797 F.2d 743, 745 n.1 (9th Cir. 1986) (“The Supreme Court has held that the
eighth amendment protects only those who have been convicted of a crime.”). Because
improper probation and license revocation related conduct by the Medical Board and its
staff simply cannot implicate the type of criminal punishment with which the Eighth
Amendment is concerned, this claim is dismissed without leave to amend.
2.
Plaintiff’s Equal Protection Claim
To state a § 1983 claim for violation of equal protection, a plaintiff must allege that
he is a member of a protected class, and was treated differently than similarly situated
individuals. Keenan v. City of Philadelphia, 983 F.2d 459, 465 (3d Cir. 1992). The
plaintiff must plead “that the defendants acted with an intent or purpose to discriminate
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
2:13-6171-CAS(MANx)
Date
Title
‘O’
March 16, 2015
LLOYD G. WHITE v. KAMALA HARRIS, ET AL.
against the plaintiff based upon membership in a protected class.” Barren v. Harrington,
152 F.3d 1193, 1194 (9th Cir. 1998).
Plaintiff has alleged that he is African-American, and thus that he is a member of a
protected class. See SAC ¶ 24; RK Ventures, 307 F.3d at 1056. Read in the light most
favorable to plaintiff, the SAC alleges that Garver took special efforts to interfere with
his license reinstatement, treating him differently than others similarly situated. SAC
¶ 43. He has alleged that his race was the reason for these efforts. See SAC ¶¶ 24, 26,
63.7 And he has alleged that those actions were taken under color of state law by a state
employee, in connection with his application for reinstatement of a state-issued license.
Id. ¶¶ 6, 62. Therefore, the Court finds that plaintiff has stated a claim for violation of his
equal protection rights under the Fourteenth Amendment.
3.
Plaintiff’s Due Process Claim
Plaintiff’s third claim for relief is for violation of his constitutional due process
rights. A § 1983 claim based on violation of the Fourteenth Amendment’s due process
clause “has three elements: (1) a liberty or property interest protected by the Constitution;
(2) a deprivation of the interest by the government; (3) lack of process.” Portman v.
County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993).
“[L]icenses which enable one to pursue a profession . . . are protected property
interests for purposes of [the] Fourteenth Amendment.” Jones v. City of Modesto, 408 F.
Supp. 2d 935, 950 (E.D. Cal. 2001); see Sabow v. United States, 93 F.3d 1445, 1456 (9th
Cir. 1996) (describing a medical license as a “constitutionally protected property
7
Although they are time-barred and cannot form the substantive bases of plaintiff’s
claims, plaintiff’s allegations that he was given substantially harsher probationary
conditions than any other physician, and that the harsher discipline lacked a nexus to his
alleged misconduct, can support his allegations of racial motive. SAC ¶¶ 14, 61; see
Carpinteria Valley Farms, 344 F.3d at 829 (time barred allegations can be used “as
evidence to establish motive and to put [a plaintiff’s] timely-filed claims in context”); RK
Ventures, 307 F.3d at 1050 (“In assessing whether acts occurring within the limitations
period are constitutional, we may look to prelimitations period events as evidence of an
unconstitutional motive.”).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
2:13-6171-CAS(MANx)
Date
Title
‘O’
March 16, 2015
LLOYD G. WHITE v. KAMALA HARRIS, ET AL.
interest”). Whether an applicant for a license has a constitutionally protected interest can
be a more fact-dependent question. For example, in Greenwood v. Federal Aviation
Administration, 28 F.3d 971 (9th Cir. 1994), the Ninth Circuit held that a pilot had no
constitutionally protected interest that could have been violated when the FAA declined
to renew his “pilot examiner designation,” a one-year, renewable professional
certification that delegates from the FAA to an individual the “authority to test pilots and
to issue pilot certificates.” Id. at 973. The court held that because the decision to renew
was “left to the complete discretion of the granting agency,” and there was “no ‘right’ to
automatic renewal,” the pilot’s expectation that the designation would be renewed was
“unilateral,” and not a constitutionally protected “claim of entitlement.” Id. at 976.
Nevertheless, a “State cannot exclude a person from the practice of . . . [an]
occupation in a manner or for reasons that contravene the Due Process or Equal
Protection Clause of the Fourteenth Amendment.” Schware v. Bd. of Bar Exam’rs, 353
U.S. 232, 238–39 (1957). And in Olsen v. Idaho State Board of Medicine, 363 F.3d 916
(9th Cir. 2004), the Ninth Circuit indicated in dicta that allegations of discriminatory
misconduct relating to a physician assistant’s application for reinstatement of her license
in Idaho, and the Idaho Board’s alleged interference with her application for a license to
practice in Utah, raised “due process concerns” and could “rise to a constitutional claim.”
Id. at 920–21, 927 n.7. Accordingly, the Court does not find it appropriate to dismiss
plaintiff’s due process claim for lack of a constitutionally protected property or liberty
interest at this stage of the litigation. For the same reason, if plaintiff’s application for
reinstatement has been denied (and there is no indication in the SAC that the application
is still pending), plaintiff may be able to show a deprivation of that protected right.
Finally, plaintiff’s contentions that Garver interfered with his application for
reinstatement by warning off physicians who would support that application, and did so
because of racial bias, are sufficient, at the pleading stage, to allege that plaintiff has ben
afforded inadequate process. Therefore, the Court DENIES Garver’s motion to the extent
she seeks to dismiss plaintiff’s due process claim.8
8
Plaintiff has not asserted a separate § 1983 claim for violation of his Fourth
Amendment rights, but includes argument in his opposition that appears directed at such
a claim. Opp’n at 6–7. Because the allegations on which plaintiff bases this
argument—the alleged drug test during his probation—are time-barred, the Court does
not address whether the SAC could be construed as alleging a Fourth Amendment claim.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
2:13-6171-CAS(MANx)
Title
LLOYD G. WHITE v. KAMALA HARRIS, ET AL.
E.
Date
‘O’
March 16, 2015
Immunity
Garver argues that all claims against her in her personal capacity are barred by
absolute immunity based on her prosecutorial function in plaintiff’s probation and license
revocation proceedings. “The official seeking absolute immunity bears the burden of
showing that such immunity is justified for the function in question.” Burns v. Reed, 500
U.S. 478, 486–878 (1991). Absolute “prosecutorial immunity” extends to “agency
officials performing certain functions analogous to those of a prosecutor.” Butz v.
Economou, 328 U.S. 478, 515 (1978). However, “administrative duties and those
investigatory functions that do not relate to an advocate’s preparation for the initiation of
a prosecution or for judicial proceedings are not entitled to absolute immunity.” Buckley
v. Fitzsimmons, 509 U.S. 259, 273 (1993). Determining whether absolute immunity
applies therefore requires determining whether the official was functioning as an
“advocate” with regard to the specific conduct at issue. Id. at 274. Because of the
functional and fact-specific nature of the prosecutorial immunity inquiry and the limited
extent of the current factual record, and because Garver cites no case in which a similar
state agency’s probation officers or other staff (as opposed to the board or commission
members themselves) were found to be entitled to absolute immunity, the Court finds that
this issue is better decided on a motion for summary judgment.
Similarly, without expressing any opinion as to its ultimate applicability to this
case, the Court finds that dismissal on qualified immunity grounds is unwarranted at this
juncture. “Qualified immunity protects government officials performing discretionary
functions from liability for civil damages, unless the official’s conduct violates clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). In a § 1983 action, the government official is
entitled to qualified immunity unless “(1) the facts alleged, taken in the light most
favorable to the party asserting injury, show that the [official’s] conduct violated a
constitutional right, and (2) the right at issue was clearly established at the time of the
incident such that a reasonable [official] would have understood her conduct to be
unlawful in that situation.” Green v. City & Cnty. of San Francisco, 751 F.3d 1039,
1051–52 (9th Cir. 2014) (quoting Torres v. City of Madera, 648 F.3d 1119, 1123 (9th
Cir. 2011)). The second part of this inquiry “requires two separate determinations: (1)
whether the law governing the conduct at issue was clearly established and (2) whether
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UNITED STATES DISTRICT COURT
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Date
Title
‘O’
March 16, 2015
LLOYD G. WHITE v. KAMALA HARRIS, ET AL.
the facts alleged could support a reasonable belief that the conduct in question conformed
to the established law.” Id. at 1052.
Garver argues that she is entitled to qualified immunity “because it is not ‘clearly
established’ that her insistence on Plaintiff’s abiding by the terms of his stipulated
medical license probation subjects her to liability for a Fourteenth Amendment
violation.” Mot. at 10. But as discussed above, the timely filed claims at issue relate to
plaintiff’s claim that Garver contacted physicians supporting plaintiff’s license
reinstatement application, and cautioned them against recommending that reinstatement,
and did so because of racial animus. Taking the “facts alleged . . . in the light most
favorable to the party asserting injury,” Garver has advanced no argument that would
support a ruling that she could not have reasonably known that this conduct did not
conform to established law. See Green, 751 F.3d at 1051. Therefore, the Court finds that
qualified immunity does not justify dismissal at this point, but does so without prejudice
to the argument being renewed at a later stage of the proceedings.
V.
CONCLUSION
In accordance with the foregoing, Garver’s motion to dismiss is GRANTED IN
PART and DENIED IN PART. Specifically, the motion is granted insofar as it seeks to
(1) dismiss plaintiff’s claims against Garver in her official capacity; (2) dismiss as timebarred plaintiff’s claims based on conduct predating March 10, 2012; and (3) dismiss
plaintiff’s Eighth Amendment claim. The motion is otherwise denied. Garver shall have
until April 16, 2015 to file an answer to the SAC.
IT IS SO ORDERED.
00
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