# Rowen v. Prasifka > District Court, N.D. California · December 11, 2023 URL: https://www.frixlaw.com/law-library/cases/10077392 ## Case - **Court:** District Court, N.D. California - **Decided:** December 11, 2023 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10077392 ## Opinion text 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT ROWEN, Case No. 23-cv-02806-DMR 8 Plaintiff, ORDER ON MOTION TO DISMISS 9 v. Re: Dkt. No. 14 10 WILLIAM PRASIFKA, et al., 11 Defendants. 12 Self-represented Plaintiff Robert Jay Rowen filed a complaint against Defendants William 13 Prasifka, Reji Varghese, and Jannsen Tan alleging constitutional violations pursuant to 42 U.S.C. 14 § 1983 related to the suspension of his medical license. Defendants move pursuant to Federal 15 Rule of Civil Procedure 12(b)(6) to dismiss the complaint. This matter is suitable for resolution 16 without a hearing. Civ. L.R. 7-1(b). For the following reasons, the motion to dismiss is granted. 17 I. BACKGROUND1 18 Rowen alleges that Prasifka is the former executive director of the Medical Board of 19 California (“CMB”); Varghese is the acting executive director of CMB; and Tan is a Deputy 20 Attorney General for the State of California. Compl. 2-3. Rowen alleges that Defendants 21 suspended his medical license in October 2022. His license remains suspended even though he 22 has not received a “hearing or trial,” and Defendants “filed an accusation against [him] to 23 permanently revoke [his] license which proceedings are ongoing.” Id. at 5. He alleges that 24 Prasifka “initiated the process,” that Varghese “continues the process,” and that Tan represents 25 1 Defendants ask the court to take judicial notice of 11 exhibits related to the CMB suspension and 26 revocation proceedings, as well as Rowen’s Petition for Writ of Mandate and Request for Emergency Injunctive Relief filed in state court in May 2023. [Docket No. 15 (Request for 27 Judicial Notice, “RJN”).] They also filed an RJN with their reply in which they ask the court to 1 Prasifka and Varghese and “is prosecuting the actions against” Rowen. Rowen alleges that 2 “[n]one of the named defendants are lawfully capacitated to bring any action as none have given 3 the official bond required by California statutes to occupy their office.” Id. 4 Rowen alleges that “California law, affirmed by multiple California Supreme Court Cases . 5 . . mandates that [an] official bond must be executed within 10 days of entering office, or the 6 office is vacant.” Id. He identifies the following statutes that allegedly require the posting of a 7 bond as a requirement of taking the offices in question: California Government Code sections 8 1001, 1453, 1454, 1455. Compl. Attach. 1-2. According to Rowen, pursuant to California 9 Government Code section 1770, “an office becomes vacant absent giving bond.” Id. at 2-3. He 10 further alleges that he made a California Public Records request to the Department of General 11 Services (“DGS”) for “copies of the official bonds of the three defendants” and that “DGS 12 answered with official responses that none of the defendants have given the bond required by 13 law.” Id. at 3. Accordingly, he alleges, “the offices of the Defendants are vacant,” id., and “well 14 exceeded the bounds of their authority—they had no authority.” Id. at 7. Based on these 15 allegations, Rowen alleges that Defendants violated his “[p]rocedural and substantive due process 16 [rights]” under the U.S. and California Constitutions. Id. at 3. 17 Rowen filed the complaint in June 2023. Defendants now move pursuant to Rule 12(b)(6) 18 to dismiss the complaint.2 19 II. LEGAL STANDARDS 20 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in 21 the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 22 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all 23 of the factual allegations contained in the complaint,” Erickson, 551 U.S. at 94, and may dismiss a 24 claim “only where there is no cognizable legal theory” or there is an absence of “sufficient factual 25 matter to state a facially plausible claim to relief.” Shroyer v. New Cingular Wireless Servs., Inc., 26 27 2 Defendants’ motion also cites Rule 12(b)(1), but they do not present any argument that the court 1 622 F.3d 1035, 1041 (9th Cir. 2010) (quotation marks omitted) (quoting Navarro v. Block, 250 2 F.3d 729, 732 (9th Cir. 2001)) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009)). A claim 3 has facial plausibility when a plaintiff “pleads factual content that allows the court to draw the 4 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 5 678 (citation omitted). In other words, the facts alleged must demonstrate “more than labels and 6 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. 7 Corp. v. Twombly, 550 U.S. 554, 555 (2007). Taken together, Iqbal and Twombly require well- 8 pleaded facts, not legal conclusions, that “plausibly give rise to an entitlement to relief. Whitaker 9 v. Tesla Motors, Inc., 985 F.3d 1173, 1176 (9th Cir. 2021) (quotations and internal citations 10 omitted). 11 Pro se pleadings must be liberally construed and “held to less stringent standards than 12 formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94. The Ninth Circuit has held that 13 “where the petitioner is pro se,” courts have an obligation, “particularly in civil rights cases, to 14 construe the pleadings liberally and to afford the petitioner the benefit of any doubt.” Bretz v. 15 Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, “a liberal interpretation of 16 a pro se civil rights complaint may not supply essential elements of the claim that were not 17 initially pled.” Byrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1140 (9th Cir. 2011) (en 18 banc) (quoting Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992)). 19 III. DISCUSSION 20 42 U.S.C. § 1983 “imposes civil liability on an individual who ‘under color [of state law] . 21 . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any 22 rights, privileges or immunities secured by the Constitution and laws.’” Franklin v. Fox, 312 F.3d 23 423, 444 (9th Cir. 2002) (quoting 42 U.S.C. § 1983). “To state a claim under § 1983, a plaintiff 24 must allege two essential elements: (1) that a right secured by the Constitution or laws of the 25 United States was violated, and (2) that the alleged violation was committed by a person acting 26 under the color of State law.” Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 27 Rowen’s theory of liability appears to be that because Defendants did not post bonds when 1 with permanent revocation proceedings. Therefore, the suspension and revocation proceedings 2 violate his “[p]rocedural and substantive due process [rights].” See Compl. 3. In his opposition, 3 he asserts that Defendants have deprived him of “5th Amendment due process” and violated 4 Article I, Section 7 of the California Constitution, which states in relevant part that “[a] person 5 may not be deprived of life, liberty, or property without due process of law.” Opp’n 3, 11. 6 Defendants move to dismiss the complaint. They argue that because Rowen’s “sole 7 argument to support his 42 U.S.C. § 1983 claim rests on his incorrect belief that the Defendants 8 were required to post bonds, his argument fails as a matter of law because no statute required any 9 of the Defendants to post a bond.” Mot. at 5-6. 10 The complaint alleges that under California Government Code section 1001, Defendants 11 “would be occupying civil executive offices.” See Compl. Attach. 1. Section 1001 identifies 12 California’s “civil executive officers,” including “an Attorney General and all assistant and deputy 13 attorneys general” and “persons serving on boards or commissions created under the laws of the 14 state or established under the State Constitution.” The complaint then identifies “[a] series of 15 California codes” that allegedly “sets forth the qualifications for a person to enter an office, 16 whether elected or appointed,” including “giving a surety bond”: California Government Code 17 sections 1453-1455. Id. at 1-2. However, none specify that individuals in the positions at issue— 18 executive director of CMB, acting executive director of CMB, and Deputy Attorney General—are 19 required to post a bond in order to occupy those offices. Section 1453 states, “[o]fficial bonds 20 shall be recorded in a book kept for that purpose entitled ‘Record of Official Bonds.’” Section 21 1454 states, “[u]nless otherwise provided, the official bonds of state officers prescribed by law 22 shall be approved by either the Governor or the Director of General Services and filed and 23 recorded in the office of the Secretary of State.” Finally, Section 1455 states, “[u]nless otherwise 24 provided, all official bonds of state officers and employees not expressly prescribed by law shall 25 be forwarded to the Department of General Services for recordation. Upon such recordation the 26 Department of General Services shall forward the bonds to the Secretary of State where they shall 27 be filed.” 1 prerequisites for holding a de jure public office.” Opp’n 2-3. He also argues that “[t]he bond is 2 the equivalent of automobile insurance in that anyone injured from said official acting outside the 3 authority of his office will have financial recompense, as does a victim in a car accident.” Id. at 7. 4 However, he identifies no statutory authority requiring individuals holding Defendants’ offices to 5 post bonds and otherwise does not explain how Defendants violated his Fifth Amendment rights. 6 Accordingly, the complaint fails to state a claim under 42 U.S.C. § 1983. 7 Rowen’s claim for violation of Article I, Section 7 of the California Constitution appears to 8 be based on the same contention, that Defendants have taken actions to suspend and revoke his 9 medical license without satisfying the requirements for holding their positions. As discussed 10 above, Rowen identifies no authority for his contention. Accordingly, the complaint fails to state 11 a claim for violation of the California Constitution.3 12 If the court dismisses the complaint, it “should grant leave to amend even if no request to 13 amend the pleading was made, unless it determines that the pleadings could not possibly be cured 14 by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Leave to 15 amend may be denied “where the amendment would be futile.” Gardner v. Martino, 563 F.3d 16 981, 990 (9th Cir. 2009). As the court cannot say that amendment would be futile, Rowen is 17 granted leave to amend. 18 IV. CONCLUSION 19 For the foregoing reasons, Defendants’ motion to dismiss is granted in part. Rowen may 20 file an amended complaint by no later than January 10, 2024. The December 14, 2023 case 21 management conference is vacated and will be reset later if appropriate. 22 IT IS SO ORDERED. 23 Dated: December 11, 2023 24 ______________________________________ Donna M. Ryu 25 Chief Magistrate Judge 26 27 3 Because the court finds that the complaint fails to state a claim, it does not reach Defendants’ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10077392. Public record. Not legal advice.