Mir v. Medical Board of California et al

Filing 59

ORDER Granting In Part and Denying In Part 50 Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint. Plaintiff is granted forty-five (45) days to amend or file a notice that he intends to proceed on the Second Amended Comp laint without further amendment of his allegations. Defendants shall have fourteen (14) days to file an answer to Plaintiffs' remaining claims. The Court Vacates the hearing date set for this matter on May 30, 2014 at 1:30PM. Signed by Judge Gonzalo P. Curiel on 5/30/2014. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JEHAN ZEB MIR,

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CASE NO. 12cv2340-GPC-DHB
Plaintiff,

vs.

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KIMBERLY KIRCHMEYER, et al.,
Defendants.

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ORDER GRANTING IN PART AND
DENYING IN PART
DEFENDANTS’ MOTION TO
DISMISS PLAINTIFF’S SECOND
AMENDED COMPLAINT
[Dkt. No. 50.]

Presently before the Court is a motion to dismiss Plaintiff’s Second Amended
Complaint filed by Defendants Kimberly Kirchmeyer, Linda Whitney, and Sharon
Levine (collectively, “Defendants”). (Dkt. No. 50.) The Parties have fully briefed the
motion. (Dkt. Nos. 54, 55.) Pursuant to Civil Local Rule 7.1(d)(1), the Court finds the
matter suitable for adjudication without oral argument.1 For the following reasons, the
Court GRANTS in part and DENIES in part Defendants’ motion to dismiss.

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The Court notes that Plaintiff has requested oral argument because “Defendants
have raised new issues in the Reply and have misstated facts and law in their Reply”
26 which results in prejudice to Plaintiff. (Dkt. No. 56.) The Court has conducted an
independent review of the submissions from both parties, as well as relevant facts and
27 law, and finds oral argument unnecessary in the interest of judicial efficiency. Because
the Court grants Plaintiff leave to amend his Second Amended Complaint to correct the
28 deficiencies noted herein, the Court finds no prejudice to Plaintiff in denying oral
argument.
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PROCEDURAL HISTORY

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On September 25, 2012, Plaintiff Jehan Zeb Mir (hereinafter “Plaintiff”),

3 proceeding in propria persona, filed this lawsuit in federal court alleging the
4 California Medical Board wrongfully took disciplinary actions against Plaintiff’s
5 physician’s and surgeon’s certificate. (Dkt. No. 1.) On January 17, 2013, Plaintiff
6 filed a first amended complaint seeking injunctive and declaratory relief. (Dkt. No.
7 8.) The First Amended Complaint named Defendants Medical Board of California;
8 Linda Whitney, Executive Director; and Sharon Levine, M.D., President. (Id.)
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Defendants then filed a motion to dismiss Plaintiff’s amended complaint,

10 (Dkt. No. 13), and Plaintiff filed a motion for preliminary injunction. (Dkt. No. 17.)
11 On March 19, 2013, the Court denied Plaintiff’s motion for preliminary injunction.
12 (Dkt. No. 23.) On May 2, 2013, Plaintiff filed a motion for reconsideration of the
13 Court order denying Plaintiff’s motion for preliminary injunction. (Dkt. No. 26.) On
14 May 8, 2013, the Court granted Defendants’ motion to dismiss Plaintiff’s First
15 Amended Complaint and denied Plaintiff’s motion for reconsideration, granting
16 Plaintiff leave to amend his complaint. (Dkt. No. 28.)
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On December 31, 2013, Plaintiff filed a Second Amended Complaint

18 (“SAC”), the current operative complaint, nunc pro tunc to December 24, 2013.
19 (Dkt. No. 44.) The SAC names three Defendants: (1) Kimberly Kirchmeyer, in her
20 Personal and Official Capacity as Interim Executive Director and Deputy Director
21 of the Medical Board of California; (2) Linda K. Whitney, in her Personal Capacity
22 as Executive Director of the Medical Board of California; and (3) Sharon Levine,
23 M.D. in her Personal and Official Capacity as President of the Medical Board of
24 California. (Id.) On February 21, 2014, Defendants filed the present Motion to
25 Dismiss Plaintiff’s SAC, (Dkt. No. 50), and related Request for Judicial Notice.
26 (Dkt. No. 51.)
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BACKGROUND
The substantive factual allegations in Plaintiff’s SAC remain largely
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1 unchanged from Plaintiff’s two previous complaints. As set forth in the Court’s
2 previous orders, this action arises out of Plaintiff’s challenges to the California
3 Medical Board’s decision to revoke his medical licenses.
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Plaintiff was licensed by the State of California in 1972 as a Doctor of

5 Medicine and Surgery. (Dkt. No. 44, “SAC” ¶ 8.) On June 8, 2000, Plaintiff
6 admitted an 81-year old female patient with a history of medical complications to
7 the San Antonio Community Hospital. (Id. ¶¶ 14, 19.) Plaintiff transferred the
8 patient to Pomona Valley Hospital (“PVH”), where Plaintiff was a provisional
9 member of the medical staff. (Id. ¶¶ 20, 24-26.) Plaintiff performed a series of
10 surgeries on the patient, leading up to an above-the-knee amputation of the patient’s
11 leg due to gangrene the patient had contracted following previous surgeries
12 performed by Plaintiff. (Id. ¶¶ 27-52.) Related to Plaintiff’s treatment of the patient
13 and other concerns about the Plaintiff’s performance as a provisional staff member,
14 PVH suspended Plaintiff’s vascular surgery privileges around November 2000. (Id.
15 ¶¶ 53-58.) Plaintiff requested injunctive relief from the California Superior Court,
16 but was denied for failure to exhaust his administrative remedies. (Id. ¶ 59.)
17 Following these proceedings, PVH terminated Plaintiff from the medical staff. (Id. ¶
18 60.) Plaintiff requested declaratory relief from the Superior Court, which again was
19 denied for failure to exhaust administrative remedies and affirmed by the Court of
20 Appeals. (Id. ¶¶ 61, 64.)
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Defendants’ actions against Plaintiff commenced on August 21, 2003, when

22 Defendants filed an accusation against Plaintiff for misdiagnosis, negligence,
23 improper transfer, and failure to document in connection with his care of the
24 aforementioned PVH patient. (Id. ¶¶ 72-73.) On November 8, 2004, Defendants
25 added charges of fabricating documents and dishonesty in a First Amended
26 Accusation against Plaintiff. (Id. ¶ 97.) Although an Administrative Law Judge
27 dismissed the First Amended Accusation, (id. ¶ 114), Defendants filed a Second
28 Amended Accusation on April 6, 2005. (Id. ¶ 155.)
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On December 6, 2006, Defendants revoked Plaintiff’s medical licenses

2 effective January 6, 2007. (Id. ¶165.) Following the revocation, Plaintiff filed a writ
3 of mandamus with the California Superior Court. (Id. ¶ 166.) The court granted
4 Plaintiff’s petition, dismissing five out of six charges against Plaintiff; vacating the
5 Medical Board’s decision; and remanding the matter to the Medical Board to
6 reconsider a penalty consistent with the Superior Court’s opinion. (Id. ¶¶ 168, 177.)
7 After review, the Medical Board reissued its decision on June 13, 2008. (Id. ¶¶ 1878 88.) Plaintiff again filed a petition for writ of relief with the California Superior
9 Court, alleging the Medical Board had not reviewed its decision but rather had
10 simply reissued the previous findings. (Id. ¶ 193.) Plaintiff further alleged the
11 Medical Board had unlawfully made a finding of gross and repeated negligence,
12 improperly determined the penalty, and wrongfully discriminated against Plaintiff
13 and other minorities by disproportionately revoking licenses of physicians in the
14 minority groups. (Id. ¶¶ 194-200.) The Superior Court directed the Medical Board
15 to set aside its decision to revoke Plaintiff’s licenses and remanded the matter to
16 redetermine the penalty issues. (Id. ¶ 207.)
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Following a hearing, the Medical Board issued another decision on October

18 27, 2010, finding “repeated” and “gross negligence” and imposing a five year
19 probation with various terms and conditions. (Id. ¶¶ 214-22.) Plaintiff filed a third
20 writ of mandate in the Superior Court challenging the Medical Board’s decision.
21 (Id. ¶ 224.) The Superior Court issued an order temporarily staying enforcement of
22 probation conditions, and later mandated the Medical Board vacate the probation
23 terms requiring Plaintiff to undergo psychiatric evaluation. (Id. ¶¶ 226.) Defendants
24 complied with the order, striking the probation condition of psychiatric evaluation
25 effective March 16, 2012. (Id. ¶ 229.) On August 16, 2012, Defendants revoked
26 Plaintiff’s license for the fourth time for not complying with the conditions of
27 probation. (Id. ¶ 231.)
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Plaintiff’s SAC alleges two claims for relief: (1) “Permanent Injunction”; and
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1 (2) “Permanent Injunction for Unconstitutional Statute.” (SAC at 65, 76.) Under
2 Plaintiff’s first claim for relief, Plaintiff makes the following primary allegations:
3 Plaintiff had a property interest in his medical license, protected by the U.S.
4 Constitution; Defendants in bad faith brought false fraudulent charges of
5 misdiagnosis; Defendants denied Plaintiff due process; Defendants refused to
6 consider additional evidence and failed to provide Plaintiff the opportunity for a full
7 and fair hearing; Defendants conducted a sham administrative hearing; Defendants
8 committed extrinsic fraud; Defendants misled the California Superior Court; and
9 Defendants disobeyed the Superior Court decisions. (Id. ¶¶ 237-287.)
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Plaintiff’s second claim for relief claims California Business & Professions

11 Code section 2337 is unconstitutionally over-broad and denies due process. (Id. ¶
12 288.) Plaintiff further claims the Rules of the California Court of Appeal are facially
13 unconstitutional where they provide for “discretionary summary denial of
14 physician’s petition writ of mandate without ordering Opposition, issuing
15 alternative writ, affording oral arguments and issuing a written opinion justifying
16 the decision.” (Id. ¶ 298.)
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Plaintiff’s SAC seeks: (1) an injunction permanently enjoining Defendants

18 from imposing disciplinary action against Plaintiff for the wrongful diagnosis
19 charges raised in the original 2003 Accusation and subsequent amended accusations
20 against him, (SAC at 78-79); (2) full restoration of his medical license as it existed
21 prior to 2007, (id. at 79); (3) a declaration of Plaintiff’s rights in relation to
22 Defendants alleged unconstitutional behavior, (id.); (4) a declaration that the
23 California Business and Professions Code section 2337 and the Rules of the
24 California Court of Appeal are unconstitutional. (Id. at 79-80.)
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LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
Dismissal is proper where there is either a “lack of a cognizable legal theory” or
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“the absence of sufficient facts alleged under a cognizable legal theory.” Balisteri v.
Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). To survive a motion to
dismiss, the plaintiff must allege “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). While a
plaintiff need not give “detailed factual allegations,” a plaintiff must plead sufficient
facts that, if true, “raise a right to relief above the speculative level.” Twombly, 550
at 545. “[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.” Moss v. U.S. Secret Serv., 572
F.3d 962, 969 (9th Cir. 2009).
In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume
the truth of all factual allegations and must construe all inferences from them in the

14 light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895
15 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).
16 Legal conclusions, however, need not be taken as true merely because they are cast
17 in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir.
18 2003); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Moreover, a
19 court “will dismiss any claim that, even when construed in the light most favorable
20 to plaintiff, fails to plead sufficiently all required elements of a cause of action.”
21 Student Loan Mktg. Ass’n v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). If a
22 plaintiff fails to state a claim, a court need not permit an attempt to amend a
23 complaint if “it determines that the pleading could not possibly be cured by
24 allegation of other facts.” Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv.
25 Inc., 911 F.2d 242, 247 (9th Cir. 1990).
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In addition, courts “liberally construe[]” documents filed pro se, Erickson v.

27 Pardus, 551 U.S. 89, 94 (2007), affording pro se plaintiffs benefit of the doubt.
28 Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Karim-Panahi v. L.A. Police
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Dept., 839 F.2d 621, 623 (9th Cir. 1988); see also Davis v. Silva, 511 F.3d 1005,
1009 n.4 (9th Cir. 2008) (“[T]he Court has held pro se pleadings to a less stringent
standard than briefs by counsel and reads pro se pleadings generously, ‘however
inartfully pleaded.’”). Pro se litigants “must be ensured meaningful access to the
courts.” Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc). However,
the Ninth Circuit has declined to ensure that district courts advise pro se litigants of
rule requirements. See Jacobsen v. Filler, 790 F.2d 1362, 1364-67 (9th Cir. 1986)
(“Pro se litigants in the ordinary civil case should not be treated more favorably than
parties with attorneys of record . . . it is not for the trial court to inject itself into the
adversary process on behalf of one class of litigant”). And, in giving liberal
interpretation to a pro se complaint, the court is not permitted to “supply essential
elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of the

14 Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). As with pleadings drafted by
15 lawyers, a court need not accept as true unreasonable inferences or conclusory legal
16 allegations cast in the form of factual allegations. Western Min. Council v. Watt,
17 643 F.2d 618, 624 (9th Cir. 1981).
18

DISCUSSION

19 I. Request for Judicial Notice
A court may take notice of undisputed “matters of public record” subject to
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21 judicial notice without converting a motion to dismiss into a motion for summary
22 judgment. Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001) (citing Fed. R.
23 Evid. 201; MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986)).
24 Under Federal Rule of Evidence 201, a district court may take notice of facts not
25 subject to reasonable dispute that are capable of accurate and ready determination
26 by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid.
27 201(b); see also Lee, 250 F.3d at 689. However, a court may deny a request for
28 judicial notice of facts that are not relevant to the question at issue. See, e.g., Santa
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Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n. 2 (9th
Cir. 2006); Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386, 393 n. 7 (9th Cir.
2000). Here, Defendants seek judicial notice of the Ninth Circuit’s memorandum
opinion affirming this Court’s denial of Plaintiff’s motion for reconsideration. (Dkt.
No. 51.) The Court finds the memorandum opinion irrelevant to the issues raised in
Defendants’ motion to dismiss. Accordingly, the Court DENIES Defendants’
request for judicial notice. (Dkt. No. 51.)
II. Defendants’ Motion to Dismiss
Defendants move to dismiss Plaintiff’s Second Amended Complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6) on three grounds: (1) Plaintiff’s
“official capacity” claims against Defendants Kirchmeyer and Levine are barred by
the Eleventh Amendment; (2) Plaintiff’s claims fail to state a claim upon which

14 relief may be granted; and (3) Younger abstention bars this action. (Dkt. No. 50-1.)
A. Eleventh Amendment Immunity
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The Court first considers whether Plaintiff’s claims against Defendants

17 Kirchmeyer and Levine in their official capacities is barred by the Eleventh
18 Amendment. The Eleventh Amendment to the U.S. Constitution prohibits federal
19 courts from hearing suits brought by private citizens against state governments,
20 without the state’s consent. Hans v. Louisiana, 134 U.S. 1, 15 (1890). Absent a
21 waiver, state immunity extends to state agencies and to state officers. Alabama v.
22 Pugh, 438 U.S. 781 (1978); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &
23 Eddy, Inc., 506 U.S. 139, 142-46 (1993). In general, the federal courts lack
24 jurisdiction over a suit against state officials when “the state is the real, substantial
25 party in interest.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101
26 (1984) (citing Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459 (1945)).
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However, under the Ex parte Young exception to Eleventh Amendment

28 immunity, a plaintiff may bring suit in federal court against a state officer acting in
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violation of federal law for prospective relief. 209 U.S. 123 (1908); see also
Pennhurst, 465 U.S. at 102-106. “This 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 (1974) (finding
that a federal court may award an injunction that governs the official’s future
conduct, but not one that awards retroactive monetary relief).
Citing Eleventh Amendment immunity, Defendants move to dismiss
Plaintiff’s claims as alleged against Defendants Kirchmeyer and Levine in their
official capacities. (Dkt. No. 50-1 at 10, 12.) Defendants argue the “official
capacity” claims against Defendants Kirchmeyer and Levine seek relief against the

14 State as the real party in interest. (Id. at 11-12.) Plaintiff responds that the SAC
15 alleges an ongoing violation of federal law and seeks relief that is properly
16 characterized as prospective, as allowed by the Ex parte Young exception to
17 Eleventh Amendment immunity. (Dkt. No. 54 at 2) (citing Verizon, MD Inc. v.
18 Public Serv. Comm’n of MD, 535 U.S. 635, 645 (2002)).
The question of whether the Ex parte Young exception to Eleventh
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20 Amendment immunity applies to Plaintiff’s official capacity claims against
21 Defendants Kirchmeyer and Levine turns on a “straightforward inquiry into whether
22 [Plaintiff’s] [C]omplaint alleges an ongoing violation of federal law and seeks relief
23 properly characterized as prospective.” Verizon, MD Inc., 535 U.S. at 645. In
24 discerning the line between permitted and prohibited suits, the Supreme Court has
25 looked “to the substance rather than to the form of the relief sought . . . guided by
26 the policies underlying the decision in Ex parte Young.” Papasan v. Allain, 478 U.S.
27 265, 278-79 (1986) (internal citations omitted).
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Here, as stated above, Plaintiff’s SAC seeks the following relief against
Defendants: (1) an injunction permanently enjoining Defendants from imposing
disciplinary action against Plaintiff for the wrongful diagnosis charges raised in the
original 2003 Accusation and subsequent amended accusations against him, (SAC
at 78-79); (2) full restoration of his medical license as it existed prior to 2007, (id. at
79); and (3) a declaration of Plaintiff’s rights in relation to Defendants alleged
unconstitutional behavior. (Id.)
The Court finds that Plaintiff’s request for an injunction prohibiting future
disciplinary action seeks prospective rather than retrospective relief. See Papasan,
478 U.S. at 282-83. In Papasan, the Supreme Court allowed a Constitutional Equal
Protection claim against State defendants to go forward for the past grant of land to
certain school districts to the exclusion of others. Id. at 281-82. The court found that

14 the plaintiff sought to remedy the “present disparity in the distribution of benefits of
15 state-held assets and not the past actions of the State,” so a remedy would ensure
16 “compliance in the future with a substantive federal-question determination rather
17 than bestow an award for accrued monetary liability.” Id. at 282 (emphasis in
18 original) (internal quotation marks omitted). Similarly here, while Plaintiff claims
19 Defendants’ past actions violate the Constitution, Plaintiff claims the violations are
20 ongoing and seeks the prospective relief of an injunction preventing future
21 disciplinary action against Plaintiff. (SAC at 78-79.)
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Furthermore, as Defendants acknowledge, (Dkt. No. 55 at 3), Plaintiff’s

23 request for reinstatement of his medical license also qualifies as prospective relief.
24 See Doe v. Lawrence Livermore Nat. Lab., 131 F.3d 836, 839-42 (9th Cir. 1997)
25 (holding that reinstatement of a license simply prevents “prospective violation of
26 [plaintiff’s] rights which would result from denying him employment in the
27 future”).
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However, the Court finds that Plaintiff’s third request for relief against
Defendants Kirchmeyer and Levine in their official capacities is properly classified
as seeking retrospective relief and is thus barred by the Eleventh Amendment. See
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 14246 (1993). As the Supreme Court held in Puerto Rico Aqueduct, the Ex parte Young
exception to Eleventh Amendment immunity “does not permit judgments against
state officers declaring that they violated federal law in the past.” Id. at 146 (citing
Green v. Mansour, 474 U.S. 64, 73 (1985)). Here, in essence, Plaintiff’s third
request for relief seeks a declaration that Defendants’ past actions violated the
Constitution by denying him procedural due process. The Eleventh Amendment
prohibits such retrospective relief against State officials in their official capacities.
For the foregoing reasons, the Court GRANTS in part and DENIES in part

14 Defendants’ motion to dismiss Plaintiff’s claims against Defendants Kirchmeyer
15 and Levine in their official capacities based on Eleventh Amendment immunity. To
16 the extent Plaintiff seeks declaratory relief for Defendants Kirchmeyer and Levine’s
17 past allegedly unconstitutional behavior as alleged in the SAC, Plaintiff’s claims are
18 barred by the Eleventh Amendment. Plaintiff’s other claims for relief against
19 Defendants Kirchmeyer and Levine in their official capacities survive Eleventh
20 Amendment scrutiny.
B. Failure to State a Claim
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The Court next considers Defendants’ claim that Plaintiff has failed to state a

23 claim upon which relief may be granted. (Dkt. No. 50-1 at 12-17.) Defendants
24 advance four main arguments: (1) Plaintiff has failed to demonstrate that each of the
25 Defendants violated the Constitution as required by 42 U.S.C. § 1983; (2)
26 Declaratory Relief is not a cause of action; (3) Plaintiff may not obtain injunctive
27 relief; and (4) Plaintiff has failed to state a claim of racial discrimination and for
28 violation of due process. (Id.)
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1. Section 1983
The Court first addresses Defendants’ first and fourth arguments related to
the sufficiency of Plaintiff’s section 1983 claim. Plaintiff’s SAC alleges
Constitutional violations by three Defendants: (1) Kimberly Kirchmeyer, in her
Personal and Official Capacity; (2) Linda K. Whitney, in her Personal Capacity; and
(3) Sharon Levine, M.D. in her Personal and Official Capacity. (Dkt. No. 44.)
Although Plaintiff’s two “causes of action” are both titled “permanent injunction,”
42 U.S.C. § 1983 creates the cause of action under which Plaintiff may seek to hold
state officials liable for constitutional violations. See 42 U.S.C. § 1983; Hebbe v.
Pliler, 627 F.3d 338 (9th Cir. 2010).
To state a claim under section 1983, a plaintiff must allege two elements: (1)
that a right secured by the Constitution or laws of the United States was violated

14 and (2) that the violation was committed by a person acting under the color of state
15 law. West v. Atkins, 487 U.S. 42, 48 (1988). Defendants claim Plaintiff’s SAC
16 meets neither requirement.
a. Under Color of State Law
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Liability may be imposed on an individual defendant under § 1983 if the

19 plaintiff can show that the defendant proximately caused the deprivation of a
20 federally protected right. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris
21 v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981); Barren v. Harrington, 152
22 F.3d 1193, 1194 (9th Cir. 1998). A person deprives another of a constitutional right
23 within the meaning of § 1983 if he does an affirmative act, participates in another’s
24 affirmative act or omits to perform an act which he is legally required to do, that
25 causes the deprivation of which the plaintiff complains. Leer, 844 F.2d at 633. The
26 inquiry into causation must be individualized and focus on the duties and
27 responsibilities of each individual defendant whose acts or omissions are alleged to
28 have caused a constitutional deprivation. Id. A supervisor may be liable under
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section 1983 upon a showing of “(1) his or her personal involvement in the
constitutional deprivation, or (2) a sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional violation.” Redman v. Cnty. of
San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc) (quoting Hansen v.
Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks omitted).
Defendants argue Plaintiff’s SAC has “neither pled that each Defendant
through the official’s own individual action violated the Constitution nor alleged
specific facts linking each individual defendant to a Section 1983 violation.” (Dkt.
No. 50-1 at 13.) Plaintiff responds that the SAC “pleads the titles, duties and
capacities of each of the Defendants and the respective time frames” and the facts
asserted in the SAC must be accepted as true. (Dkt. No. 54 at 3.)
While Plaintiff is correct that the SAC pleads the “titles, duties and

14 capacities” under which Defendants are affiliated with the Medical Board of
15 California, (Dkt. No. 44, SAC ¶¶ 2-6), a statement of Defendants’ titles and duties
16 does not link the general duties and responsibilities of the individual Defendants to
17 the alleged constitutional violations in this case. See Leer, 844 F.2d at 633. Aside
18 from the SAC’s initial statements regarding the general duties of Defendants
19 Kirchmeyer and Whitney in their respective positions with the Medical Board of
20 California, the SAC states only that these Defendants were “personally involved
21 with the Plaintiff’s disciplinary matters alleged herein.” (Dkt. No. 44, SAC ¶¶ 2-5.)
22 No other allegation mentions either Defendant Kirchmeyer or Whitney by name or
23 otherwise indicates how either Defendant was “personally involved” in the
24 allegations that give rise to Plaintiff’s SAC. Although Plaintiff includes additional
25 facts regarding the participation of Defendants Kirchmeyer and Whitney in his
26 response to Defendants’ motion to dismiss, (Dkt. No. 54 at 5-6), review of a motion
27 to dismiss is limited to the “complaint, materials incorporated into the complaint by
28 reference, and matters of which the court may take judicial notice.” Metzler Inv.
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GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008). The Court
therefore finds that the allegations as alleged in the SAC fail to state a claim against
Defendants Kirchmeyer or Whitney under section 1983.

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In contrast, Plaintiff’s SAC alleges Defendant Levine was “the member of the
hearing panel which held [sic] disciplinary hearing against Plaintiff Jehan Zeb Mir,
MD and heard oral arguments held on July 27, 2010.” (SAC ¶ 6.) The Court finds
that this allegation sufficiently alleges Defendant Levine’s “personal involvement”
in the alleged constitutional deprivation to state a claim against her under section
1983. See Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en
banc).
b. Constitutional Violation
However, to sufficiently state a claim under section 1983, Plaintiff must also

14 allege that Defendants violated a right protected by the Constitution. West v.
15 Atkins, 487 U.S. 42, 48 (1988). Defendants claim Plaintiff has failed to sufficiently
16 allege racial discrimination or violation of due process because his “allegations
17 regarding discrimination are the same as those alleged in his FAC . . . which this
18 Court found to be speculative.” (Dkt. No. 50-1 at 16) (citing SAC ¶¶ 196-201).
19 Defendants further argue Plaintiff “still fails to sufficiently allege denial of adequate
20 procedural protections since there were no significant changes to his SAC.” (Id.)
Plaintiff responds that the SAC’s allegations state a claim under section 1983
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22 because the SAC alleges violations of the Due Process Clause and the Equal
23 Protection Clause of the Fourteenth Amendment. (Dkt. No. 54 at 11.)
24

The Court finds Plaintiff has remedied the defects of his Due Process claim

25 and has sufficiently stated a claim for violation of the Fourteenth Amendment under
26 section 1983 to survive a motion to dismiss. To prevail on a claim for a procedural
27 due process violation, Plaintiff must show (1) a protected liberty or property
28 interest; (2) government deprivation of that interest; and (3) a denial of adequate
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procedural protections. Foss v. Nat’l Marine Fisheries Servs., 161 F.3d 584, 588
(9th Cir. 1998).
Here, neither party disputes that Plaintiff has alleged both a property interest
in his medical license as well as the Medical Board of California’s deprivation of
that interest. Regarding adequate procedural protections, Plaintiff’s SAC now
includes a long list of alleged procedural defects in the proceedings administered by
Defendants to revoke his medical license. (SAC ¶ 7 n. 2.) This list of allegations
include the arbitrary exclusion of evidence; denial of hearings; improper inclusion
of a prosecutor in tribunal deliberations; contempt of California Superior Court
orders; refusal to consider mitigating evidence; and appointment of biased decision
makers. (Id.) Accordingly, the Court finds that Plaintiff has sufficiently stated a
claim under section 1983 to survive a motion to dismiss on his allegations of due

14 process violations.
However, the Court finds that Plaintiff has again failed to sufficiently allege a
15
16 plausible claim of racial discrimination under 42 U.S.C. § 1983. As in Plaintiff’s
17 First Amended Complaint, Plaintiff again alleges the Medical Board’s penalty
18 against him reflects a pattern of wrongful discrimination and disparate treatment
19 against Plaintiff and other minorities, and the Medical Board has disproportionately
20 revoked licenses of physicians in minority groups as compared to non-minority
21 physicians. (SAC ¶¶ 196-201.) “Plaintiff presented evidence after reviewing 748
22 consecutive Disciplinary Decisions by the Medical Board in the 2 ½ year period
23 from January 12,2006[sic] to July 2008 when Plaintiff was revoked twice and
24 produced evidence that Medical Board discriminates members of the minority group
25 as judged by their surnames.” (SAC ¶ 196.) Plaintiff further alleges “members of
26 minority groups are most likely to get ‘revoked’,” and “the revocation rate for
27 physicians with minority names was 34% as compared to overall revocation rate of
28 11.7%.” (SAC ¶¶ 197-98.) Plaintiff also alleges he was revoked twice for
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misdiagnosis, whereas physicians with “far more serious offenses” had only been
reprimanded. (SAC ¶ 199.)
The Court again finds these allegations do not suggest a plausible claim for
racial discrimination under the Fourteenth Amendment sufficient to state a claim
under section 1983. As the Court previously found, allegations of discrimination
based on Plaintiff’s analysis of surnames are too speculative to state a claim for
racial discrimination. Plaintiff fails to allege a correlation between surname and a
protected category under Equal Protection jurisprudence and again fails to tie
allegations against any of the individual Defendants to the alleged racial
discrimination. As such, the Court again finds Plaintiff has failed to sufficiently
state a claim that the Medical Board violated his Equal Protection rights in violation
of 42 U.S.C. § 1983.
2. Declaratory Relief and Injunctive Relief
Defendants move to dismiss Plaintiff’s requests for declaratory and injunctive

16 relief on the ground that declaratory relief and injunctive relief are remedies and not
17 causes of action. (Dkt. No. 50-1 at 14-16.) While Defendants are correct that a
18 plaintiff may not obtain declaratory relief or injunctive relief absent an
19 independently viable claim for relief, see Skelly Oil Co. v. Phillips Petroleum Co.,
20 339 U.S. 667, 671 (1950); Hamilton v. Bank of Blue Valley, 746 F. Supp. 2d 1160,
21 1182 (E.D. Cal. 2010), as stated above, the Court finds Plaintiff has sufficiently
22 stated a claim under section 1983. Accordingly, the Court DENIES Defendants’
23 motion to dismiss Plaintiff’s prayer for declaratory and injunctive relief on the
24 ground that these forms of relief are derivative of Plaintiff’s other claims.
25

C. Younger Abstention

26

In the alternative, Defendants move to dismiss Plaintiff’s SAC on the ground

27 that Younger abstention bars this action. (Dkt. No. 50-1 at 17.) Defendants argue
28 Plaintiff’s SAC is an “improper collateral attack on the administrative proceedings
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and the orders issued by the Superior Court.” (Id. at 19.) Plaintiff responds that any
state administrative action is no longer ongoing, and that Defendants’ bad faith
warrants the application of the exceptions to Younger abstention. (Dkt. No. 54 at
24-25.)
1. Application of Younger Abstention
Under the Younger abstention doctrine, a federal court cannot interfere with
ongoing state proceedings by granting injunctive relief absent a showing of the
state’s bad faith or harassment, or a showing that the statute challenged is
“flagrantly and patently violative of express constitutional prohibitions.” Younger
v. Harris, 401 U.S. 37, 46, 53-54 (1971). Younger abstention is appropriate if four
criteria are met: (1) state judicial proceedings are ongoing; (2) the state proceedings
implicate an important state interest; (3) the state proceedings offer an adequate

14 opportunity to litigate federal questions; and (4) the federal court action would
15 “enjoin the proceeding or have the practical effect of doing so, i.e., would interfere
16 with the state proceeding in a way that Younger disapproves.” San Jose Silicon
17 Valley Chamber of Commerce PAC v. City of San Jose, 546 F.3d 1087, 1092 (9th
18 Cir. 2008); see also Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457
19 U.S. 423, 435 (1982).
20

As to the first criterion, the Parties dispute whether state judicial proceedings

21 are ongoing. Defendants claim there can be “no doubt that when Plaintiffs[sic] filed
22 this action on September 25, 2011, the State administrative action was ongoing.”
23 (Dkt. No. 50-1 at 20.) Defendants claim Plaintiff must exhaust state appellate
24 remedies “before seeking relief in the (federal) District Court.” (Id.) (citing
25 Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975) (parentheses added)).
26

Plaintiff responds that Defendants have misstated the filing date of the

27 present action, and that the final administrative action of revocation by Defendants
28 was completed on August 19, 2012. (Dkt. No. 54 at 23.) As an initial matter, the
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Court notes that the docket reflects Plaintiff filed the present matter on September
25, 2012, a date after Plaintiff claims final administrative action concluded. (Dkt.
No. 1.) Defendants are therefore incorrect that there “can be no doubt” that the state
administrative action was ongoing at the time Plaintiff filed this action in federal
court.
However, the Court nonetheless finds that state proceedings were necessarily
“ongoing” at the time Plaintiff filed the present matter. The Ninth Circuit has
recognized, but not resolved, a split in the Circuit Courts of Appeal as to the
question of whether state proceedings are “ongoing” for the purposes of Younger
abstention if a plaintiff has obtained final administrative review but has not invoked
state-court judicial review where such review is available. San Jose Silicon Valley
Chamber of Commerce PAC v. City of San Jose, 546 F.3d 1087, 1093 (9th Cir.

14 2008) (“Seven circuits have addressed this question. Four have held that the
15 administrative proceeding and the possibility for state court review are to be viewed
16 as one unitary proceeding, and three have held the opposite.”). As the court
17 recognized in San Jose Silicon Valley Chamber of Commerce PAC, the Ninth
18 Circuit briefly joined the majority circuits in 1993, but later withdrew the opinion
19 finding the Younger abstention question moot. Id. at 1094 (citing Nev. Entm’t
20 Indus., Inc. v. City of Henderson, 8 F.3d 1348 (9th Cir. 1993) (per curiam),
21 withdrawn by 21 F.3d 895 (9th Cir.), on reh’g 26 F.3d 131 (9th Cir. 1994)
22 (unpublished decision)).
23

For the same reasons the Ninth Circuit did in its withdrawn 1993 per curiam

24 opinion, Nev. Entm’t Indus., Inc., 8 F.3d at 1349-53, the Court adopts the majority
25 approach of treating judicial review of state administrative proceedings as a unitary
26 process that is not to be interrupted by federal court intervention. See San Jose
27 Silicon Valley Chamber of Commerce PAC, 546 F.3d at 1093-94 (citing Maymo28 Melendez v. Alvarez-Ramirez, 364 F.3d 27, 35 (1st Cir. 2004); Majors v.
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Engelbrecht, 149 F.3d 709, 713 (7th Cir. 1998); O’Neill v. City of Philadelphia, 32
F.3d 785, 790-91 (3d Cir. 1994); Alleghany Corp. v. Pomeroy, 898 F.2d 1314,
1316-17 (8th Cir. 1990)); see also Moore v. City of Asheville, N.C., 396 F.3d 385
(4th Cir. 2005) (adopting majority approach as an issue of first impression in the
Fourth Circuit).
In particular, the Court finds that the administrative proceedings challenged
by Plaintiff in this case were coercive proceedings brought by the State of
California to enforce its laws rather than a remedial action brought by Plaintiff to
redress a wrong inflicted by the state; as such, the present case invokes the
principle policies of “equity, comity, and federalism” that undergird the Younger
abstention doctrine’s prohibition against federal district court interjection into a
state’s prosecution of its citizens. See Nev. Entm’t Indus., Inc., 8 F.3d at 1351

14 (citing Alleghany Corp. v. Haase, 896 F.2d 1046, 1050-51 (7th Cir. 1990), vacated
15 as moot, 499 U.S. 933 (1991)); see also Potrero Hills Landfill, Inc. v. Cnty. of
16 Solano, 657 F.3d 876, 883 (9th Cir. 2011) (“The Younger doctrine recognizes that a
17 state’s ability to enforce its laws against socially harmful conduct that the State
18 believes in good faith to be punishable under its laws and Constitution is a basic
19 state function with which federal courts should not interfere.”) (citing Miofsky v.
20 Superior Ct. of State of Cal., In and For Sacramento Cnty., 703 F.2d 332, 336 (9th
21 Cir. 1983) (internal quotation marks omitted).
22

The Court notes that the policies behind Younger abstention apply even if

23 Plaintiff may no longer appeal the Medical Board’s final decision to the California
24 Superior Court. See Huffman v. Pursue, Ltd., 420 U.S. 592, 611 n. 22 (“While
25 appellee had the option to appeal in state courts at the time it filed this action, we do
26 not know for certain whether such remedy remained available at the time the
27 District Court issued its permanent injunction, or whether it remains available now.
28 In any event, appellee may not avoid the standards of Younger by simply failing to
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comply with the procedures of perfecting its appeal within the Ohio judicial
system.”). The relevant time frame for the purposes of determining whether state
proceedings are “ongoing” for the purposes of Younger abstention is the date the
federal complaint is filed. Adibi v. Cal. State Bd. of Pharmacy, 461 F. Supp. 2d
1103, 1109-10 (N.D. Cal. 2006) (citing cases).
As to the other Younger requirements, the medical license revocation

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proceedings at issue in this case implicate important state interests in ensuring
quality health care. See Buckwalter v. Nevada Bd. of Med. Exam’rs, 678 F.3d 737,
747 (9th Cir. 2012) (“It is self-evident that the Board’s disciplinary proceedings
implicate the important state interest of ensuring quality health care.”); see also
Canatella v. California, 404 F.3d 1106, 1110 (9th Cir. 2005) (holding that
California’s attorney disciplinary proceedings implicate important state interests).

14 Plaintiff is also not barred from litigating his federal constitutional issues in the
15 state proceedings. See Kenneally v. Lungren, 967 F.2d 329, 332-33 (9th Cir. 1992)
16 (holding California’s Medical Board agency review procedures provided the
17 plaintiff physician opportunity for meaningful review of federal Constitutional
18 claims). In fact, Plaintiff’s SAC alleges he has successfully filed three previous
19 writs of mandate before the California Superior Court to challenge the Medical
20 Board’s previous adverse decisions, (SAC ¶¶ 168, 207, 226); Plaintiff has indicated
21 no reason why he will not have the opportunity to raise his Constitutional
22 challenges before the Superior Court as he has three times previously.
23

Lastly, this Court’s actions and rulings concerning the legality of Defendants’

24 license revocation proceedings would interfere with the state proceedings by
25 precluding state-court review of the Medical Board’s final decision. Accordingly,
26 the Court finds this case meets all four requirements for application of the Younger
27 abstention doctrine.
28 //
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2. Exceptions to Younger Abstention
However, Plaintiff claims that an exception to Younger abstention permits his
claim to go forward in federal court. (Dkt. No. 54 at 25.) Younger abstention will
not apply when a state proceeding is brought in bad faith or for harassment
purposes. Younger v. Harris, 401 U.S. 37, 54 (1971); Huffman v. Pursue, Ltd., 420
U.S. 592, 611 (1975). Plaintiff argues the Court should not abstain from
adjudicating his claims because he has alleged “Defendants in bad faith have
delayed and harassed Plaintiff for 12 years disobeyed the Orders of the state court.
The state courts finally gave up.” (Dkt. No. 54 at 25.) Defendants argue “Plaintiff’s
dissatisfaction with the Medical Board’s disciplinary action and the results from his
subsequent petitions for writ of mandate and appeals filed in superior court and the
appellate court, respectively, is not evidence of bias or harassment against him.”

14 (Dkt. No. 50-1 at 22.)
“In the Younger abstention context, bad faith ‘generally means that a
15
16 prosecution has been brought without a reasonable expectation of obtaining a valid
17 conviction.’” Baffert v. Cal. Horse Racing Bd., 332 F.3d 613, 321 (9th Cir. 2003)
18 (citing Kugler v. Helfant, 421 U.S. 117, 126 n.6 (1975)). To allege bias sufficient to
19 warrant exception from a district court’s duty to abstain from interference with state
20 proceedings, a plaintiff must offer evidence to overcome the “presumption of
21 honesty and integrity in those serving as adjudicators.” Canatella v. California, 404
22 F.3d 1106, 1112 (9th Cir. 2005) (quoting Hirsh v. Justices of Supreme Court of
23 State of Cal., 67 F.3d 708, 713-14 (9th Cir. 1995)).
24

Here, the Court finds that Plaintiff has alleged “bad faith” as required to

25 warrant an exception to Younger abstention sufficient to survive a motion to
26 dismiss. Taking the SAC’s allegations as true, Plaintiff has successfully challenged
27 adverse Medical Board decisions three times by writ of mandate to the California
28 Superior Court. (SAC ¶¶ 168, 207, 226.) As alleged by Plaintiff, the California
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Superior Court remanded Defendants’ decisions each time, requiring Defendants to
reconsider the Medical Board’s written decisions. (Id. ¶¶ 177, 207, 226.) Despite the
California Superior Court’s explicit instructions to the contrary, Plaintiff alleges
Defendants refused to reconsider their opinions, each time re-issuing the same
opinion word-for-word. (Id. ¶ 209.) Given these allegations, the Court finds that
Plaintiff has sufficiently alleged “repeated harassment . . . with no intention of
securing a conclusive resolution” by Defendants acting as members of the Medical
Board of California. See Partington v. Gedan, 961 F.2d 852, 861-62 (9th Cir. 1992)
(citing Younger, 401 U.S. at 47-49). Although only “extraordinary circumstances”
may permit a federal court to relax the deference to be accorded to the state under
the Younger abstention doctrine, see Kugler v. Helfant, 421 U.S. 117, 124 (1975),
the Court finds that Plaintiff has alleged such extraordinary circumstances in this

14 case. Accordingly, the Court finds that Plaintiff’s allegations warrant an exception
2
15 to Younger abstention and DENIES Defendants’ motion to dismiss Plaintiff’s SAC
16 due to ongoing state proceedings.
17 III. Leave to Amend
18

Finally, the Court must determine whether to grant Plaintiff leave to amend

19 the SAC to cure the deficiencies discussed herein. In fact, a “district court should
20 grant leave to amend even if no request to amend the pleading was made, unless it
21 determines that the pleading could not possibly be cured by the allegation of other
22
2
The Court notes that Younger abstention may be “addressed by a federal court
23 at any time no matter how far along the litigation is.” Adibi v. Cal. State Bd. of
Pharmacy, 461 F. Supp. 2d 1103, 1109 (N.D. Cal. 2006). The Court emphasizes that
24 it does not hold that Younger abstention does not apply to this action as a matter of
law. The Court holds only that, taking Plaintiff’s allegations as true as the Court is
25 required to do when considering a motion to dismiss, the Court finds that Plaintiff has
alleged “bad faith” sufficient to survive a motion to dismiss based on Younger
26 abstention. Plaintiff still bears the burden of proving that the “bad faith” exception to
Younger prevents the application of Younger abstention at summary judgment. See
27 Woodfin Suite Hotels, LLC v. City of Emeryville, Nos. C 07-1719 SBA, C 06-1254
SBA, 2007 WL 1655792 at *3 (“The plaintiff bears the burden to establish that an
28 exception to Younger exists.”) (citing Kern v. Clark, 331 F.3d 9, 11 (2d Cir. 2003) (per
curiam); Phelps v. Hamilton, 122 F.3d 885, 889-90 (10th Cir. 1997)).

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facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quoting Doe
v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). Finding Plaintiff’s pleading
defects curable, the Court grants Plaintiff leave to amend his Second Amended
Complaint.
CONCLUSION AND ORDER
For the foregoing reasons, the Court hereby GRANTS in part and DENIES
in part Defendants’ motion to dismiss. (Dkt. No. 50.) Specifically, the Court
GRANTS Defendants’ motion to dismiss Plaintiff’s claims for declaratory relief
against Defendants Kirchmeyer and Levine in their official capacities for past
allegedly unconstitutional behavior due to Eleventh Amendment immunity. In
addition, the Court GRANTS Defendants’ motion to dismiss: (1) Plaintiffs’ claims
of due process violations under 42 U.S.C. § 1983 against Defendants Kirchmeyer

14 and Whitney; and (2) Plaintiff’s claim of racial discrimination in violation of the
15 Fourteenth Amendment under 42 U.S.C. § 1983 against all Defendants. In all other
16 respects, Defendants’ motion to dismiss, (Dkt. No. 50), is DENIED.
Plaintiff is granted forty-five (45) days to amend the SAC to correct the
17
18 deficiencies noted herein. In the alternative, Plaintiff may file a notice that he
19 intends to proceed on the SAC without further amendment of his allegations. Upon
20 filing of the notice, Defendants shall have fourteen (14) days to file an answer to
21 Plaintiffs’ remaining claims as provided for by the Federal Rules of Civil Procedure.
22 Fed. R. Civ. P. 12(a)(4)(A).
23

Having so held, the Court hereby VACATES the hearing date set for this

24 matter on May 30, 2014 at 1:30.
25

IT IS SO ORDERED.

26 DATED: May 30, 2014
27
28

HON. GONZALO P. CURIEL
United States District Judge
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