Richardson v. Bacerra

          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 ...