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White v. Harris

United States District Court, C.D. California

March 16, 2015


Lloyd White, Attorneys Present for Plaintiffs.

Raymond Fitzgerals, Attorneys Present for Defendants.


CHRISTINA A. SNYDER, District Judge.

Proceedings: DEFENDANT TAMARA GARVER'S MOTION TO DISMISS (Dkt. No. 26, filed January 14, 2015).


Plaintiff Lloyd G. White, M.D. filed the instant civil rights action on August 22, 2013. Dkt. No. 1. On November 19, 2014, plaintiff filed the operative Second Amended Complaint ("SAC"). Dkt. No. 20. Plaintiff brings claims against defendants Tamara Garver ("Garver") and Verdeen Richardson ("Richardson"), two employees of the Medical Board of California (the "Medical Board"), as well as Does 1 through 50, under 42 U.S.C. § 1983 for alleged violations of various constitutional rights.[1] Both defendants are sued in their personal and official capacities. SAC ¶¶ 6, 7.

On January 14, 2015, Garver filed a motion to dismiss the SAC. Dkt. No. 26. Plaintiff filed an opposition on February 25, 2015. Dkt. No. 27. Garver replied on March 9, 2015. Dkt. No. 30. On March 16, 2015, the Court held a hearing on the motion. For the reasons stated below, the motion is granted in part and denied in part.


The SAC alleges the following facts, the truth of which the Court assumes for the purposes of this motion only. Plaintiff became a California-licensed physician on June 30, 1978. SAC ¶ 8. Although plaintiff successfully practiced medicine for more than three decades, disciplinary action against him arose from "an alleged inadequacy of the documentation in one patient's chart in 1990." Id. ¶¶ 9, 11. Plaintiff contends that neither "the hospital nor the insurance companies which paid for the operations found the report inadequate." Id. ¶ 11.

Nevertheless, the Medical Board placed plaintiff on probation by stipulated settlement for a period of three years, later extended to six years. Id. ¶ 12. This probation required plaintiff to perform twenty-four proctored surgeries, see a Medical Board officer every three months, and complete one hundred units of continuing medical education. Id. ¶¶ 13, 14. Plaintiff contends that the proctored surgery requirement violated the Medical Board's bylaws because plaintiff had "never had a surgical violation or misadventure, " and the punishment therefore lacked any nexus to the alleged violation. Id. ¶ 15. Plaintiff also avers that he has checked the Medical Board's website and has not found any other physician who was punished with more than sixty units of continuing medical education. Id.

Plaintiff completed eight proctored surgeries at significant expense, and reported those surgeries as required. Id. ¶ 16. Nevertheless, Garver claimed to have lost those reports, and told the Medical Board that plaintiff "did not have any proctored surgery." Id. Garver then stopped plaintiff from performing additional surgeries during a five-month evaluation of his proctor. Id. ¶ 17. Plaintiff also alleges that Garver described plaintiff as "an incompetent physician" without any supporting evidence, and engaged in this "arbitrary" conduct against him because plaintiff is African-American. Id. ¶¶ 20, 21.

Plaintiff alleges that Garver was "aware of, " and by delaying plaintiff's probationary process "further exacerbated, " issues in plaintiff's personal life, including a separation from plaintiff's wife, who froze plaintiff's assets, leaving him unable to afford malpractice insurance, and therefore unable to perform surgery and obtain patient referrals. Id. ¶ 18. Additionally, plaintiff formerly had a lucrative contract to provide medical services to nursing home residents in Northern California. Plaintiff contends that he lost this opportunity because Garver gave plaintiff "a letter to give to each nursing home stating he was on probation without indicating why, " which caused the nursing homes to believe that plaintiff had "done something outrageous." Id. ¶ 19. Plaintiff declared bankruptcy in 2007. Id.

At some point, Garver demanded that plaintiff give a urine sample for a drug test, which involved plaintiff's exposing his "pelvic area and private parts to" Garver, even though Garver had no grounds to suspect plaintiff of drug use. Id. ¶ 22-23. Plaintiff avers that he "neither smokes nor drinks alcohol, " and that Garver had no basis for thinking that plaintiff looked "spacey" or otherwise believing that a drug test was justified. Id. ¶¶ 25, 26. Garver subsequently ignored plaintiff's request for the results of the drug test. Id. ¶ 26. Plaintiff alleges that Garver subjected him to this mistreatment because he is African-American, and with the intention of humiliating plaintiff and preventing him from meeting the requirements of his probation. Id. ¶¶ 24, 27.

On January 14, 2010, the Medical Board filed an "Accusation and Petition to Revoke" plaintiff's probation, alleging failure to comply with certain terms and conditions of the probation. Id. ¶ 29. This petition was sent to plaintiff's prior address, and was returned to the Medical Board marked "unclaimed." Id. On April 27, 2010, plaintiff met with five Medical Board probation officers who informed him that the State of California intended to move to revoke plaintiff's medical license. Id. ¶ 30. Plaintiff alleges that "[d]efendants failed to inform [him] of the importance of the meeting, " so that he did not have an attorney attend the meeting. At this meeting, Richardson "handed Plaintiff an envelope" that contained the Accusation and Petition to Revoke. Plaintiff "expected the State to move against him by serving him with papers, " but there was no such further service. Id. Plaintiff explains that although he read the document at that time, he "did not appreciate its significance, " and was "waiting for action by the California Attorney General which Defendants had told him would be forthcoming." Id. ¶ 73. Plaintiff alleges that, due to this misunderstanding, he did not timely file a notice of defense or request for a hearing by the deadline of May 12, 2010. Id. ¶ 32.

One June 2 or 22, 2010, the Medical Board filed a default decision and order to revoke plaintiff's license effective July 22. Id. ¶¶ 10, 33. The Medical Board did not inform plaintiff of the default prior to filing this default decision. Id. ¶ 33. Plaintiff did not immediately see the notice of default decision because he was in Florida visiting his terminally ill uncle. Id. ¶ 34. Following his return to California, plaintiff reviewed the notice and moved to set aside the default decision by motion filed on July 14, 2010. This motion was denied. Id. ¶ 35. Plaintiff petitioned the California Superior Court for a writ of mandate on November 3, 2010. The Superior Court remanded the matter to the Medical Board for a clarification of what evidence supported its findings. Id. ¶ 36. The Superior Court apparently rejected the Board's decision a second time, but then affirmed the default on November 9, 2011. Id. ¶¶ 37, 39. Plaintiff alleges that during these proceedings, the Superior Court precluded him from presenting a defense or examining witnesses, but permitted defendants to present new evidence when plaintiff was not present. Id. ¶ 37.[2] Plaintiff appealed the Superior Court's decision to the California Court of Appeal, and then the California Supreme Court. The California Supreme Court denied plaintiff's writ on July 14, 2012. Id. ¶ 40.

In December 2013, plaintiff applied to the Medical Board for reinstatement of his license. Id. ¶ 43. Two doctors recommended that plaintiff's license be restored. Plaintiff alleges that shortly thereafter, "Defendants contacted these physicians and cautioned them about recommending that [his] license be restored." Id.

Plaintiff alleges violations of three constitutional rights. First, he asserts that defendants violated the Eighth Amendment by imposing arbitrary and excessive penalties. SAC ¶¶ 48-58. Second, plaintiff alleges that defendants imposed excessive penalties and otherwise discriminated against him due to his race, violating equal protection. Id. ¶¶ 59-66. Third, plaintiff contends that defendants' handling of his probation and license proceedings deprived him of property without due process of law. Id. ¶¶ 67-84. He seeks compensatory and punitive damages, as well as a list of all medical doctors disciplined by the Medical Board over the past ten years and associated information including the punishment, race, and gender of each doctor disciplined.


A. Federal Rule of Civil Procedure 12(b)(1)

A motion to dismiss an action pursuant to Fed.R.Civ.P. 12(b)(1) raises the objection that the court has no subject matter jurisdiction to hear and decide the case. This defect may exist despite the formal sufficiency of the allegations in the complaint. T.B. Harms Co. v. Eliscu , 226 F.Supp. 337, 338 (S.D.N.Y. 1964), aff'd 339 F.2d 823 (2d Cir. 1964). When considering a Rule 12(b)(1) motion challenging the substance of jurisdictional allegations, the Court is not restricted to the face of the pleadings, but may review any evidence, such as declarations and testimony, to resolve any factual disputes concerning the existence of jurisdiction. See McCarthy v. United States , 850 F.2d 558, 560 ...

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