Mir v. Kirchmeyer
| Decision Date | 11 May 2016 |
| Docket Number | Case No.: 12-cv-2340-GPC-DHB |
| Parties | JEHAN ZEB MIR, Plaintiff, v. KIMBERLY KIRCHMEYER et al., Defendants. |
| Court | U.S. District Court — Southern District of California |
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
Presently before the Court is a motion to dismiss Plaintiff Jehan Zeb Mir's ("Plaintiff's") Fourth Amended Complaint ("FAC") filed by Defendants Kimberly Kirchmeyer, Linda Whitney, Sharon Levine, M.D., David Serrano Sewell, Dev GnanaDev, M.D., Denise Pines, Michelle Anne Bholat, M.D., Michael Bishop, M.D., Randy W. Hawkins, M.D., Howard Krauss, M.D., Ronald H. Lewis, M.D., Geraldine Shipske, R.N.P. (sued as Gerri Shipske), Jaime Wright, Barbara Yaroslavsky, Felix C. Yip, M.D., Cesar A. Aristeiguita, M.D., Steve Alexander, Stephen Richard Corday, M.D., Shelton J. Duruisseau, Ph.D., Mary Lynn Moran, M.D., Gary Gitnick, M.D., Janet Salomonson, M.D., Ronald Wender, M.D., Frank Zerunyan, J.D., Hedy L. Chang, Eric Esrailian, M:D., and Reginald Low, M.D. (collectively "Defendants"). (Mot. Dismiss, ECF No. 131.) The Parties have fully briefed the motion. (See ECF Nos. 137, 138.) Pursuant to Civil Local Rule 7.1(d)(1), the Court finds the matter suitable for adjudication without oral argument. For the reasons set forth below, the Court GRANTS Defendants' motion.
On September 25, 2012, Plaintiff, proceeding in propria persona, filed this lawsuit in federal court alleging the California Medical Board ("Medical Board") wrongfully took disciplinary actions against Plaintiff's physician's and surgeon's certificate. (ECF No. 1.) On January 17, 2013, Plaintiff filed a First Amended Complaint seeking injunctive and declaratory relief. (ECF No. 8.) The First Amended Complaint named Defendants Medical Board of California; Linda Whitney, Executive Director; and Sharon Levine, M.D., President. (Id.)
Defendants then filed a motion to dismiss Plaintiff's First Amended Complaint, (ECF No. 13), and Plaintiff filed a motion for preliminary injunction. (ECF No. 17.) On March 19, 2013, the Court denied Plaintiff's motion for preliminary injunction. (ECF No. 23.) On May 2, 2013, Plaintiff filed a motion for reconsideration of the Court order denying Plaintiff's motion for preliminary injunction. (ECF No. 26.) On May 8, 2013, the Court granted Defendants' motion to dismiss Plaintiff's First Amended Complaint and denied Plaintiff's motion for reconsideration, but granted Plaintiff leave to amend his complaint. (ECF No. 28.)
On December 31, 2013, Plaintiff filed a Second Amended Complaint ("SAC"), nunc pro tunc to December 24, 2013, against Defendants Kimberly Kirchmeyer, Interim Executive Director and Deputy Director of the Medical Board of California; Linda K. Whitney, Executive Director; and Sharon Levine, M.D., President. (ECF No. 44.) On February 21, 2014, Defendants filed a motion to dismiss Plaintiff's SAC. (ECF No. 50.) On May 30, 2014, the Court granted in part and denied in part Defendants' motion to dismiss Plaintiff's SAC, and granted Plaintiff leave to amend his complaint. (ECF No. 59.)
On July 11, 2014, Plaintiff filed a Third Amended Complaint ("TAC"). (ECF No. 61.) He again named as Defendants Kimberly Kirchmeyer, Interim Executive Director,Deputy Director, and Executive Director of the Medical Board of California, in her personal and official capacities; Linda K. Whitney, Executive Director, in her personal capacity; and Sharon Levine, M.D., President, in her personal and official capacities. (Id.) On August 8, 2014, Defendants filed motions to dismiss the second claim in Plaintiff's TAC, which challenged the constitutionality of California Business and Professions Code section 2337 and the associated California Court of Appeal Rules, and motion to strike Plaintiff's TAC. (ECF No. 65.) On November 3, 2014, the Court granted Defendants' motion to dismiss without leave to amend and denied Defendant's motion to strike. (ECF No. 72.)
On June 10, 2015, Plaintiff filed an Ex Parte Application to Amend Third Amended Complaint to Add Parties, nunc pro tunc to June 8, 2015 (ECF No. 90), which the Court construed as a motion for leave to amend the TAC (ECF No. 91). On September 3, 2015, the Court granted Plaintiff's motion. (ECF No. 100.)
On September 25, 2015, Plaintiff filed a FAC, the current operative complaint. (ECF No. 102.) The FAC names twenty-seven Defendants: (1) Kimberly Kirchmeyer, Interim Executive Director, Deputy Director, and Executive Director of the Medical Board of California, in her personal and official capacities; (2) Linda K. Whitney, Executive Director, in her personal capacity; (3) Sharon Levine, M.D., President, in her personal and official capacities and current Medical Board member; other current members of the Medical Board: (4) David Serrano Sewell, (5) Dev GnanaDev, M.D., (6) Denise Pines, (7) Michelle Anne Bholat, M.D., (8) Michael Bishop, M.D., (9) Randy W. Hawkins, M.D., (10) Howard Krauss, M.D., (11) Ronald H. Lewis, M.D., (12) Geraldine Shipske, R.N.P. (sued as Gerri Shipske), (13) Jaime Wright, (14) Barbara Yaroslavsky, (15) Felix C. Yip, M.D., in their official and individual capacities; and former members of the Medical Board: (16) Cesar A. Aristeiguita, M.D., (17) Steve Alexander, (18) Stephen Richard Corday, M.D., (19) Shelton J. Duruisseau, Ph.D., (20) Mary Lynn Moran, M.D., (21) Gary Gitnick, M.D., (22) Janet Salomonson, M.D., (23) Ronald Wender, M.D., (25) Frank Zerunyan,J.D., (25) Hedy L. Chang, (26) Eric Esrailian, M:D., and (27) Reginald Low, M.D. in their individual capacities. (Id.)
On December 8, 2015, Defendants filed the instant motion to dismiss Plaintiff's FAC (ECF No. 131), and related Request for Judicial Notice (RJN, ECF No. 132). On January 25, 2016, Plaintiff filed oppositions to Defendants' motion to dismiss and request for judicial notice. (ECF Nos. 136, 137.) On February 1, 2016, Defendants filed a reply. (ECF No. 138.)
As set forth in the Court's previous orders, this action arises out of Plaintiff's challenges to the Medical Board's decision to revoke his medical license. Plaintiff was licensed by the State of California in 1972 as a Doctor of Medicine and Surgery. (FAC ¶ 70, ECF No. 102.) On June 8, 2000, Plaintiff admitted an 81-year old female patient with a history of medical complications to the San Antonio Community Hospital. (Id. ¶¶ 76, 81.) Plaintiff transferred the patient to Pomona Valley Hospital ("PVH"), where Plaintiff was a provisional member of the medical staff. (Id. ¶¶ 82-85.) Plaintiff performed a series of surgeries on the patient, leading to an above-the-knee amputation of the patient's leg due to gangrene the patient had contracted following previous surgeries performed by Plaintiff. (Id. ¶¶ 89-114.) Related to Plaintiff's treatment of the patient and other concerns about the Plaintiff's performance as a provisional staff member, PVH suspended Plaintiff's vascular surgery privileges around November 2000. (Id. ¶¶ 115-120.) Plaintiff requested injunctive relief from the California Superior Court, which was denied for failure to exhaust his administrative remedies. (Id. ¶ 121.) Following these proceedings, PVH terminated Plaintiff from the medical staff. (Id. ¶ 122.) Plaintiff requested declaratory relief from the Superior Court, which again was denied for failure to exhaust administrative remedies and affirmed by the Court of Appeals. (Id. ¶¶ 123, 126.)
Defendants' actions against Plaintiff commenced on August 21, 2003, when Defendants filed an accusation against Plaintiff for misdiagnosis, negligence, impropertransfer, and failure to document in connection with his care of the aforementioned PVH patient. (Id. ¶¶ 134-35.) On November 8, 2004, Defendants added charges of fabricating documents and dishonesty in a First Amended Accusation against Plaintiff. (Id. ¶ 159.) Although an Administrative Law Judge dismissed the First Amended Accusation, (id. ¶ 176), Defendants filed a Second Amended Accusation on April 6, 2005. (Id. ¶ 217.)
On December 6, 2006, Defendants revoked Plaintiff's medical license. (Id. ¶ 227.) Following the revocation, Plaintiff filed a writ of mandamus with the California Superior Court. (Id. 1228.) The court granted Plaintiff's petition, dismissing five out of six charges against Plaintiff; vacating the Medical Board's decision; and remanding the matter to the Medical Board to reconsider a penalty consistent with the Superior Court's opinion. (Id. ¶¶ 231, 240.) Plaintiff then filed a petition for writ relief with the California Court of Appeal, pursuant to California Business & Professions Code section 2337, but on April 4, 2008, it was summarily denied without the court ordering opposition, affording oral arguments, or issuing a written opinion. (Id. ¶ 242.)
After review, the Medical Board reissued its decision on June 13, 2008. (Id. ¶¶ 250-52.) Plaintiff again filed a petition for writ of relief with the California Superior Court, alleging the Medical Board had not reviewed its decision but rather had simply reissued the previous findings. (Id. ¶ 256.) Plaintiff further alleged the Medical Board had unlawfully made a finding of gross and repeated negligence, improperly determined the penalty, and wrongfully discriminated against Plaintiff and other minorities by disproportionately revoking licenses of physicians in the minority groups. (Id. ¶¶ 257-63.) The Superior Court directed the Medical Board to set aside its decision to revoke Plaintiff's licenses and remanded the matter to re-determine the penalty issues. (Id. ¶ 224.)
Following a hearing, the Medical Board issued another decision on September 27, 2010, finding "repeated" and "gross negligence" and imposing a five-year probation with various terms and conditions. (Id. ¶¶ 274-86.) Plaintiff filed a third writ of mandamus in the Superior Court challenging the Medical Board's decision. (Id. ¶ 297.) The SuperiorCourt issued an order temporarily staying enforcement of probation conditions, and later mandated the ...
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