Richardson v. Bacerra

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEPHEN RALPH RICHARDSON, No. 1:19-cv-01366-LJO-EPG

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Plaintiff, ORDER GRANTING DEFENDANTS’

13 MOTION TO DISMISS

v.

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(Doc. No. 21)

15 XAVIER BACERRA [SIC], et al.,

16 Defendants.

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19 INTRODUCTION

20 On September 30, 2019, Plaintiff Stephen Ralph Richardson, who was at the time

21 proceeding pro se, filed this civil rights complaint asserting three claims, all concerning an

22 adverse licensure decision against him from the California Physician Assistant Board (PAB) and

23 procedural steps taken subsequent to that decision. (Doc. No. 1.) Plaintiff, still proceeding pro

24 se, filed a first amended complaint (FAC) on November 4, 2019. (Doc. No. 14.) The FAC’s first

25 claim, arising under 42 U.S.C. § 1983, alleged that the PAB’s licensure decision violated

26 plaintiff’s Fourteenth Amendment right to procedural due process. (Id. at 4.) The FAC next

27 appeared to allege that Title 16 of the California Code of Regulations (CCR), § 1399.523.5

28 (requiring revocation of certain forms of licenses held by registered sex offenders), violates the

1 U.S. Constitution’s prohibition against ex post facto laws. (Id.) Finally, the FAC included a

2 claim that defendants conspired to interfere with plaintiff’s civil rights in violation of 42 U.S.C.

3 § 1985(3).

4 On December 3, 2019, defendants moved to dismiss, and set the hearing on that motion

5 for January 9, 2020. (Doc. No. 21.) On December 4, 2019, plaintiff, again proceeding pro se,

6 lodged a second amended complaint (SAC), without a stipulation from defendants and without

7 leave of court. (Doc. No. 24.) The SAC appeared to differ from the FAC in only one material

8 respect: it corrected a misspelling as to one defendant’s name. (Id.) On December 9, 2019,

9 defendants moved to strike the SAC because plaintiff did not obtain leave of court to file it and

10 because the amendment would be futile. (Doc. No. 25.) Plaintiff did not timely file any

11 oppositions to the defense motions, which would have been due no later than December 26, 2019.

12 See Local Rule 230(c).

13 On January 6, 2020, the previously assigned district judge issued an order dismissing all

14 of the claims in the FAC for failure to state a claim. (Doc. No. 33 (January 6 Dismissal Order).)

15 In an abundance of caution, although the court could not at that time “envision any obvious way

16 that the claims in this case could be amended to cure the deficiencies outlined,” the court did not

17 dismiss the case outright, but instead ordered plaintiff to show cause in writing on or before

18 January 20, 2020, “why he should be afforded leave to amend the complaint.” (Id. at 7–8.) The

19 lodged SAC was stricken on the ground that it failed to cure any of the identified defects and

20 therefore permitting it to be filed would be futile. (Id. at 7–8.)

21 Meanwhile, on or about January 3, 2020, attorney Steve Whitworth filed a notice to

22 appear on plaintiff’s behalf in this action. For reasons the court will not repeat here, but which

23 are described in detail in its February 27, 2020 Order, the order of dismissal was set aside and

24 plaintiff, through counsel, was permitted an opportunity to file an opposition to defendant’s

25 December 3, 2019 motion to dismiss. (Doc. No. 41.) Defendant was also permitted an

26 opportunity to file a reply. (Id.) The parties have now filed those briefs (Doc. Nos. 42, 43), and

27 the matter is ripe for decision.

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1 Having now reviewed the motions in light of the entire record, including the most recent

2 filings, for the reasons explained below, the court will once again GRANT defendant’s motion to

3 dismiss without leave to amend.

4 FACTUAL BACKGROUND

5 According to judicially noticeable documents in the record, plaintiff received a California

6 Physician Assistant (PA) license in 1993. (Defendant’s Request for Judicial Notice (RJN), Ex. 2

7 at ¶ 3.)1 On October 18, 2000, plaintiff sustained a conviction in Fresno County Superior Court

8 for committing lewd or lascivious acts with a child under the age of 14 in violation of under

9 California Penal Code § 288(a),. (RJN, Exs. 1(b), 2.) Plaintiff was ordered to register as a sex

10 offender pursuant to California Penal Code § 290. (RJN, Ex. 1(b).) Plaintiff surrendered his PA

11 license on January 2, 2002, as a direct result of his conviction. (See RJN Ex. 2.)

12 More than fifteen years later, in October 2017, plaintiff submitted a Petition for Penalty

13 Relief, seeking to have his license reinstated. (RJN, Ex. 4.) On May 24, 2018, he received notice

14 from the PAB that his petition had been denied pursuant to Title 16 of the California Code or

15 Regulations, § 1399.523.5(3). (RJN, Ex. 5.) Soon thereafter, the PAB sent him a revised notice

16 of its decision including a statement of plaintiff’s right to appeal. (RJN, Ex. 6.) Plaintiff pursued

17 and was eventually given a formal hearing on the denial of his reinstatement petition, which

18 resulted in a hearing officer recommending denial of the petition. (RJN, Exs. 3, 7, 8, 9.) The PAB

19 adopted the proposed decision. (RJN, Ex. 3.) Plaintiff was notified in an April 12, 2019 letter of

20 the denial, that the decision would become effective on May 10, 2019, and that he could file a

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22 1 In the context of a Fed. R. Civ. P. 12(b)(6) motion to dismiss, a court may take judicial notice of

matters of public record, MGIC Indem. Corp. v. Weisman, 80 F.2d 500, 504 (9th Cir. 1986), for

23 the purpose of establishing the existence of those records and their content, but not to establish

any fact that is “subject to reasonable dispute.” Fed. R. Evid. 201(b). To the extent the court

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references the content of any judicially noticeable documents for the truth, such as its reliance on

25 the 2001 Stipulated Decision and Order in which plaintiff stipulated to the surrender of his PA

license (RJN, Ex. 2) to establish the date on which plaintiff obtained his PA license, it does so for

26 background purposes only and not to establish any material fact. Elsewhere in this order, the

court refers to certain judicially noticeable public records to establish their existence or the nature

27 of the underlying proceedings they reflect. See United States v. Black, 482 F.3d 1035, 1041 (9th

Cir. 2007) (taking judicial notice of underlying state court documents to establish conviction);

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1 petition for reconsideration pursuant to California Government Code § 11521, which requires any

2 such reconsideration petition to be received prior to the effective date. (RJN, Ex. 10.) On April

3 24, 2019, plaintiff mailed a petition for reconsideration to the hearing officer, instead of to the

4 PAB. (RJN, Ex. 11.) On July 1, 2019, the hearing officer forwarded plaintiff’s petition to the

5 PAB, which sent plaintiff a letter indicating it lacked jurisdiction to consider his reconsideration

6 petition because it was untimely. (RJN, Ex. 12.)

7 On September 30, 2019, plaintiff filed this lawsuit.

8 STANDARD OF DECISION

9 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is a challenge to

10 the sufficiency of the allegations set forth in the complaint. Navarro v. Block, 250 F.3d 729, 732

11 (9th Cir. 2001). A 12(b)(6) dismissal is proper where there is either a “lack of a cognizable legal

12 theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v.

13 Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint

14 states a claim upon which relief may be granted, the court accepts as true the allegations in the

15 complaint, construes the pleading in the light most favorable to the party opposing the motion,

16 and resolves all doubts in the pleader’s favor. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588

17 (9th Cir. 2008).

18 Under Rule 8(a), a complaint must contain “a short and plain statement of the claim

19 showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what

20 the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

21 570 (2007). A plaintiff is required to allege “enough facts to state a claim to relief that is

22 plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the

23 plaintiff pleads factual content that allows the court to draw the reasonable inference that the

24 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

25 “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

26 sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

27 While Rule 8(a) does not require detailed factual allegations, “it demands more than an

28 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A

1 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the

2 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678

3 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

4 statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove

5 facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not

6 been alleged[.]” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters,

7 459 U.S. 519, 526 (1983). In practice, “a complaint . . . must contain either direct or inferential

8 allegations respecting all the material elements necessary to sustain recovery under some viable

9 legal theory.” Twombly, 550 U.S. at 562. In other words, the complaint must describe the alleged

10 misconduct in enough detail to lay the foundation for an identified legal claim.

11 ANALYSIS

12 A. Plaintiff’s Claim Brought Pursuant to 42 U.S.C. § 1983

13 Defendants move to dismiss plaintiff’s § 1983 claim on the ground that he failed to

14 exhaust his judicial remedies by filing a writ petition in state court pursuant to California Code of

15 Civil Procedure § 1094.5. See Doe v. Regents of the Univ. of California, 891 F.3d 1147, 1154–55

16 (9th Cir. 2018). The previously assigned district judge evaluated this argument in detail in the

17 January 6, 2020 Dismissal Order as follows.

18 In Doe, the Ninth Circuit considered the University of California’s

decision to suspend a student for sexual misconduct. Id. at 1150.

19 The Ninth Circuit explained that federal courts accord preclusive

effect to state administrative proceedings that meet certain fairness

20 requirements, noting that California’s writ of administrative

mandamus process provides “an adequate opportunity for de novo

21 judicial review.” Id. at 1154–55 (internal citations omitted). A

court in the Ninth Circuit must “give preclusive effect to a state

22 administrative decision if the California courts would do so.” Id. at

1155. Because, in California, “exhaustion of judicial remedies is

23 necessary to avoid giving binding ‘effect to an administrative

agency’s decision,” a party “must exhaust judicial remedies by

24 filing a § 1094.5 petition, the exclusive and established process for

judicial review of an agency decision.” Id. (internal quotation marks

25 and citation omitted). Doe held that the University of California’s

suspension decision was the kind of “adjudicatory, quasi-judicial

26 decision” that is subject to California’s judicial exhaustion

requirement. Id. at 1155 (citing Y.K.A. Indus., Inc. v. Redev.

27 Agency of San Jose, 174 Cal. App. 4th 339 (2009)). As a result, the

suspension decision, about which the student did not seek review in

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1 state court, should have been treated as a final and preclusive bar to

any Section 1983 claim seeking to overturn the suspension. Id.

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The Court sees no way to distinguish the present circumstances

3 from those in Doe. The PAB’s ruling was an adjudicatory, quasi-

judicial one, and Plaintiff has failed to allege or even suggest that

4 he exhausted his judicial remedies. Nor has he attempted to

otherwise explain why he should be exempt from the exhaustion

5 requirement.

6 (Doc. No. 33 at 5.)

7 Plaintiff entirely fails to address the Ninth Circuit’s decision in Doe, instead arguing that

8 “administrative remedies” are not required, citing Patsy v. Board of Regents, 457 U.S. 496

9 (1982). Patsy indeed held that a plaintiff seeking relief under § 1983 need not exhaust available

10 administrative remedies, but Patsy says nothing about exhaustion of judicial remedies. Id. Doe,

11 in contrast, stands for the specific proposition that a party seeking relief from an adverse

12 California administrative decision must first pursue review of that decision in state court by way

13 of administrative mandamus; if the party fails to do so, he may not bring a procedural due process

14 claim under § 1983 challenging the process provided by that administrative body because the

15 administrative decision is deemed final and must be given preclusive effect in federal court. Doe

16 is on point and controls here. Plaintiff failed to pursue judicial remedies in state court.

17 Accordingly, the underlying administrative decision is given preclusive, binding effect and cannot

18 be the subject of a procedural due process challenge. For the same reasons articulated in the

19 January 6, 2016 Dismissal Order, the court will again dismiss plaintiff’s § 1983 claim without

20 prejudice due to his failure to exhaust judicial remedies available to him in state court. In light of

21 this finding, the court declines to address plaintiff’s other, somewhat disjointed arguments as to

22 the possible merit of his due process challenge as well as the parties’ discussions of Eleventh

23 Amendment immunity.

24 B. Ex Post Facto Claim

25 The January 6, 2020 order of dismissal also granted defendants’ motion to dismiss

26 plaintiff’s allegation that § 1399.523.5 violates the U.S. Constitution’s prohibition against ex post

27 facto laws. This court held this claim was “legally invalid as alleged,” reasoning that

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1 the Ninth Circuit has upheld California’s sex offender registration

laws as constitutional on the ground that registration itself is not

2 punitive. United States v. Hardeman, 704 F.3d 1266, 1268 (9th

Cir. 2013), citing People v. Fioretti, 54 Cal. App. 4th 1209 (1997)

3 (holding that retroactive application of the state sex offender

registration laws does not violate the Ex Post Facto Clause).

4 Likewise, state statutory schemes imposing occupational debarment

upon commission of specified acts have also been deemed

5 nonpunitive. Smith v. Doe, 538 U.S. 84, 100 (2003), citing Hudson

v. United States, 522 U.S. 93, 104 (1997) (forbidding further

6 participation in the banking industry after commission of financial

crimes).

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8 (Doc. No. 33 at 6.)

9 Plaintiff offers no quarrel with this reasoning, which remains valid. Defendant’s motion

10 to dismiss plaintiff’s ex post facto claim will also be GRANTED.

11 C. Plaintiff’s Claim Brought Pursuant to 42 U.S.C. § 1985(3)

12 Finally, plaintiff’s FAC generally alleges a violation of Section 3 of the Civil Rights Act

13 of 1871, 42 U.S.C. § 1985(3). That claim was also previously dismissed by this court for the

14 following reasons:

15 The first part of Section 1985(3) prohibits persons from conspiring

to deprive any person of his or her constitutional rights, while the

16 second part of Section 1985(3) prohibits conspiracies to interfere

with the federal voting process. Section 1985(3) also provides for a

17 private right of action for damages caused by any conspiracy

prohibited by § 1985. An essential requirement for a 1985(3) claim

18 is that there must be some racial or otherwise class based “invidious

discriminatory animus” for the conspiracy. Bray v. Alexandria

19 Women’s Health Clinic, 506 U.S. 263, 268-69 (1993). Section

1985(3) was not meant to apply to all tortious conspiracies to

20 deprive the rights of another. Id. Section 1985(3) does not extend

beyond race unless that class can show that the government has

21 determined that class members “require and warrant special federal

assistance in protecting their civil rights.” Orin v. Barclay, 272

22 F.3d 1207, 1217 n. 4 (9th Cir. 2001). Plaintiff does not allege a

conspiracy of any kind, let alone one motivated by racial animus or

23 animus to any class warranting special protection.

24 (Doc. No. 33 at 6–7.) Once again, plaintiff mounts no argument in opposition to dismissal of this

25 claim. Therefore, defendant’s motion to dismiss plaintiff’s § 1985(3) claim will also be

26 GRANTED.

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4:40 UV VELOUR SOMME oe POO Vee OY OMI

1 | D. Leave to Amend

2 Plaintiff requests leave to amend. First, plaintiff generally asserts that amendment should

3 | be permitted as a matter of course because he has yet to have an opportunity to amend his

4 | complaint with the assistance of counsel. (Doc. No. 42 at 8-9.) Plaintiff is correct that Federal

5 | Rule of Civil Procedure 15 provides that a “court should freely give leave [to amend] when

6 || justice so requires.” Fed. R. Civ. P. 15(a)(2). Yet, even that liberal standard has its limits.

7 | “Dismissal without leave to amend is proper if it is clear that the complaint could not be saved by

8 | amendment.” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008). In the January 6,

9 | 2020 Dismissal Order, the court indicated that it could not “envision any obvious way that the

10 | claims in this case could be amended to cure the deficiencies outlined.” (Doc. 33 at 7.)

11 | Plaintiff’s most recent filing does nothing to dispel this concern. Plaintiff’s counsel has simply

12 | offered miscellaneous arguments about why the process afforded plaintiff was insufficient, but

13 | fails to address the threshold issue of plaintiff’s failure to pursue judicial remedies in state court.

14 | Plaintiffs counsel also mentions “substantive due process” but provides no explanation as to how

15 | any substantive due process claim could be advanced based upon the facts alleged. The court is

16 || aware of no substantive due process doctrine that could possibly apply here. Plaintiff has

17 | advanced no arguably viable way to cure the deficiencies of the previously dismissed claims or

18 | pursue a different federal claim in this case. Accordingly, and because the granting of further

19 | leave to amend would be futile under the circumstances, the court will grant defendant’s motion

20 || to dismiss without leave to amend.

21 CONCLUSION

22 For the foregoing reasons, the court will grant defendant’s motion to dismiss (Doc. No.

23 | 21) without leave to amend. The Clerk of Court is directed to assign a district judge to this matter

24 | and close this case.

25 | IT IS SO ORDERED. me □

26 Li fa £5

Dated: _ May 28, 2020 wee Foe

27 UNITED STATES DISTRICT JUDGE

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