United States District Court, E.D. California
ORDER & FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is proceeding in this action pro se. This matter was
accordingly referred to the undersigned by E.D. Cal.
302(c)(21). Plaintiff has filed a request for leave to
proceed in forma pauperis (“IFP”) pursuant to 28
U.S.C. § 1915, and has submitted the affidavit required
by that statute. See 28 U.S.C. § 1915(a)(1).
ECF No. 2. The motion to proceed IFP will therefore be
federal IFP statute requires federal courts to dismiss a case
if the action is legally “frivolous or malicious,
” fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
Plaintiff must assist the court in determining whether or not
the complaint is frivolous, by drafting the complaint so that
it complies with the Federal Rules of Civil Procedure
(“Fed. R. Civ. P.”). The Federal Rules of Civil
Procedure are available online at
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). In reviewing a complaint under this
standard, the court will (1) accept as true all of the
factual allegations contained in the complaint, unless they
are clearly baseless or fanciful, (2) construe those
allegations in the light most favorable to the plaintiff, and
(3) resolve all doubts in the plaintiff's favor. See
Neitzke, 490 U.S. at 327; Von Saher v. Norton Simon
Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir.
2010), cert. denied, 564 U.S. 1037 (2011).
court applies the same rules of construction in determining
whether the complaint states a claim on which relief can be
granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(court must accept the allegations as true); Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974) (court must construe
the complaint in the light most favorable to the plaintiff).
Pro se pleadings are held to a less stringent standard than
those drafted by lawyers. Haines v. Kerner, 404 U.S.
519, 520 (1972). However, the court need not accept as true
conclusory allegations, unreasonable inferences, or
unwarranted deductions of fact. Western Mining Council v.
Watt, 643 F.2d 618, 624 (9th Cir. 1981). A formulaic
recitation of the elements of a cause of action does not
suffice to state a claim. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
state a claim on which relief may be granted, the plaintiff
must allege enough facts “to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678. A pro se litigant is entitled to notice of the
deficiencies in the complaint and an opportunity to amend,
unless the complaint's deficiencies could not be cured by
amendment. See Noll v. Carlson, 809 F.2d 1446, 1448
(9th Cir. 1987).
who has a California address, brings suit for
“fraud” and “conspiracy” against the
following five named defendants: (1) Dr. Lorre Henderson,
whose “residency is unknown, ” but whose primary
place of business is alleged to be in Fairfield, California;
(2) Desiree Bosco, alleged to be a California resident; (3)
Sutter Medical Foundation,  whose primary place of business
is alleged to be in Sacramento, California; (4) The Doctors
Company, whose primary place of business is alleged to be in
Napa, California; and (5) the Medical Board of California.
ECF No. 1 at 1-2. As the basis for jurisdiction, plaintiff
states that he is filing this complaint in this court because
he has been registered as a vexatious litigant in the
Superior Court of Solano County. Id. at 1.
claims that he developed hearing loss after Dr. Henderson
used a suction instrument to remove wax from both of
plaintiff's ears in January 2017. Id. at 3. In
plaintiff's medical records, Dr. Henderson stated that
plaintiff's hearing loss was due to “Uncontrolled
insulin dependent type 2 diabetes, ” which plaintiff
alleges was “fabrication.” Id. Plaintiff
attempted to obtain information from defendant Bosco,
Administrative Director of Sutter Medical Foundation, but she
never responded. Id. at 4. Plaintiff made a claim
with Dr. Henderson's liability insurance provider, The
Doctors Company, which denied his claim. Id. He also
filed a complaint with the Medical Board of California, which
was denied. Id. at 5. Plaintiff asserts that all
five defendants “have conspired against plaintiff by
corresponding among themselves” and that they each
(except for Sutter) “committed frauds” and
“committed conspiracy.” Id. at 5-6.
Plaintiff seeks unspecified compensatory and punitive
damages. Id. at 7.
complaint suffers from numerous deficiencies, several of
which cannot be cured by amendment. First, the complaint
fails to plead sufficient facts to make out state-law claims
of fraud or civil conspiracy. More fundamentally, however, this
suit is barred against the Medical Board, and the court lacks
jurisdiction to hear the case because plaintiff shares the
same state of citizenship as many (if not all) of the other
defendants, and his factual allegations support no
identifiable federal claim.
Medical Board of California, as an arm of the State, is
entitled to sovereign immunity. Absent consent or waiver, the
Eleventh Amendment bars private suits against a state or a
state agency in federal court. Papasan v. Allain,
478 U.S. 265, 276 (1986); Sato v. Orange Cty. Dep't
of Educ., 861 F.3d 923, 928 (9th Cir. 2017)
(“[A]gencies of the state are immune under the Eleventh
Amendment from private damages or suits for injunctive relief
brought in federal court.”) (citation omitted). The
Medical Board of California is a state entity created
pursuant to Cal. Bus. & Prof. Code § 2001. As there
is no indication that the State has consented to suit, or
waived its sovereign immunity, both of plaintiffs claims
against the Medical Board are barred under the Eleventh
addition, plaintiff's complaint provides no basis for
federal jurisdiction. Jurisdiction is a threshold inquiry
that must precede the adjudication of any case before the
district court. Morongo Band of Mission Indians v. Cal.
State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir.
1988). Federal courts-unlike state court where plaintiff has
apparently been rebuffed for vexatious litigation-are courts
of limited jurisdiction and may adjudicate only those cases
authorized by federal law. Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994); Willy v. Coastal
Corp., 503 U.S. 131, 136-37 (1992). “Federal
courts are presumed to lack jurisdiction, ‘unless the
contrary appears affirmatively from the record.'”
Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993)
(quoting Bender ...