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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: Susan.meadows@doj.ca.gov Attorneys for Appellees Medical Board of California and State of California

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TABLE OF CONTENTS Page INTRODUCTION ......................................................................................... 1 STATEMENT OF JURISDICTION ............................................................. 2 STATEMENT OF ISSUES ........................................................................... 2 ADDENDUM ................................................................................................ 5 STATEMENT OF THE CASE ..................................................................... 5 I. I. II. III. Nature Of The Case. .................................................................. 5 The Administrative Proceedings. .............................................. 6 District Court Proceedings ........................................................ 9 Ninth Circuit Proceedings. ...................................................... 15 STATEMENT OF FACTS ............................................................................ 6

SUMMARY OF ARGUMENT ................................................................... 16 STANDARDS OF REVIEW ....................................................................... 19 ARGUMENT ............................................................................................... 21 I. II. Sheikhs Entire Action Is Barred By The Eleventh Amendment To The Constitution ........................................... 21 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 Sheikhs Motion To Dismiss To A Motion For Summary Judgment. ................................................................................ 25 The District Court Properly Found That Sheikhs FAC Fails To, And Cannot, State A Plausible Claim Against The Defendants Under Section 1983 ...................................... 27 Sheikhs 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 i

III.

IV.

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TABLE OF CONTENTS (continued) Page A. B. V. Sheikh Has Waived The Claim By Failing To Raise It In The District Court. ...................................... 35 Sheikhs Due Process Claim Based On Alleged Removal From The Residency Program Is Moot. ........ 38

California Business And Professions Code Section 2227 Does Not Violate The Eighth Amendment Prohibition Of Cruel And Unusual Punishments ............................................ 39 The District Court Did Not Err In Dismissing Sheikhs Motion To Compel Discovery As Moot ................................. 40

VI.

VII. The District Court Did Not Err In Construing Sheikhs Pleading As A Complaint........................................................ 41 VIII. Sheikh Did Not File A Timely Opposition To The MBOCs Motion To Dismiss And Did Not File Objections To The Magistrate Judges 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 The District Court Did Not Abuse Its Discretion In Denying Sheikhs Motion For Relief From Final Judgment Under Rule 60(B) ................................................... 47 The Court Did Not Abuse Its Discretion By Terminating Sheikhs E-Filing Privileges ................................................... 49

X.

XI.

XII. The District Court Did Not Err In Denying Sheikhs Motion For Disqualification.................................................... 50 XIII. The Ninth Circuit Court Of Appeal Lacks Jurisdiction To Hear And Grant Sheikhs Petition For Approval Of Her Application For Physicians And Surgeons License ............. 50 CONCLUSION ............................................................................................ 52 STATEMENT OF RELATED CASES ....................................................... 53 ii

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TABLE OF AUTHORITIES Page 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. Paps A.M. 529 U.S. 277 (2000)........................................................................... 38 Cleveland Brd. of Educ. v. Loudermill 470 U.S. 532 (1985)........................................................................... 33

iii

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TABLE OF AUTHORITIES (continued) Page 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

iv

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TABLE OF AUTHORITIES (continued) Page 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

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TABLE OF AUTHORITIES (continued) Page 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

vi

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TABLE OF AUTHORITIES (continued) Page 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 vii

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TABLE OF AUTHORITIES (continued) Page 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 viii

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TABLE OF AUTHORITIES (continued) Page 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 ix

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TABLE OF AUTHORITIES (continued) Page 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 60(b)(4) .................................................. 49 Fed. Rules of Civ. Proc., Rule 60(b)(4) .................................................. 48 Fed. Rules of Civ. Proc., Rule 72(b)(2) .................................................. 13 Fed. Rules of Civ. Proc., Rule 78 ........................................................... 50 USDC Eastern District Local Rule 302(c)(21) ................................... 4, 47

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INTRODUCTION Defendant Medical Board of California1 (MBOC or Board) denied Plaintiff/Appellant Farzana Sheikhs (Sheikh) application for a physicians and surgeons 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 ALJs 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 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. 1
1

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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 courts 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

Sheikhs federal claims under 42 U.S.C. 1983 and state law claim for administrative mandamus under California Civil Procedure Code 1094.5

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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 Sheikhs 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 Sheikhs 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 3

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constitute cruel and unusual punishment in violation of the Eighth Amendment. 6. Whether the district court erred in dismissing, as moot, Sheikhs

Motion to Compel Defendants Compliance with the States Administrative Law Judges Discovery Orders and Request for Sanctions. 7. Whether the district court denied Sheikhs 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 courts denial of Sheikhs 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

Sheikhs Motion for Disqualification of the district judge. 10. Whether the district court abused its discretion in terminating Sheikhs e-filing privileges after the case was dismissed and judgment had been entered for the MBOC.

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11. Whether the Ninth Circuit Court of Appeal can grant Sheikhs Petition requesting that the Ninth Circuit vacate the MBOCs 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 Sheikhs application for a physicians and surgeons certificate. The MBOCs 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 5

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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 MBOCs motion, dismissed the action and entered final judgment based on its finding that Sheikhs 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 physicians and surgeons certificate. (ER2 76-77.) The MBOC denied Sheikhs 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 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 MBOCs Statements of Issues and Decision denying Sheikhs application for licensure as official public records of the MBOC. (ER 16-17.) They are also referenced in Sheikhs FAC. 6
2

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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, Sheikhs 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 6970.)

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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 Sheikhs application for a physicians and surgeons 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 applications 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 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). 8
4

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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 ALJs decision, which became effective on December 28, 2009. (ER 68.) After the MBOCs 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, Sheikhs husband, Rehan Sheikh, a non-party and non-attorney, filed an initial pleading entitled Petition for Writ of Review; on Denial of Application for Physicians License by Medical Board of California CCP 1094.5 [and] Declaratory Relief; California Business and Professional [sic] Code 2335 Violates Physicians Constitutional Right to 9

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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, Sheikhs 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 Physicians License by Medical Board of California CCP 1094.5 [and] Declaratory Relief; California Business and Professional [sic] Code 2335 Violates Physicians 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 MBOCs decision and approving Sheikhs application for a license. In order to get supplemental jurisdiction over the MBOCs decision to deny her license application, Sheikh argued that her procedural due process rights were violated by the MBOCs acting pursuant to California Bus. & Prof. Code 2335 to adopt the ALJs proposed decision without independently reviewing the evidence. (ER 123-133.) She seeks a 10

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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 MBOCs 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 Sheikhs FAC pursuant to Federal Rules of Civil Procedure, Rules 12(b)(1) and 12(b)(6) and a Request for Judicial Notice of the MBOCs 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 Sheikhs constitutional claims, that Sheikhs 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 Sheikhs initial Petition for Writ of Reviewwhich the Court construed as a complaintfiled by Sheikhs husband on January 27, 2010, was stricken and conditionally granting Sheikhs Amended Motion for E-Filing Access. (ER 43-45.) 11

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On March 28, 2010, Sheikh filed a Request for Reconsideration of the March 18th Order contesting the Magistrates 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 States [sic] Administrative Law Judges 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 defendants request filed on March 4, 2010. (ER 65-91.) On April 28, 2010, Judge Damrell denied Sheikhs Motion for Reconsideration. (ER 38-40.) The MBOCs Motion to Dismiss and Sheikhs Motion to Compel were set for June 10, 2010. (ER 142, Dckt. 46.)

12

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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 husbands directions, did not respond to the Magistrate Judges questions or offer any oral argument in opposition. (ER 18, 28-30.) On June 24, 2010, Magistrate Hollows denied Sheikhs 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 MBOCs 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 Sheikhs Motion to Compel be denied as moot. (ER 14-24.) The Magistrate Judges recommendation to grant the MBOCs 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 Plaintiffs Motion to Dismiss Defendants Motion for Dismissal of Plaintiffs Petition for

13

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Administrative Review which Judge Damrell construed as objections. (ER 13, 60-62.) On August 23, 2010, Judge Damrell issued an order construing Sheikhs July 28th filing as objections; adopting, in full, the Magistrate Judges findings and recommendations; and dismissing the action. (ER 1314.) 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 Sheikhs 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 Plaintiffs Motion For Leave For Motion For Reconsideration , Plaintiffs Motion For Reconsideration on Premature Dismissal Of: Plaintiffs Request For Declaratory Relief On Constitutional (sic) Of California B & P Section 2335 & Plaintiffs Petition For Review Of 14

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Denial Of Her Application For Physicians License (hereinafter Motion for Reconsideration) (ER 50-56.) On September 30, 2010, defendants filed an opposition to Sheikhs Motion for Reconsideration. (ER 145, Dckt. 86.) On September 22, 2010, the Magistrate Judge ordered that Sheikhs efiling access be terminated due to her abuse of e-filing privileges. (ER 910.) On October 20, 2010, Judge Damrell denied Sheikhs 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 Plaintiffs 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 Plaintiffs Application for Physicians [sic] and Surgeons [sic] License (Motion for Injunctive Relief) with this Court. (Ninth Circuit Dckt. 8.) On February 11, 2011, Sheikhs 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.) 15

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SUMMARY OF ARGUMENT Sheikhs 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 Sheikhs 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 Judges decisionthere 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 licensees license 16

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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 licensees professional license does not constitute cruel and unusual punishment. The district court did not abuse its discretion when it denied Sheikhs 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 courts order dismissing her FAC, Sheikh raises a host of other meritless complaints in her AOB about the district courts rulings in the proceedings below. The district court properly found that Sheikhs 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 Sheikhs 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 Sheikhs 1094.5 petition as a complaint since, 17

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clearly, under Federal Rules of Civil Procedure, Rule 3, if there is no complaint there can be no civil action. In addition, Sheikhs 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 Sheikhs 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 Sheikhs 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 Sheikhs 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 Sheikhs petition for writ of mandate and this entire section of her brief must be disregarded. 18

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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 courts 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 courts 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

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) 19

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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 courts 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 courts 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) 20

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9.

The district courts 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. SHEIKHS ENTIRE ACTION IS BARRED BY THE ELEVENTH AMENDMENT TO THE CONSTITUTION Although not reached by the district court below in its decision dismissing Sheikhs FAC, the Eleventh Amendment deprived the district court of subject matter jurisdiction over Sheikhs 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). Sheikhs 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. 21 Pennhurst State

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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. Dept. 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

22

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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 states 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 Californias 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, Sheikhs federal and state law claims are barred.7 See Cal.Bus. & Prof. Code, 100, 2001, 2002, and 2004 attached to Addendum. 23
6

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The Eleventh Amendment bar to Sheikhs 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 MBOCs 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 Sheikhs 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). 24

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Thus, even if an officer were named, the jurisdictional bar to Sheikhs 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 SHEIKHS MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT. Sheikh appears to claim that the MBOC submitted unverified, nonpublic 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 Sheikhs Motion to Compel and once again served Sheikh with the documents. (ER 65-91; 141-Dckt. 37.).) In its order granting the

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Motion to Dismiss, the district court also granted defendants 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 plaintiffs 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, 26

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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 SHEIKHS 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 Sheikhs right to procedural due process. (ER 18-24.) As set forth in the procedural history above, Sheikh failed to file an opposition to the MBOCs 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 ALJs proposed decision without independently reviewing the evidence. (ER 123-124.) Section 2335 27

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provides that, in proceedings against persons not already holding a license, an ALJs 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 ALJs proposed decision without independently reviewing the record.9 The district court correctly held that this procedure does not violate Sheikhs 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

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). 28

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comported with due process. (ER 20-23.) The district courts 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 plaintiffs due process rights had not been violated because reports by the Committee and President Sponberg 29

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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 physicians license where the Boards decision is made without its own hearing because it is based on an ALJs 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 Courts 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 30

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Cal.2d 242 (1950), the California Supreme Court addressed the relevant provisions of 11517. In that case, the court ruled that a boards 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 officers 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 ALJs proposed decision denying Sheikhs 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

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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 Sheikhs 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 Sheikhs 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. 32

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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) (posttermination 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 Boards 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 Sheikhs 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 33

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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 Sheikhs 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 MBOCs 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 Judges 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 Sheikhs claim that the MBOC did not find her guilty of any accusations. (ER 23.) As the court found, this allegation is belied by the MBOCs 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.) 34

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As correctly determined by the district court, as a matter of law, there is no defensible basis for any of Sheikhs claims that her due process rights were violated. (ER 23.) As a result, amendment would be futile to correct the insufficiencies in Sheikhs 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, Sheikhs 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 MBOCs decision to deny her a license and the immediate issuance of a medical license. (AOB 52.) IV. SHEIKHS 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 35

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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 MBOCs denial of her application for licensure, not the alleged removal from her residency training. (ER 124, 130.) Therefore, Sheikhs 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 36

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MBOCs 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.

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. 37

11

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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. Sheikhs Due Process Claim Based on Alleged Removal from the Residency Program Is Moot.

Even if Sheikhs due process claim arising from her alleged removal from the residency program is deemed not to be waived, the claim is moot because Sheikhs 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. Paps 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 claimno 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). ///

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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 Sheikhs 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).

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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 SHEIKHS 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 40

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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 Sheikhs 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 agencys 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 SHEIKHS PLEADING AS A COMPLAINT As explained in the Statement of Facts, on January 27, 2010, Sheikhs husband, Rehan Sheikh, filed a document entitled Petition for Writ of Review; on Denial of Application for Physicians License by Medical Board of California CCP 1094.5 [and] Declaratory Relief; California Business and Professional [sic] Code 2335 Violates Physicians Constitutional 41

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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 Sheikhs husband Rehan Sheikh had filed it on behalf of his wife and he is not an attorney. (ER 4345.) In that same Order, the court construed Sheikhs 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 Judges 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 actionthe 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 42

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Sheikhs interest. The district court liberally construed her petition as a complaint and accepted it for filing. Given the alternative, Sheikhs 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 MBOCS MOTION TO DISMISS AND DID NOT FILE OBJECTIONS TO THE MAGISTRATE JUDGES RECOMMENDATIONS AND FINDINGS DESPITE AN OPPORTUNITY TO DO SO. Sheikh contends that the district court erred by granting the MBOCs 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 Defendants [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

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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

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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 courts 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 Judges recommendation to dismiss of [sic] her petition. (AOB 33.) She does not explain how she was denied that opportunity. The Magistrate Judges 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 Plaintiffs 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.) 45

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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 Judges recommended order.13 (ER 13.) There is no basis for Sheikhs claim that she was denied the opportunity to file objections to the magistrates 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 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 Plaintiffs Motion to Dismiss Defendants Motion for Dismissal of Plaintiffs Petition for Administrative Review. (ER 60-62, 143, Dckt 56.) 46
13

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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 SHEIKHS MOTION FOR RELIEF FROM FINAL JUDGMENT UNDER RULE 60(B) The district court did not abuse its discretion by denying Sheikhs Motion for Reconsideration under Federal Rules of Civil Procedure, Rule 47

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60(b). (ER 1-8.) Liberally construing Sheikhs 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.) 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 Noticeto which the MBOC filed objections (ER 145, Dckt. 87)and discovery requests in the form of Request for Admissions (ER 144, Dckt. 72-73.) 48
14

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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 Sheikhs consent. (ER 6-7.) XI. THE COURT DID NOT ABUSE ITS DISCRETION BY TERMINATING SHEIKHS E-FILING PRIVILEGES Sheikhs 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 910.) 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 Sheikhs efiling access after Sheikh filed multiple documents after the case had been dismissed, judgment had been entered, and the case closed. (ER 9-10, 12, 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. 49
16

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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 SHEIKHS MOTION FOR DISQUALIFICATION When Sheikh filed her motion for disqualification, the district court had already made a final ruling on the MBOCs Motion to Dismiss. Sheikhs motion was filed on August 23, 2010, the day the court entered judgment in favor of the MBOC and dismissed Sheikhs suit. (ER 57-59.) Sheikhs 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 SHEIKHS PETITION FOR APPROVAL OF HER APPLICATION FOR PHYSICIANS AND SURGEONS LICENSE Sheikh has titled her AOB Petition Seeking Writ of the Court for Approval of her Application for Physicians [sic] and Surgeons [sic] License 50

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(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 MBOCs 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 Sheikhs 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 its 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. 51

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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 courts decision. CONCLUSION For the reasons stated above, Defendants/Appellees State of California and MBOC respectfully request that the Court affirm the district courts judgment dismissing Plaintiffs 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

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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

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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 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 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).

X or is

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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 Dated

/s/ Susan K. Meadow Susan K. Meadows Deputy Attorney General