Docket.ca9.Dr.sheikh.v.mbc.27 1

10-17098

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FARZANZA SHEIKH ,

Plaintiff and Appellant,

v.

MEDICAL BOARD OF CALIFORNIA, et al.,

Defendants and Appellees.

On Appeal from the United States District Court for the Eastern District of California

No. 2:10-cv-00213-FCD-GGH (PS) The Honorable Frank C. Damrell, Jr., Judge

APPELLEES’ ANSWERING BRIEF

KAMALA D. HARRIS Attorney General of California DAVID S. CHANEY Chief Assistant Attorney General CARLOS RAMIREZ Senior Assistant Attorney General JOSE R. GUERRERO Supervising Deputy Attorney General SUSAN K. MEADOWS Deputy Attorney General State Bar No. 115092

455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5552 Fax: (415) 703-5480 Email: [email protected]

Attorneys for Appellees Medical Board of California and State of California

Case: 10-17098 04/18/2011 Page: 1 of 66 ID: 7719802 DktEntry: 27-1

TABLE OF CONTENTS

Page

i

INTRODUCTION ......................................................................................... 1

STATEMENT OF JURISDICTION ............................................................. 2

STATEMENT OF ISSUES ........................................................................... 2

ADDENDUM ................................................................................................ 5

STATEMENT OF THE CASE ..................................................................... 5

I. Nature Of The Case. .................................................................. 5

STATEMENT OF FACTS ............................................................................ 6

I. The Administrative Proceedings. .............................................. 6

II. District Court Proceedings ........................................................ 9

III. Ninth Circuit Proceedings. ...................................................... 15

SUMMARY OF ARGUMENT ................................................................... 16

STANDARDS OF REVIEW ....................................................................... 19

ARGUMENT ............................................................................................... 21

I. Sheikh’s Entire Action Is Barred By The Eleventh Amendment To The Constitution ........................................... 21

II. The District Court Did Not Err In Taking Judicial Notice Of The MBOC Decision, The Statement Of Issues, And Amended Statement Of Issues Filed By The MBOC Nor Did Judicial Notice Of The Documents Convert Sheikh’s Motion To Dismiss To A Motion For Summary Judgment. ................................................................................ 25

III. The District Court Properly Found That Sheikh’s FAC Fails To, And Cannot, State A Plausible Claim Against The Defendants Under Section 1983 ...................................... 27

IV. Sheikh’s Claim That She Was Denied Due Process By Allegedly Being Removed From A Residency Training Program By The MBOC Has Been Waived, And In Any Event Is Moot .......................................................................... 35


TABLE OF CONTENTS (continued)

Page

ii

A. Sheikh Has Waived The Claim By Failing To Raise It In The District Court. ...................................... 35

B. Sheikh’s Due Process Claim Based On Alleged Removal From The Residency Program Is Moot. ........ 38

V. California Business And Professions Code Section 2227 Does Not Violate The Eighth Amendment Prohibition Of Cruel And Unusual Punishments ............................................ 39

VI. The District Court Did Not Err In Dismissing Sheikh’s Motion To Compel Discovery As Moot ................................. 40

VII. The District Court Did Not Err In Construing Sheikh’s Pleading As A Complaint........................................................ 41

VIII. Sheikh Did Not File A Timely Opposition To The MBOC’s Motion To Dismiss And Did Not File Objections To The Magistrate Judge’s Recommendations And Findings Despite An Opportunity To Do So. ................. 43

IX. The District Court Did Not Deny Sheikh An Article III Judge By Assigning The Case To A Magistrate Judge To Prepare Findings And Recommendations ............................... 46

X. The District Court Did Not Abuse Its Discretion In Denying Sheikh’s Motion For Relief From Final Judgment Under Rule 60(B) ................................................... 47

XI. The Court Did Not Abuse Its Discretion By Terminating Sheikh’s E-Filing Privileges ................................................... 49

XII. The District Court Did Not Err In Denying Sheikh’s Motion For Disqualification .................................................... 50

XIII. The Ninth Circuit Court Of Appeal Lacks Jurisdiction To Hear And Grant Sheikh’s Petition For Approval Of Her Application For Physician’s And Surgeon’s License ............. 50

CONCLUSION ............................................................................................ 52

STATEMENT OF RELATED CASES ....................................................... 53


TABLE OF AUTHORITIES

Page

iii

CASES

Ashcroft v. Iqbal 129 S. Ct. 1937 (2009) ....................................................................... 20

Bates v. Sponberg 547 F.2d. 325 (6th Cir. 1976) ...................................................... 29, 30

Bias v. Moynihan 508 F.3d 1212 (9th Cir. 2007) ........................................................... 20

Bixby v. Pierno 4 Cal.3d 130 (1971) ........................................................................... 32

Brazil v. United States Dept. of Navy 66 F.3d 193 (9th Cir. 1995) ............................................................... 36

Cain v. State of Arkansas 734 F.2d 377 (8th Cir. 1984) ............................................................. 40

Carter v. Commissioner of Internal Revenue 784 F.2d 1006 (9th Cir. 1986) ........................................................... 44

Cholla Ready Mix, Inc. v. Civish 382 F.3d 969 (9th Cir. 2004) ............................................................. 19

Cigna Property and Cas. Ins. Co. v. Polaris Pictures Corp. 159 F.3d 412 (9th Cir. 1998) ............................................................. 19

City of Erie v. Pap’s A.M. 529 U.S. 277 (2000)........................................................................... 38

Cleveland Brd. of Educ. v. Loudermill 470 U.S. 532 (1985)........................................................................... 33


TABLE OF AUTHORITIES (continued)

Page

iv

Coffin v. Department of Alcoholic Beverage Control 139 Cal.App.4th 471 (2006) ................................................................ 8

Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc. 911 F.2d 242 (9th Cir.1990) (per curiam) ............................. 19, 24, 35

Dept. of Health & Rehabilitative Servs. v. Florida Nursing Home Assn., Florida 450 U.S. 147 (1981) ................................................... 23

Dream Palace v. County of Maricopa 384 F.3d 990 (9th Cir. 2004) ............................................................. 37

Edelman v. Jordan 415 U.S. 651 (1974) overruled on other grounds by ........................ 22

Estate of Conners by Meredith v. O'Connor 6 F.3d 656 (9th Cir. 1993) ................................................................. 46

Ex parte Young 209 U.S. 123 (1980)........................................................................... 24

Forster, M.D. v. County of Santa Barbara 896 F.2d 1146 (9th Cir. 1990) ........................................................... 23

Foster v. Carson 347 F.3d 742 (9th Cir. 2003) ............................................................. 38

Garrett v. City of San Francisco 818 F.2d 1515 (9th Cir. 1987) ..................................................... 40, 41

Greater Los Angeles Council on Deafness, Inc. v. Zolin 812 F.2d 1103 (9th Cir. 1987) ........................................................... 22

Green v. Mansour 474 U.S. 64 (1985) ............................................................................. 22



Page

v

Guerrero v. State of New Jersey 643 F.2d 148 (3rd Cir. 1981) ............................................................. 30

Hoeck v. City of Portland 57 F.3d 781 (9th Cir. 1995) ............................................................... 20

Hunt v. Pliler 384 F.3d 1118 (9th Cir. 2004) ..................................................... 46, 47

In Braniff Airways, Inc. v. C. A. B. 379 F.2d 453 (D.C. Cir. 1967) ........................................................... 30

In Cooper v. State Bd. of Medical Examiners of Dept. of Professional and Vocational Standards of Cal. 35 Cal.2d 242 (1950) ................................................................... 30, 31

Irwin v. Mascott 370 F.3d 924 (9th Cir. 2004) ............................................................. 20

James v. Wal-Mart Stores, Inc. 279 F.3d 883 (9th Cir. 2002) ........................................... 20, 26, 37, 39

Johnson v. Riverside Healthcare System, LP 534 F.3d 1116 (9th Cir. 2008) ........................................................... 19

Knievel v. ESPN 393 F.3d 1068 (9th Cir. 2005) ........................................................... 19

Kokkonen v. Guardian Life Ins. Co. of America 511 U.S. 375 (1994)........................................................................... 51

Lujan v. Defenders of Wildlife 504 U.S. 555 (1992)........................................................................... 39

MacDonald v. Grace Church Seattle 457 F.3d 1079 (9th Cir. 2006) ........................................................... 21



Page

vi

Martin v. Alcoholic Beverage Control Appeals Bd. of Cal. 52 Cal.2d 259 (1959) ........................................................................... 8

Mathews v. Eldridge 424 U.S. 319 (1976)........................................................................... 28

McKeever v. Block 932 F.2d 795 (9th Cir. 1991) ............................................................. 47

MGIC Indem.Co. v. Weisman 803 F.2d 500 (9th Cir.1986) .............................................................. 26

Morgan v. United States 298 U.S. 468 (1936)..................................................................... 29, 30

Pennhurst State Sch. & Hosp. v. Halderman 465 U.S. 89 (1984) ........................................................... 21, 22, 23, 24

Pesnell v. Arsenault 543 F.3d 1038 (9th Cir. 2008) ........................................................... 21

Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy 506 U.S. 139 (1993)........................................................................... 22

Quern v. Jordan 440 U.S. 332 (1979)........................................................................... 23

Raygor v. Regents of the University of Minnesota 534 U.S. 533 (2002)........................................................................... 24

Romano v. Bible 169 F.3d 1182 (9th Cir. 1999) ........................................................... 22

Ruvalcaba v. City of Los Angeles 167 F.3d 514 (9th Cir. 1999) ............................................................. 38



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vii

Sanders v. Brown 504 F.3d 903 (9th Cir. 2007) ............................................................. 20

Thompson v. City of Los Angeles 885 F.2d 1439 (9th Cir. 1989) overruled on other grounds by Bull v. City and County of San Fran cisco, 595 F.3d 964 (9th Cir. 2010) ................................................... 23

United States v. 14.02 Acres of Land More or Less in Fresno County 547 F.3d 943 (9th Cir. 2008) ....................................................... 19, 27

United States v. Patron 575 F.2d 708 (9th Cir.1978.) ................................................. 20, 37, 39

United States v. Ritchie 342 F.3d 903 (9th Cir. 2003) ....................................................... 20, 26

United States v. Wilson 631 F.2d 118 (9th Cir. 1980) ............................................................. 26

Verner v. State of Colorado 533 F.Supp. 1109 (D.Colo. 1982), aff'd, 716 F.2d 1352 (10th Cir. 1983) .................................................................................................. 40

Will v. Michigan Dept. of State Police 491 U.S. 58 (1989) ....................................................................... 22, 23

Yakus v. United States 321 U.S. 414 (1944)........................................................................... 33

STATUTES

28 U.S.C. § 455(b)(1) ............................................................................. 14

28 U.S.C. § 455(b)(5) ............................................................................. 14

28 U.S.C. § 636(b)(1) ....................................................................... 17, 45



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viii

28 U.S.C. § 636(b)(1)(B) .................................................................. 46, 47

28 U.S.C. § 1291 ................................................................................. 2, 51

28 U.S.C. § 1331 ....................................................................................... 2

28 U.S.C. § 1367 ....................................................................................... 2

42 U.S.C. § 1981 ..................................................................................... 15

42 U.S.C. § 1983 .............................................................................. passim

Cal. Bus.&Prof. Code § 100 ............................................................... 5, 23

Cal. Bus. & Prof. Code § 475(a) ............................................................... 7

Cal. Bus. & Prof. Code § 480(a) ............................................................... 7

Cal. Bus. & Prof. Code § 480(c) ............................................................... 7

Cal. Bus. & Prof. Code § 2001 ........................................................... 5, 23

Cal. Bus. & Prof. Code § 2002 ........................................................... 5, 23

Cal. Bus. & Prof. Code § 2004 ........................................................... 5, 23

Cal. Bus. & Prof. Code § 2227 ................................................................. 5

Cal. Bus & Prof. Code § 2228 ...................................................... 3, 16, 39

Cal. Bus. & Prof. Code § 2230 ................................................................. 5

Cal. Bus. & Prof. Code § 2234(e) ............................................................. 7

Cal. Bus. & Prof. Code § 2261 ................................................................. 7

Cal. Bus. & Prof. Code § 2335 ........................................................ passim

Cal. Code of Civ. Proc. § 1094.5 ..................................................... passim



Page

ix

Cal. Code of Civ. Proc. § 1094.5(f) ........................................................ 41

Cal. Code of Civ. Proc. § 1094.5(g) ....................................................... 41

Cal. Gov. Code § 2230 ............................................................................ 28

Cal. Gov. Code § 11500 .......................................................................... 28

Cal. Gov. Code § 11504 ............................................................................ 7

Cal. Gov. Code § 11513 ...................................................................... 5, 32

Cal. Gov. Code § 11517 .................................................................... 30, 31

Cal. Gov. Code § 11517(b) ..................................................................... 31

Cal. Gov. Code § 11517(c)(2) ................................................................ 28

Cal. Gov. Code § 11517(c)(2)(A) ........................................................... 28

Cal. Gov. Code § 11517(c)(2)(E) ........................................................... 28

Cal. Gov. Code § 11520 (a) ................................................................ 8, 32

Cal. Gov. Code § 11521 ............................................................................ 9

Cal. Gov. Code § 11523 ............................................................................ 9

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Eighth Amendment ............................................ passim

U. S. Constitution, Eleventh Amendment ....................................... passim

U. S. Constitution, Fourteenth Amendment ....................................... 3, 23

COURT RULES

Fed. Rules of App. Proc, Rule 8 ............................................................. 15



Page

x

Fed Rules of App. Proc., Rule 28 ............................................................. 5

Fed. Rules of App. Proc., Rule 28-2.7 ...................................................... 5

Fed. Rules of App. Proc., Rule 28(a)(4)(D) ............................................. 2

Fed. Rules of Civ. Proc., Rule 2 ............................................................. 42

Fed. Rules of Civ. Proc., Rule 3 ....................................................... 18, 42

Fed. Rules of Civ. Proc., Rule 12(b) ....................................................... 41

Fed. Rules of Civ. Proc., Rule 12(b)(1) ............................................ 11, 21

Fed. Rules of Civ. Proc., Rule 12(b)(6) ........................................... passim

Fed. Rules of Civ. Proc., Rule 56 ........................................................... 41

Fed. Rules of Civ. Proc., Rule 56(f) ....................................................... 40

Fed. Rules of Civ. Proc., Rule 59(e) ....................................................... 48

Fed. Rules of Civ. Proc., Rule 60(b) ............................................. 4, 17, 47

Fed. Rules of Civ. Proc., Rule 60(b)(1) .................................................. 48

Fed Rules of Civ. Proc., Rule 60(b)(2) ................................................... 48




Fed. Rules of Civ. Proc., Rule 78 ........................................................... 50

USDC Eastern District Local Rule 302(c)(21) ................................... 4, 47


1

INTRODUCTION

Defendant Medical Board of California1 (“MBOC” or “Board”) denied

Plaintiff/Appellant Farzana Sheikh’s (“Sheikh”) application for a physician’s

and surgeon’s license because she made false statements on her application.

Pursuant to California law, Sheikh was afforded a hearing before an

Administrative Law Judge (“ALJ”). Although provided with notice, Sheikh

did not appear at the hearing. After taking evidence, the ALJ found that

Sheikh had lied on her application and recommended that she be denied a

license. The MBOC adopted the ALJ’s decision. Instead of following the

normal procedure of seeking review in the California Superior Court by way

of a petition for administrative mandamus under California Code of Civil

Procedure § 1094.5, Sheikh filed this pro per action in the district court. Her

“Amended Petition for Review,” which the district court construed as an

amended complaint, seeks to allege constitutional violations (primarily

denial of due process) pursuant to 42 U.S.C.A §1983 and a supplemental

state law claim under section 1094.5. The district court granted defendants’

1 Plaintiff and Appellant Farzana Sheikh will be referred to in this

document as “Sheikh.” Defendant and Appellee Medical Board of California will be referred to as “the MBOC.” When it will not result in confusion or misapprehension, “the MBOC” will also be used to refer to the Defendants and Appellees, State of California and Medical Board of California, collectively.


2

Motion to Dismiss for failure to state a claim, and entered final judgment.

This appeal is from that judgment.

For the reasons explained below, the district court’s decision was

correct and therefore should be affirmed.

STATEMENT OF JURISDICTION

The action in the district court purported to allege claims under 42

U.S.C. §1983 and a supplemental state law claim for administrative

mandamus under California Civil Procedure Code § 1094.5. As such, the

district court had jurisdiction pursuant to 28 U.S.C. §§1331 and 1367. The

district court entered judgment on August 23, 2010. Sheikh filed her Notice

of Appeal on September 21, 2010 and an Amended Notice of Appeal on

November 12, 2010. The appeal is from a final order that disposes of all

claims by all parties. Rule 28(a)(4)(D), Federal Rules of Appellate

Procedure. This Court has jurisdiction over the final order dismissing the

action pursuant to 28 U.S.C. § 1291.

STATEMENT OF ISSUES

1. Whether the district court lacked subject matter jurisdiction over

Sheikh’s federal claims under 42 U.S.C. § 1983 and state law claim for

administrative mandamus under California Civil Procedure Code § 1094.5


3

because the State of California and the MBOC are immune from suit under

the Eleventh Amendment.

2. Whether the district court correctly determined that the MBOC,

acting pursuant to California Business and Professions Code § 2335, did not

violate Sheikh’s right to procedural due process under the Fourteenth

Amendment by adopting the findings and recommendations of the

Administrative Law Judge without conducting an independent review of the

evidence or for the other reasons alleged by Sheikh.

3. Whether appellate review of certain issues, e.g., the Eighth

Amendment claim and the due process claim based on alleged removal from

the residency program, is precluded because the issues were not raised in the

district court.

4. Whether Sheikh’s claim that she was removed from her residency

program in August 2008 without a prior hearing in violation of her

procedural due process rights is rendered moot by the statements in her

district court complaint and in her brief to this Court that she has

successfully completed her residency program.

5. Whether Sheikh has standing to challenge Section 2227 of the

California Business and Professions Code, and, if so, whether the

disciplinary actions against physicians which are authorized by that section


4

constitute cruel and unusual punishment in violation of the Eighth

Amendment.

6. Whether the district court erred in dismissing, as moot, Sheikh’s

Motion to Compel Defendants’ Compliance with the State’s Administrative

Law Judge’s Discovery Orders and Request for Sanctions.

7. Whether the district court denied Sheikh’s right to have her case

decided by an Article III judge by assigning defendants’ Motion of Dismiss

to a Magistrate Judge for findings and recommendations, which were then

subject to de novo review and decision by the district court pursuant to

Eastern District Local Rule 302(c)(21).

8. Whether the district court’s denial of Sheikh’s Motion for

Reconsideration under Federal Rule of Civil Procedure 60(b) was an abuse

of discretion.

9. Whether the district court abused its discretion in denying

Sheikh’s Motion for Disqualification of the district judge.

10. Whether the district court abused its discretion in terminating

Sheikh’s e-filing privileges after the case was dismissed and judgment had

been entered for the MBOC.


5

11. Whether the Ninth Circuit Court of Appeal can grant Sheikh’s

Petition requesting that the Ninth Circuit vacate the MBOC’s Decision

denying her a medical license and issue her a California medical license.

ADDENDUM

Pursuant to Federal Rules of Appellate Procedure, Rule 28, Circuit

Rule 28-2.7, an Addendum is attached hereto which sets forth relevant

California statutes and Eastern District Local Rules (“EDLR”) referenced by

Sheikh or the MBOC, i.e., California Business and Professions Code §§ 100,

2001, 2002, 2004, 2227, 2230 2335; California Government Code §§ 11513,

11517, 11520; California Civil Procedure Code § 1094.5; EDLR 230(b),

and EDLR 302(c)(21).

STATEMENT OF THE CASE

I. NATURE OF THE CASE.

This case arises from the administrative proceedings before the MBOC

which resulted in the MBOC denying Sheikh’s application for a physician’s

and surgeon’s certificate. The MBOC’s decision was rendered after a

noticed hearing, which Sheikh chose not to attend. Instead of pursuing the

normal appeal route of filing a petition for writ of administrative mandamus

pursuant to California Code of Civil Procedure § 1094.5 in the California

superior court, Sheihk filed a pro se action against the MBOC and the State


6

of California in the district court which, liberally construed, alleged a claim

under 42 U.S.C. § 1983 for purported denial of her right to procedural due

process, as well as a supplemental state law claim under § 1094.5.

As more fully set forth below in the Statement of Facts, the district

court, in response to the MBOC’s motion, dismissed the action and entered

final judgment based on its finding that Sheikh’s First Amended Complaint

(“FAC”) did not state a section 1983 claim for denial of procedural due

process. This appeal is taken from that judgment.

STATEMENT OF FACTS

I. THE ADMINISTRATIVE PROCEEDINGS.

In September 2007, Sheikh submitted to the MBOC an application for a

physician’s and surgeon’s certificate. (ER2 76-77.) The MBOC denied

Sheikh’s application in December 2008 based on false statements on her

application. (ER 69-74, 79-82, 128.)3 Sheikh requested a hearing. (ER 69,

77) In March 2009, the Board filed a Statement of Issues under the

2 The designation “ER” refers to Appellees’ Excerpts of Record since

no excerpts of record were timely submitted by Sheikh when she filed her AOB. Sheikh filed excerpts of record with this court on or about March 28, 2011, approximately one and a half months after the due date.

3 The district court took judicial notice of the MBOC’s Statements of Issues and Decision denying Sheikh’s application for licensure as official public records of the MBOC. (ER 16-17.) They are also referenced in Sheikh’s FAC.


7

California Administrative Procedure Act (“APA”), Cal. Gov. Code § 11504,

and an Amended Statement of Issues in May 2009. (ER 76-91.) The

Amended Statement of Issues charged Sheikh with dishonesty under Cal.

Bus. & Prof. Code § 2234, subdivision (e); knowingly making or signing a

document related to the practice of medicine which falsely represents the

existence or nonexistence of the state of facts under California Bus. & Prof.

Code § 2261; and knowingly making a false statement of material fact or

knowingly omitting to state a material fact in an application for a license and

related charges under Cal. Bus. & Prof. Code § 475(a), § 480(a), and

§ 480(c). (ER 77-81.)

On August 14, 2009, the Board served Sheikh with a formal notice of

an October 29, 2009 hearing. (ER 69.) On October 28, 2009, Sheikh’s

husband, Rehan Sheikh, faxed a letter to the Office of Administrative

Hearings (“OAH”) stating that an investigation into actions taken by the

OAH was necessary and that “This is clear that there is no need for any

hearing until your office undertakes this investigation.” (ER 70.) Sheikh

did not appear at the October 29th hearing to make these or any other

objections, or to offer evidence related to the charges against her. (ER 69-

70.)


8

The Amended Statement of Issues was tried, pursuant to California

Government Code § 11520 (a), before ALJ Ann Elizabeth Sarli of the OAH.

(ER 69-74.) Evidence was taken even though under § 11520(a) the agency

may act without taking evidence when a respondent fails to appear at the

hearing and when, as here, “the burden of proof is on the respondent to

establish that the respondent is entitled to the agency action sought.”4 (ER

69-74.)

ALJ Sarli issued a proposed decision denying Sheikh’s application for

a physician’s and surgeon’s certificate. (ER 69-74.) The decision found that

Sheikh had failed to provide a written explanation for a leave of absence

from her postgraduate training program as required in the application’s

instructions, and that Sheikh failed to disclose on her application that (1) her

postgraduate training program contract was not renewed by the Austin

Medical Education Program; (“AMEP”); (2) that in early 2006, AMEP

required her to undergo remediation for sub par performance during her

internal medicine rotation; and, (3) that her second and third rotations in

4 As a proceeding on an application for a license to practice medicine, the burden of proof was on Sheikh. Martin v. Alcoholic Beverage Control Appeals Bd. of Cal., 52 Cal.2d 259, 265 (1959) (the “burden of proof may properly be placed upon the applicant in application proceedings”; accord, Coffin v. Department of Alcoholic Beverage Control, 139 Cal.App.4th 471, 477 (2006).


9

family medicine inpatient service were modified so that she had a higher

level of supervision and was given more time off and had reduced patient

loads. (ER 70-74.)

On November 25, 2009, the MBOC accepted and adopted the ALJ’s

decision, which became effective on December 28, 2009. (ER 68.) After

the MBOC’s adoption of the decision, Sheikh had two options under the

California APA. Cal. Gov. Code §§ 11521 and 11523. Under § 11521, she

could have petitioned the Board for reconsideration of the decision, at any

time prior to the effective date of the decision. She could also, instead of or

in addition to seeking reconsideration, have sought judicial review of the

decision in the California state courts, as authorized by § 11523, by filing a

petition for writ of administrative mandamus under California Civil

Procedure Code § 1094.5. Sheikh did neither. Instead, she filed her pro se

“Petition” in the district court.

II. DISTRICT COURT PROCEEDINGS

On January 27, 2010, Sheikh’s husband, Rehan Sheikh, a non-party and

non-attorney, filed an initial pleading entitled “Petition for Writ of Review;

on Denial of Application for Physician’s License by Medical Board of

California CCP § 1094.5 [and] Declaratory Relief; California Business and

Professional [sic] Code § 2335 Violates Physician’s Constitutional Right to


10

Due Process 42 U.S.C.A. § 183 [sic]” (“Complaint”). (ER 136, Dckt. 1.)

Pursuant to EDLR 302 (c)(21), District Court Judge Frank Damrell assigned

the case to Magistrate Judge Gregory Hollows. On February 3, 2010,

Magistrate Judge Hollows issued an Order providing that, unless Rehan

Sheikh provided proof to the court that he was a licensed lawyer in

California, Sheikh’s Complaint would be stricken and she would be allowed

to file an amended complaint, signed by her, within 14 days. (ER 46-47,

Dckt. 6.)

On February 17, 2010, Sheikh filed a pleading entitled “Amended

Petition for Writ of Review; on Denial of Application for Physician’s

License by Medical Board of California CCP § 1094.5 [and] Declaratory

Relief; California Business and Professional [sic] Code § 2335 Violates

Physician’s Constitutional Right to Due Process 42 U.S.C.A. § 183 [sic]”

(“First Amended Complaint” or “FAC”). (ER 123-133.) The FAC seeks an

order annulling the MBOC’s decision and approving Sheikh’s application

for a license. In order to get supplemental jurisdiction over the MBOC’s

decision to deny her license application, Sheikh argued that her procedural

due process rights were violated by the MBOC’s acting pursuant to

California Bus. & Prof. Code § 2335 to adopt the ALJ’s proposed decision

without independently reviewing the evidence. (ER 123-133.) She seeks a


11

declaratory judgment declaring § 2335 to be unconstitutional. (ER 124.)

The caption cites California Bus. & Prof. Code § 1094.5 although the body

of the FAC does not expressly address this section. It does, however, make

allegations that would properly be brought under § 1094.5, including that the

MBOC’s findings are not supported by the facts and that the MBOC abused

its discretion. (ER 123-124.)

On March 4, 2010, the MBOC filed a Motion to Dismiss Sheikh’s FAC

pursuant to Federal Rules of Civil Procedure, Rules 12(b)(1) and 12(b)(6)

and a Request for Judicial Notice of the MBOC’s Statement of Issues,

Amended Statement of Issues, and Decision. (ER 92-122.) The motion was

based on the grounds that there was no merit to Sheikh’s constitutional

claims, that Sheikh’s 1983 claims were barred by res judicata, that the

MBOC had immunity from suit under the Eleventh Amendment, and that

relief was barred by the Burford abstention doctrine. (ER 18.) The hearing

on the motion was scheduled for April 22, 2010 before Magistrate Judge

Hollows. On March 18, 2010, Magistrate Judge Hollows issued an Order

reaffirming that Sheikh’s initial Petition for Writ of Review—which the

Court construed as a complaint—filed by Sheikh’s husband on January 27,

2010, was stricken and conditionally granting Sheikh’s Amended Motion for

E-Filing Access. (ER 43-45.)


12

On March 28, 2010, Sheikh filed a Request for Reconsideration of the

March 18th Order contesting the Magistrate’s authority to issue the order,

his striking her initial Complaint, and the limitations he placed on her e-mail

filing access. (ER 140, Dckt. 27.) The MBOC filed an opposition. (ER

140, Dckt. 30.) Judge Damrell scheduled a hearing on the Request for

Reconsideration for May 7, 2010, and stayed the hearing on the Motion to

Dismiss pending resolution of that motion. (ER 140, Dckt. 29.)

On April 8, 2010, Sheikh filed a document entitled “Motion to Compel

Defendants’ Compliance with the State’s [sic] Administrative Law Judge’s

Discovery Orders and Request for Sanctions” (“Motion to Compel”). (ER

140, Dckt. 33.) The MBOC filed an opposition to the Motion to Compel on

April 28, 2010. On that same date, defendants also filed a Request for

Judicial Notice in support of the opposition which sought judicial notice of

the same documents, MBOC Decision, Statement of Issues and Amended

Statement of Issues, which were attached to defendant’s request filed on

March 4, 2010. (ER 65-91.) On April 28, 2010, Judge Damrell denied

Sheikh’s Motion for Reconsideration. (ER 38-40.) The MBOC’s Motion to

Dismiss and Sheikh’s Motion to Compel were set for June 10, 2010. (ER

142, Dckt. 46.)


13

Although Sheikh was served with the Motion to Dismiss and the

Request for Judicial Notice, she filed no opposition papers. (ER 141, Dckt.

40.) She did appear at the June 10th hearing but, at her husband’s directions,

did not respond to the Magistrate Judge’s questions or offer any oral

argument in opposition. (ER 18, 28-30.) On June 24, 2010, Magistrate

Hollows denied Sheikh’s request for recusal after receiving a letter prepared

by her non-attorney husband requesting recusal of the magistrate judge. (ER

25.) On July 13, 2010, Magistrate Judge Hollows issued an order

recommending that MBOC’s Motion to Dismiss and Request for Judicial

Notice of the Amended Statement of Issues and Statement of Issues and the

MBOC decision be granted and that Sheikh’s Motion to Compel be denied

as moot. (ER 14-24.) The Magistrate Judge’s recommendation to grant the

MBOC’s Motion to Dismiss was based on the ground that the FAC did not

state a claim for denial of procedural due process. Id. The order also

advised Sheikh that she had fourteen days in which to file objections to the

findings and recommendations pursuant to Federal Rules of Civil Procedure,

Rule 72(b)(2). Id. On July 28, 2010, Sheikh did not file objections but did

file a document entitled “Revised Notice of Motion – Plaintiff’s Motion to

Dismiss Defendants’ Motion for Dismissal of Plaintiff’s Petition for


14

Administrative Review” which Judge Damrell construed as objections. (ER

13, 60-62.)

On August 23, 2010, Judge Damrell issued an order construing

Sheikh’s July 28th filing as objections; adopting, in full, the Magistrate

Judge’s findings and recommendations; and dismissing the action. (ER 13-

14.) Judgment was entered on August 23, 2010. (ER 12.)

On the same day that judgment was entered, August 23, 2010, Sheikh

filed a Motion for Disqualification of the District Judge under 28 U.S.C. §

455(b) (1) and 455(b)(5) and set the matter for hearing on August 27, 2010

or “Immediate.” (ER 57-59.) On August 24, 2010, the district court denied

Sheikh’s Motion for Disqualification on the basis that the motion was

procedurally defective and did not comport with local rules. (ER 11.)

After judgment was entered and the case was closed, Sheikh filed a

barrage of documents including, but not limited to, Requests for Admissions,

Requests for Judicial Notice, and a Letter to the President of the State Bar.

(ER 143-144, Dckt. 60-77.) On September 21, 2010, Sheikh filed a

document entitled “Plaintiff’s Motion For Leave For Motion For

Reconsideration , Plaintiff’s Motion For Reconsideration on Premature

Dismissal Of: Plaintiff’s Request For Declaratory Relief On Constitutional

(sic) Of California B & P Section 2335 & Plaintiff’s Petition For Review Of


15

Denial Of Her Application For Physician’s License “(hereinafter “Motion

for Reconsideration”) (ER 50-56.) On September 30, 2010, defendants

filed an opposition to Sheikh’s Motion for Reconsideration. (ER 145, Dckt.

86.) On September 22, 2010, the Magistrate Judge ordered that Sheikh’s e-

filing access be terminated due to her abuse of e-filing privileges. (ER 9-

10.) On October 20, 2010, Judge Damrell denied Sheikh’s motion for

reconsideration. (ER 1-8.) Sheikh filed a Notice of Appeal on September

21, 2010 and an Amended Notice of Appeal on November 12, 2010. (ER

48-49.)

III. NINTH CIRCUIT PROCEEDINGS.

On December 14, 2010, Sheikh filed a document entitled “Plaintiff’s

Motion for Injunctive Relief & Motion for Temporary Injunction 42 U.S.C.

§ 181 [sic] 42 U.S.C. § 183 [sic] RAP 8 For Approval of Plaintiff’s

Application for Physicians [sic] and Surgeons [sic] License (“Motion for

Injunctive Relief”) with this Court. (Ninth Circuit Dckt. 8.) On February

11, 2011, Sheikh’s motion for injunctive relief was denied. (Ninth Circuit

Dckt. 14.) On February 19, 2011, Sheikh filed a “Motion for

Reconsideration on (Summary) Denial of Her Motion for Injunctive Relief.”

(Ninth Circuit Dckt. 19.) On April 4, 2011, that motion was denied. (Ninth

Circuit Dckt. 22.)


16

SUMMARY OF ARGUMENT

Sheikh’s claims brought under 42 U.S.C. section 1983 and California

Code of Civil Procedure section 1094.5 against the MBOC and State of

California are barred by the Eleventh Amendment. The State and the

MBOC, a state agency, are immune from suit in federal court under section

1983. In addition, Sheikh did not, and cannot, allege any plausible facts to

support her allegations that she was denied due process when the MBOC

denied her application for licensure in December of 2009. The district court

properly found no merit to Sheikh’s allegation that California Business and

Professions Code section 2335 is unconstitutional because the MBOC did

not independently review the record or evidence before adopting the

Administrative Law Judge’s decision—there is no due process requirement

that the deciding body personally read the record.

Sheikh makes several claims in her AOB that were not alleged below.

By raising them for the first time on appeal, she has waived these claims.

Her claim that the MBOC denied her due process by removing her from a

residency program without a hearing, for example, was not raised below and

is therefore waived. It is also moot. Sheikh has also manufactured a new

claim that section 2227 of the Business and Professions Code, which sets

forth the mode of discipline that can be imposed against a licensee’s license


17

by the MBOC, is unconstitutional because it constitutes cruel and unusual

punishment under the Eighth Amendment. This claim must be disregarded

because it was not raised before the district court; Sheikh has no standing to

bring it because she is an applicant, not a licensee; and the imposition of

discipline against a licensee’s professional license does not constitute cruel

and unusual punishment.

The district court did not abuse its discretion when it denied Sheikh’s

Motion for Reconsideration because Sheikh did not set forth any facts in her

pleading which would afford her relief under Federal Rules of Civil

Procedure, Rule 60(b) on any grounds.

In addition to appealing the district court’s order dismissing her FAC,

Sheikh raises a host of other meritless complaints in her AOB about the

district court’s rulings in the proceedings below. The district court properly

found that Sheikh’s Motion to Compel was moot because the district court

had dismissed the FAC for failure to state a claim. The district court did not

misinterpret its local rules by assigning a magistrate judge to hear Sheikh’s

claims. 28 U.S.C. section 636(b)(1) permits such a referral and EDLR

302(c)(21) requires it in civil proceedings in Sacramento when all the

plaintiffs or defendants are proceeding in propria persona. The district court

did not err when it construed Sheikh’s 1094.5 petition as a complaint since,


18

clearly, under Federal Rules of Civil Procedure, Rule 3, if there is no

complaint there can be no civil action.

In addition, Sheikh’s argument that the court erred when it did not

consider her “opposition” is without merit because she did not file a timely

opposition to the Motion to Dismiss. Likewise, her claim that she did not

have an opportunity to file objections to Magistrate Judge Hollows’ Order

dismissing her complaint is without merit.

The district court did not err when it denied Sheikh’s Motion for

Disqualification of the district court judge which was filed on the day that

the district court entered judgment in favor of the MBOC dismissing

Sheikh’s complaint. The motion did not comply with the procedure set forth

for noticed motions. Neither did the district court abuse its discretion when

it terminated Sheikh’s e-filing privileges after Sheikh filed voluminous and

unreasonable pleadings and documents post-judgment.

Finally, Sheikh has filed a “petition for writ of mandate” under section

1094.5 directly with the appellate court, alleging a host of facts and

arguments not raised below and asking this court to grant her a medical

license. (AOB 11-27.) The Ninth Circuit does not have jurisdiction to grant

Sheikh’s petition for writ of mandate and this entire section of her brief must

be disregarded.


19

STANDARDS OF REVIEW

1. Immunity under the Eleventh Amendment presents questions of

law reviewed de novo. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973

(9th Cir. 2004).

2. The district court’s decision may be affirmed on any ground

supported by the record, even if not relied upon by the district court.

Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121 (9th Cir.

2008). Accordingly, the decision may be affirmed, “even if the district court

relied on the wrong grounds or wrong reasoning.” Cigna Property and Cas.

Ins. Co. v. Polaris Pictures Corp., 159 F.3d 412, 418 (9th Cir. 1998)

(citation omitted).

3. The district court’s decision whether to take judicial notice is

reviewed for an abuse of discretion. United States v. 14.02 Acres of Land

More or Less in Fresno County, 547 F.3d 943, 955 (9th Cir. 2008)

4. A dismissal for failure to state a claim pursuant to Rule 12(b)(6) is

reviewed de novo. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).5

5 On a Rule 12(b)(6) motion, all allegations of material fact are taken

as true and construed in the light most favorable to the nonmoving party. Knievel v. ESPN, supra, 393 F.3d. at 1072. A district court does not abuse its discretion by denying leave to amend where amendment would be futile. Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242,

(continued…)


20

5. Whether a district court has supplemental jurisdiction is reviewed

de novo. Hoeck v. City of Portland, 57 F.3d 781, 784-85 (9th Cir. 1995).

6. Issues raised for the first time on appeal are ordinarily not

considered on appeal. James v. Wal-Mart Stores, Inc., 279 F.3d 883, 888 n.

4 (9th Cir. 2002); United States v. Patron, 575 F.2d 708, 712 (9th Cir.1978.)

7. Whether a magistrate judge has jurisdiction is reviewed de novo.

Irwin v. Mascott, 370 F.3d 924, 929 (9th Cir. 2004).

8. The district court’s compliance with local rules is reviewed for an

abuse of discretion. Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir. 2007).

Broad deference is owed to the district court’s interpretation of its local

rules. Id.

(…continued) 247 (9th Cir.1990) (per curiam). Conclusory allegations and unwarranted inferences are insufficient to defeat a motion to dismiss. See Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). To survive a Rule 12(b)(6) motion, the complaint must state a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court may consider documents attached to the complaint by plaintiff, documents incorporated by reference in the complaint, and matters of judicial notice, without converting a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)


21

9. The district court’s denial of a motion for reconsideration is

reviewed for an abuse of discretion. MacDonald v. Grace Church Seattle,

457 F.3d 1079, 1081 (9th Cir. 2006)

10. The denial of a recusal motion is reviewed for an abuse of

discretion. Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008).

ARGUMENT

I. SHEIKH’S ENTIRE ACTION IS BARRED BY THE

ELEVENTH AMENDMENT TO THE CONSTITUTION

Although not reached by the district court below in its decision

dismissing Sheikh’s FAC, the Eleventh Amendment deprived the district

court of subject matter jurisdiction over Sheikh’s claims under 42 U.S.C.

section 1983 and Cal. Code of Civ. Procedure section 1094.5 and affords an

additional ground for dismissal, with prejudice, under Federal Rules of Civil

Procedure, Rule 12(b)(1) (for a lack of subject matter jurisdiction) and/or

Federal Rules of Civil Procedure, Rule 12(b)(6) (for a failure to state a claim

upon which relief can be granted). Sheikh’s entire case is therefore subject

to dismissal.

The Eleventh Amendment bars the extension of the judicial power of

the federal courts “to any suit in law or equity” commenced or prosecuted

against one of the States, absent the consent of the State. Pennhurst State


22

Sch. & Hosp. v. Halderman, 465 U.S. 89, 97 (1984). It bars suits against a

non-consenting state by its own citizens. Edelman v. Jordan, 415 U.S. 651,

662-63 (1974) overruled on other grounds by Will v. Mich. Dep’t. of State

Police, 491 U.S. 58 (1989). With limited exceptions not applicable here, the

jurisdictional bar of the Eleventh Amendment applies regardless of the

nature of the relief sought. See, e.g., Pennhurst, 465 U.S. at 100; Romano v.

Bible, 169 F.3d 1182, 1185 (9th Cir. 1999); see also Green v. Mansour, 474

U.S. 64, 73 & n. 2 (1985) (rejecting the issuance of a federal declaratory

judgment for past violations of law as an “end run” around the Eleventh

Amendment); Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812

F.2d 1103, 1110 n. 10 (9th Cir. 1987) (holding that the Eleventh

Amendment bars suits for injunctive and declaratory relief).

The defendants in this case are the MBOC and the State of California;

no state official is named as a defendant. Eleventh Amendment immunity

applies to an arm or entity of the state as it would apply to the state itself.

Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, 506 U.S. 139,

145-146 (1993); Pennhurst, 465 U.S. at 100-101. The MBOC is the arm of

the State responsible for the licensing, regulating, and disciplining of


23

physicians in California6 and is recognized as a state agency protected by

the Eleventh Amendment. Forster, M.D. v. County of Santa Barbara, 896

F.2d 1146, 1149 (9th Cir. 1990).

Neither the State of California nor the MBOC has consented to be sued

in federal court. Section 1983, although adopted pursuant to section 5 of the

Fourteenth Amendment, does not contain explicit and clear language

demonstrating a congressional intent to abrogate Eleventh Amendment

immunity. Quern v. Jordan, 440 U.S. 332, 345 (1979); Pennhurst, 465 U.S.

at 99. Likewise, a state’s consent to be sued in its courts is not sufficient to

constitute a waiver of Eleventh Amendment immunity. See, e.g., Dept. of

Health & Rehabilitative Servs. v. Florida Nursing Home Assn., Florida 450

U.S. 147, 149-150 (1981). Accordingly, it is irrelevant to the issue of

waiver whether the MBOC or California could have been sued under Code

of Civil Procedure section 1094.5 (or any other statute) in California’s

courts.

In sum, since the MBOC and the State of California are both the “state”

for purpose of the Eleventh Amendment, and since neither has waived its

immunity, Sheikh’s federal and state law claims are barred.7

6 See Cal.Bus. & Prof. Code, §§ 100, 2001, 2002, and 2004 attached to Addendum.


24

The Eleventh Amendment bar to Sheikh’s section 1983 claims and her

section 1094.5 claim cannot be cured by amending her complaint to name a

state officer as a defendant. With respect to the section 1983 claims, such an

amendment is theoretically possible because federal courts may hear federal

claims against state officers. Ex parte Young, 209 U.S. 123, 159-160 (1980).

However, as the discussion below of the merits demonstrates, even if an

officer is named, an attempted amendment to state a plausible section 1983

claim would be futile and therefore need not be permitted as the district

court recognized when it granted the MBOC’s Motion to Dismiss. Cook,

Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247

(9th Cir. 1990) (per curiam).

With respect to the section 1094.5 claim, the Eleventh Amendment

precludes federal courts from hearing supplemental (pendent) state law

claims against state officers. Pennhurst, 465 U.S. at 120-121; Raygor v.

Regents of the University of Minnesota, 534 U.S. 533, 541-542 (2002).

(…continued)

7 Sheikh’s section 1983 causes of action are additionally barred because the State and its entities are not “persons” under section 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66, 71, (1989); Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989) overruled on other grounds by Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir. 2010).


25

Thus, even if an officer were named, the jurisdictional bar to Sheikh’s

supplemental state law claim under section 1094.5 is insurmountable.

II. THE DISTRICT COURT DID NOT ERR IN TAKING

JUDICIAL NOTICE OF THE MBOC DECISION, THE

STATEMENT OF ISSUES, AND AMENDED STATEMENT

OF ISSUES FILED BY THE MBOC NOR DID JUDICIAL

NOTICE OF THE DOCUMENTS CONVERT SHEIKH’S

MOTION TO DISMISS TO A MOTION FOR SUMMARY

JUDGMENT.

Sheikh appears to claim that the MBOC submitted unverified, non-

public records to the district court without serving her. (AOB 29) As

previously set forth in Appellees’ Statement of the Case, on March 4, 2010,

the MBOC filed with the Court and served on Sheikh a Request for Judicial

Notice in Support of the Motion to Dismiss seeking judicial notice of the

MBOC Decision issued on November 25, 2009, with an effective date of

December 28, 2009, and the Statement of Issues and Amended Statement of

Issues filed against Sheikh by the MBOC on March 27, 2009, and May 21,

2009, respectively, all public documents. (ER 92-122; 139-Dckt. 20.)

Certified copies of these documents were attached. (Id.) The MBOC also

requested judicial notice of these very same documents on April 28, 2010 in

its Opposition to Sheikh’s Motion to Compel and once again served Sheikh

with the documents. (ER 65-91; 141-Dckt. 37.).) In its order granting the


26

Motion to Dismiss, the district court also granted defendant’s Request for

Judicial Notice filed on April 28, 2010. (ER 17.)

Although it is not entirely clear from her AOB, Sheikh may be

contending that the district court erred in taking judicial notice. This

contention is without merit. First, Sheikh did not file a timely opposition to

defendants’ request and has therefore waived this argument on appeal.

James v. Wal-Mart Stores, Inc., 279 F.3d 883, 888 n. 4 (9th Cir. 2002).

Second, on a motion to dismiss for failure to state a claim under Rule

12(b)(6), the court may consider, inter alia, matters subject to judicial notice,

without converting the motion into a motion for summary judgment. United

States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003.) Court records and

administrative court records, such as those involved here, are subject to

judicial notice. MGIC Indem.Co. v. Weisman, 803 F.2d 500, 505 (9th

Cir.1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). A

document not attached to a complaint may be incorporated by reference if,

as is the case here, the plaintiff refers extensively to the document or it forms

the basis of the plaintiff’s claim. United States v. Ritchie, supra, 342 F.3d at

908. The defendant may offer such a document, and the district court may

treat it as part of the complaint, and thus may assume that its contents are

true for purposes of a motion to dismiss under Rule 12(b)(6). Id. Therefore,


27

the district court did not abuse its discretion in granting defendants’ request

to take judicial notice. United States v. 14.02 Acres of Land More or Less in

Fresno County, 547 F.3d 943, 955 (9th Cir. 2008).

III. THE DISTRICT COURT PROPERLY FOUND THAT

SHEIKH’S FAC FAILS TO, AND CANNOT, STATE A

PLAUSIBLE CLAIM AGAINST THE DEFENDANTS

UNDER SECTION 1983

Notwithstanding the fact that the defendants named in the FAC are

immune from suit under the Eleventh Amendment, the district court properly

found that, as a matter of law, the FAC fails to state a plausible claim under

42 U.S.C. § 1983 for violation of Sheikh’s right to procedural due process.

(ER 18-24.) As set forth in the procedural history above, Sheikh failed to

file an opposition to the MBOC’s Motion to Dismiss prior to the hearing

date, although she was given ample time to do so. Although she appeared at

the hearing, she also declined the opportunity to argue against the motion.

(ER 28-30.) Sheikh offered no timely argument or explanation as to why

defendants’ Motion to Dismiss should not be granted by the district court.

On the merits, Sheikh appears to be arguing that California Business &

Professions Code § 2335 violates her procedural due process rights because

it permits the MBOC to adopt an ALJ’s proposed decision without

independently reviewing the evidence. (ER 123-124.) Section 2335


28

provides that, in proceedings against persons not already holding a license,

an ALJ’s proposed decision after hearing “shall be acted upon by the board .

. . in accordance with Section 11517(c)(2) of the California Government

Code.”8 Under § 11517(c)(2)(A), the MBOC may, as it did in this case,

adopt in its entirety the ALJ’s proposed decision without independently

reviewing the record.9 The district court correctly held that this procedure

does not violate Sheikh’s due process rights.

As the district court stated, the fundamental requirement of due process

is to be afforded an opportunity to be heard at a meaningful time and in a

meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). (ER

20-22.) The district court went on to first explain that a meaningful hearing

does not require that the hearing be held before the authority with final

responsibility for the decision, in this case denial of a license. (ER 20-23.)

The district court then explained why the hearing that was accorded Sheikh

8 Section 2230 of the Cal. Govt. Code provides, in pertinent part, that

all proceedings against an applicant for licensure for unprofessional conduct or cause, shall be conducted in accordance with the Administrative Procedure Act commencing with Section 11500 of the California Government Code.

9 Only if the MBOC rejects the proposed decision is it required to independently review the record. Cal. Govt. Code § 11517(c)(2)(E).


29

comported with due process. (ER 20-23.) The district court’s reasoning on

both issues was sound.

The cases relied upon by the district court confirm the principle that a

final decision maker, like the MBOC, need not independently review the

record before rendering its decision. The United States Supreme Court in

Morgan v. United States, 298 U.S. 468 (1936), announced the doctrine that

“he who decides must hear,” but simultaneously declared that “[e]vidence

may be taken by an examiner [and e]vidence thus taken may be sifted and

analyzed by competent subordinates.” Id. at 481.

In Bates v. Sponberg, 547 F.2d. 325 (6th Cir. 1976), the court

considered the implications of the Morgan decision in assessing “the

question of whether plaintiff, a tenured faculty member at Eastern Michigan

University, was denied his right to procedural due process where the hearing

on his dismissal was before a body other than that which passed final

judgment on his discharge for cause.” Id. at 326. The court adopted the

assessment set out in 2 Davis Administrative Law § 11.03 at 44-45 (1958)

that the Supreme Court “did not require in the First Morgan case that

deciding officers must read all the evidence or even that they must directly

read any of it” and concluded that the plaintiff’s due process rights had not

been violated because “reports by the Committee and President Sponberg


30

provided a sufficient basis for the Board of Regents to acquire a ‘personal

understanding’ of the evidence supporting the charges against Bates.” Id. at

333. In the same way, the procedure imposed by California Government

Code § 11517 is not inconsistent with the due process requirements

described in Morgan.

In Braniff Airways, Inc. v. C. A. B., 379 F.2d 453, 461 (D.C. Cir. 1967),

the court, citing the Morgan case among others, stated that “[i]t is well

settled that even in the adjudicatory process, an administrative officer may

rely on subordinates to sift and analyze the record and prepare summaries

and confidential recommendations, and the officer may base his decision on

these reports without reading the full transcript. [Citations omitted.]”

Braniff Airways, 379 F.2d at 461. Accordingly, there is no due process

violation in disciplining a physician’s license where the Board’s decision is

made without its own hearing because it is based on an ALJ’s written report

after a hearing is provided. Guerrero v. State of New Jersey, 643 F.2d 148,

149-150 (3rd Cir. 1981)

The California Supreme Court’s interpretation of California

Government Code section 11517 is consistent with the views of the federal

courts that have considered the issue. In Cooper v. State Bd. of Medical

Examiners of Dept. of Professional and Vocational Standards of Cal., 35


31

Cal.2d 242 (1950), the California Supreme Court addressed the relevant

provisions of § 11517. In that case, the court ruled that a board’s adopting a

proposed decision without an independent review of the record does not

deprive participants in administrative proceedings of due process: “If the

hearing is held before a hearing officer alone, the agency may adopt the

officer’s proposed decision in its entirety, or may reduce the proposed

penalty and adopt the balance of the proposed decision (Govt. Code §

11517(b)), without reading the record.” Id. at 246. (Emphasis added.)

The district court properly found that permitting the MBOC to adopt

the ALJ’s proposed decision denying Sheikh’s license application without

independently reviewing the evidence did not result in a due process

violation. (ER 21.) The district court properly found that the procedures

described above, and as set forth in defendants’ Statement of Facts, supra,

provided Sheikh with meaningful due process even though she failed “to

avail herself of the process which she now claims was due.” (ER 19-23.)

By failing to attend the administrative hearing she requested, Sheikh

voluntarily chose not to exercise her due process rights at that hearing, and


32

chose not to exercise her right to call witnesses, cross-examine witnesses,

and introduce and rebut evidence.10 Cal. Govt. Code § 11513. (ER 19-23.)

The district court was also correct in its response to Sheikh’s other

allegations relating to due process. (ER 22-23.) The district court addressed

various claims that Sheikh made in the context of her § 1094.5 claim that

were not identified as § 1983 violations but that could conceivably be

considered allegations of denial of due process. (ER 22-23.) The court

properly found that these additional claims were without merit as well. (ER

22-23.)

The first of these allegations considered by the court is that the MBOC

brings accusations without testing their credibility. (ER 22-23, 124.) As

aptly pointed out by the district court, because Sheikh is applying for a

license, there is no need for the MBOC to hold a full administrative trial

10 Despite Sheikh’s bearing the burden of proof on her application for

licensure and her failing to attend the hearing, evidence was nonetheless taken before a decision was rendered even though the MBOC could have acted without the taking of evidence. Cal. Govt. Code § 11520 (a). Sheikh appears to believe that she has a “vested” right to practice medicine and that the burden is therefore on the Board to prove by “clear and convincing” evidence that her application should be denied. A “vested” right, however, refers to a right, such as a license, “already possessed by the individual.” Bixby v. Pierno, 4 Cal.3d 130, 146 (1971). A lower standard of review and a lesser burden of proof attend the denial of a license application than a decision to discipline a license already issued. Id.


33

before making its initial decision to deny a license. See Yakus v. United

States, 321 U.S. 414, 436-437 (1944) (full hearing after initial administrative

decision afforded due process in the context of application of a regulation);

see also Cleveland Brd. of Educ. v. Loudermill, 470 U.S. 532, (1985) (post-

termination hearing even in context of a public employment dismissal

sufficient for due process). (ER 22-23.) Again citing Yakus and Loudermill,

the district court also ruled that the opportunity for a full hearing after the

denial of an application is sufficient due process. (ER 22-23.) The district

court noted that the entire administrative due process procedures are

designed to test the Board’s initial decision on denial. (ER 22.) As

described above, Sheikh had the opportunity for a full hearing after the

initial denial of her application. Since Sheikh failed to appear at her

administrative hearing and avail herself of the available due process

procedures, she cannot now claim that her due process rights were violated.

The district court next addressed Sheikh’s conclusory allegation that

the MBOC engages in ex parte communications with decision makers. (ER

23.) The court pointed out that since the MBOC is both the initial and final

decision maker, it makes no sense to say that it engages in ex parte

communications with itself. (ER 23.) In an attempt to try to make sense of

the allegation, the court considered whether Sheikh might have meant the


34

ALJ when she said “decision makers” but found no facts to support the

allegation. (ER 23,) In any event, it is clear from the very next sentence in

Sheikh’s FAC after making this allegation that she understood the MBOC,

not ALJs, to be the decision makers. (“The Members of the Medical Board

make a final decision . . . .” ER 124.) Although she had the opportunity to

explain what she meant by this allegation in an opposition to the MBOC’s

Motion to Dismiss and at oral argument, Sheikh did not take advantage of

these opportunities, failing even to file an opposition and sitting mute at the

oral argument when asked to respond to a non-legal question by the

magistrate judge as to why she failed to appear at her administrative hearing.

(ER 28-30) She was also given the chance to file objections to the

Magistrate Judge’s recommended findings of fact and proposed decision but

failed to take advantage of that opportunity as well. It is too late now to

offer explanations that she waived before the district court.

Finally, the district court addressed Sheikh’s claim that the MBOC did

not find her guilty of any accusations. (ER 23.) As the court found, this

allegation is belied by the MBOC’s decision after the administrative hearing

which included several specific findings of violations, including dishonesty

and not truthfully answering questions on her application for licensure. (ER

22-24, 70-73.)


35

As correctly determined by the district court, as a matter of law, there is

no defensible basis for any of Sheikh’s claims that her due process rights

were violated. (ER 23.) As a result, amendment would be futile to correct

the insufficiencies in Sheikh’s complaint. Cook, Perkiss & Liehe, Inc. v. N.

Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir.1990) (per curiam).

(ER 18, 23.)

In essence, Sheikh’s alleged 42 U.S.C. § 1983 claim regarding the

constitutionality of Bus. & Prof Code § 2335 appears to be a sham in order

to have the federal court assume supplemental jurisdiction over her section

1094.5 petition rather than pursuing it in state court. As Sheikh makes clear

in her AOB, the real relief she seeks is a reversal of the MBOC’s decision to

deny her a license and the immediate issuance of a medical license. (AOB

52.)

IV. SHEIKH’S CLAIM THAT SHE WAS DENIED DUE

PROCESS BY ALLEGEDLY BEING REMOVED FROM A

RESIDENCY TRAINING PROGRAM BY THE MBOC HAS

BEEN WAIVED, AND IN ANY EVENT IS MOOT

A. Sheikh Has Waived the Claim by Failing to Raise It in the District Court.

In her FAC, Sheikh asserts that the MBOC, by letter dated August 8,

2008, advised the Residency Program at San Joaquin General Hospital

(unnamed in the FAC) to revoke her clinical privileges, that on instruction of


36

the MBOC she was removed from residency training on or around August

13, 2008, that at the time she was approximately eight days short of

completion of her three year residency training, and that later the Residency

Program allowed her to complete the remaining days of her training without

clinical assignments. (ER 126-127.) For the first time on appeal, Sheikh

argues that her due process rights were violated by her alleged removal from

the residency program. (AOB 4-5) Thus, the FAC does not allege that the

MBOC violated her due process rights based on these particular allegations.

In fact, the FAC seeks relief based upon the MBOC’s denial of her

application for licensure, not the alleged removal from her residency

training. (ER 124, 130.) Therefore, Sheikh’s residency claim is simply

unrelated to the denial of her license. Although pro se litigants are entitled

to great leeway when the court construes their pleadings, those pleading

must nonetheless provide some notice of the claims alleged. Failure to

provide such notice precludes pro se litigants from raising issues with regard

to those claims on appeal. Brazil v. United States Dept. of Navy, 66 F.3d

193, 199 (9th Cir. 1995) (failure to include retaliatory discharge claim on

form complaint waived that claim on appeal).

Moreover, apart from the FAC, Sheikh did not raise this claim in the

proceedings before the district court. Sheikh never filed an opposition to the


37

MBOC’s Motion to Dismiss raising this issue, nor did she articulate any

facts or arguments to the district court regarding this constitutional claim

post judgment in her Motion for Reconsideration to the district court. (ER

50-56.)11 Issues raised for the first time on appeal are ordinarily not

considered on appeal James v. Wal-Mart Stores, Inc., 279 F.3d 883, 888 n.

4 (9th Cir. 2002); United States v. Patrin, 575 F.2d 708, 712 (9th Cir.1978).

There are some narrow exceptions to this rule including where “the issue is

purely one of law, does not affect or rely upon the factual record developed

by the parties, and will not prejudice the party against whom it is raised.”

Dream Palace v. County of Maricopa, 384 F.3d 990, 1005 (9th Cir. 2004).

(Citations omitted.) That exception does not apply here. Sheikh is

advancing an entirely new legal theory and relies on multiple unverified,

unsupported facts that were not properly presented to the district court.

11 In an effort to overcome her failure to plead or raise these facts and

arguments in a timely fashion in the district court, Sheikh has referenced documents that she improperly filed under the guise of “Requests for Judicial Notice” and “Requests for Admissions” after judgment was entered and after the case was closed. (ER 143, Dckt. 62-77.) These documents contain hearsay statements and unverified facts that were improperly filed by Sheikh in the proceeding below, after judgment, and cannot now be considered on appeal.


38

In short, having failed to pursue this issue in the district court, Sheikh

has waived the claim that the alleged actions of the MBOC constituted a due

process violation under 42 U.S.C. §1983.

B. Sheikh’s Due Process Claim Based on Alleged Removal from the Residency Program Is Moot.

Even if Sheikh’s due process claim arising from her alleged removal

from the residency program is deemed not to be waived, the claim is moot

because Sheikh’s own pleadings state that she successfully completed her

residency training and received a Certificate of Residency Completion from

the University of California Davis in mid-2008. (AOB 9; ER 125-126.) A

case, or an issue in a case, becomes moot “when the issues presented are no

longer ‘live’ [and] the parties lack a legally cognizable interest in the

outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000); see Foster

v. Carson, 347 F.3d 742, 745 (9th Cir. 2003). That is clearly the situation

here. There is no longer a possibility that the court can fashion any relief for

this claim—no injunction is possible and Sheikh has insisted throughout that

she seeks no damages. Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 521

(9th Cir. 1999).

///


39

V. CALIFORNIA BUSINESS AND PROFESSIONS CODE

SECTION 2227 DOES NOT VIOLATE THE EIGHTH

AMENDMENT PROHIBITION OF CRUEL AND UNUSUAL

PUNISHMENTS

In an unintelligible argument, Sheikh now claims that California

Business and Professions Code §2227 is unconstitutional, apparently

because it violates the Eighth Amendment. (AOB 36-39.) Section 2227

describes, in relevant part, the different modes of discipline that the MBOC

can impose on a licensee. Sheikh did not plead this claim in the FAC or

otherwise raise this issue in the district court. (ER 123-130.) This claim is

therefore waived on appeal. Janes v. Wal-Mart Stores, Inc., 279 F.3d 883,

888 n. 4 (9th Cir. 2002); United States v. Patrin, 575 F.2d 708, 712 (9th

Cir.1978).

Even if Sheikh’s claim is not deemed waived, she has failed to

demonstrate how the statute applies to her since section 2227 is directed

towards licensees of the MBOC and not applicants for licensure. As an

applicant, Sheikh cannot be injured by the application of section 2227. She

therefore lacks standing to bring this challenge. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992) (injury in fact is one element of

Article III standing).


40

Finally, the claim is without merit. The courts have consistently held

that, because revocation proceedings are entirely civil, the revocation of a

professional license is not “cruel and unusual punishment.” Cain v. State of

Arkansas, 734 F.2d 377, 378 (8th Cir. 1984) citing Ingraham v. Wright, 430

U.S. 651, 664-68 (1977); see also Verner v. State of Colorado, 533 F.Supp.

1109, 1118 (D.Colo. 1982), aff'd, 716 F.2d 1352 (10th Cir. 1983) (Eighth

Amendment does not apply where loss of license is full extent of possible

punishment).

VI. THE DISTRICT COURT DID NOT ERR IN DISMISSING

SHEIKH’S MOTION TO COMPEL DISCOVERY AS MOOT

Sheikh purported to bring a motion to compel discovery that she alleges

she was entitled to in the state administrative action, not the federal district

court action. (ER 140, Dckt. 31; AOB 37.) The district court properly held

that this motion was moot once the court dismissed the case after

determining that the FAC failed to state a claim under § 1983. (ER 24.)

Obviously, once a case is dismissed there is no basis for discovery. The case

cited by Sheikh in support of her argument, Garrett v. City of San Francisco,

818 F.2d 1515 (9th Cir. 1987), is not on point. The issue in Garrett was

whether the plaintiff should have the opportunity to complete pending

discovery under Federal Rules of Civil Procedure, Rule 56(f) before a


41

summary judgment motion was decided by the district court. Id. at 1518.

Here, the defendants’ dispositive motion was brought under Federal Rules of

Civil Procedure, Rule 12(b), not Federal Rules of Civil Procedure, Rule 56.

Additionally, the federal district court was not the appropriate forum

for deciding a motion seeking to compel discovery in a state administrative

action. Federal court discovery rules are simply inapplicable. Moreover,

even if it is assumed for purposes of argument that the district court could

exercise supplemental jurisdiction over Sheikh’s claim under §1094.5, the

court could not grant the motion. The only actions a court is authorized to

take under § 1094.5 are to stay the agency’s decision, to command the

agency to set aside the order or decision, or to deny the writ. Cal. Code of

Civ. Proc. § 1094.5(f) and (g). Thus, motions to compel discovery are not

cognizable in a § 1094.5 proceeding.

VII. THE DISTRICT COURT DID NOT ERR IN CONSTRUING

SHEIKH’S PLEADING AS A COMPLAINT

As explained in the Statement of Facts, on January 27, 2010, Sheikh’s

husband, Rehan Sheikh, filed a document entitled “Petition for Writ of

Review; on Denial of Application for Physician’s License by Medical Board

of California CCP § 1094.5 [and] Declaratory Relief; California Business

and Professional [sic] Code § 2335 Violates Physician’s Constitutional


42

Right to Due Process 42 U.S.C.A. § 183 [sic]” (“Petition for Review”). (ER

136, Dckt. 1.) At the same time, Sheikh filed a document entitled

“Summons” which required the MBOC to serve an answer to her complaint

within 21 days. (ER 134-135.) On March 18, 2010, the Magistrate Judge

issued an order striking the pleading because Sheikh’s husband Rehan

Sheikh had filed it on behalf of his wife and he is not an attorney. (ER 43-

45.) In that same Order, the court construed Sheikh’s “Petition for Review”

as a complaint. (ER 43-45.) On March 28, 2010, Sheikh filed a Motion for

Reconsideration of the Order asking the District Court Judge to, among

other things, overrule the Magistrate Judge’s characterization of her petition

as a complaint. (ER 140, Dckt. 27.) District Court Judge Damrell

considered the Motion for Reconsideration and on April 28, 2010, denied it.

(ER 1-8.)

The motion to reconsider makes no sense and was properly denied.

Federal Rules of Civil Procedure, Rule 2, provides that “[t]here is one form

of action—the civil action.” Federal Rules of Civil Procedure, Rule 3

provides that “[a] civil action is commenced by filing a complaint with the

court.” In the absence of a complaint, then, a civil action cannot be

commenced. Thus, by designating the “Petition” as a “complaint,” the

district court was acting in conformity with the federal rules, as well as in


43

Sheikh’s interest. The district court liberally construed her petition as a

complaint and accepted it for filing. Given the alternative, Sheikh’s

objection is truly puzzling. The closest she has come to offering a reason for

designating the pleading as a petition is her statement that “Neither Dr.

Sheikh requested any relief other than reversal of adverse decision of

defendants in her Petition (Code Civ. Proc. § 1094.5) nor the District Court

granted any relief to Dr. Sheikh.” (AOB 32.) If she actually means to say

that she is only asking for relief under § 1094.5, then there is no federal

question, no original jurisdiction, and no basis even to consider whether

there is supplemental jurisdiction over the § 1094.5 claims.

VIII. SHEIKH DID NOT FILE A TIMELY OPPOSITION TO

THE MBOC’S MOTION TO DISMISS AND DID NOT FILE

OBJECTIONS TO THE MAGISTRATE JUDGE’S

RECOMMENDATIONS AND FINDINGS DESPITE AN

OPPORTUNITY TO DO SO.

Sheikh contends that the district court erred by granting the MBOC’s

Motion to Dismiss without considering her “opposition,” which she

identifies as docket number 50. (AOB 28.) Docket number 50 is a letter

from Sheikh entitled “Motion to Vacate Defendant’s [sic] Motion for

Dismissal before Magistrate Judge” which was filed on June 21, 2010,

eleven days after the hearing on the motion. (ER 63-64.) The district court


44

did not err by finding that no opposition to the Motion to Dismiss was filed

by Sheikh. (ER 18.)

EDLR 230(c) provides that any opposition to the granting of a motion

must be filed and served not less than fourteen days preceding the noticed

(or continued) hearing date. The MBOC filed and served its Motion to

Dismiss on March 4, 2010 and the hearing on the motion was June 10, 2010.

(ER 142, Dckt. 47.) Sheikh therefore had over two and a half months within

which to file a timely opposition and chose not to do so in the time frame

required by the district court rules. A pro se litigant is expected to abide by

the rules of the court in which he or she litigates. Carter v. Commissioner of

Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986).

EDLR 230(c) also provides that no party will be entitled to be heard in

opposition to a motion at oral argument if written opposition to the motion

has not been timely filed. Nonetheless, the Magistrate Judge gave Sheikh a

chance to offer opposition to the motion by presenting oral argument. (ER

28-36.) But after being advised that her non-attorney husband could not


45

speak on her behalf,12 Sheikh declined to offer any argument as to why the

Motion to Dismiss should not be granted. (ER 27-36.)

Sheikh did not file a written opposition within the timeframe permitted

and rejected the court’s generously provided opportunity to offer opposition

orally at the hearing. She cannot now complain that the court did not

consider the opposition she filed over a month late in defiance of the district

court rules.

Sheikh contends further that she “did not have the opportunity to

submit objections on Magistrate Judge’s recommendation to dismiss of [sic]

her petition.” (AOB 33.) She does not explain how she was denied that

opportunity. The Magistrate Judge’s Order containing his recommendations

and findings expressly provided that under 28 U.S.C. § 636(b)(1), either

party could submit objections to the court within fourteen days after the

party was served with a copy of the recommendations and findings. (ER

24.) Despite being advised of this opportunity, Sheikh did not file any

objections. She did, however, file a document entitled “Motion to Dismiss

Defendants’ Motion for Dismissal of Plaintiff’s Petition for Administrative

12 Sheikh had been advised previously by the district court that her

husband, Rehan Sheikh, could not represent her because he was not an attorney. (ER 41-42, 43-45, 46-47.)


46

Review” exactly fourteen days after the recommended Order was served.

(ER 60-62.) In the absence of any document with “objections” in the title,

the district court gave Sheikh the benefit of the doubt, construed this

document to be her objections, and considered them before adopting the

Magistrate Judge’s recommended order.13 (ER 13.) There is no basis for

Sheikh’s claim that she was denied the opportunity to file objections to the

magistrate’s orders.

IX. THE DISTRICT COURT DID NOT DENY SHEIKH AN

ARTICLE III JUDGE BY ASSIGNING THE CASE TO A

MAGISTRATE JUDGE TO PREPARE FINDINGS AND

RECOMMENDATIONS

Under 28 U.S.C. § 636(b)(1)(B), a district judge may designate a

magistrate judge to hear motions excepted under subparagraph (A),

including a motion to dismiss, and to submit proposed findings of fact and

recommendations for the disposition of such a motion. Hunt v. Pliler, 384

F.3d 1118, 1123 (9th Cir. 2004); Estate of Conners by Meredith v.

O'Connor, 6 F.3d 656, 658 (9th Cir. 1993). Where a party files written

objections to the proposed disposition, “[t]he district judge to whom the case

13 The final Order dismissing the FAC refers to this document as a

“reply.” (ER 13.) While it was electronically filed under the category “reply,” Sheikh had actually entitled the document “Plaintiff’s Motion to Dismiss Defendants’ Motion for Dismissal of Plaintiff’s Petition for Administrative Review.” (ER 60-62, 143, Dckt 56.)


47

is assigned shall make a de novo determination upon the record.” Hunt v.

Pliler, supra, at 1123, citing Fed.R.Civ.P. 72(b); see also, McKeever v.

Block, 932 F.2d 795, 798 (9th Cir. 1991). In the Eastern District, Local Rule

302(c)(21) requires that, in civil proceedings in Sacramento, all actions shall

be directed to a magistrate judge, including dispositive motions and matters

in actions in which all the plaintiffs or defendants are proceeding in propria

persona.

This procedure was followed in this case. When filed, the action was

assigned to Judge Frank Damrell, Jr., an Article III judge. Pursuant to

Eastern District Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1)(B), Judge

Damrell assigned the case to Magistrate Judge Hollows, who prepared

findings and recommendation on the Motion to Dismiss. (ER 15-24.)

Thereafter, Sheikh filed what was liberally construed to be objections. (ER

13-14.) Judge Damrell considered the objections and the proposed findings

and recommendations de novo, and then issued a final disposition of the

case. (ER 13-14.) Accordingly, Sheikh was not denied an Article III judge.

X. THE DISTRICT COURT DID NOT ABUSE ITS

DISCRETION IN DENYING SHEIKH’S MOTION FOR

RELIEF FROM FINAL JUDGMENT UNDER RULE 60(B)

The district court did not abuse its discretion by denying Sheikh’s

Motion for Reconsideration under Federal Rules of Civil Procedure, Rule


48

60(b). (ER 1-8.) Liberally construing Sheikh’s motion, the court concluded

that she was attempting to obtain relief from judgment under Rule 60(b)(2)

[newly discovered evidence that, with reasonable diligence, could not have

been discovered in time to move for a new trial under Federal Rules of Civil

Procedure, Rules 59(e)] and Federal Rules of Civil Procedure, Rule 60(b)(4)

[the judgment is void]. (ER 5-7.)14

The district court properly held that the documents that Sheikh had

filed post-judgment (ER 144, Dckt. 70, 71, 73, 74, 75, 76 & 77)15 did not

satisfy Rule 60(b)(2) because Sheikh failed to demonstrate that the

documents were “newly discovered evidence that, with reasonable diligence,

could not have been discovered in time to move for a new trial under Federal

Rules of Civil Procedure, Rule 59(e).” (ER 7-8.) Rather, as correctly noted

by the district court, the documents upon which she was allegedly relying

were in existence well before the time required for her to make a Rule 59(e)

and Rule (60)(b) motion. (ER 7-8.)

14 Sheikh claims that she also asked for relief under Rule 60(b)(1) [mistake, inadvertence, surprise, or excusable neglect]. In fact, she did not even mention Rule 60(b)(1) in her moving papers (ER 50-56) and did no more than recite the words in her reply brief (ER 145, Dckt. 90). The district court properly limited its review to subdivision (b)(2) and (b)(4).

15 These filings consisted of several Requests for Judicial Notice—to which the MBOC filed objections (ER 145, Dckt. 87)—and discovery requests in the form of Request for Admissions (ER 144, Dckt. 72-73.)


49

Likewise, for the reasons explained in Section IX, above, the district

court was correct in finding that the judgment did not satisfy Rule 60(b)(4)

for voidness for proceeding before a magistrate judge without Sheikh’s

consent. (ER 6-7.)

XI. THE COURT DID NOT ABUSE ITS DISCRETION BY

TERMINATING SHEIKH’S E-FILING PRIVILEGES

Sheikh’s e-filing privileges were granted pursuant to EDLR 133

(b)(2)16 on a conditional basis by Magistrate Judge Hollows on March 18,

2010. (ER 9-10.) Magistrate Judge Hollows specifically warned Sheikh in

that Order that the court would monitor her filings to “assess their

reasonableness and should the “court discern any unreasonably expansive

filings, either in number or volume, [its] order [would] be vacated.” (ER 9-

10.) This Order was upheld by District Court Judge Damrell after Sheikh

filed a Motion for Reconsideration contesting her conditional e-filing

privileges. (ER 38-40.)

On September 22, 2010, Magistrate Hollows terminated Sheikh’s e-

filing access after Sheikh filed multiple documents after the case had been

dismissed, judgment had been entered, and the case closed. (ER 9-10, 12,

16 EDLR (b)(2) provides, in pertinent part, that “any person appearing

pro se may not utilize electronic filing except with the permission of the assigned Judge or Magistrate Judge”.


50

13-14.) Clearly, terminating e-filing privileges where the case is over, but a

party nonetheless continues to file documents is not an abuse of discretion.

///

XII. THE DISTRICT COURT DID NOT ERR IN DENYING

SHEIKH’S MOTION FOR DISQUALIFICATION

When Sheikh filed her motion for disqualification, the district court had

already made a final ruling on the MBOC’s Motion to Dismiss. Sheikh’s

motion was filed on August 23, 2010, the day the court entered judgment in

favor of the MBOC and dismissed Sheikh’s suit. (ER 57-59.) Sheikh’s

motion for disqualification was procedurally defective because she set the

matter for hearing on August 27, 2010, four days after filing, or

“Immediate.” (ER 57.) EDLR 230 provides that motions shall be noticed

on the motion calendar of the assigned Judge or Magistrate Judge and that

the matter shall be heard not less than twenty-eight days after service and

filing. EDLR 230; Fed. Rule of Civ. Pro., Rule 78. The district court

properly denied the motion.

XIII. THE NINTH CIRCUIT COURT OF APPEAL LACKS

JURISDICTION TO HEAR AND GRANT SHEIKH’S

PETITION FOR APPROVAL OF HER APPLICATION FOR

PHYSICIAN’S AND SURGEON’S LICENSE

Sheikh has titled her AOB “Petition Seeking Writ of the Court for

Approval of her Application for Physicians [sic] and Surgeons [sic] License”


51

(“Petition”) citing California Civil Procedure Code §1094.5. She seeks

affirmative relief from this tribunal, praying that the Ninth Circuit Court of

Appeal (“Ninth Circuit”) will “issue a Writ approving her application for a

Physicians and Surgeons License and dismiss the disciplinary proceeding of

the Board with prejudice.” (AOB 52.) Her AOB describes an entirely new

action directed to the Ninth Circuit requesting the Ninth Circuit to directly

review the MBOC’s denial of her license application, apply its independent

judgment, and grant her Petition. (AOB 11-27.) Sheikh sets forth several

pages of facts in support of her “Petition,” most not raised in the district

court, before attending to the proceedings before the district court which are

properly the subject of an appeal. (AOB 11-27.)

Sheikh cannot bring her Petition directly to the Ninth Circuit. First, as

described in Section I, above, Eleventh Amendment bars suits against a state

or state entity in federal court so the Court does not have jurisdiction over

Sheikh’s claims. Second, there is no authority giving the Ninth Circuit

original jurisdiction over a § 1094.5 petition. Federal courts are courts of

limited jurisdiction and therefore presume a lack of jurisdiction until it’s

proven otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S.

375, 377 (1994). The circuit courts of appeals do have jurisdiction over

appeals from all final decisions of the district courts. 28 U.S.C. §1291.


52

Sheikh filed this matter as an appeal from the final decision of the district

court dismissing her complaint against the MBOC. (ER 48-49.) This Court

is limited to a review of the district court’s decision.

CONCLUSION

For the reasons stated above, Defendants/Appellees State of California

and MBOC respectfully request that the Court affirm the district court’s

judgment dismissing Plaintiff’s pleadings with prejudice.

Dated: April 18, 2011

Respectfully submitted, KAMALA D. HARRIS Attorney General of California DAVID S. CHANEY Chief Assistant Attorney General CARLOS RAMIREZ Senior Assistant Attorney General JOSE R. GUERRERO Supervising Deputy Attorney General /S/ SUSAN K. MEADOWS SUSAN K. MEADOWS Deputy Attorney General Attorneys for Appellees Medical Board of California and State of California

SF2010202253 20427332.doc


53

10-17098

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FARZANZA SHEIKH ,

Plaintiff and Appellant,

v.

MEDICAL BOARD OF CALIFORNIA, et al.,

Defendants and Appellees.

STATEMENT OF RELATED CASES

To the best of our knowledge, there are no related cases.

Dated: April 18, 2011

Respectfully Submitted, KAMALA D. HARRIS Attorney General of California DAVID S. CHANEY Chief Assistant Attorney General CARLOS RAMIREZ Senior Assistant Attorney General JOSE R. GUERRERO Supervising Deputy Attorney General /S/ SUSAN K. MEADOWS SUSAN K. MEADOWS Deputy Attorney General Attorneys for Appellees Medical Board of California and State of California


CERTIFICATE OF COMPLIANCE PURSUANT TO FED.R.APP.P 32(a)(7)(C) AND CIRCUIT RULE 32-1

FOR 10-17098 I certify that: (check (x) appropriate option(s))

X 1. Pursuant to Fed.R.App.P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached opening/answering/reply/cross-appeal brief is

X Proportionately spaced, has a typeface of 14 points or more and contains __11,271__ words (opening, answering and the second and third briefs filed in cross-appeals must not exceed 14,000 words; reply briefs must not exceed 7,000 words

or is

Monospaced, has 10.5 or fewer characters per inch and contains ____ words or ___ lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words or 1,300 lines of text; reply briefs must not exceed 7,000 words or 650 lines of text).

2. The attached brief is not subject to the type-volume limitations of Fed.R.App.P. 32(a(7)(B) because

This brief complies with Fed.R.App.P 32(a)(1)-(7) and is a principal brief of no more than 30 pages or a reply brief of no more than 15 pages.

or

This brief complies with a page or size-volume limitation established by separate court order dated ______________ and is

Proportionately spaced, has a typeface of 14 points or more and contains ______________ words,

or is

Monospaced, has 10.5 or fewer characters per inch and contains __ pages or __ words or __ lines of text.

3. Briefs in Capital Cases. This brief is being filed in a capital case pursuant to the type-volume limitations set forth at Circuit Rule 32-4 and is

Proportionately spaced, has a typeface of 14 points or more and contains ______________ words (opening, answering and the second and third briefs filed in cross-appeals must not exceed 21,000 words; reply briefs must not exceed 9,800 words).

or is

Monospaced, has 10.5 or fewer characters per inch and contains __ words or __ lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 75 pages or 1,950 lines of text; reply briefs must not exceed 35 pages or 910 lines of text).


4. Amicus Briefs.

Pursuant to Fed.R.App.P 29(d) and 9th Cir.R. 32-1, the attached amicus brief is proportionally spaced, has a typeface of 14 points or more and contains 7,000 words or less,

or is

Monospaced, has 10.5 or few characters per inch and contains not more than either 7,000 words or 650 lines of text,

or is

Not subject to the type-volume limitations because it is an amicus brief of no more than 15 pages and complies with Fed.R.App.P. 32 (a)(1)(5).

April 18, 2011 /s/ Susan K. Meadow

Dated Susan K. Meadows

Deputy Attorney General
