Mir v. Zucker

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JEHAN ZEB MIR, MD,

Plaintiff,

-against- 1:19-CV-6374 (CM)

HOWARD ZUCKER, MD, Current

ORDER OF DISMISSAL

Commissioner, N.Y. Department of Health, in

individual & official capacity, et al.,

Defendants.

COLLEEN McMAHON, Chief United States District Judge:

Plaintiff Jehan Zeb Mir, of Redondo Beach, California, brings this pro se action in which

he asserts claims 42 U.S.C. § 1981, § 1983, § 1985, and § 1986.1 He also asserts claims under

state law.2 He seeks damages and injunctive relief. For the reasons discussed below, the Court

dismisses this action but grants Plaintiff leave to replead.

STANDARD OF REVIEW

The Court has the authority to dismiss a complaint, even when the plaintiff has paid the

relevant fees, if it determines that the action is frivolous, see Fitzgerald v. First E. Seventh

Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000), or that the Court lacks subject matter

jurisdiction, see Fed. R. Civ. P. 12(h)(3), Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583

(1999). Courts can also dismiss a complaint, or portion thereof, for failure to state a claim on

which relief may be granted after giving the plaintiff notice and an opportunity to be heard.

1 Plaintiff has paid the relevant fees to bring this action.

2 Plaintiff asserts state-law claims under the Court’s diversity jurisdiction. But because

Plaintiff, a citizen of California, sues other citizens of California, the parties are not diverse. See

28 U.S.C. § 1332(a)(1). The Court therefore understands Plaintiff’s state-law claims as brought

under the Court’s supplemental jurisdiction. See 28 U.S.C. § 1367(a).

Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994). The Court is obliged, however, to

construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret

them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in

original).

BACKGROUND

Plaintiff is a medical doctor whose California and New York medical licenses have been

revoked. He previously brought two pro se actions in this Court against California and New

York officials arising from the revocation of his medical licenses. In the present action, Plaintiff

asserts similar claims and names among the defendants individuals (or their successors) named

as defendants in his previous actions.

A. Mir v. Shah, 1:11-CV-5211 (“Mir I”)

In 2011, Plaintiff brought a pro se action in this Court asserting claims under 42 U.S.C.

§ 1983 against then-Commissioner of the New York State Department of Health, Nirav R. Shah,

and the New York State Board for Professional Medical Conduct (“Board”). He asserted that in

an administrative proceeding that began in 2006 for the purpose of deciding whether to revoke

his New York medical license, the defendants deprived him of due process of law and equal

protection under the law. He also challenged the constitutionality of N.Y. Pub. Health Law

§ 230(10)(p),3 claiming that it denies due process of law.

On August 8, 2012, Judge Barbara S. Jones granted the defendants’ motion to dismiss

Plaintiff’s claims. See Mir v. Shah, No. 11-CV-5211, 2012 WL 3229308 (S.D.N.Y. Aug. 8,

3 This New York statute allows New York officials to conduct disciplinary proceedings

for health-care professionals who are licensed in New York and who have been found by another

State to have committed, among other transgressions, professional misconduct.

2012).4 In that action, Plaintiff asked Judge Jones to (1) enjoin enforcement of a 2008 agreement

in which Plaintiff agreed to not practice medicine in New York while a New York medical

disciplinary proceeding against him was pending, (2) enjoin the defendants from carrying out a

proceeding against Plaintiff under N.Y. Pub. Health Law § 230(10)(p), and (3) find § 230(10)(p)

unconstitutional. Judge Jones dismissed Plaintiff’s claims under the Younger abstention doctrine

because, at that time, a § 230(10)(p) proceeding was pending against Plaintiff, and because that

type of proceeding “provide medical professionals with the due process guaranteed by the

Fourteenth Amendment.” Id. at *2-5.

On December 4, 2012, Judge Jones denied Plaintiff’s motion for reconsideration. See Mir

v. Shah, No. 11-CV-5211, 2012 WL 6097770 (S.D.N.Y. Dec. 4, 2012). Plaintiff appealed. On

June 17, 2014, the United States Court of Appeals for the Second Circuit affirmed the judgment

and the denial of reconsideration. See Mir v. Shah, 569 F. App’x 48 (2d Cir. 2014) (summary

order).

B. Mir v. Bogan, 1:13-CV-9172 (“Mir II”)

After his California and New York medical licenses had been revoked, Plaintiff brought

another pro se action in this Court. In Mir II, he sued, in their individual capacities, those

“individuals who are responsible for conducting disciplinary proceedings involving licensed

medical professionals in New York and California . . . seeking money damages for claims arising

out of the revocation of his license to practice medicine in New York” on or about December 27,

4 The Mir I defendants brought their motion to dismiss under Rule 12(b)(1) and (6) of the

Federal Rules of Civil Procedure. Mir, 1:15-CV-5211, 17, 19. Judge Jones dismissed Mir I under

Rule 12(b)(6). See Mir, 2012 WL 3229308, at *2.

2012.5 Mir v. Bogan, No. 13-CV-9172, 2015 WL 1408891, at *1 (S.D.N.Y. Mar. 26, 2015). On

March 26, 2015, Judge Paul G. Gardephe granted the defendants’ motions to dismiss.6 Id.

Judge Gardephe noted that “[a]lthough the revocation of Mir’s license in New York was

predicated on the revocation of his medical license in California, the proceedings in California

[were] not the subject of” the action before Judge Gardephe. Id. at *1. Judge Gardephe dismissed

Plaintiff’s claims against those defendants who were responsible for conducting Plaintiff’s New

York medical disciplinary proceeding because, under the doctrine of absolute immunity, those

defendants were immune from suit for damages. See id. at *10-18; Ackerman v. State Bd. for

Prof’l Med. Conduct, No. 83-CV-7871, 1984 WL 1258, at *2 (S.D.N.Y. 1984)

(“[A]dministrative adjudicatory proceedings are ‘functionally comparable to that of a judge.’

Thus, absolute immunity was necessary to assure that the participants in the proceedings could

‘perform their respective functions without harassment or intimidation.’” (quoting Butz v.

Economou, 438 U.S. 478, 512-13 (1978))). Judge Gardephe also held that because “the

California Defendants played no role in the New York license proceedings, they are not entitled

to absolute immunity.” Mir II, 2015 WL 1408891, at *18. But he dismissed Plaintiff’s claims

against them for failure to state a claim on which relief may be granted. Id. at *18-20.

Plaintiff appealed. On August 24, 2016, the Second Circuit affirmed the judgment. See

Mir v. Bogan, 668 F. App’x 368 (2d Cir. 2016) (summary order).

5 Plaintiff filed his original complaint in Mir II on December 26, 2013, and his amended

complaint in that action on April 21, 2014, after his New York medical license had been revoked

on or about December 27, 2012, following the previous revocation of his California medical

license.

6 Some of the Mir II defendants bought their motion to dismiss under Rule 12(b)(2) and

(5). Mir II, 1:13-CV-9172, 30. Others brought their motion under Rule 12(b)(6), id. at 37, while

still others brought their motion under Rule 12(b)(2) and (6), id. at 39. Judge Gardephe dismissed

Mir II under Rule 12(b)(6). See Mir, 2015 WL 1408891, at *8-9.

C. The present action

In the present action, Plaintiff alleges that in 2018, he became aware of information that

he believes supports his contention that California and New York officials should not have

revoked his California and New York medical licenses. (See ECF 1, pp. 6-7, 10-11, 108-10,

118.) He sues the current Commissioner of the New York State Department of Health and other

current and former New York officials who either prosecuted him in the previously challenged

New York medical disciplinary proceeding, presided over that proceeding, revoked his New

York medical license in or about January 2013, enforced its revocation, or who have the

authority to reinstate it (“New York Defendants”).7 He also sues current and former members of

the relevant California state government entity who either prosecuted him in his California

medical disciplinary proceedings, presided over those proceedings, revoked his California

medical license in or about August 2012, enforced its revocation, reported the revocation to New

York officials, or who have the authority to reinstate his California medical license, as well as

individuals who provided evidence during those proceedings, his former supervisors at the

California hospitals where he was employed before his California medical license was revoked,

another physician employed at one of those hospitals, and the hospitals themselves (“California

Defendants”). He sues the individual defendants in their official and individual capacities.

Plaintiff makes the following allegations: In depositions held on July 16, 2016, and

August 30, 2016, Linda K. Whitney, M.D., and Kimberly Kirchmeyer, M.D. – former Executive

7 Among these defendants, Plaintiff sues Linda Skidmore Daines, who he describes as the

“Personal Representative of [the] Estate of deceased husband Past Commissioner Richard F.

Daines, MD.” (ECF 1, p. 14.) Plaintiff alleges that Dr. Richard Daines “enforced [an] [o]rder

against [Plaintiff] [n]ot to [p]ractice in N.Y. without [Plaintiff’s] having committed any medical

misconduct in State of N.Y.” (Id.) He also alleges that Dr. Richard Daines “continued to keep

[him] out of practice and continued to prosecute nonexistent referral [c]harges” against him even

though, at one point, California officials reinstated his California medical license. (Id.)

Directors of the California Medical Board (and both Mir II defendants) – admitted “that

documentation findings inserted into [a] 2006 [d]ecision were not supported by any [c]harges in

the” administrative accusatory documents filed against Plaintiff in his California medical

disciplinary proceedings. (Id. pp. 108-09.) In another deposition held on August 29, 2016,

Sharon Levine, M.D. – a former President of the California Medical Board (and another Mir II

defendant) – admitted that Plaintiff had “made the correct diagnosis.” (Id. p. 11.) And in still

another deposition held on December 16, 2016, Joshua Bardin, M.D., who had previously been

“the sole accuser of [the] charge of misdiagnosis against Plaintiff[,] admitted that his charge . . .

was entirely based on reading of the arteriograms done before surgery[,] which he had not seen

when he wrote his accusatory report of consultation.” (Id. pp. 10-11) (emphasis in original.)

Plaintiff seeks preliminary and permanent injunctive against “the New York Defendants

for taking reciprocal action based on discipline by [the] California Defendants who have

admitted such discipline to be without merit and continue to deny reinstatement of [Plaintiff’s]

New York medical license.” (Id. p. 11.) He also asks the Court for “prospective injunctive relief

against [the] California Defendants on the same grounds, against continuing to disseminate false

information about [Plaintiff], as they did to [New York officials] . . . .” (Id.) He further asks the

Court to “permanently restrain[] and enjoin[] [the] defendants from imposing any disciplinary

action against Plaintiff [that includes] any [p]rospective [e]nforcement of [o]rders of revocation

by California and New York State.” (Id. p. 123.) Moreover, Plaintiff asks the Court to direct the

appropriate defendants to reinstate his California and New York medical licenses and to expunge

his California and New York medical disciplinary records. (Id.) He also seeks damages and

attorney’s fees. (See id. pp. 123-24.)

DISCUSSION

A. Federal claims against the New York Defendants

The Court must dismiss Plaintiff’s federal claims against those New York officials who

either prosecuted Plaintiff in his New York medical disciplinary proceeding, presided over that

proceeding, revoked his New York medical license in or about January 2013, or enforced that

revocation (“New York Defendants”).8

The doctrine of issue preclusion, also known as collateral estoppel, bars the relitigation of

a legal or factual issue decided in a previous action if “(1) the issues in both proceedings are

identical, (2) the issue in the prior proceeding was actually litigated and actually decided,

(3) there was [a] full and fair opportunity to litigate in the prior proceeding, and (4) the issue

previously litigated was necessary to support a valid and final judgment on the merits.” Grieve v.

Tamerin, 269 F.3d 149, 153 (2d Cir. 2001) (internal quotation marks and citations omitted,

alteration in original); see Tracy v. Freshwater, 623 F.3d 90, 99 (2d Cir. 2010) (“Collateral

estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly

raised in a prior action or proceeding and decided against that party.”) (internal quotation marks

and citations omitted). “The doctrine of issue preclusion . . . ‘bars successive litigation of an

issue of fact or law actually litigated and resolved in a valid court determination essential to the

8 These defendants include: Howard Zucker, M.D.; George Autz; Roseanne C. Berger;

Lawrence J. Epstein; Marian Goldstein; Martha Grayson; Elizabeth Beson-Guthrie;

Martghmarthakristin E. Harkin; Sumathi Kasinathan; Robert G. Lerner; Kathleen S. Lill, PA;

Joann Marino; Lynn Gladys Mark, DO; Louis J. Papa; Maria Plummer; Swaminathan Rajan;

Ramanathan Raju; Sumir Sahgal; Arash Salemi; Nancy Sapio; Alexander Schwartzman; Neeta

Minal Shah; Rahul Sharma; Mushtaq A. Sheikh; Amit M. Shelat; Greg Shutts, PA; Robert R.

Walther; Nirav R. Shah, M.D.; Linda Skidmore Daines; Robert Bogan ; Peter D. Van Buren;

Kendrick A. Sears, M.D.; Lyon Greenberg, M.D.; Ralph Liebling, M.D.; and Deborah Whitfield,

Ph. D. Shah, Daines, Bogan, Van Buren, Sears, Greenberg, Liebling, and Whitfield were all

Mir II defendants. Shah was also a Mir I defendant.

prior judgment, even if the issue recurs in the context of a different claim.’” Marcel Fashions

Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d 102, 108 (2d Cir. 2015) (citation omitted).

Although issue preclusion is an affirmative defense that must be pleaded in a defendant’s

answer, see Fed. R. Civ. P. 8(c)(1), the Court may raise it on its own initiative, see Curry v. City

of Syracuse, 316 F.3d 324, 331 (2d Cir. 2003) (“[W]e have previously upheld a district court’s

dismissal of a case on collateral estoppel grounds even where collateral estoppel was not raised

as an affirmative defense in the answer, but was raised by the district court sua sponte, without

permitting the party against which it was asserted an opportunity to argue the issue.”).

The present action presents one of the same issues that Judge Gardephe decided in Mir II

– whether the New York Defendants are immune from suit for any claims for damages arising

from their actions in Plaintiff’s New York medical disciplinary proceedings. All of the

requirements for the application of issue preclusion are present. First, the issues in this action and

in Mir II are identical. This action, like Mir II, arises out of the New York Defendants’

revocation of Plaintiff’s New York medical license on or about December 27, 2012 or in January

2013. Second, the issue as to whether those defendants are immune from suit has actually been

litigated and decided. See Mir II, 2015 WL 1408891, at *10-18. Third, Plaintiff had a full and

fair opportunity to litigate this issue. See id. at *7-8 (Mir II procedural history); see also Mir v.

Bogan, 668 F. App’x 368 (2d Cir. 2016) (summary order) (affirming Judge Gardephe’s dismissal

of Mir II). The fourth element, as it is often formulated, requires that “the issue previously

litigated was necessary to support a valid and final judgment on the merits.” Grieve, 269 F.3d at

153 (2d Cir. 2001). Of course, dismissal on the basis of absolute immunity does not constitute an

adjudication on the merits of the underlying claims. It is, however, an adjudication on the merits

of the issue, the determination of which is essential to the previous judgment. See New

Hampshire v. Maine, 532 U.S. 742, 748-49 (2001) (“Issue preclusion generally refers to the

effect of a prior judgment in foreclosing successive litigation of an issue of fact or law actually

litigated and resolved in a valid court determination essential to the prior judgment, whether or

not the issue arises on the same or a different claim.”).

It is well established that principles of issue preclusion apply to threshold determinations

such as subject-matter jurisdiction, see, e.g., Stone v. Williams, 970 F.2d 1043, 1057 (2d Cir.

1992), ripeness, see Park Lake Res. Ltd. Liab. Co. v. United States Dep’t of Agric., 378 F.3d

1132, 1136-38 (10th Cir. 2004), exhaustion of administrative remedies, see Hill v. Potter, 352 F.

3d 1142, 1146-47 (7th Cir. 2003), venue, see Baris v. Suplicio Lines, Inc., 74 F.3d 567, 571 (5th

Cir. 1996), aff’d en banc, 101 F.3d 367 (5th Cir. 1996), or the failure to join necessary parties, id.

This list is not exhaustive. See Am. Sur. Co. v. Baldwin, 287 U.S. 156, 166 (1932) (“The

principles of [preclusion] apply to questions of jurisdiction as well as to other issues.”)

(emphasis added)). And courts have given preclusive effect to absolute immunity determinations

in various contexts. See Wang v. Miller, 356 F. App’x 516, 517 (2d Cir. 2009) (summary order)

(absolute immunity of Assistant New York State Attorney General for his or her actions in civil

litigation); Gupta v. Thai Airways Int’l, Ltd., 487 F.3d 759, 765-67 n.9 (9th Cir. 2007) (absolute

foreign sovereign immunity); Rabin v. United States, 210 F.3d 355 (2d Cir. 2000) (unpublished

decision) (absolute sovereign immunity of the United States). The Second Circuit has even given

preclusive effect to a state-court’s previous granting of summary judgment to a police detective

“on the dubious ground that” he was entitled to “quasi-judicial immunity.” Conway v. Vill. of Mt.

Kisco, 750 F.2d 205, 213 (2d Cir. 1984).

Accordingly, Judge Gardephe’s previous determination in Mir II that the New York

Defendants (or their predecessors) are immune from suit for damages was an adjudication on the

merits of that issue for the purpose of applying the doctrine of issue preclusion. The Court

therefore dismisses Plaintiff’s federal claims against the New York Defendants under the

doctrine of issue preclusion for failure to state a claim on which relief may be granted.9

B. Federal claims against the California Defendants (and their successors) from Mir II

The Court must also dismiss, under the doctrine of claim preclusion, Plaintiff’s federal

claims against those California Defendants who were sued in Mir II (and their successors) who

are current and former members of the relevant California state government entity and who were

either involved in the medical disciplinary proceedings that resulted in the revocation of

Plaintiff’s California medical license, enforced that decision, reported the revocation to New

9 Even if issue preclusion did not prevent Plaintiff from proceeding with his federal

claims against the New York Defendants, the Court would still dismiss those claims because the

New York Defendants are immune from suit in their individual capacities under the doctrine of

absolute judicial immunity. See Applewhite v. Briber, 506 F.3d 181, 182 (2d Cir. 2007); Mir II,

2015 WL 1408891, at *10-18; Ackerman, 1984 WL 1258, at *2 (“The role of the State Board for

Professional Medical Conduct is ‘functionally comparable’ to that of a judicial proceeding. The

charges the Board adjudicates are every bit as weighty as those which come before courts.

Immunity is therefore necessary to protect hearing examiners and prosecutors from intimidation

and harassment.”). This includes any federal claims for injunctive relief against these defendants

in their individual capacities. See § 1983. They are also immune from suit for damages in their

official capacities under the Eleventh Amendment. See Anghel v. New York State Dep’t of

Health, 947 F. Supp. 2d 284, 298-99 (E.D.N.Y. 2013), aff’d, 589 F. App’x 28 (2d Cir. 2015)

(summary order).

“Section 1983 is not a means for litigating in a federal forum whether a state or local

administrative decision was wrong or even whether it was arbitrary and capricious.” Blake v.

Ambach, 691 F. Supp. 651, 655 (S.D.N.Y. July 28, 1988). Plaintiff may challenge the decision to

revoke his New York license in the New York State courts under N.Y.C.P.L.R. Art. 78, see N.Y.

Pub. Health Law § 230-c(5) – a remedy both Judge Jones and Judge Gardephe discussed in their

dismissals of Plaintiff’s previous actions, see Mir I, 2012 WL 3229308, at *3; Mir II, 2015 WL

1408891, at *15. And if Plaintiff has become aware of new information that he believes would

cause New York officials to reinstate his New York medical license, he may seek reinstatement

from them. See N.Y. Pub. Health Law § 230(10)(q).

York officials, or who have the authority to reinstate Plaintiff’s California medical license

(“California medical officials”).10

Claim preclusion, also known as res judicata, limits repetitious suits, establishes certainty

in legal relations, and preserves judicial economy. Curtis v. Citibank, N.A., 226 F.3d 133, 138

(2d Cir. 2000). The doctrine applies in a later litigation, if “(i) an earlier action resulted in an

adjudication on the merits; (ii) that earlier action involved the same counterparty or those in

privity with them; and (iii) the claim sought to be precluded was raised, or could have been

raised, in that earlier action.” Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 898 F.

3d 232, 237 (2d Cir. 2018), cert. granted, 139 S. Ct. 2777 (June 28, 2019). “A party cannot avoid

the preclusive effect of res judicata by asserting a new theory or a different remedy.” Brown

Media Corp. v. K&L Gates, LLP, 854 F.3d 150, 157 (2d Cir. 2017) (internal quotation marks and

citation omitted).

To determine if a claim could have been raised in an earlier action, courts look to whether

the present claim arises out of the same transaction or series of transactions asserted in the earlier

action. See Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. 2001). And “a dismissal for failure to state

a claim operates as a final judgment on the merits and thus has res judicata effects.” Garcia v.

Superintendent of Great Meadow Corr. Facility, 841 F.3d 581, 583 (2d Cir. 2016) (internal

10 These defendants include: Kimberly Kirchmeyer; Linda K. Whitney; Sharon Levine,

M.D.; Dev Gnana Dev, M.D.; Ronald H. Lewis; M.D, Denise Pines; Michele Anne Bholat,

M.D.; Randy W. Hawkins, M.D.; Katherine Feinstein, M.D.; Brenda Sutton-Wills; Jamie

Wright; Howard R. Krause, M.D; Kristine D. Lawson, J.D.; Laurie Rose Lubiano, M.D.; David

Warmoth; Eserrick “T J” Watkins; Felix C Yip, M.D.; Cesar A. Aristeiguita, M.D.; Gerrie

Schipske, R.N.P.; the Estate of Barbara Yaroslavsky; Steve Alexander; Stephen Richard Corday;

M.D.; Shelton J. Duruisseau, Ph. D.; Mary Lynn Moran, M.D.; Gary Gitnick, M.D.; the Estate of

Janet Salomonson; Ronald Wender, M.D.; Frank Vram Zerunyan, J.D.; Hedy L. Chang; Eric

Esrailian, M.D.; Reginald Low, M.D.; Mary Agnes Veronica Matyszewski; Kenneth B. Deck,

M.D. Kirchmeyer, Whitney, Levine, and Matyszewski were all Mir II defendants.

quotation marks and citation omitted). Claim preclusion is also an affirmative defense that must

be pleaded in a defendant’s answer. See Fed. R. Civ. P. 8(c)(1). But like issue preclusion, the

Court may raise claim preclusion on its own initiative. See, e.g., Scherer v. Equitable Assurance

Soc’ y of the United States, 347 F.3d 394, 400 (2d Cir. 2003) (“It is well established law in this

circuit that certain affirmative defenses, including res judicata, may be raised sua sponte.”).

In Mir II, Plaintiff asserted claims against some of the California medical officials named

in this action – Whitney, Levine, Kirchmeyer, and Mastyszewski. Whitney, Levine, and

Kirchmeyer were members of the California Medical Board, and Mastyszewski was the

prosecutor in Plaintiff’s California medical disciplinary proceedings. Mir II, 2015 WL 1408891,

at *7. Plaintiff brought claims against them in Mir II “based on their alleged involvement in the

revocation of his medical license in New York.” Id.11 Judge Gardephe dismissed Plaintiff’s

claims against them, for failure to state a claim on which relief may be granted, because Plaintiff

“pled no facts suggesting that [they] played a role in the New York license revocation

proceeding against him.” Id. at *18. The Second Circuit affirmed Judge Gardephe’s decision. See

Mir, 668 F. App’x 368.

Here, Plaintiff asserts claims that he previously raised in Mir II, or could have raised in

that action, against Defendants Whitney, Kirchmeyer, Levine, Mastyszewski and other past and

present California medical officials. Those claims include any arising from those California

medical officials’ actions in Plaintiff’s California medical disciplinary proceedings, their

enforcement of Plaintiff’s California medical license’s revocation, and their reporting that

11 Judge Gardephe noted that while Plaintiff mentioned his California medical

disciplinary proceedings in his Mir II amended complaint, Plaintiff emphasized that he was

asserting claims against Defendants Whitney, Kirchmeyer, Levine, and Mastyszewski because of

their alleged involvement in preventing him from practicing medicine in New York. Mir II, 2015

WL 1408891, at *7.

revocation to New York officials. Plaintiff’s allegations that evidence was later revealed that

may call into question the revocation of both his California and New York medical licenses does

not change the fact that his claims in this action arise from the same events on which Mir II was

based – the revocation of those licenses. Accordingly, the doctrine of claim preclusion prevents

Plaintiff from asserting any claims against the California medical officials (or their successors)

arising from their actions in Plaintiff’s California medical disciplinary proceedings, their

enforcement of Plaintiff’s California medical license’s revocation, and their reporting that

revocation to New York officials. The Court therefore dismisses Plaintiff’s federal claims against

the California medical officials under the doctrine of claim preclusion for failure to state a claim

on which relief may be granted.

C. Remaining federal claims

The Court must dismiss the remaining federal claims as frivolous. Those claims include:

(1) Plaintiff’s remaining claims against any California Defendant, who is an individual who

testified or otherwise gave evidence in Plaintiff’s California medical disciplinary proceedings,

(2) Plaintiff’s claims under 42 U.S.C. § 1981, and (3) Plaintiff’s claims of conspiracy under 42

U.S.C. § 1983 and § 1985(3), and his related claims under 42 U.S.C. § 1986.

The Court dismisses Plaintiff’s federal claims against any remaining individual California

Defendant who was not previously sued, but who testified or otherwise gave evidence in

Plaintiff’s California medical disciplinary proceedings because such a defendant is immune from

suit for damages for such actions. See Anghel, 947 F. Supp.2d at 300 (absolute immunity

extended to witnesses who testified at a New York administrative medical disciplinary

proceeding); Sprague v. Med. Bd. of Cal., No. 07-CV-1561, 2009 WL 10698417, at *6 (S.D. Cal.

Mar. 30, 2009) (same extended to witness who testified at a California administrative medical

disciplinary proceeding), aff’d, 402 F. App’x 275 (9th Cir. 2010) (unpublished opinion); see also

Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999) (“A complaint will be dismissed as

‘frivolous’ when ‘it is clear that the defendants are immune from suit.’” (quoting Neitzke v.

Williams, 490 U.S. 319, 327 (1989))).

The Court also dismisses any of Plaintiff’s remaining claims that Plaintiff asserts under

42 U.S.C. § 1981, including any against private California Defendants who are his former

employers – the private California hospitals – and his former supervisors and coworker at those

hospitals. This is because he has alleged no facts suggesting that any of those defendants

discriminated against him because of “his race, ancestry, or ethnic characteristics.” Zemsky v.

City of New York, 821 F.2d 148, 150 (2d Cir. 1987); see also Duplan v. City of New York, 888

F.3d 612, 21 (2d Cir. 2018) (Ҥ 1981 does not provide a separate private right of action against

state actors”).

The Court further dismisses Plaintiff’s claims of conspiracy under 42 U.S.C. § 1983 and

§ 1985(3), as well as any related claims under 42 U.S.C. § 1986, against any of the defendants.

Plaintiff fails to allege sufficient facts to suggest, for the purpose of any § 1983 conspiracy

claims that he asserts, that there was “(1) an agreement between two or more state actors or

between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional

injury; and (3) an overt act done in furtherance of that goal causing damages,” Pangburn v.

Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). He also fails to allege sufficient facts to suggest, for

the purpose of any § 1985(3) conspiracy claims that he asserts, that there was: (1) a conspiracy;

(2) for the purpose of depriving him of the equal protection of the laws, or the equal privileges or

immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to

his person or property, or a deprivation of his rights or privileges as a citizen of the United

States. See Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). His allegations are vague and

unsupported and therefore do not state a claim of conspiracy under either § 1983 or § 1985(3).

See, e.g., Wang, 356 F. App’x at 517. And if he cannot state a § 1985(3) conspiracy claim, he

cannot state a related claim under § 1986. Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194 (2d Cir.

1994).

D. State-law claims

A district court may decline to exercise supplemental jurisdiction over state-law claims

when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).

Generally, “when the federal-law claims have dropped out of the lawsuit in its early stages and

only state-law claims remain, the federal court should decline the exercise of jurisdiction . . . .”

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (footnote omitted). Having dismissed

the claims over which the Court has original jurisdiction, the Court declines to exercise its

supplemental jurisdiction over any state-law claims Plaintiff may be asserting. See Kolari v. New

York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection (c) of § 1367 ‘confirms

the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which

district courts can refuse its exercise.’” (quoting City of Chicago v. Int’l Coll. of Surgeons, 522

U.S. 156, 173 (1997))).

CONCLUSION

The Court directs the Clerk of Court to assign this matter to my docket, mail a copy of

this order to Plaintiff, and note service on the docket. The Court dismisses this action. The Court

dismisses Plaintiff’s federal claims for failure to state a claim on which relief may granted and as

frivolous. The Court declines to consider Plaintiff’s state-law claims. 28 U.S.C. § 1367(c)(3).

Because the Court dismisses sua sponte some of Plaintiff’s claims for failure to state a

claim, the Court grants Plaintiff leave to replead his claims in an amended complaint to be filed

within thirty days of the date of this order. See Wachtler, 35 F.3d at 82. If Plaintiff fails to

comply within the time allowed, and he cannot show good cause to excuse such failure, the

Court will enter a judgment dismissing this action for failure to state a claim and as frivolous.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an

appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Court also directs the Clerk of Court to docket this order as a “written opinion”

within the meaning of Section 205(a)(5) of the E-Government Act of 2002.

SO ORDERED.

Dated: November 1, 2019 ,

New York, New York hie. I Wyk

COLLEEN McMAHON

Chief United States District Judge

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