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Sheikh v. Medical Board of California

July 13, 2010

FARZANA SHEIKH, M.D. PLAINTIFF,
v.
MEDICAL BOARD OF CALIFORNIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge

ORDER

Previously pending on this court's law and motion calendar for June 10, 2010, was plaintiff's motion to compel, filed April 8, 2010,*fn1 defendants' amended motion to dismiss, filed April 29, 2010, defendants' request for judicial notice, filed April 28, 2010, and plaintiff's request for briefing schedule, filed May 10, 2010. Plaintiff appeared in pro se. Defendants were represented by Susan Meadows.

BACKGROUND

Plaintiff filed this action on January 27, 2010, against defendants Medical Board of California and the State of California. The case is proceeding on the "amended petition for review," construed as an amended complaint, filed on February 17, 2010, in response to this court's order striking the original pleading as having been filed by plaintiff's husband, who is not a lawyer. The amended complaint seeks to set aside an administrative decision by the Medical Board denying plaintiff's application for a physician's and surgeon's license. Plaintiff alleges that the Board's denial of her application is arbitrary and capricious because it did not find her guilty of any accusation, yet denied her a license. Plaintiff alleges procedural due process violations, including that the Board brings accusations without testing their credibility, that the Board engages in ex parte communications with the decision makers, and that the Board makes a decision by secret ballot without reviewing any records. Plaintiff objects to the Board's denial of her certificate on the grounds of incompetence, lack of interpersonal skills, and dishonesty. Plaintiff also alleges that Cal. Bus. & Prof. Code § 2335, concerning proposed decisions of the Medical Quality Hearing Panel, violates her right to due process. (Am. Compl. at 2.)

The ALJ's proposed decision, issued on November 3, 2009, after plaintiff did not appear at the hearing, found that plaintiff had made false statements on her application. She had answered "yes" to the question of whether she had taken a leave of absence from training, which was true, but she did not provide a written explanation for the leave as was required. Defs.' RJN, Ex. 1, at 3. Plaintiff also answered "no" to the questions about whether any limitations or special requirements were placed on her and whether a medical program had declined to offer or renew her contract, both of which were true. Her answers were given under penalty of perjury.

The Board adopted the ALJ's proposed decision on November 25, 2009, effective December 28, 2009. Id. Plaintiff did not seek state court judicial review of the Board's final decision, issued after plaintiff had failed to appear at her administrative hearing.

DISCUSSION

A. Defendants' Request for Judicial Notice

Defendants' request, filed April 28, 2010, consists of the decision of the Medical Board of California issued November 25, 2009, finally denying plaintiff's application for a physician's and surgeon's license. Attached to that decision are a Statement of Issues, filed against plaintiff with the Medical Board of California on March 27, 2009, and an Amended Statement of Issues, filed with the Board on May 21, 2009. The statement of issues sets forth the law supporting the Board's denial of plaintiff's application for a physician's and surgeon's license. The cause for denial of plaintiff's application was answering a question untruthfully and failing to disclose material information on her application. RJN, Ex. 2.

A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). Because these exhibits are administrative court records, defendants' request for judicial notice is granted.

B. Defendants' Motion to Dismiss

I. Legal Standards

A. Rule 12(b)(6)

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 ...


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