Mir v. Medical Board of California et al

Filing 288

ORDER Granting Defendants' 266 Motion for Summary Judgment and Denying Plaintiff's 255 Motion for Summary Judgment. Signed by Judge Gonzalo P. Curiel on 9/26/17. (All non-registered users served via U.S. Mail Service)(dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JEHAN ZEB MIR, Case No.: 12–cv–2340–GPC–DHB Plaintiff, 12 13 14 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT v. KIMBERLY KIRCHMEYER et al., 15 Defendants. [ECF Nos. 255, 266] 16 17 18 19 20 21 22 23 24 Presently before the Court are (1) Plaintiff Jehan Zeb Mir’s Motion for Summary Judgment and (2) Defendants’ Motion for Summary Judgment or, in the Alternative, Motion for Summary Adjudication filed by Defendants Kimberly Kirchmeyer and Sharon Levine, M.D. in their official capacities. The Parties have fully briefed the motions. (See ECF Nos. 255, 260, 266, 280, 282, 286.) Pursuant to Civil Local Rule 7.1(d)(1), the Court finds the matter suitable for adjudication without oral argument. For the reasons set forth below, the Court GRANTS Defendants’ motion and DENIES Plaintiff’s motion. 25 26 27 28 1 12-cv-2340-GPC-DHB 1 I. PROCEDURAL HISTORY 2 On September 25, 2012, Plaintiff (“Dr. Mir”), proceeding in propria persona, filed 3 this lawsuit in federal court alleging the Medical Board of California (“Medical Board”) 4 wrongfully took disciplinary actions against Plaintiff’s physician’s and surgeon’s 5 certificate. (ECF No. 1.) On January 17, 2013, Plaintiff filed a First Amended Complaint 6 seeking injunctive and declaratory relief. (ECF No. 8.) The First Amended Complaint 7 named Defendants Medical Board of California; Linda Whitney, Executive Director; and 8 Sharon Levine, M.D., President. (Id.) 9 Defendants then filed a motion to dismiss Plaintiff’s First Amended Complaint, 10 (ECF No. 13), and Plaintiff filed a motion for preliminary injunction. (ECF No. 17.) On 11 March 19, 2013, the Court denied Plaintiff’s motion for preliminary injunction. (ECF No. 12 23.) On May 2, 2013, Plaintiff filed a motion for reconsideration of the Court order 13 denying Plaintiff’s motion for preliminary injunction. (ECF No. 26.) On May 8, 2013, the 14 Court granted Defendants’ motion to dismiss Plaintiff’s First Amended Complaint and 15 denied Plaintiff’s motion for reconsideration, but granted Plaintiff leave to amend his 16 complaint. (ECF No. 28.) 17 On December 31, 2013, Plaintiff filed a Second Amended Complaint (“SAC”), nunc 18 pro tunc to December 24, 2013, against Defendants Kimberly Kirchmeyer, Interim 19 Executive Director and Deputy Director of the Medical Board of California; Linda K. 20 Whitney, Executive Director; and Sharon Levine, M.D., President. (ECF No. 44.) On 21 February 21, 2014, Defendants filed a motion to dismiss Plaintiff’s SAC. (ECF No. 50.) 22 On May 30, 2014, the Court granted in part and denied in part Defendants’ motion to 23 dismiss Plaintiff’s SAC, and granted Plaintiff leave to amend his complaint. (ECF No. 59.) 24 On July 11, 2014, Plaintiff filed a Third Amended Complaint (“TAC”). (ECF No. 25 61.) He again named as Defendants Kimberly Kirchmeyer, Interim Executive Director, 26 Deputy Director, and Executive Director of the Medical Board of California, in her 27 personal and official capacities; Linda K. Whitney, Executive Director, in her personal 28 2 12-cv-2340-GPC-DHB 1 capacity; and Sharon Levine, M.D., President, in her personal and official capacities. (Id.) 2 On August 8, 2014, Defendants filed motions to dismiss the second claim in Plaintiff’s 3 TAC, which challenged the constitutionality of California Business and Professions Code 4 section 2337 and the associated California Court of Appeal Rules, and motion to strike 5 Plaintiff’s TAC. (ECF No. 65.) On November 3, 2014, the Court granted Defendants’ 6 motion to dismiss without leave to amend and denied Defendants’ motion to strike. (ECF 7 No. 72.) 8 On June 10, 2015, Plaintiff filed an Ex Parte Application to Amend Third Amended 9 Complaint to Add Parties, nunc pro tunc to June 8, 2015 (ECF No. 90), which the Court 10 construed as a motion for leave to amend the TAC (ECF No. 91). On September 3, 2015, 11 the Court granted Plaintiff’s motion. (ECF No. 100.) 12 On September 25, 2015, Plaintiff filed a Fourth Amended Complaint (“FAC”). 13 (ECF No. 102.) The FAC named twenty–seven Defendants. On May 11, 2016, the Court 14 granted Defendants’ Motion to Dismiss without leave to amend as to (1) Plaintiff’s 15 “individual capacity” Section 1983 claims against Defendants Kirchmeyer, Whitney, 16 Levine, Sewell, GnanaDev, Pines, Bholat, Bishop, Hawkins, Krauss, Lewis, Schipske, 17 Wright, Yaroslavsky, Yip, Aristeiguita, Alexander, Corday, Duruisseau, Moran, Gitnick, 18 Salomonson, Wender, Zerunyan, Chang, Esrailian, and Low; and (2) Plaintiff’s “official 19 capacity” claim against Defendants Sewell, GnanaDev, Pines, Bholat, Bishop, Hawkins, 20 Krauss, Lewis, Schipske, Wright, Yaroslavsky, and Yip based on Eleventh Amendment 21 immunity. (ECF No. 159.) Thus, the only remaining claim is Plaintiff’s Section 1983 22 claim for prospective relief against Defendants Kirchmeyer and Levine in their official 23 capacities only. (Id. at 39.) 24 On June 2, 2017, Plaintiff filed his Motion for Summary Judgment, which included 25 his Statement of Undisputed Facts. (ECF No. 255.) On June 22, 2017, Defendants filed 26 their Response to Plaintiff’s Motion for Summary Judgment, a Response to Plaintiff’s 27 Statement of Undisputed Facts, a Request for Judicial Notice in Opposition to the 28 3 12-cv-2340-GPC-DHB 1 Plaintiff’s Motion for Summary Judgment, and a Request for an Evidentiary Ruling on 2 Specified Objections. (ECF Nos. 260-63.) On July 18, 2017, Plaintiff filed a Reply. (ECF 3 No. 280.) On July 6, 2017, Defendants filed their Motion for Summary Judgment. (ECF 4 No. 266.) On August 4, 2017, Plaintiff filed his opposition to Defendants’ Motion for 5 Summary Judgment. (ECF No. 282.) Plaintiff filed a response to Defendants’ Separate 6 Statement of Facts on August 8, 2017 nunc pro tunc to August 7, 2017. (ECF No. 285.) 7 On August 18, 2017, Defendants filed a reply. (ECF No. 286.) This Court consolidated 8 these cross motions for summary judgment and set a September 22, 2017 hearing on both. 9 (ECF No. 271.) 10 II. BACKGROUND 11 As set forth in the Court’s previous orders, this action arises out of Plaintiff’s 12 challenges to the Medical Board’s decision to revoke his medical license. Plaintiff was 13 licensed by the State of California in 1972 as a Doctor of Medicine and Surgery. (ECF No. 14 29-21 at 135.)1 On June 8, 2000, Plaintiff admitted an 81–year old female patient (“G.F.”) 15 to the San Antonio Community Hospital in Upland, California. (ECF No. 262-15 at 2.) 16 Plaintiff transferred the patient to Pomona Valley Hospital (“PVH”), where Plaintiff was a 17 provisional member of the medical staff working under active members of the staff. (Id.; 18 ECF No. 29-15 at 25.) Plaintiff performed a series of surgeries on the patient, leading to 19 an above–the–knee amputation of the patient’s leg due to gangrene the patient had 20 contracted following previous surgeries performed by Plaintiff. (ECF No. 29-21 at 136.) 21 Related to Plaintiff’s treatment of the patient and other concerns about the Plaintiff’s 22 performance as a provisional staff member, PVH suspended Plaintiff’s vascular surgery 23 privileges around November 2000. (ECF No. 29-37 at 95.) 24 Defendants’ actions against Plaintiff commenced on July 16, 2003, when Defendants 25 26 27 28 Page number citations such as this one are to the page numbers reflected on the Court’s CM/ECF system and not to page numbers assigned by the parties. 1 4 12-cv-2340-GPC-DHB 1 filed an Accusation against Plaintiff for misdiagnosis, negligence, improper transfer, and 2 failure to document in connection with his care of G.F. (ECF No. 29-18 at 52-60.) The 3 Accusation was based in part on expert opinions provided by Dr. Joshua Bardin and Dr. 4 Kenneth Deck, which followed their thorough review of investigation reports, medical 5 records, and surgery reports. (ECF No. 29-15 at 42-49; 54-65). Plaintiff received a 13- 6 day state administrative hearing before an administrative law judge (“ALJ) of the Office 7 of Administrative Hearings that was held on October 18, 20, 21, 2004, November 8, 9, and 8 10, 2004, and March 7, 8, 9 and 10, and April 4, 5, 6, 2005, with a telephonic conference 9 on May 11, 2005 (ECF Nos. 29-22 at 14; 262-1 at 2-4, 29-27 at 16 – 29-39 at 185). At the 10 administrative hearing, Dr. Mir was represented by counsel, witnesses testified under oath, 11 and a transcript was produced as a result of the hearing. (ECF No. 29-27 at 16 – 29-39 at 12 185.) 13 During the course of the hearing on November 8, 2004, the Medical Board added 14 charges of fabricating documents (“documentation” charges) and dishonesty in a First 15 Amended Accusation against Plaintiff. (ECF No. 29-13 at 98-109.) On April 6, 2005, the 16 last day of the hearing, the Board filed a Second Amended Accusation (“SAA”) alleging 17 that Plaintiff had made false statements during the Medical Board investigation interviews 18 and/or during the administrative hearing itself including: (1) that the proctor would not 19 allow him to do a femoral-popliteal bypass procedure on June 8, 2000; (2) that the proctor 20 would not allow him to do a femoral-popliteal bypass procedure on June 10, 2000; (3) that 21 there was no gangrene on June 12, 2000; (4) that there was no rigor mortis on June 12, 22 2000; (5) that the patient’s leg was viable on June 12, 2000; (6) regarding the reason for 23 transferring G.F. and (7) that he did not give the patient’s family any other reason for the 24 transfer besides the initial hospital being full, when in fact, he stated the transfer was due 25 to insurance reasons. (ECF No. 29-19 at 74-75.) Plaintiff filed an opposition/motion to 26 strike Complainant’s SAA on April 21, 2005 (ECF No. 29-19 at 76-84). Douglas Schwab, 27 Dr. Mir’s attorney, argued in several pages in that motion that the additional charges would 28 5 12-cv-2340-GPC-DHB 1 create a “trial upon a trial” that would prejudice Respondent. (Id. at 83.) On May 11, 2005, 2 the parties presented oral argument before the administrative law judge regarding whether 3 the SAA could be filed. (ECF No. 29-39 at 163, 170-177). Dr. Mir’s attorney argued at 4 the hearing that Plaintiff was entitled to “notice and opportunity to present his defenses” 5 and requested time to present further evidence on the charges alleged in the SAA. (Id. at 6 175). On May 25, 2005, the ALJ denied Plaintiff’s motion to strike the SAA, but granted 7 Respondents’ request for additional time to present evidence against the allegations set 8 forth in the SAA. (ECF No. 29-20 at 31-33.) On July 29, 2005, Plaintiff filed a “Witness 9 designation of Jehan Mir, M.D.” indicating an intent to oppose the Second Amended 10 Accusation. (ECF No. 29-12 at 111-18). The ALJ denied Respondents’ Motion to Call 11 Additional Witnesses on July 29, 2005. (ECF No. 29-20 at 58.) On August 26, 2005, 12 Plaintiff filed his closing brief in the administrative hearing which, among other things, 13 addressed the new charges in the Second Amended Accusation, by challenging the 14 credibility of Medical Board witness Dr. Garg. See (ECF No. 29-20 at 72) (“Additionally, 15 the new charges in the Second Amended Accusation that Respondent made false 16 statements . . . are without merit”). 17 On March 3, 2006, the ALJ issued a proposed decision recommending revocation 18 of Plaintiff’s license. (ECF No. 29-21 at 134 – 29-22 at 10). 19 recommendation, the Medical Board issued a decision on May 22, 2006 revoking 20 Plaintiff’s medical license, (ECF No. 29-22 at 12-40), to which Plaintiff filed a petition for 21 reconsideration and request for stay of the Medical Board’s decision. (ECF No. 29-22 at 22 41-97). Based on this 23 After hearing oral argument presented from both sides, on December 6, 2006, the 24 Medical Board issued a Decision After Reconsideration revoking Plaintiff’s medical 25 license. (ECF Nos. 29-39 at 186-190; 262-1 at 2-4.) The Board allowed Dr. Mir the 26 opportunity to petition for reinstatement of his license in “two years after the effective date 27 of [the] decision.” (Id.) Following the revocation, on January 9, 2007 Plaintiff filed a writ 28 6 12-cv-2340-GPC-DHB 1 of mandamus with the Superior Court of California, Sacramento County challenging the 2 revocation of his license. (ECF Nos. 262-11 at 2-10; 262-12 at 2-59.) 3 On August 10, 2007, the superior court granted Plaintiff’s mandamus petition in part, 4 and remanded to the Medical Board to reconsider a penalty consistent with the superior 5 court’s opinion. (ECF No. 17-5 at 30-42). Specifically, the superior court found that there 6 was not sufficient evidence to support the findings that (1) Plaintiff unreasonably delayed 7 treatment by transferring G.F. to another hospital; and (2) an Authorization form was 8 signed by G.F.’s daughter but not by Plaintiff. (ECF No. 17-5 at 32, 37, 39-40.) 9 With respect to the charges in the SAA, the superior court found insufficient 10 evidence to support any of the SAA allegations except the alleged false statement that the 11 proctor would not allow Dr. Mir to perform a femoral-popliteal bypass procedure on June 12 10. (Id. at 38-40.) As to this statement, the superior court stated that “the weight of the 13 evidence supports the finding that petitioner was untruthful in stating that the proctors 14 refused to allow him to perform a bypass on June 10.” (Id. at 39.) In addition, the Court 15 observed that in an administrative mandamus action, the superior court could inquire 16 whether there was a fair trial. (ECF No. 17-5 at 37.) The court found that “[p]etitioner 17 ha[d] not persuaded the court that he was denied a fair trial by the amendment of the 18 accusation at the conclusion of the proceedings” where Plaintiff failed to show what 19 additional evidence might have been presented or how it might have changed the outcome. 20 (Id. at 37-38.) 21 In addition, the superior court confirmed the ALJ’s findings as to the allegations that 22 were alleged in the original Accusation and the FAA relating to: (1) Plaintiff’s 23 misdiagnosis of patient G.F.’s medical condition on June 8, 2000 leading to the wrong 24 surgery; (2) Plaintiff’s failure to order an intra-operative or post–operative angiogram to 25 determine the efficacy of surgery; (3) Plaintiff’s misdiagnosis on June 10, 2000 leading to 26 the wrong surgery; and (4) failure to document services. (ECF No. 17-5 at 34-36, 39.) 27 28 In September 2007, Plaintiff filed a motion for new trial. (ECF No. 266-4 at 2-21), 7 12-cv-2340-GPC-DHB 1 arguing that the weight of the evidence did not demonstrate that Plaintiff had not made a 2 false statement that his proctor would not allow him to perform the femoral-popliteal 3 bypass procedure; that the Court’s findings that Plaintiff made the wrong diagnosis and 4 performed the wrong procedure were not supported by the evidence; that the weight of the 5 evidence did not support did not require Plaintiff to perform an intraoperative or 6 completion angiogram on June 8, 2000, and that the weight of the evidence did not prove 7 that Plaintiffs documentation was inadequate. (Id.) The superior court confirmed its 8 original ruling and denied Plaintiffs’ motion for a new trial on January 29, 2008. (ECF No. 9 266-5 at 2-4.) On January 29, 2008, the superior court filed a judgment consistent with its 10 August 10, 2007 ruling, requiring a redetermination of penalty prior to March 25, 2008. 11 (ECF No. 262-16 at 2-4). On February 29, 2008 Plaintiff was served with a notice of entry 12 of judgment. (ECF No. 262-17 at 2-6.) 13 Plaintiff then filed a petition for writ relief with the California Court of Appeal, 14 pursuant to California Business & Professions Code section 2337, (ECF No. 262-13 at 2- 15 74), which the Court summarily denied on April 4, 2008. (ECF No. 262-18 at 2.) 16 On June 13, 2008, the Medical Board reissued a Corrected Decision on Remand 17 again revoking Petitioner’s license.2 (ECF No. 262-3 at 3.) Plaintiff again filed a petition 18 for writ of relief with the California Superior Court to set aside and vacate the Plaintiff’s 19 penalty, alleging the Medical Board had not reviewed its decision but rather had simply 20 reissued the previous findings. (ECF No. 262-4 at 2.) 21 On October 17, 2008, the superior court denied Plaintiffs’ motion to set aside and 22 vacate the penalty. (ECF No. 262-5 at 4.) The superior court held that Plaintiff’s 23 challenges to the factual findings underlying the decision to revoke the license were “amply 24 considered and ruled on in the writ petition and unsuccessfully challenged in the Court of 25 26 27 28 2 The Medical Board issued an initial decision on remand on May 28, 2008, but Complainant subsequently filed an application to modify the decision to correct mistakes or clerical errors pursuant to Cal. Gov. Code § 11518.5(a). 8 12-cv-2340-GPC-DHB 1 Appeal. Such matters [had] been finally decided by Judge Ohanesian and the Court of 2 Appeal and [the superior court would] not disturb those rulings.” (ECF 262-5 at 4). The 3 Court also rejected plaintiff’s assertion that he had been denied due process of law in the 4 writ proceeding or administrative proceeding before the Medical Board, stating that 5 “[w]hile Dr. Mir may disagree with the Court’s conclusions, such conclusions appear to 6 have been reached after thoughtful and thorough consideration of the arguments, record, 7 and law.” (Id. at 4.) The superior court denied a subsequent motion for new trial filed by 8 Plaintiff on January 29, 2009. (ECF No. 262-14 at 2-3). 9 On April 22, 2009, Plaintiff appealed to the Third District Court of Appeal for a writ 10 of mandate challenging the superior court’s order. (ECF No. 17-7 at 7-25). The Court of 11 Appeal directed the superior court to vacate its prior peremptory writ of mandate and to 12 issue a new writ directing the Medical Board to set aside its decision on remand and 13 redetermine the penalty after allowing oral and written argument pursuant to the 14 Administrative Procedures Act and Ventimiglia v. Board of Behavioral Sciences 168 Cal. 15 App. 4th 296, 313-314 (2008). (ECF No. 17-7 at 7-25). The Court further stated that “a 16 summary denial of the petition is necessarily on the merits.” (ECF No. 17-7 at 22-24) 17 (citing Leone v. Medical Board of California, 22 Cal. 4th 660, 664, 670 (2000)), and 18 declined to reconsider its April 24, 2008 decision summarily denying petitioner’s first writ 19 of mandate challenging the Board’s findings on the false statement and other evidentiary 20 issues. 21 Following a hearing where both parties were afforded an opportunity for written and 22 oral argument, the Medical Board issued another decision on September 27, 2010, finding 23 “repeated” and “gross negligence” and imposed a five–year probation with various terms 24 and conditions. (ECF No. 17-7 at 27-61.) On November 12, 2010, Plaintiff filed a third 25 writ of mandamus in the superior court challenging the Medical Board’s decision. (ECF 26 No. 262-19 at 2-19.) The superior court, on August 24, 2011, mandated the Medical Board 27 28 9 12-cv-2340-GPC-DHB 1 to vacate the probation term requiring Plaintiff to undergo psychiatric evaluation. 3 (ECF 2 No. 262-15 at 12.) The Court agreed with the Board that “[t[he issues previously decided 3 by the Board and sustained by the Court in its January 29, 2008 Judgment in Case No. 4 07CS00036, [were] no longer open for reexamination.” (Id. at 7.) The Court noted that it 5 remanded to the Board “only to redetermine the penalty, not to reassess whether grounds 6 for discipline existed.” (Id.) Further, the Court held that “[p]etitioner’s belief that the 7 Court’s remand required a new hearing, or reopened the issues previously decided by the 8 Court, is mistaken.” (Id. at 8.) 9 On November 3, 2011 the Medical Board filed a Petition to Revoke Probation 10 against Plaintiff. (ECF No. 262-9 at 2-44.) On August 16, 2012, the Medical Board issued 11 a Default Decision and Order setting aside the 2012 Corrected Decision After Remand on 12 the grounds that Plaintiff had violated the terms and conditions of his probation. (ECF No. 13 262-10 at 2-17). Plaintiff did not file any motion as to the Default Decision and as such on 14 August 16, 2012, the Medical Board revoked Plaintiff’s license for the fourth time for not 15 complying with the conditions of probation. (Id.) On September 25, 2012, Plaintiff filed 16 the instant action. (ECF No. 1.) 17 III. REQUESTS FOR JUDICIAL NOTICE 18 Defendants seek judicial notice of twenty-six documents in connection with their 19 Opposition to Plaintiff’s Motion for Summary Judgment (RJN, ECF No. 262), and 20 Defendants’ Motion for Summary Judgment (RJN, ECF No. 266-3). These documents 21 include pleadings, briefs, and orders filed in Plaintiff’s administrative proceedings, in the 22 California Superior Court, and the California Court of Appeal. 23 Under Federal Rule of Evidence 201(b), a district court may take notice of facts not 24 subject to reasonable dispute that are capable of accurate and ready determination by resort 25 26 27 28 On February 15, 2012, the Medical complied with the superior court’s order by striking the psychiatric evaluation condition and issuing a Corrected Decision After Remand. (ECF No. 262-8 at 2-36.) 3 10 12-cv-2340-GPC-DHB 1 to sources whose accuracy cannot reasonably be questioned. FED. R. EVID. 201(b)(2); see 2 also Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (noting that the court 3 may take judicial notice of undisputed matters of public record), overruled on other 4 grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002). 5 A court may take judicial notice of its own files and of documents filed in other courts that 6 are matters of the public record. Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 7 746 n.6 (9th Cir. 2006) (taking judicial notice of documents related to a settlement in 8 another case that bore on whether the plaintiff was still able to assert its claims in the 9 pending case); Burbank–Glendale–Pasadena Airport Auth. v. City of Burbank, 136 F.3d 10 1360, 1364 (9th Cir. 1998) (taking judicial notice of court filings in a state court case where 11 the same plaintiff asserted similar and related claims); Hott v. City of San Jose, 92 F. Supp. 12 2d 996, 998 (N.D. Cal. 2000) (taking judicial notice of relevant memoranda and orders 13 filed in state court cases). 14 Plaintiff does not appear to oppose Defendants’ request as to Exhibits 1-20, but 15 argues that the vast majority of Exhibits 21-26 are irrelevant and should be disregarded. 16 (ECF No. 283 at 24.) The Court finds that these documents are part of public record and 17 thus their accuracy cannot reasonably be questioned. Further, these documents are relevant 18 to Defendants’ collateral estoppel argument and to the merits of Plaintiff’s claimed 19 violation of procedural due process. Accordingly, the Court hereby takes judicial notice 20 of Exhibits 1–26. (RJN, Exs. 1–20, ECF No. 262; RJN, Exs. 21-26, ECF No. 266-3.) 21 IV. LEGAL STANDARD ON MOTION FOR SUMMARY JUDGMENT 22 Summary judgment is appropriate if the “pleadings, depositions, answers to 23 interrogatories, and admissions on file, together with the affidavits, if any, show that there 24 is no genuine issue as to any material fact and that the moving party is entitled to judgment 25 as a matter of law.” Fed. R. Civ. P. 56(c). A fact is material when it affects the outcome 26 of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 27 28 “[W]hen parties submit cross-motions for summary judgment, each motion must be 11 12-cv-2340-GPC-DHB 1 considered on its merits.” Fair Hous. Council of Riverside Cnty, Inc. v. Riverside Two, 2 249 F.3d 1132, 1136 (9th Cir. 2001) (internal citations and quotation marks omitted). 3 Moreover, “when simultaneous cross-motions for summary judgment on the same claim 4 are before the court, the court must consider the appropriate evidentiary material identified 5 and submitted in support of both motions, and in opposition to both motions, before ruling 6 on each of them.” Id. at 1134. 7 In addition, courts “liberally construe[]” documents filed pro se, Erickson v. Pardus, 8 551 U.S. 89, 94 (2007), affording pro se plaintiffs benefit of the doubt. Thompson, 295 9 F.3d at 895; see also Davis v. Silva, 511 F.3d 1005, 1009 n.4 (9th Cir. 2008) (“[T]he Court 10 has held pro se pleadings to a less stringent standard than briefs by counsel and reads pro 11 se pleadings generously, ‘however inartfully pleaded.’”). However, the Ninth Circuit has 12 declined to ensure that district courts advise pro se litigants of rule requirements. See 13 Jacobsen v. Filler, 790 F.2d 1362, 1364-67 (9th Cir. 1986) (“Pro se litigants in the ordinary 14 civil case should not be treated more favorably than parties with attorneys of record . . . it 15 is not for the trial court to inject itself into the adversary process on behalf of one class of 16 litigant”). 17 V. WHETHER PLAINTIFF IS COLLATERALLY ESTOPPED FROM 18 RELITIGATING CERTAIN ISSUES 19 Defendants argue that Plaintiff is collaterally estopped from raising the same issues 20 before this Court which were previously raised in his underlying administrative hearing 21 and in his 2007 petition for writ of mandate before the Sacramento County Superior Court. 22 (ECF No. 266-1 at 24-34.) Plaintiff responds that the defendants waived the affirmative 23 defense of collateral estoppel by not raising the issue in their responsive pleadings. (ECF 24 No. 282 at 25.) In addition, Plaintiff argues that Defendants have not produced a sufficient 25 record of the prior proceeding to allow this Court to pinpoint the previously litigated issues. 26 (ECF No. 282 at 23-24) (citing Gruntal & Co. v. Steinberg, 854 F. Supp. 324, 337 (D. N.J. 27 1994; Clark v. Bear Sterns & Co., 966 F.2d 1318, 1321)). 28 12 12-cv-2340-GPC-DHB 1 a. Sufficient Record 2 As a threshold matter, Defendants have produced a sufficient record of the prior 3 proceedings to allow this court to sufficiently decide the issue of collateral estoppel. 4 Specifically, Defendants have requested judicial notice of twenty-six documents in the 5 public record which span the proceedings before the administrative judge, superior court 6 and appellate court. See, e.g., (RJN, ECF No. 262; RJN, ECF No. 266-3.). See also (ECF 7 No. 29) (5883 page Administrative Record). The Court finds that the record of the prior 8 proceedings is sufficient to enable the court to make a collateral estoppel determination as 9 to a number of Dr. Mir’s challenges identified below. 10 b. Waiver of Estoppel 11 Preclusion is an affirmative defense, which may be waived if not raised in the initial 12 pleadings. See Fed R. Civ. P. 8(c)(1); Kern Oil v. Tenneco, 840 F.2d 730, 734 (9th Cir. 13 1988). The Ninth Circuit has “liberalized” the requirement that affirmative defenses must 14 be raised in initial pleadings and has held that an affirmative defense may be raised in the 15 first instance in a motion for summary judgment if the delay does not prejudice the plaintiff. 16 Magana v. Com. of the N. Mariana Islands, 107 F.3d 1436, 1446 (9th Cir. 1997), as 17 amended (May 1, 1997). See also Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 18 1993); Clements v. Airport Auth. of Washoe Cty., 69 F.3d 321, 329 (9th Cir. 1995) (finding 19 preclusion waived only when defendants did not raise the issue in district court or in their 20 appellate briefing); Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 21 2001) (preclusion not waived where appellants were not prejudiced by late assertion of 22 preclusion). In fact, the Court may overlook any waiver and raise issue preclusion sua 23 sponte. Clements v. Airport Auth. of Washoe Cty., 69 F.3d 321, 329 (9th Cir. 1995) 24 As Defendants failed to plead collateral estoppel in their responsive pleadings, the 25 Court must consider whether raising the defense at summary judgment prejudices the 26 plaintiff. Plaintiff has not alleged, let alone shown, any prejudice or unfair surprise, 27 arguing only that “[d]efendants have a long history of delay, harassment, or dilatory 28 13 12-cv-2340-GPC-DHB 1 moves.” (ECF No. 282 at 25.) Further, Plaintiff was given an opportunity to present his 2 arguments against preclusion in his Opposition to Defendants’ Motion for Summary 3 Judgment. (ECF No. 282 at 23-26.) As such, the Court finds that plaintiff has not been 4 prejudiced by Defendants’ late assertion of the collateral estoppel affirmative defense. 5 While the Court admonishes Defendants for failing to timely plead the affirmative defense, 6 it finds that Defendants have not waived their collateral estoppel argument by failing to 7 assert the affirmative defense in their Answer. 8 c. Utah Construction Fairness 9 Federal common law rules of preclusion extend to state administrative adjudications 10 of legal and factual issues, so long as the state proceeding satisfies the requirements of 11 fairness outlined in United States v. Utah Construction & Mining Co., 384 U.S. 394 (1966). 12 Miller v. Cty. of Santa Cruz, 39 F.3d 1030, 1032-33 (9th Cir. 1994), as amended (Dec. 27, 13 1994). These requirements are (1) that the administrative agency act in a judicial capacity; 14 (2) that the agency resolve disputed issues of fact properly before it; and (3) that the parties 15 have an opportunity to litigate. Id. at 1033. We are required to give “preclusive effect, at 16 a minimum, to the fact-finding of state administrative tribunals.” Miller, 39 F.3d at 1032. 17 A federal court should ordinarily give preclusive effect when the state court would do so. 18 Miller, 39 F.3d at 1033. 19 Plaintiff erroneously argues that Utah Construction is limited to the particular 20 federal statute involved in that case and does not give preclusive effect here because 21 “[t]here is no Wunderlich Act of 1954 applicable here to give preclusive effect to 22 administrative findings.” (ECF No. 282 at 46.) 23 i. Administrative Agency Acting in a Judicial Capacity 24 The Medical Board’s 2006 Decision involved a 13-day state administrative hearing 25 held before a neutral decision maker with each party represented by counsel. (ECF No. 26 29-27 at 16; 29-39 at 185.) These proceedings allowed both Dr. Mir through his attorney 27 and the Medical Board the opportunity to call witnesses who testified under oath and were 28 14 12-cv-2340-GPC-DHB 1 subjected to cross examination, and to present evidence, and were reported so that a 2 verbatim hearing transcript was produced. (ECF No. 29-27 at 16.) The Court concludes 3 that this hearing before an administrative judge regarding medical license revocation 4 involved an administrative agency acting in a judicial capacity. See Utah Construction, 5 384 U.S. at 422; Mason v. Arizona, 260 F. Supp. 2d 807, 826 (D. Ariz. 2003) (holding that 6 state chiropractic board acted in a judicial capacity under Utah Construction factors). 7 ii. Agency Can Resolve Disputed Issues of Fact Properly Before it 8 The Medical Board properly resolved disputed issues of fact in its proceedings. For 9 example, on March 3, 2006, Administrative Law Judge Vallera J. Johnson issued a 10 proposed decision detailing her factual findings and recommending the revocation of 11 Plaintiff’s medical license. (ECF No. 29-21 at 134.) The ALJ made specific credibility 12 determinations in making her factual findings. 13 (“Considering the facts in the foregoing paragraphs, Dr. Bardin’s testimony and opinions 14 are determined to be more trustworthy and reliable). See also id. (finding Dr. Mir “not 15 credible or reliable as a witness” as he was “intentionally inconsistent and untruthful 16 regarding significant issues” in the case). 17 “resolv[ing] disputed issues of fact properly before it.” See Utah Construction, 384 U.S. 18 at 422. 19 See, e.g., (ECF No. 29-21 at 138) Consequently, the ALJ was capable of iii. Parties Have Had an Adequate Opportunity to Litigate 20 Dr. Mir has had ample and adequate opportunity to litigate his claims. Plaintiff, who 21 was represented by counsel, was afforded extended and numerous hearings, written 22 briefing, and oral argument to litigate his claims. Plaintiff was able to challenge the 23 Medical Board’s revocation proceedings repeatedly in the superior court, (ECF No. 262- 24 11 at 2-10), to file motions for a new trial, see, e.g., (ECF No 262-21 at AG318-337), and 25 to appeal his case before the Third District Court of Appeal. See, e.g., (ECF No. 17-7 at 26 7-25.) Moreover, Plaintiff’s extensive litigation in this case has been productive—through 27 litigation he successfully challenged a number of ALJ determinations made against him 28 15 12-cv-2340-GPC-DHB 1 and obtained the right to apply for reinstatement two years after the revocation, and even 2 obtained a stay of the revocation based on a five-year probationary period. (ECF Nos. 29- 3 39 at 186-190; 262-1 at 2-4; ECF No. 17-7 at 27-61.) 4 Defendants have met the Utah Construction fairness factors allowing administrative 5 proceedings to have preclusive effect in this Court. Next, the Court analyzes which issues 6 are collaterally estopped taking guidance from California’s preclusion law. d. Collateral Estoppel4 7 8 28 U.S.C. § 1738 directs a federal court to refer to the preclusion law of the State 9 in which judgment was rendered. Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 10 U.S. 373, 380 (1985). “It is now settled that a federal court must give to a state-court 11 judgment the same preclusive effect as would be given that judgment under the law of the 12 State in which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 13 465 U.S. 75, 80 (1984). 14 Collateral estoppel, under California law, precludes relitigation of an issue 15 previously adjudicated when: (1) the issue sought to be precluded must be identical to 16 that decided in a former proceeding; (2) the issue must have been actually litigated in the 17 former proceeding; (3) the issue must have been necessarily decided in the former 18 proceeding; and (4) the decision in the former proceeding must be final and on the merits; 19 (5) the party against whom preclusion is sought must be the same as, or in privity with, 20 the party to the former proceeding. Schmidt v. County of Nevada, 808 F. Supp. 2d 1243, 21 22 23 24 25 26 27 28 4 Defendants request the court to sustain several evidentiary objections and to strike evidence contained in the Declaration of Jehan Zeb Mir in Support of Motion for Summary Judgment at (1) page 2, paragraph 2; (2) page 2, paragraph 3; (3) page 2, paragraph 4; (4) page 3, paragraph 6, (5) page 3, paragraph 7; (6) page 3, paragraph 8; (7) page 3, paragraph 10. (ECF 263 at 1-3.) Defendants further object to the entirety of the Declaration of Jehan Zeb Mir in support of opposition to Defendants’ Motion for Summary Judgment/Summary Adjudication, paragraphs 1-44 and (2) the entirety of the Declaration of Vincent Rowe in support of Plaintiff’s motion for summary judgment and in opposition to Defendants’ motion for summary judgment. (ECF No. 286-2.) Because the Court has decided that Dr. Mir is collaterally estopped from relitigating the merits of his license revocation proceeding, the Court DENIES the requests to strike as moot. 16 12-cv-2340-GPC-DHB 1 1249 (E.D. Cal. 2011) (citing Hernandez v. City of Pomona, 46 Cal. 4th 501, 513 2 (2009)). 3 i. Issues Identical to Those Decided in the Former Proceeding 4 Defendants argue that plaintiff is estopped from relitigating factual findings made 5 by the ALJ and affirmed in the 2008 Superior Court Decision including whether (1) 6 plaintiff correctly diagnosed patient G.F. in June 2000 with thromboembolism, (2) the 7 Medical Board produced false testimony, including false testimony by his proctor, Dr. 8 Garg, (3) that the Medical Board did not prove documentation charges, and (4) that the 9 Second Amended Accusation was false and never litigated. (ECF No. 255 at 3-4.) Plaintiff 10 attempts to argue that the “issue in the FAC is constitutional violation of due process under 11 Section 1983. This issue was not subject of administrative hearing, was not litigated or 12 decided.” (ECF No. 282 at 38.) However, these are the same issues that Dr. Mir is 13 attempting to bring up in this instant Section 1983 action and cannot be relitigated.5 See, 14 e.g., (ECF No. 255 at 9) (Plaintiff’s MSJ arguing that the three critical issues are: (1) “One 15 Wrong Diagnosis of Thromboembolism”; (2) “Making one false statement during 16 interview/hearing”; (3) “Documentation Findings Inserted into Decision”). Thus, Plaintiff 17 is collaterally estopped from relitigating these factual findings which have been repeatedly 18 affirmed by the Medical Board, Superior Court, and Court of Appeals. 19 ii. Issues Actually Litigated and Necessarily Decided in the Former 20 Proceeding 21 22 The parties presented testimony, documentary evidence, and briefing on the issues described above. (ECF Nos. 29-27 at 16; 17-3 at 45.) For example, Plaintiff was allowed 23 24 25 26 27 28 5 Plaintiff argues that certain issues arising after the initial decision are not precluded, (ECF No. 282 at 38-39), including “(1) Disobedience of the January 29, 2008 Judgment, Writ and order of the state-court; (2) Disobeying the February 22, 2010 writ and order of the state court of appeals 3rd; (3) Unlawful probation in 2010; (4) Filing without Notice and without cause Petition to Revoke Probation; (5) Holding hearing post third remand from state-court without Notice; (6) Revoking probation and medical license without Notice or Hearing in 2012.” Defendant is not collaterally estopped from asserting these facts as they necessarily would not have been decided in the former proceeding. 17 12-cv-2340-GPC-DHB 1 to present ample evidence and testimony in defense of his argument that he correctly 2 diagnosed G.F. See, e.g., (ECF No. 29-1 at 2-9) (listing exhibits used in Medical Board 3 proceeding). Plaintiff does not identify relevant evidence that was excluded or was not 4 considered. With regard to Dr. Mir’s assertions that he did not litigate issues asserted at 5 the last minute in the Medical Board’s SAA (Dr. Garg’s false testimony, insertion of 6 documentation charges, and other charges from the SAA), Plaintiff had the opportunity to 7 litigate these issues in a motion to strike the Second Amended Accusation, (ECF No. 29- 8 19 at 76-84), in a Motion to Call Additional Witnesses, (ECF No. 29-20 at 58), and most 9 notably in his closing brief. (ECF No. 29-20 at 72) (“Additionally, the new charges in 10 11 12 13 14 15 16 17 18 the Second Amended Accusation that Respondent made false statements . . . are without merit”). The ALJ considered these issues and made factual findings that Plaintiff: (1) failed to properly diagnose and perform the correct surgery on June 10, 2000; (2) failed to adequately and accurately document the services he provided to the patient between June 8 and 14, 2000; (3) made false statements at his medical board interview that the proctor would not allow him to do a femoral-popliteal bypass on June 10, 2000. (ECF 29-22 at 26, 32, 35). Thereafter, the superior court sustained these ALJ findings. (ECF 17-5 at 32, 37, 39, 40). Thus, these issues were actually litigated, were decided by the Medical Board, and were affirmed by the superior court. iii. Decision in the Former Proceeding is Final and on the Merits 19 A ruling in a judicial proceeding is appealable when the trial court orders a final 20 judgment. Cal. Code. Civ. Proc § 904.1(a). This general rule applies in administrative 21 mandamus proceedings. Dhillon v. Muir Health, 2 Cal. 5th 1048, 1049 (2017). The 22 general test to determine whether a trial court’s order is final and appealable is that if no 23 issue is left for future consideration by the court except the fact of compliance or 24 noncompliance with the terms of the first decree, that decree is final and not deemed 25 interlocutory. Id. However, “[u]nder California law, . . . a judgment is not final for 26 purposes of [preclusion] during the pendency of and until the resolution of an 27 appeal.” Sosa v. DIRECTV, Inc., 437 F.3d 923, 928 (9th Cir. 2006). 28 18 12-cv-2340-GPC-DHB 1 On August 10, 2007, the superior court found that some of the Medical Board’s 2 findings were not supported by the weight of the evidence and, further, remanded for the 3 Board to redetermine a penalty. (ECF No. 17-5 at 41.) On February 29, 2008 Plaintiff 4 was served with the Notice of Entry of Judgment which made the August 10, 2007 order 5 final and appealable. (ECF No. 262-17 at 2-6). The Third District Court of Appeal 6 summarily denied Plaintiff’s petition for writ of mandate on April 24, 2008, thus making 7 final any of the Medical Board’s factual findings from its 2006 decision that were not 8 found insufficient by the superior court. (ECF No. 262-18 at 2.). The Medical Board 9 issued a Corrected Decision on Remand on June 13, 2008 stating that Dr. Mir’s license 10 11 should be revoked. (ECF No. 17-5 at 48.) In September, 2008, Plaintiff filed a motion to set aside and vacate the penalty in the superior court. (ECF No. 262-4 at 2-20). Defendants argue that the state court’s 2008 judgment based on its August 2007 12 13 14 15 16 Ruling was a final judgment on the merits. (ECF No. 266-1 at 24.) Plaintiff argues that the 2008 judgment was interlocutory because the 2008 decision did not determine any penalty. (ECF No. 282 at 26.) While Plaintiff correctly noted that the 2008 judgment was remanded to the Medical Board to redetermine the issue of penalty, 6 the decisions of the California courts are clear that the factual findings in this case were settled and 17 entitled to preclusive effect. The Third Circuit Court of Appeal, specifically found that 18 the state court’s 2008 judgment was a final judgment on the merits. See ECF No. 17-7 at 19 23 (“Where, as here, a writ petition is the only authorized mode of review, a ‘summary 20 denial of the petition is necessarily on the merits.”) (citing Leone v. Medical Board of 21 California, 22 Cal. 4th 660, 664, 670 (2000)). Accordingly, when the court of appeal 22 summarily denied the writ of mandate, the judgment—with regard to the findings that 23 survived the superior court’s decision—was final upon the resolution of that appeal 24 which addressed those factual findings. See Sosa, 437 F.3d at 928. Further, in a October 25 17, 2008 hearing, the state court held that challenges to factual findings underlying the 26 27 28 Plaintiff himself stated that the 2010 remand was “limited to re-determination of penalty i.e. not to make any findings” (ECF No. 255 at 21.) 6 19 12-cv-2340-GPC-DHB 1 revocation had been “amply considered and ruled on and unsuccessfully challenged in the 2 Court of Appeal. Such matters [had] been finally decided . . . and the Court of Appeal 3 [and the superior court would] not disturb those rulings.” (ECF No. 262-5 at 4.) Thus, 4 the superior court indicated that there was a final judgment sufficient to provide 5 preclusive effect. See also Dhillon, 2 Cal. 5th at 1053 (holding that superior court 6 remand to an administrative body was final “once the trial court issued the writ” and 7 when “nothing remained to be done in that court”). Accordingly, the Court concludes 8 that the 2008 State Court Judgment was a final judgment on the merits. iv. Party Against Whom Preclusion is Asserted is the Same as, or in 9 Privity With, the Party in the Former Proceeding 10 11 12 13 14 15 16 17 18 19 20 21 Under California’s collateral estoppel law, “the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.” In re Harmon, 250 F.3d 1240, 1246 (9th Cir. 2001) (emphasis added). Here, Dr. Mir is the same party as in the former proceedings because he was the Respondent in the underlying 2006 administrative action and was the Petitioner in the 2007 superior court proceedings. Plaintiff erroneously argues that there is no privity because Kirchmeyer and Levine were previously sued in a personal capacity. (ECF No. 282 at 37.) Under California law, whether or not Defendants are in privity with the Medical Board is irrelevant because the inquiry requires the Court to assess only whether Dr. Mir—the party against whom preclusion is sought—“is the same party, or in privity with, the party to the former proceeding.”7 Harmon, 250 F.3d at 1246. Accordingly, the Court finds that Plaintiff is the 22 23 24 25 26 27 28 7 The Court notes that Kirchmeyer and Levine, in their official capacities as Executive Director and President of the Medical Board do appear to be in privity with the Medical Board of California, the Petitioner in the 2006 Administrative Decision because of their close legal relationship as officers of the same government. See, e.g., Mir v. Bogan, No. 13 CIV. 9172 PGG, 2015 WL 1408891, at *19 n.11 (S.D.N.Y. Mar. 27, 2015), aff'd, 668 F. App'x 368 (2d Cir. 2016) (finding in related case challenging the revocation of Dr. Mir’s New York medical license that Kirchmeyer was in privity with the Medical Board); Lerner v. Los Angeles City Bd. of Ed., 59 Cal.2d 382 (1963) (“the courts have held that agents of the same government are in privity with each other, since they represent not their own rights but the right of the government.”). 20 12-cv-2340-GPC-DHB 1 same party as in the former proceedings. 2 v. Conclusion as to Collateral Estoppel 3 The long history of litigation in this case shows that the California courts would 4 almost certainly have given preclusive effect to the factual findings raised in this case. As 5 such, this Court must give that same preclusive effect under federal law. Migra, 465 U.S. 6 at 80 (“It is now settled that a federal court must give to a state-court judgment the same 7 preclusive effect as would be given that judgment under the law of the State in which the 8 judgment was rendered.”). The Court agrees with the superior court that the factual bases 9 of Dr. Mir’s revocation had “been finally decided by [the superior court] and the Court of 10 Appeal” and that this court will not “disturb those rulings.” (ECF No. 262-5 at 4.) 11 Similarly, Plaintiff’s “renewed challenges” to the Medical Board’s factual findings 12 cannot be reopened for reexamination. See (ECF No. 262-15 at 7.) Put another way, if 13 Dr. Mir had raised a state claim involving these issues, a state court would certainly have 14 found that Plaintiff is precluded from relitigating the factual bases of these issues. 15 As a result, Plaintiff is collaterally estopped from relitigating factual issues that were 16 decided by the Medical Board that were not later reversed by the superior court. The Court 17 concludes that Plaintiff cannot relitigate the following issues: (1) Plaintiff’s misdiagnosis 18 of patient G.F.’s medical condition leading to the performance of the wrong surgeries on 19 June 8 and 10; (2) Plaintiff’s failure to adequately document services provided; and (3) 20 Plaintiff’s false statement that the proctor would not allow him to do a femoral-popliteal 21 bypass on June 10, 2000. 22 VI. MERITS OF 1983 CLAIM - PROCEDURAL DUE PROCESS 23 Section 1983 creates the cause of action under which Plaintiff may seek to hold state 24 officials liable for constitutional violations. See 42 U.S.C. § 1983; Hebbe v. Pliler, 627 25 F.3d 338 (9th Cir. 2010). To state a claim under section 1983, a plaintiff must show two 26 elements: (1) that a right secured by the Constitution or laws of the United States was 27 violated and (2) that the violation was committed by a person acting under the color of state 28 21 12-cv-2340-GPC-DHB 1 law. West v. Atkins, 487 U.S. 42, 48 (1988). 2 Plaintiff must show that Defendants violated a right protected by the Constitution. 3 Id. A procedural due process violation requires that plaintiff show (1) a protected liberty 4 or property interest; (2) government deprivation of that interest; and (3) a denial of 5 adequate procedural protections. Foss v. Nat’l Marine Fisheries Servs., 161 F.3d 584, 588 6 (9th Cir. 1998). Defendants concede that plaintiff has a protected property interest in his 7 medical license and that the Medical Board, a government agency, deprived that interest. 8 See (ECF No. 266-1 at 34-35); (ECF No. 260 at 18); Sabow v. United States, 93 F.3d 1445, 9 1456 (9th Cir. 1996) (holding that physician has a constitutionally protected property 10 interest in his or her medical license). See also Mishler v. Nevada State Bd. of Med. 11 Examiners, 896 F.2d 408, 410 (9th Cir. 1990) (noting professional license is property that 12 cannot be deprived by the government without due process of law); Greenwood v. Federal 13 Aviation Administration, 28 F.3d 971, 975 (9th Cir. 1994) (recognizing that an existing 14 license, in contrast to application for a license, is a legitimate entitlement that the 15 government cannot deprive without providing adequate due process). 16 Plaintiff argues that there is no genuine dispute of material fact that a procedural due 17 process violation occurred because he made the correct diagnosis of thromboembolism, 18 Defendants lacked evidence that plaintiff made a false statement that Dr. Garg would not 19 permit Dr. Mir to perform a bypass procedure, and that Defendants “unlawfully inserted 20 documentation findings into their 2006 decision.” (ECF No. 255 at 25, 30-31.) Defendants 21 have shown that there is no genuine dispute of material fact that Plaintiff was provided 22 with adequate procedural protections over the course of a 13-day administrative hearing 23 which was followed by multiple mandamus proceedings before the superior court and 24 appellate court. (ECF No. 266-1 at 39-45.) In contrast, Plaintiff, meanwhile, has failed to 25 identify a genuine dispute of material fact that he was denied adequate due process before 26 the deprivation of his medical license. 27 28 22 12-cv-2340-GPC-DHB 1 a. Mathews v. Eldridge Analysis 2 Courts apply a three-part test to determine whether the government has provided 3 adequate due process as established by Mathews v. Eldridge, 424 U.S. 319, 335 (1976). 4 Under this test, the Court determines the amount of process due by assessing (1) the private 5 interest that will be affected by the official action; (2) the risk of erroneous deprivation of 6 such interest through the procedures used and the probable value, if any of additional or 7 substitute procedural safeguards; (3) the Government’s interest, including the function 8 involved and the fiscal and administrative burdens that the additional or substitute 9 procedural requirement would entail. City of Los Angeles v. David, 538 U.S. 715, 717 10 (2003). Procedural due process is “flexible and calls for such procedural protections as the 11 particular situation demands.” Gilbert v. Homar, 520 U.S. 924, 930 (U.S. 1997). 12 i. Private Interest that will be affected by the Official Action 13 Plaintiff’s private interest in having adequate due process before the deprivation of 14 a professional license is unquestionably significant. The Supreme Court has recognized 15 that there is a significant private interest in “retaining employment.” Cleveland Bd. Of 16 Educ. v. Loudermill, 470 U.S. 532, 543 (1985). The Court finds that Dr. Mir has a 17 significant private interest in ensuring that adequate due process was afforded to him. Dr. 18 Mir has practiced since 1972 and was a surgeon certified by the American Board of Surgery 19 and American Board of Thoracic Surgery. (ECF No. 29-21 at 136.) He claims that in 20 September 2000, he had obtained a $600,000 a year IPA contract to perform general, 21 vascular, and thoracic surgeries at the San Antonio and Pomona Valley hospitals. (ECF 22 No. 255 at 28.) The government unquestionably cannot deprive such an important private 23 interest without providing adequate due process of law. See Jones v. City of Modesto, 408 24 F. Supp. 2d 935, 955 (E.D. Cal. 2005) (withholding of massage therapist’s license for sixty 25 days was a significant private interest that created a “hardship”); Zuckerman v. State Bd. 26 of Chiropractic Examiners, 29 Cal. 4th 32, 43 (2002) (“the right of chiropractors to practice 27 their profession . . . is an interest of great importance.”) While the private interest affected 28 23 12-cv-2340-GPC-DHB 1 by the government’s deprivation is significant, nonetheless, it is merely one factor in the 2 balancing test. 3 ii. Risk of Erroneous Deprivation 4 California’s statutory scheme provides an elaborate process for judicial review of 5 the Medical Board’s revocation of a medical license. The Medical Board functions under 6 a comprehensive set of regulations, which are codified in the California Code of 7 Regulations and the California Business and Professions Code. Under those regulations, a 8 physician, such as Plaintiff, who is deemed unsuitable to practice medicine in California 9 may request a hearing regarding that finding. Cal. Code Regs. tit. 16, § 1364.30. 10 Moreover, assuming the physician is unsuccessful at the hearing, he or she may thereafter 11 seek further review of the Board’s decision in state court. Cal. Civ. Proc. Code § 1094.5. 12 The state court then has authority to thoroughly inquire into the Board’s decision, including 13 whether the Board acted within its jurisdiction, whether the Board conducted a fair hearing, 14 and whether the Board’s decision resulted in prejudicial abuse of discretion. 15 1094.5(b). Indeed, when analyzing this statutory scheme in the context of a physician’s 16 challenge to the Medical Board’s revocation of his medical license, the Ninth Circuit 17 observed that California provides a “meaningful opportunity” for aggrieved physicians to 18 challenge the Medical Board’s decisions. See Kenneally v. Lungren, 967 F.2d 329, 333 19 (9th Cir. 1992) (finding that California’s “statutory framework provides a meaningful 20 opportunity for [physicians] to present [their] constitutional claims for independent review 21 prior to the Board’s decision becoming effective”). Id. § 22 California’s statutory framework provided Plaintiff the opportunity and means to 23 successfully obtain review of the Board’s decisions on multiple occasions throughout the 24 proceedings. Moreover, as described infra, Dr. Mir was provided adequate notice and 25 opportunity within the statutory scheme to present his arguments. The Court concludes that 26 the state’s discipline and licensing review procedures adequately protect against the 27 erroneous infringement of Plaintiff’s property interest in his medical license. This low risk 28 24 12-cv-2340-GPC-DHB 1 of erroneous deprivation weighs severely against Plaintiff’s due process claim. 2 iii. Government Interest 3 The government also has a significant interest in ensuring the quality of health care 4 within the state. See Olsen v. Idaho State Bd. Of Medicine, 363 F.3d 916, 924 (9th Cir. 5 2004) (“[i]n view of the public interest of ensuring quality healthcare, there is a strong need 6 to make certain that Board members can perform [ ] disciplinary functions without the 7 threat of harassment or intimidation.”). The Court concludes that Defendants have a strong 8 public interest at stake because deprivation of Dr. Mir’s medical license, based upon 9 findings of misdiagnosis of serious medical conditions and dishonesty in documentation, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 assists in ensuring the quality of the state’s healthcare system. iv. Balancing Plaintiff’s significant interest in his medical license does not outweigh (1) the low risk of erroneous deprivation from the state’s procedures and (2) the state’s significant interest in ensuring proper healthcare. California’s statutory scheme provided Plaintiff with notice of the government’s deprivation of his property right and multiple opportunities to be meaningfully heard on these issues. The multi-level review and statutory scheme ensure that there was a low risk of erroneous deprivation. See Sheikh v. Med. Bd. of California, 471 F. App'x 713, 713 (9th Cir. 2012) (finding that district court properly dismissed procedural due process claim because full hearing before an administrative law judge and California statutory scheme under which she was afforded that process provided a meaningful opportunity to be heard). Defendants have shown that there is no genuine dispute as to a material fact that Dr. Mir was provided with adequate procedural protections. b. Meaningful Opportunity to Be Heard Furthermore, there is no genuine dispute of material fact that Dr. Mir was provided with adequate procedural process because he was afforded ample opportunity to be heard in a meaningful manner. Consequently, Defendants are entitled to summary judgment 25 12-cv-2340-GPC-DHB 1 because there was no procedural due process violation. 2 The base requirement of the Due Process Clause requires that “a person deprived of 3 property be given an opportunity to be heard at a meaningful time and in a meaningful 4 manner.” Buckingham v. Sec’y of U.S. Dep’t of Agric., 603 F.3d 1073, 1082 (9th Cir. 5 2010). Due process does not always require an adversarial hearing, a full evidentiary 6 hearing, or a formal hearing. Id. at 1082 (citing Hickey v. Morris, 722 F.2d 543, 549 (9th 7 Cir. 1983); United States v. Clifford Matley Family Trust, 354 F.3d 1154, 1162 (9th Cir. 8 2004); Memphis Light, Gas, & Water Div. v. Craft, 436 U.S. 1, 16 n.17 (1978) (“The 9 opportunity for informal consultation with designated personnel empowered to correct a 10 mistaken determination constitutes a ‘due process hearing’ in appropriate circumstances.”). 11 The hearing need not even approximate a trial-like proceeding; in fact, it may be “very 12 limited” and still pass constitutional muster. Brewster v. Board of Educ. of Lynwood, 149 13 F.3d 971, 985 (9th Cir. 1998). 14 mandatory in all cases. See Brock v. Roadway Express, Inc., 481 U.S. 252, 266 (1987) (“as 15 a general rule the employer's interest is adequately protected without the right of 16 confrontation and cross-examination, again so long as the employer is otherwise provided 17 an opportunity to respond at a meaningful time and in a meaningful manner.” (internal 18 quotation marks omitted)). Consequently, the due process evaluation is “flexible and calls 19 for such procedural protections as the particular situation demands.” Mathews v. Eldridge, 20 424 U.S. at 334 (U.S. 1976). Due process is assessed case-by-case based on the total 21 circumstances. California ex rel. Lockyer v. F.E.R.C., 329 F.3d 700, 711 (9th Cir. 2003). 22 As shown below, Plaintiff has had not presented a genuine dispute of material fact that he 23 was denied adequate procedural protections. Nor is the opportunity to cross-examine witnesses 24 Plaintiff argues primarily (1) that there was no evidence supporting a finding of 25 misdiagnosis of thromboembolism; (2) that he was denied a hearing as to whether he made 26 a false statement as alleged in the Second Amended Accusation; and (3) that 27 Documentation findings were inserted into the Medical Board’s Decision without adequate 28 26 12-cv-2340-GPC-DHB 1 notice and hearing. (ECF No. 255 at 9.) 2 First, the Court has already found that Dr. Mir is collaterally estopped from 3 relitigating factual issues previously decided in his administrative proceedings. As such, 4 Dr. Mir is estopped from relitigating the finding that he made a wrong diagnosis. 5 Moreover, the Court’s due process analysis focuses not on whether the Medical Board 6 correctly determined that Dr. Mir made the wrong diagnosis, but whether he was provided 7 sufficient process. Here, the record is clear that Plaintiff and his attorney were given a 8 multitude of opportunities to present evidence and testimony to support Dr. Mir’s defense 9 that he correctly diagnosed G.F. See, e.g., (ECF Nos. 29-1 at 2-9) (listing exhibits used in 10 Medical Board proceeding); (ECF No. 29-20 at 63-116) (closing brief arguing inter alia 11 that Dr. Mir did not misdiagnose patient G.F. with thromboembolism and did not perform 12 the “wrong” procedure on June 10, 2000, and challenging the credibility of the Medical 13 Board’s experts). 14 Second, Plaintiff argues that “[t]he state court let one charge of making false 15 statement unresolved without holding a limited trial or remanding for hearing where 16 Plaintiff never had a hearing and nowhere made the alleged statement let alone falsely 17 unrebutted by Dr. Garg in his testimony at the administrative hearing or at his deposition.” 18 (ECF No. 282 at 21.) On the last day of the administrative hearing, the administrative 19 judge allowed a SAA to be filed and Plaintiff was denied the opportunity to present 20 additional oral evidence on these issues when the ALJ denied Plaintiff’s motion to call 21 additional witnesses. (ECF No. 29-20 at 58-62.) Instead, Plaintiff was afforded multiple 22 opportunities to address the additional charges, including in his motion to strike the SAA 23 filed on April 21, 2005, ECF No. 29-39 at 76-84, in oral argument before the administrative 24 judge on May 11, 2005, ECF No. 29-39 at 163, 170-77, in his “Witness designation of 25 Jehan, Mir, M.D.” filed on July 29, 2005, ECF No. 29-12 at 111-18, and most importantly 26 in Plaintiff’s closing brief filed on August 26, 2005 where Plaintiff expressly addressed the 27 charges in the SAA and challenged Dr. Garg’s credibility. See (ECF No. 29-20 at 72). 28 27 12-cv-2340-GPC-DHB 1 There, Plaintiff argued: 2 Additionally, the new charges in the Second Amended Accusation that 3 Respondent made false statements in the hearing that the proctors would not 4 agree to proctor a bypass graft on June 8 and 10 and that the patient’s foot was 5 viable and not gangrenous on June 12 and that rigor mortis had not set in are 6 without merit. 7 Id. Further, Plaintiff expressly challenged the credibility of Dr. Garg, pointing to the fact 8 that Garg had previously pled guilty to the fraudulent practice of medicine and offering 9 that “Dr. Garg is simply trying to cover up his own potential culpability for the loss of 10 Grace F.’s right foot because of his shortcomings in her treatment.” Id. Plaintiff’s brief 11 shows that he was afforded the opportunity to meaningfully present his argument with 12 regard to the SAA’s charges. See Clifford Matley, 354 F.3d at 1162 (adequate due process 13 does not require a full evidentiary hearing). While the ALJ found that “[r]espondent made 14 false statements at his Medical Board interview and/or during the administrative hearing 15 in this matter,” (ECF No. 29-22 at 5), the superior court, in reviewing Plaintiff’s petition 16 for writ of administrative mandate, found in favor of Mir on all of the false statement claims 17 in the SAA, except for the June 10 statement regarding Plaintiff’s claim that he was refused 18 permission to perform a femoral popliteal bypass. (ECF No. 17-5 at 37-40.) As to the June 19 10th statement, the superior court found that Dr. Garg was more credible on this issue given 20 Dr. Mir’s inconsistent statements. Moreover, the superior court found that “petitioner has 21 not persuaded the Court that he was denied a fair trial by the amendment of the Accusation 22 at the conclusion of the proceedings” and observed that “petitioner has not shown what 23 additional evidence he might have presented.” Id. at 37-38. 24 Third, with regard to the documentation findings, Dr. Mir argues that “Defendants 25 26 27 28 28 12-cv-2340-GPC-DHB 1 unlawfully inserted documentation findings into their 2006 decision”8 (ECF No. 255 at 2 31.) Plaintiff asserts that he was denied notice and an opportunity to have his arguments 3 heard regarding the failure to document charges added in the SAA. (Id.) However, 4 Plaintiff was afforded ample opportunity to argue extensively in his closing brief regarding 5 these findings. For example, Plaintiff argued that he should not be “subject to discipline 6 for failing on one occasion to enter a progress note.” (ECF No. 29-20 at 110.) Plaintiff 7 asserted that the failure to enter a progress note was a “simple deviation from the standard 8 of care.” (Id.) Dr. Mir further argued that he did not create a false document with respect 9 to G.F., stating that “such contentions were without foundation” and presented extensive 10 argument on this topic in five pages of briefing that challenged the Medical Board’s 11 evidence and the credibility of witnesses. (Id. at 112-16.) Plaintiff argued in a paragraph 12 titled “Alleged Failure to Maintain Adequate and Complete Records” that all other charges 13 regarding inadequate documentation were unsupported. Id. (rebutting the Medical Board’s 14 documentation arguments). 15 The ALJ carefully weighed the facts and even made ten specific findings regarding 16 documentation for which there was insufficient evidence that Dr. Mir had improperly 17 documented the proceedings. (ECF No. 29-22 at 30.) The ALJ took into account Plaintiff’s 18 arguments on this issue noting that “[Dr. Mir] testified that he prepared an admission note 19 at or near the time that he examined patient [G.F.] at SACH on June 8, 2000.” (Id. at 28.) 20 Ultimately, referencing an inadequate June 8, 2000 operative report, a failure to document 21 neurological status on June 9, 2000, a deficient pre-surgical examination on June 10, 2000, 22 and a failure to document patient visit on June 11, 2000, the ALJ found that “[Dr. Mir] 23 failed to adequately and accurately document the services he provided patient [G.F.] 24 25 8 26 27 28 Dr. Mir argues that he produced an Admission Note at the SAC Hospital and took the note with him by mistake to save time and not have to rewrite another Admission Note after the transfer to PV Hospital. (ECF No. 255 at 14.) Defendants’ First Amended Accusation accused Dr. Mir of fabricating the Admission Note and making false statements related to the fabrication. (ECF No. 255 at 15.) 29 12-cv-2340-GPC-DHB 1 between June 8 and 14, 2000” (ECF No. 29-22 at 31-32.) The superior court found that 2 “petitioner was not denied a fair trial” and that Dr. Mir “had an opportunity at the hearing 3 to present evidence and arguments on the [documentation] issues.” (ECF No. 17-5 at 37.) 4 While Plaintiff may not have persuaded the ALJ or superior court, Plaintiff had a 5 meaningful opportunity to present his argument regarding the documentation findings in 6 briefing and at the hearing. 7 In his FAC, Plaintiff provided a long list of alleged procedural due process violations 8 including the arbitrary exclusion of evidence; denial of hearings; improper inclusion of a 9 prosecutor in tribunal deliberations; contempt of California Superior Court orders; refusal 10 to consider mitigating evidence; and appointment of biased decision makers sufficient to 11 pass a motion to dismiss. However, in his motion for summary judgment and in his 12 opposition to the Defendants’ summary judgment motion, he has not provided any 13 evidence to create a genuine dispute of material fact that he was denied adequate due 14 process. (ECF No. 102 at 20-21 n.2.) 15 Defendants assert that Dr. Mir’s “dissatisfaction with the decision rendered against 16 his medical license does not equate with a deprivation of due process.” (ECF No. 260 at 17 23.) They are correct. Here, Plaintiff was afforded thirteen days of hearings before an 18 administrative law judge between October 18, 2004, and April 6, 2005. (ECF No. 29-22 19 at 14; 262-1 at 2-4; 29-27 at 16.) Plaintiff was represented by counsel throughout these 20 hearings, presented evidence, and was allowed to cross examine and subpoena witnesses 21 who testified under oath with a verbatim transcript. (ECF No. 29-27 at 16; 29-39 at 6-194.) 22 Adequate procedural due process need not even require an adversarial hearing, 23 approximate a trial-like proceeding, nor even offer the opportunity to cross-examine 24 witnesses. See Hickey, 722 F.2d at 549; Brewster, 149 F.3d at 985; Brock, 481 at 266. 25 Meanwhile, Plaintiff was afforded a wealth of procedural protections including an 26 adversarial hearing that approximated a trial-like proceeding, the opportunity to call and 27 cross examine witnesses, and the opportunity to make his arguments through extensive 28 30 12-cv-2340-GPC-DHB 1 written briefing. 2 In sum, there is no genuine issue of material fact that Plaintiff was afforded adequate 3 procedural protections. As such, Defendants are entitled to judgment as a matter of law 4 and summary judgment is appropriate. Accordingly, the Court GRANTS Defendant’s 5 motion for summary judgment as to Plaintiff’s Section 1983 claim based on procedural due 6 process. 7 8 CONCLUSION AND ORDER 9 For the foregoing reasons, the Court hereby GRANTS Defendants’ Motion for 10 Summary Judgment, or in the alternative Summary Adjudication and DENIES Plaintiffs’ 11 Motion for Summary Judgment. 12 IT IS SO ORDERED. 13 14 Dated: September 26, 2017 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31 12-cv-2340-GPC-DHB

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