United States District Court, E.D. California
ORDER GRANTING UNOPPOSED MOTION TO DISMISS FIRST
AMENDED COMPLAINT (ECF NO. 21); AND GRANTING UNOPPOSED MOTION
STRIKE SECOND AMENDED COMPLAINT (ECF NO. 24)
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
I.
INTRODUCTION
On
September 30, 2019, Plaintiff Stephen Ralph Richardson filed
this civil rights complaint asserting three claims, all
concerning an adverse decision against him from the
California Physician Assistant Board (“PAB”) and
procedural steps taken subsequent to that decision. ECF No.
1. Plaintiff filed a First Amended Complaint
(“FAC”) on November 4, 2019. ECF No. 14.
Plaintiff's first claim, arising under 42 U.S.C. §
1983 (“Section 1983”), alleges that the PAB
violated his Fourteenth Amendment right to procedural due
process. Id. at 4. He next appears to allege that
Title 16 of the California Code of Regulations, §
1399.523.5, violates the U.S. Constitution's prohibition
against ex post facto laws. Id. Finally, he includes
a claim that Defendants conspired to interfere with his civil
rights in violation of 42 U.S.C. § 1985(3)
(“Section 1985(3)”).
On
December 3, 2019, Defendants moved to dismiss, and set their
hearing on that motion for January 9, 2020. ECF No. 21. On
December 4, 2019, Plaintiff lodged a Second Amended Complaint
(“SAC”), without a stipulation from Defendants
and without leave of court. ECF No. 24. The SAC appears to
differ from the FAC in only one material respect - it
corrects a misspelling as to one Defendant's name.
Id. On December 9, 2019, Defendants moved to strike
the SAC because Plaintiff did not obtain leave of court to
file it and because the amendment would be futile. ECF No.
25. Plaintiff did not timely file any opposition, which would
have been due no later than December 26, 2019. See
Local Rule 230(c). Accordingly, Plaintiff may not be heard in
opposition to the motions. Id. Having reviewed the
motions in light of the entire record, the Court deems the
matter suitable for decision on the papers pursuant to Local
Rule 230(g), and, for the reasons set forth below, GRANTS
both motions.
II.
FACTUAL BACKGROUND
According
to judicially noticeable documents, Plaintiff received a
California Physician Assistant (“PA”) license in
1993. Defendant's Request for Judicial Notice
(“RJN”), Ex. 2 at ¶ 3.[1] On October 18,
2000, Plaintiff sustained a conviction in Fresno County
Superior Court under California Penal Code section 288(a),
for committing lewd or lascivious acts with a child under the
age of 14. RJN, Exs. 1(b), 2. Plaintiff was ordered to
register as a sex offender pursuant to California Penal Code
290. RJN, Ex. 1(b). Plaintiff surrendered his PA license on
January 2, 2002, as a direct result of his conviction.
See RJN Ex. 2.
More
than fifteen years later, in October 2017, Plaintiff
submitted a Petition for Penalty Relief, seeking to have his
license reinstated. RJN, Ex. 4. On May 24, 2018, Plaintiff
received notice from the PAB that his petition had been
denied pursuant to Title 16 of the California Code or
Regulations, Section 1399.523.5(3). RJN, Ex. 5. Soon
thereafter, the PAB sent him a revised notice of its decision
including a statement of Plaintiff's right to appeal the
decision. RJN, Ex. 6. Plaintiff pursued and was eventually
given a formal hearing on the denial of his reinstatement
petition, which resulted in a hearing officer recommending
denial of the petition. RJN, Exs. 3, 7, 8, 9. The PAB adopted
the proposed decision. RJN, Ex. 3. Plaintiff was notified in
an April 12, 2019 letter of the denial, that the decision
would become effective on May 10, 2019, and that he could
file a petition for reconsideration pursuant to California
Government Code § 11521, which requires any such
reconsideration petition to be received prior to the
effective date. RJN, Ex. 10. On April 24, 2019, Plaintiff
mailed a petition for reconsideration to the hearing officer,
instead of to the PAB. RJN, Ex. 11. On July 1, 2019, the
hearing officer forwarded Plaintiff's petition to the
PAB, which sent Plaintiff a letter indicating it lacked
jurisdiction to consider his reconsideration petition because
it was untimely. RJN, Ex. 12.
So far
as the Court can tell from the allegations in the FAC, as
well as the judicially noticeable documents presented by
Defendants, the next thing Plaintiff did was file this
lawsuit.
III.
ANALYSIS
A.
Motion to Dismiss
1.
Standard of Decision
A
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) is a challenge to the sufficiency of the allegations
set forth in the complaint. Navarro v. Block, 250
F.3d 729, 732 (9th Cir. 2001). A 12(b)(6) 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.”
Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699
(9th Cir. 1990). In determining whether a complaint states a
claim upon which relief may be granted, the Court accepts as
true the allegations in the complaint, construes the pleading
in the light most favorable to the party opposing the motion,
and resolves all doubts in the pleader's favor. Lazy
Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir.
2008).
Under
Rule 8(a), a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” in order to “give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). A plaintiff is required to 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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “The plausibility
standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. (quoting Twombly, 550 U.S. at 556).
While
Rule 8(a) does not require detailed factual allegations,
“it demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation.”
Iqbal, 556 U.S. at 678. A pleading is insufficient
if it offers mere “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555; see
also Iqbal, 556 U.S. at 678 (“Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”). Moreover, it
is inappropriate to assume that the plaintiff “can
prove facts that it has not alleged or that the defendants
have violated the . . . laws in ways that have not been
alleged[.]” Associated Gen. Contractors of Cal.,
Inc. v. Cal. State Council of Carpenters, 459 U.S. 519,
526 (1983). In practice, “a complaint . . . must
contain either direct or inferential allegations respecting
all the material elements necessary to sustain recovery under
some viable legal theory.” Twombly, 550 U.S.
at 562. In other words, the complaint must describe the
alleged misconduct in enough detail to lay the foundation for
an identified legal claim. “Dismissal without leave to
amend is proper if it is clear that the complaint could not
be saved by ...