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Mir v. Kirchmeyer

United States District Court, S.D. California

May 30, 2014

JEHAN ZEB MIR, Plaintiff,
KIMBERLY KIRCHMEYER, et al., Defendants.


GONZALO P. CURIEL, District Judge.

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.


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.) The First Amended Complaint named Defendants Medical Board of California; Linda Whitney, Executive Director; and Sharon Levine, M.D., President. (Id.)

Defendants then filed a motion to dismiss Plaintiff's amended complaint, (Dkt. No. 13), and 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 May 2, 2013, Plaintiff filed a motion for reconsideration of the Court order denying Plaintiff's motion for preliminary injunction. (Dkt. No. 26.) On May 8, 2013, the Court granted Defendants' motion to dismiss Plaintiff's First Amended Complaint and denied Plaintiff's motion for reconsideration, granting Plaintiff leave to amend his complaint. (Dkt. No. 28.)

On December 31, 2013, Plaintiff filed a Second Amended Complaint ("SAC"), the current operative complaint, nunc pro tunc to December 24, 2013. (Dkt. No. 44.) The SAC names three Defendants: (1) Kimberly Kirchmeyer, in her Personal and Official Capacity as Interim Executive Director and Deputy Director of the Medical Board of California; (2) Linda K. Whitney, in her Personal Capacity as Executive Director of the Medical Board of California; and (3) Sharon Levine, M.D. in her Personal and Official Capacity as President of the Medical Board of California. (Id.) On February 21, 2014, Defendants filed the present Motion to Dismiss Plaintiff's SAC, (Dkt. No. 50), and related Request for Judicial Notice. (Dkt. No. 51.)


The substantive factual allegations in Plaintiff's SAC remain largely unchanged from Plaintiff's two previous complaints. As set forth in the Court's previous orders, this action arises out of Plaintiff's challenges to the California Medical Board's decision to revoke his medical licenses.

Plaintiff was licensed by the State of California in 1972 as a Doctor of Medicine and Surgery. (Dkt. No. 44, "SAC" ¶ 8.) On June 8, 2000, Plaintiff admitted an 81-year old female patient with a history of medical complications to the San Antonio Community Hospital. (Id. ¶¶ 14, 19.) Plaintiff transferred the patient to Pomona Valley Hospital ("PVH"), where Plaintiff was a provisional member of the medical staff. (Id. ¶¶ 20, 24-26.) Plaintiff performed a series of surgeries on the patient, leading up to an above-the-knee amputation of the patient's leg due to gangrene the patient had contracted following previous surgeries performed by Plaintiff. (Id. ¶¶ 27-52.) Related to Plaintiff's treatment of the patient and other concerns about the Plaintiff's performance as a provisional staff member, PVH suspended Plaintiff's vascular surgery privileges around November 2000. (Id. ¶¶ 53-58.) Plaintiff requested injunctive relief from the California Superior Court, but was denied for failure to exhaust his administrative remedies. (Id. ¶ 59.) Following these proceedings, PVH terminated Plaintiff from the medical staff. (Id. ¶ 60.) 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. (Id. ¶¶ 61, 64.)

Defendants' actions against Plaintiff commenced on August 21, 2003, when Defendants filed an accusation against Plaintiff for misdiagnosis, negligence, improper transfer, and failure to document in connection with his care of the aforementioned PVH patient. (Id. ¶¶ 72-73.) On November 8, 2004, Defendants added charges of fabricating documents and dishonesty in a First Amended Accusation against Plaintiff. (Id. ¶ 97.) Although an Administrative Law Judge dismissed the First Amended Accusation, (id. ¶ 114), Defendants filed a Second Amended Accusation on April 6, 2005. (Id. ¶ 155.)

On December 6, 2006, Defendants revoked Plaintiff's medical licenses effective January 6, 2007. (Id. ¶ 165.) Following the revocation, Plaintiff filed a writ of mandamus with the California Superior Court. (Id. ¶ 166.) The court granted Plaintiff's petition, dismissing five out of six charges against Plaintiff; vacating the Medical Board's decision; and remanding the matter to the Medical Board to reconsider a penalty consistent with the Superior Court's opinion. (Id. ¶¶ 168, 177.) After review, the Medical Board reissued its decision on June 13, 2008. (Id. ¶¶ 187-88.) Plaintiff again filed a petition for writ of relief with the California Superior Court, alleging the Medical Board had not reviewed its decision but rather had simply reissued the previous findings. (Id. ¶ 193.) 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. (Id. ¶¶ 194-200.) 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. (Id. ¶ 207.)

Following a hearing, the Medical Board issued another decision on October 27, 2010, finding "repeated" and "gross negligence" and imposing a five year probation with various terms and conditions. (Id. ¶¶ 214-22.) Plaintiff filed a third writ of mandate in the Superior Court challenging the Medical Board's decision. (Id. ¶ 224.) 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. (Id. ¶¶ 226.) Defendants complied with the order, striking the probation condition of psychiatric evaluation effective March 16, 2012. (Id. ¶ 229.) On August 16, 2012, Defendants revoked Plaintiff's license for the fourth time for not complying with the conditions of probation. (Id. ¶ 231.)

Plaintiff's SAC alleges two claims for relief: (1) "Permanent Injunction"; and (2) "Permanent Injunction for Unconstitutional Statute." (SAC at 65, 76.) Under Plaintiff's first claim for relief, Plaintiff makes the following primary allegations: Plaintiff had a property interest in his medical license, protected by the U.S. Constitution; 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; Defendants misled the California Superior Court; and Defendants disobeyed the Superior Court decisions. (Id. ¶¶ 237-287.)

Plaintiff's second claim for relief claims California Business & Professions Code section 2337 is unconstitutionally over-broad and denies due process. (Id. ¶ 288.) Plaintiff further claims the Rules of the California Court of Appeal are facially unconstitutional where they provide for "discretionary summary denial of physician's petition writ of mandate without ordering Opposition, issuing alternative writ, affording oral arguments and issuing a written opinion justifying the decision." (Id. ¶ 298.)

Plaintiff's SAC seeks: (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); (3) a declaration of Plaintiff's rights in relation to Defendants alleged unconstitutional behavior, (id.); (4) a declaration that the California Business and Professions Code section 2337 and the Rules of the California Court of Appeal are unconstitutional. (Id. at 79-80.)


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 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 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 Mktg. Ass'n 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 & Liehe, Inc. v. N. Cal. Collection Serv. Inc. , 911 F.2d 242, 247 (9th Cir. 1990).

In addition, courts "liberally construe[]" documents filed pro se, Erickson v. Pardus , 551 U.S. 89, 94 (2007), affording pro se plaintiffs benefit of the doubt. Thompson v. Davis , 295 F.3d 890, 895 (9th Cir. 2002); Karim-Panahi v. L.A. Police 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 Univ. of Alaska , 673 F.2d 266, 268 (9th Cir. 1982). As with pleadings drafted by lawyers, a court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Western Min. Council v. Watt , 643 F.2d 618, 624 (9th Cir. 1981).


I. Request for Judicial Notice

A court may take notice of undisputed "matters of public record" subject to judicial notice without converting a motion to dismiss into a motion for summary judgment. Lee v. City of L.A. , 250 F.3d 668, 688-89 (9th Cir. 2001) (citing Fed.R.Evid. 201; MGIC Indem. Corp. v. Weisman , 803 F.2d 500, 504 (9th Cir. 1986)). Under Federal Rule of Evidence 201, a district court may take notice of facts not subject to reasonable dispute that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b); see also Lee , 250 F.3d at 689. However, a court may deny a request for judicial notice of facts that are not relevant to the question at issue. See, e.g., Santa 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 ...

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