The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge
ORDER (1) GRANTING DEFENDANT'S MOTION TO DISMISS (2) DENYING PLAINTIFF'SMOTION FOR RECONSIDERATION AND REQUEST FOR RECUSAL [DKT. NOS. 13, 26]
For the reasons below, the Court GRANTS Defendants' motion to dismiss Plaintiff's first amended complaint and DENIES Plaintiff's request for reconsideration. (Dkt. Nos. 13, 26.)
On September 25, 2012, Plaintiff Jehan Zeb Mir (hereinafter "Plaintiff"), proceeding in propria persona, filed this lawsuit in federal court alleging the California Medical Board wrongfully took disciplinary actions against Plaintiff's physician's and surgeon's certificate. (Dkt. No. 1.) On January 17, 2013, Plaintiff filed a first amended complaint seeking injunctive and declaratory relief. (Dkt. No. 8.) On February 13, 2013, Defendants filed a motion to dismiss Plaintiff's amended complaint. (Dkt. No. 13.) On February 20, 2013, Plaintiff filed a motion for preliminary injunction. (Dkt. No. 17.) On March 19, 2013, the Court denied Plaintiff's motion for preliminary injunction. (Dkt. No. 23.) On April 24, 2013, Plaintiff filed a response in Opposition to Defendants' motion to dismiss. (Dkt. No. 25.) On May 2, 2013, Plaintiff filed a motion for reconsideration of the Court order denying Plaintiff's motion for preliminary injunction. (Dkt. No. 26.)
Plaintiff, a resident of the state of California, brings this action against Defendants Medical Board of California; Linda Whitney, Executive Director of the Medical Board of California; and Sharon Levine, President of the Medical Board of California. (Dkt. No. 8, "FAC.") In the FAC, Plaintiff outlines the history of his treatment for one particular patient, which lead to his termination from Pomona Valley Hospital and subsequently to the Medical Board's decision to revoke Plaintiff's medical licenses in 2007. (Id.) Plaintiff brings this action following a series of state court challenges to the California Medical Board's decision to revoke his medical licenses. (Id.)
Plaintiff was licensed by the Defendant State of California in 1972 to practice medicine. (FAC ¶ 6.) On June 8, 2000, Plaintiff treated an 81-year old female patient with a history of medical complications at Pomona Valley Hospital ("PVH"), where he was a provisional member of the medical staff. (FAC ¶¶ 6, 11, 12.) Plaintiff performed a series of surgeries on the patient, leading up to an abovethe-knee amputation of the patient's leg due to gangrene the patient had contracted following previous surgeries performed by Plaintiff. (FAC ¶¶ 30, 33-34, 42-45, 48-49.) Related to Plaintiff's treatment of the patient and other concerns about the Plaintiff's performance as a provisional staff member, PVH suspended Plaintiff around November 2000. (FAC ¶ 57.) Plaintiff requested injunctive relief from the Superior Court, but was denied for failure to exhaust his administrative remedies. (Id.) Plaintiff was terminated from PVH following these proceedings. (FAC ¶ 58.) Plaintiff requested declaratory relief from the Superior Court, which again was denied for failure to exhaust administrative remedies, and affirmed by the Court of Appeals. (FAC ¶¶ 59-62).
The Medical Board's actions commenced in 2003, when the Board first charged Plaintiff with gross negligence and incompetence in connection with his care of the aforementioned PVH patient. In January 2007, the Medical Board issued a decision revoking Plaintiff's medical licenses for these reasons. (FAC ¶163.) Following the revocation, Plaintiff filed a writ of mandamus with the California Superior Court, which granted the petition and remanded the matter to the Medical Board to reconsider the decision. (FAC ¶¶ 163-164, 175.) After review, the Medical Board reissued its decision. Plaintiff again filed a petition for writ of relief with the Superior Court, alleging the Medical Board had not reviewed its decision but rather had simply reissued the previous findings. (FAC ¶¶ 183-191.) Plaintiff further alleged the Medical Board had unlawfully made a finding of gross and repeated negligence, improperly determined the penalty, and wrongfully discriminated against Plaintiff and other minorities by disproportionately revoking licenses of physicians in the minority groups. (FAC ¶¶192-197.) The Superior Court directed the Medical Board to set aside its decision to revoke Plaintiff's licenses and remanded the matter to redetermine the penalty issues. (FAC ¶ 205.)
Following a hearing, the Medical Board issued another decision revoking and issuing a five year probation with terms and conditions. (FAC ¶¶ 205-218.) Plaintiff filed a third writ of mandate in the Superior Court challenging the Medical Board's decision. (FAC ¶¶ 222-223.) The Superior Court issued an order temporarily staying enforcement of probation conditions, and later mandated the Medical Board vacate the probation terms requiring Plaintiff to undergo psychiatric evaluation. (FAC ¶¶222-224.) The Medical Board complied with the order, and on March 16, 2012 issued its final decision striking the condition of psychiatric evaluation. (FAC ¶¶224-227.) On August 16, 2012, Defendants revoked Plaintiff's license for the fourth time for not complying with the conditions of probation. (FAC ¶ 227.) Plaintiff alleges that the Superior Court decisions were not final judgments "because there never was compliance by medical board." (FAC ¶¶227-229.)
Plaintiff alleges he has a property interest in his medical license protected by the U.S. Constitution. (FAC ¶ 239.) Plaintiff alleges the Court has jursdiction pursuant to 42 U.S.C. § 1983. (FAC ¶ 5.) Plaintiff makes the following primary allegations in support of his claim for injunctive and declaratory relief: Defendants in bad faith brought false fraudulent charges of misdiagnosis; Defendants denied Plaintiff due process; Defendants refused to consider additional evidence and failed to provide Plaintiff the opportunity for a full and fair hearing; Defendants conducted a sham administrative hearing; Defendants committed extrinsic fraud; and Defendants disobeyed the Superior Court decisions. ( FAC ¶¶ 240-278.) Plaintiff also alleges California Appellate process Section 2337 fails to provide due process. (FAC ¶ 266.) Plaintiff's second claim is for a "permanent injunction," and alleges many of the same violations. (FAC ¶¶271-281.) Plaintiff alleges these actions violate his due process rights under the Fifth and Fourteenth Amendments of the U.S. Constitution. (FAC Prayer for Relief.) Plaintiff seeks full restoration of his medical license as it existed prior to 2007. (Id.) Plaintiff also seeks a declaration that California Business & Profession Code Section 2337 is unconstitutional. (Id.)
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 "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 Service, 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 light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions, however, need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Moreover, a court "will dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action." Student Loan Marketing Association v. Hanes, 181 F.R.D. 629, 634 (S.D.Cal.1998). If a plaintiff fails to state a claim, a court need not permit an attempt to amend a complaint if "it determines that the pleading could not possibly be cured by allegation of other facts." Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.1990).
1. Defendants' Motion to Dismiss
Defendants move to dismiss Plaintiff's first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) based on several grounds. (Dkt. No. 13, "MTD.") Defendants first argue Plaintiff's entire action is barred by the Eleventh Amendment, and if not then Defendants are entitled absolute immunity. Defendants further contend Plaintiff has failed to state a claim for which relief can be granted, and ...