United States District Court, S.D. California
WILLIAM L. SABATINI, Plaintiff,
HONORABLE THOMAS E. PRICE, Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR A TEMPORARY
ANTHONY J. BATTAGLIA, UNITED STATES DISTRICT JUDGE
pending before the Court is Plaintiff William L.
Sabatini's (“Plaintiff”) second attempt to
have this Court temporarily restrain the Division of
Practitioner Data Banks from disseminating any report
regarding him submitted by Mountain View Surgery Center,
Redlands, California. (See generally Doc. No. 33.)
Defendant did not file an opposition to the motion. Pursuant
to Civil Local Rule 7.1.d.1, the Court finds the matter
suitable for determination on the papers and without oral
argument. For the reasons explained more fully below, the
Court DENIES Plaintiff's motion.
National Practitioner Data Bank (“NPDB”) was
established through Title IV of Public Law 99-660, the Heath
Care Quality Improvement Act of 1986. (Doc. No. 18-1 at 9
(see 42 U.S.C. § 11133).) The focus of the NPDB
is to improve the quality of health care by identifying
practitioners who are incompetent or engage in unprofessional
conduct; thus it acts as a flagging system to restrict the
ability of such practitioners to move from state to state
without disclosure or discovery of the “physician's
previous damaging or incompetent performance.” (Doc.
No. 1 at 5; Doc. No. 18-1 at 9 (see 42 U.S.C. §
is a registered nurse and certified registered nurse
anesthetist licensed to practice nursing in California. (Doc.
No. 1 at 3; Doc. No. 18-1 at 11.) On January 29, 2013,
Mountain View Surgery Center submitted a report to the NPDB
concerning Plaintiff. (Doc. No. 18-1 at 11.) The report
stated that on January 2, 2013, Plaintiff passed out while
monitoring one patient during a procedure and subsequently
had to be stopped from trying to administer sedation to a
patient who had already been sedated. (Id.; Doc. No.
18-2 at 30.) Plaintiff contests this report as well as any
other reports submitted by Mountain View. (Doc. No. 1 at 8.)
in February of 2013, Plaintiff began requesting that Mountain
View either remove the report or at a minimum correct it.
(Doc. No. 18-1 at 12.) On October 9, 2013, the Department of
Health & Human Services (“the Department”) noted
several errors in Mountain View's NPDB report and as a
result requested by letter that Mountain View correct the
report. (Doc. No. 18-2 at 29-32.) Despite these corrections,
Plaintiff continued to challenge the departmental review of
the report and on August 26, 2014, Plaintiff requested
reconsideration of the Department's decision. (Doc. No.
18-1 at 13; Doc. No. 18-2 at 53-59.) On December 2, 2014, the
Department responded that there was “no basis upon
which to conclude that the Report should not have been filed
in the NPDB or that the Report is not accurate.” (Doc.
No. 1 at 20; Doc. No. 18-2 at 59-64.)
on December 7, 2016, Plaintiff again requested amendment by
deletion, retraction, or otherwise of Mountain View's
NPDB report. (Doc. No. 18-2 at 66-76.) On February 3, 2017,
the Department informed Plaintiff that “[t]he NPDB
dispute process is inclusive of any rights to review under
the Privacy Act” and that Plaintiff had already
“exhausted all administrative remedies available to him
through [the Department], ” thus his request for
additional review was denied. (Id. at 82.)
August 9, 2017, Plaintiff filed the instant lawsuit claiming
violations of the Privacy Act 5 U.S.C. §§
552a(g)(1)(A)-(D). (Doc. No. 1.) Shortly thereafter, on
August 30, 2017, Plaintiff filed a motion for summary
judgment. (Doc. No. 5.) After setting a briefing schedule on
the motion, Defendant filed a notice of failure to properly
serve the United States. (Doc. No. 7.) On October 5, 2017,
the Court issued an order denying Plaintiff's motion for
summary judgment without prejudice as premature, vacated the
motion hearing date, and requested that Plaintiff review
Defendant's notice of failure to serve. (Doc. No. 9.) On
November 6, 2017, Defendant filed a motion to dismiss or
motion for summary judgment. (Doc. No. 18.) Oral argument was
heard on this motion on February 7, 2018, and the motion is
currently under submission. (Doc. No. 27.)
January 12, 2018, while briefing of Defendant's motion to
dismiss was still ongoing, Plaintiff filed his first motion
for a TRO, which was denied on January 16, 2018. (Doc. Nos.
22, 23.) On February 12, 2018, Plaintiff filed his own motion
for summary judgment. (Doc. No. 30.) On February 16, 2018,
Plaintiff then filed the instant motion, his second request
for a TRO. (Doc. No. 33.)
temporary restraining order may be granted upon a showing
“that immediate and irreparable injury, loss, or damage
will result to the movant before the adverse party can be
heard in opposition[.]” Fed.R.Civ.P. 65(b)(1)(A). The
purpose of such an order, as a form of preliminary injunctive
relief, is to preserve the status quo and prevent irreparable
harm “just so long as is necessary to hold a hearing,
and no longer.” Granny Goose Foods, Inc. v. Bhd. of
Teamsters & Auto Truck Drivers Local No. 70, 415 U.S.
423, 439 (1974). A request for a TRO is evaluated by the same
factors that generally apply to a preliminary injunction.
See Stuhlbarg Int'l Sales Co. v. John D. Brush &
Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). However, a
TRO is an “extraordinary remedy” and is
“never awarded as of right.” Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing
Munaf v. Geren, 553 U.S. 674, 689-90 (2008)).
Instead, the moving party bears the burden of demonstrating
four factors: (1) “he is likely to succeed on the
merits”; (2) “he is likely to suffer irreparable
harm in the absence of preliminary relief”; (3)
“the balance of equities tips in his favor”; and
(4) “an injunction is in the public interest.”
Winter, 555 U.S. at 20.
a plaintiff must satisfy all four of the requirements set
forth in Winter, the Ninth Circuit employs a sliding
scale whereby “the elements of the preliminary
injunction test are balanced, so that a stronger showing of
one element may offset a weaker showing of another.”
Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1131 (9th Cir. 2011). Accordingly, if the moving party
can demonstrate the requisite likelihood of irreparable harm
and show that an injunction is in the public interest, a TRO
may issue so long as there are serious questions going to the
merits and the balance of hardships tips sharply in the
moving party's favor. Id.
alleges that since the Court's previous order denying his
first motion for a TRO, there has been new compelling
evidence provided to the Court. (Doc. No. 33 at 1.)
Specifically, Plaintiff illustrates that the instant motion
is based upon (1) the indisputable admission made by the
Mountain View Attorney, John Whalin, that Mountain View was
not eligible to make a report concerning Plaintiff to the
NPDB; (2) the indisputable admission made by the Mountain
View administrator, Mary Lamoureux, that the organization did
not have a formally adopted peer review process that provided
Plaintiff with rights to a hearing as required by HCQIA for
eligibility in the NPDB; (3) the indisputable Mountain View
Bylaws that demonstrate that ...