Petition for Writ of Certiorari — Jose A. Perez, Petitioner v. Physician Assistant Board, et al.

No. 18-

1MR

Al

uprcme Court of the Mnitcb 6tateo

i_

..

E OFTHLCL

JOSE A. PEREZ,

Petitioner,

V.

PHYSICIAN ASSISTANT BOARD and

MARGARET K. BENTLEY,

in her Official and Personal Capacities,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

JOSE A. PEREZ

PETITIONER PRO SE

713 E GREENVILLE STREET

SUITE D220

ANDERSON, SC 29621

(347) 552-2881

MAY 17, 2019

SUPREME COURT PRESS

•

(888) 958-5705

•

MAY 1? 2O9

BOSTON, MASSACHUSETTS

RK

I

QUESTIONS PRESENTED

This Court has ruled that in the case of a pro se

litigant, the courts must, sua sponte, grant leave to

amend the complaint to correct curable defects and/or

correct defective jurisdictional allegations, Scarborough

v. PrThcipi 124 S.Ct. 1856, 541 U.S. 401, 158 L.Ed.2d

674 (U.S. 05/03/2004) citing Becker v. Montgomery,

532 U.S. 757 (2001), 28 U.S.C. § 1653 and Rule 15(c)

Federal Rule Civil Procedure.

Furthermore, Rule 54(c) of the Federal Rules of

Civil Procedure directs trial courts to "grant the relief

to which each party is entitled, even if the party has

not demanded that relief in its pleadings, Engel v. Teleprompter Corp., 732 F.2d 1238 (5th Cir. 05/25/1984);

In re Railworks Corporation, 760 F.3d 398 (4th Cir.

2014);

QUESTIONS PRESENTED

Whether Mr. Perez can amend his complaint

pursuant to 28 U.S.C. § 1653 and 15(c) F.R.C.P., to

allege that a State cannot exclude a person from the

practice of medicine in a manner or for reasons that

contravene the Due Process or Equal Protection. Clause

of the Fourteenth Amendment, Sch ware v. Board Bar

Examiners NewMexico, 353 U.S. 232 (1957), Dent v.

West Virginia, 129 U.S. 114 (1889).

Whether Mr. Perez can amend his complaint

pursuant to 28 U.S.C. 1653 and 15(c) F.R.C.P., to allege

that the continued enforcement of an unconstitutional

statute cannot be insulated by the statute of limitations. Va. Hosp. Ass'n v. Babies, 868 F.2d 653, 663 (4th

Cir. 1989), affd sub nom. Wilder v. Va. Hosp. Ass'n,

496 U.S. 498 (1990).

11

Whether The Fifth Circuit erred when it ruled

that a Federal Fifth Amendment Takings Claim must

be filed within the two year statute of limitations imposed by Texas on 42 U.S.C. 1983 actions.

Whether the Fifth Circuit erred when it ruled

that a good faith reliance on Williamson County

Regional Planning Comm .'n V. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985) was not considered

an exceptional circumstance justifying tolling the

statute of limitations.

111

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 STATEMENT

• The Petitioner is Physician Assistant Jose A. Perez.

• The Respondents are a Texas State agency, the

Physician Assistant Board and its Director Margaret

K. Bentley.

MIPA

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED........................................i

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 STATEMENT..........................iii

TABLE OF AUTHORITIES......................................vi

OPINIONS BELOW ...................................................1

JURISDICTION..........................................................1

CONSTITUTIONAL PROVISIONS INVOLVED......1

STATEMENT OF THE CASE....................................2

REASONS FOR GRANTING THE WRIT .................3

THE FIFTH CIRCUIT DECISION CONFLICTS

WITH THIS COURT'S PRECEDENT....................... 3

THE FIFTH CIRCUIT DECISION CONFLICTS

WITH IT'S OWN PRECEDENTS............................. 5

THE FIFTH CIRCUIT DECISION CONFLICTS

WITH NINTH CIRCUIT PRECEDENT ....................6

CONCLUSION............................................................ 6

V

TABLE OF CONTENTS

Continued

-

Page

APPENDIX TABLE OF CONTENTS

Opinion of the Fifth Circuit

(March 8, 2019)...................................................la

Order Adopting Report and Recommendation of

the United States Magistrate Judge

(October 15, 2018) ..............................................7a

Report and Recommendation of the United States

Magistrate Judge (October 15, 2018) ..............l0a

Order of the Fifth Circuit Denying Petition for

Rehearing En Banc (April 18, 2019)................23a

Amended Motion for Leave of Court to Amend

Complaint Pursuant to 28 U.S.C. § 1653 and

Proposed Amended Complaint.........................25a

V1

TABLE OF AUTHORITIES

Page

CASES

Alexander v. Verizon Wireless Services, LLC

No. 16-31227 (5th Cir. 2017) ................................5

Arrigoni Enterprises, LLC v. Town of Durham,

Connecticut, et a]., 136 S.Ct. 1409 (2016) ..........5

Becker v. Montgomery,

532 U.S. 757 (2001)...............................................i

Bell v. Hood,

327 U.S. 678 (1946) ............................................. 4

City ofMonterey v. Del Monte Dunes at

Monterey, 526 U.S. 687,119 S.Ct. 1624,

143 L.Ed.2d 882 (1999)........................................ 4

Daigle v. Opelousas Health Care Inc.,

774 F.2d 1344 (5th Cir. 1985) .............................5

Dent v. West Virginia,

129 U.S. 114 (1889) .............................................. i

DWAina LEA Development, LLC, v. State of

Ha wai'i Land Use Commission, et a].,

No. 17-16280 (9th Cir. 2019)...............................6

Engel v. Teleprompter Corp.,

732 F.2d 1238 (5th Cir. 1984) ..............................i

First English Evangelical Lu th eran Church of

Glendale v. County ofLos Angeles,

482 U.S. 304 (1987) ..............................................4

In re Railworks Corporation,

760 F.3d 398 (4th Cir. 2014) ................................ i

vii

TABLE OF AUTHORITIES—Continued

Page

Jacobs v. United States,

290 U.S. 13 (1933) ............................................... 4

Pumpelly v. Green Bay Company,

80 U.S. 166 (1871) ...............................................3

Scarborough v. Princip

124 S.Ct. 1856, 541 U.S. 401,

158 L.Ed.2d 674 (2004) .................................... i, 3

Sch ware v. Board Bar Examiners New Mexico,

353 U.S. 232 (1957) ..............................................i

State v. Hale,

146 S.W.2d 731 (Tex. 1941) ................................ 6

Steele v. City of Houston,

603 S.W.2d 786 (Tex. 1980) ................................6

Texas Employers 'Insurance Association v.

Jackson, 862 F.2d 491 (5th Cir. 1988)................5

United States v. Clarke,

445 U.S. 253 (1980) ............................................. 4

Va. Hosp. Ass'n v. Baliles,

868 F.2d 653 (4th Cir. 1989) ................................i

Wilder v. Va. Hosp. Ass'n,

496 U.S. 498 (1990) ..............................................i

Williamson County Regional Hospital v.

Hamilton Bank of Johnson City,

473 U.S. 172 (1985) ............................................. 5

Williamson County Regional Planning

Comm 'n v. Hamilton Bank of Johnson

City, 473 U.S. 172 (1985) ................................ii, 4

viii

TABLE OF AUTHORITIES—Continued

Page

CONSTITUTIONAL PROVISIONS

Tx. Const. art. I, § 17..................................................6

U.S. Const. Amend V...........................................ii, 1, 3

U.S. Const. Amend XIV...............................................i

U.S. Const. Art V....................................................2, 3

STATUTES

28 U.S.C. § 1254(1) .....................................................1

28 U.S.C. § 1343 ..........................................................5

28 U.S.C. § 1653 .......................................................i, 3

42 U.S.C. § 1983..................................................ii, 3, 5

JUDICIAL RULES

Fed. R. Civ. P. 15(c) ................................................. i, 3

Fed. R. Civ. P. 54(c) .....................................................i

1

OPINIONS BELOW

The Fifth Circuit Court of Appeals opinion is

included in Petitioner's Appendix at App.la, The

Opinion of the U.S. District Court granting the Motion

to Dismiss is included at App.6a, 9a.

JURISDICTION

On October 15th, 2018, the U.S. District Court

granted the Motion to Dismiss. Jose A. Perez filed a

timely appeal to the U.S. Court of Appeals for the

Fifth Circuit which affirmed dismissal on March 8th,

2019. (App.la) Mr. Perez filed a timely petition for

rehearing en banc. On April 18th, 2019 the court denied

the petition. This court has jurisdiction pursuant to

28 U.S.C. § 1254(1)

CONSTITUTIONAL PROVISIONS INVOLVED

. U.S. Const. Amend V

The Fifth Amendment of the United States Constitution includes a provision known as the Takings

Clause, which states that "private property [shall not]

be taken for public use, without just compensation."

rd

U.S. Const. Art. V

The Power to amend the constitution was reserved

by Article V, which reads:

The Congress, whenever two thirds of both Houses

shall deem it necessary, shall propose Amendments

to this Constitution, or, on the Application of the

Legislatures

STATEMENT OF THE CASE

Mr. Perez became a physician assistant on September 22nd, 1994. He never committed medical malpractice or any act injurious to any patient or a member

of the public. Nevertheless, his right to work as a

physician Assistant was arbitrarily, capriciously and

whimsically revoked on March 7th, 2014.

When his license was revoked (a) he was denied

a jury trial; (b) he was denied access to a quasi-criminal

proceeding, he license was revoked pursuant to an

administrative default proceedings (c) he was denied

his right to a neutral adjudicator; (d) he was denied

his right to fair notice of the precise charges against

him; (e) he was denied the right to access the courts to

oppose the administrative actions without subjecting

himself to have his license revoked in retaliation

thereof; (f) he was denied his right to have his license

revoked pursuant to the clear and convincing standard

of proof.

Mr. Perez has been diligently asserting his rights:

first at the State Office of Administrative Hearings

from November 1st, 2011 until May 16th, 2013, case

3

Number 503-12-1940. Mr. Perez also sought relief in

the state courts until the Texas Supreme Court recently

dismissed his case on January 12th, 2018—Case # 170952. Mr. Perez appeared before the State Office of

Administrative Hearings and the Physician Assistant

Board via written submissions and presented factual

and Constitutional objections.

REASONS FOR GRANTING THE WRIT

I.

THE FIFrH CrRcurr DECISION CONFLICTs WITH Tins

COURT'S PRECEDENT

This court has ruled that in the furtherance of

justice, upon such terms as may be just, permit any

process, proceeding, pleading, or record to be amended,

or material supplemental matter to be set forth in an

amended or supplemental pleading. Scarborough v.

Principi 541 U.S. 401 fn. 15 citing Federal Rule of

Civil Procedure 15(c) (2004), 28 U.S.C. § 1653 This court

has further stated that at every stage of the proceeding,

must disregard any error or defect in the proceeding

which does not affect the substantial rights of the

parties. (Id) Mr. Perez further incorporates and adopt

herein the issues raised in the questions presented.

This Court has previously ruled that the Fifth

Amendment Takings Clause can not be modified or

controlled by statute, Pumpelly v. Green Bay Company,

80 U.S. 166, 177-178 (1871), Mr. Perez respectfully

submits that if the Fifth Circuit's decision is correct,

to wit, that 42 U.S.C. 1983 amends or modifies the

Takings Clause, then Article V, of the U.S. Constitution

has been transgressed upon. The same reads: The

Congress, whenever two thirds of both Houses shall

deem it necessary, shall propose Amendments to this

Constitution, or, on the Application of the Legislatures.

Furthermore, this court has ruled that the just

compensation requirement of the Takings Clause places

takings in a class by themselves because, unlike other

constitutional deprivations, the Takings Clause provides

both the cause of action and the remedy, United States

v. Clarke, 445 U. S. 253, 257 (1980), City of Monterey

v. Del Monte Dunes at Monterey, 526 U.S. 687, 711712 119 5.Ct. 1624, 143 L.Ed.2d 882 (U.S. 05/24/1999)

citing First English Evangelical Lutheran Church of

Glendale v. County ofLos Angeles, 482 U.S. 304 (1987)

and Jacobs v. United States, 290 U.S. 13, 16 (1933)).

This Court has also ruled that a District court must

entertain suits, directly under the Constitution or

laws of the United States, except: (a) where the alleged

claim appears to be immaterial, and made solely for

the purpose of obtaining jurisdiction, or (b) where it

is wholly insubstantial and frivolous, Bell v. Hood,

327 U.S. 678 (1946). There was no finding that Mr.

Perez' claim was: (a) immaterial, (b) made solely for

the purpose of obtaining jurisdiction, (c) wholly insubstantial or (d) frivolous,

This court has also ruled that a plaintiffs allegation that local government action resulted in a taking

is not "ripe" for review in federal court until the plaintiff

seek [s] compensation through the procedures the State

has provided for doing so, Williamson County Regional

Planning Comm 'n v. Hamilton Bank of Johnson City,

473 U.S. 172, 194 (1985) Williamson County Regional

Hospital v. Hamilton Bank of Johnson City, 473 U.S.

172 (1985) is still binding precedent, Arrigoni Enterprises, LLC v. Town of Durham, Connecticut, et a].,

136 S.Ct. 1409 (2016)

II. THE FIFTH CmcuiT DECISION CONFLICTS WITH

IT'S OWN PRECEDENTS

The Fifth Circuit has previously ruled that: (a)

42 U.S.C. § 1983 is not a jurisdictional statute and,

therefore, does not give federal courts the power to

decide claims that arise under it. The Fifth Circuit

has also stated, that the failure to present an adequate

§ 1983 claim does not strip the court of jurisdiction

unless the claim is clearly immaterial, frivolous, and

wholly insubstantial. The Fifth Circuit further ruled

that Jurisdiction of civil rights actions is instead

conferred by 28 U.S.C. § 1343, which gives district

courts original jurisdiction "of any civil action authorized by law to be commenced by any person. to

recover damages or to secure equitable or other relief

under any Act of Congress providing for the protection of civil rights.. ." Daigle v. Opelousas Health

Care Inc., 774 F.2d 1344 (5th Cir. 10/30/1985);

.

.

The Fifth Court has also previously ruled that (1)

A Good Faith Reliance on a Supreme Court Ruling is

a complete defense to any civil action brought under

any law, Alexander v. Verizon Wireless Services, LLC,

No. 16-31227 (5th Cir. 2017); (2) One Fifth Circuit

panel's decision may only be overruled by the Fifth

Circuit sitting en bane)) Texas Employers' Insurance

Association v. Jackson, 862 F.2d 491 (5th Cir. 12/13/

1988).

III. THE FIFTH CIRCUIT DECISION CONFLICTS WITH

NINTH CIRCUIT PRECEDENT

The Ninth Circuit has ruled that the federal

statute of limitations depends on the statute of limitations the state applies to its Takings Clause, DW

Ama LEA Development, LL C, v. State of Ha wafi Land

Use Commission, eta]., No. 17-16280 (9th Cir. 2019)

If the Ninth Circuit interpretation is correct

then Mr. Perez respectfully submits that Texas courts

have ruled that causes of actions pursuant to Section

17 of Article 1 of the Texas Constitution have no

Constitutionally or legislatively imposed statute of

limitations, Steele v. City of Houston, 603 S.W.2d 786,

789 (Tex. 1980); State v. Hale, 146 S.W.2d 731 (Tex.

1941), Section 17 of Article 1 of Texas Constitution.

CONCLUSION

The Petition ought to be granted.

Respectfully submitted,

JOSE A. PEREZ

PETITIONER PRO SE

713 E GREENVILLE STREET

SUITE D220

ANDERSON, SC 29621

(347) 552-2881

MAY 17, 2019