The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Previously pending on this court's law and motion calendar for December 17, 2009, was defendant California Veterinary Medical Board's ("CVMB") second amended motion to dismiss, filed October 23, 2009. Having heard oral argument and reviewed the papers in support of and in opposition to the motion, the court now issues the following findings and recommendations.
In his complaint, filed June 22, 2009, plaintiff, a native East Indian who is a naturalized United States citizen, alleges that the CVMB denied his request for a veterinary license in California based on racial discrimination. He seeks a license to practice veterinary medicine in California under reciprocity with the states where he currently holds valid such licenses, including Washington, Florida and Illinois. Plaintiff's opposition states that he filed three applications with the CVMB and two were rejected. His third and final application was denied on June 21, 2006 with the explanation that "I had not completed 'Sufficient Rehabilitation' in Washington State, to be issued any type of Veterinary License, whether under Reciprocity or under regular rules and regulations." (Pl.'s Oppo. at 10.) Plaintiff explains that Washington conducted some investigations, but then closed them and allowed him to resume practice there so that the ALJ's reasoning based on insufficient rehabilitation was not warranted.
I. Legal Standard For Motion to Dismiss
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S.Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137 (1992).
Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
CVMB brings the instant motion for failure to state a claim based on Eleventh Amendment Immunity, failure to exhaust administrative remedies, and that the action is barred by the statute of limitations. Because this action is barred by the statute of limitations, the undersigned will not reach CVMB's other grounds for dismissal which are either problematic or temporary in nature.
CVMB argues that all of the pertinent events occurred more than two years before plaintiff filed his complaint, and therefore the action, brought ...