ca9!14!16858-9-1 dmv's initial brief

14-16858

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REHAN SHEIKH,

Plaintiff-Appellant,

v.

BRIAN KELLY, Secretary, CaliforniaState Transportation Agency; MARKTWEETY, Manager, Department of MotorVehicles,

Defendants and Appellees.

On Appeal from the United States District Courtfor the Eastern District of California

No. 2:14-cv-751 GEB AC PSThe Honorable Garland E. Burrell, Judge

APPELLEES ANSWERING BRIEF

KAMALA D. HARRISAttorney General of CaliforniaSUSAN E. SLAGERActing Senior Assistant AttorneyGeneralDAVID J. NEILLSupervising Deputy AttorneyGeneral

MATTHEW T. BESMERDeputy Attorney GeneralState Bar No. 269138

2550 Mariposa Mall, Room 5090Fresno, CA 93721Telephone: (559) 477-1680Fax: (559) 445-5106Email: [email protected]

Attorneys for Appellees Brian Kelly,Secretary, California StateTransportation Agency; and MarkTweety, Manager Department of MotorVehicles

Case: 14-16858, 04/29/2015, ID: 9519243, DktEntry: 9-1, Page 1 of 43(1 of 217)

TABLE OF CONTENTS

Page

i

Introduction ................................................................................................. 1Issues Presented ........................................................................................... 2Statement of the Case................................................................................... 3

I. Statutory Framework ............................................................... 3A. Drivers license suspensions for failing to pay

traffic fines..................................................................... 3B. Drivers license suspensions for failing to appear

in court........................................................................... 4C. Drivers license suspensions for refusing to submit

to a reexamination .......................................................... 5D. Drivers licenses cannot be renewed when a

suspension is in effect .................................................... 7E. There is no right to a hearing when the suspension

is mandated by the vehicle code ..................................... 7II. Factual Background ................................................................. 8III. Procedural History ................................................................. 10

Standard of Review .................................................................................... 15Summary of Argument .............................................................................. 15Argument ................................................................................................... 16

I. Legal standard on a motion to dismiss for failure to statea claim ................................................................................... 16

II. Sheikh lacks standing to pursue his appeal ............................. 17III. Sheikh failed to state a procedural due process claim ............. 19

A. The Fourteenth Amendment does not require theDMV to provide an administrative hearing toreview a drivers license suspension for failing toappear in court or pay a traffic fine .............................. 20


TABLE OF CONTENTS(continued)

Page

ii

B. The Fourteenth Amendment does not require theDMV to provide an administrative hearing beforeor after suspending a drivers license for refusingto complete a reexamination ........................................ 24

IV. Sheikh failed to state an equal protection claim ..................... 30A. Sheikhs complaint did not allege an equal

protection claim ........................................................... 30B. Even if Sheikh had alleged an equal protection

claim in his complaint, it would have failedbecause his complaint is against the StocktonPolice Department, not the DMV ................................. 31

Conclusion ................................................................................................. 33Statement of Related Cases ........................................................................ 34


TABLE OF AUTHORITIES

Page

iii

CASES

Ashcroft v. Iqbal556 U.S. 662 (2009) ......................................................................... 16, 17

Chapman v. Pier 1 Imports (U.S.) Inc.631 F.3d 939 (9th Cir. 2011) (en banc) .................................................. 17

Colony Cove Props., LLC v. City of Carson640 F.3d 948 (9th Cir. 2011) .................................................................. 15

Dixon v. Love431 U.S. 105 (1977) ............................................................................... 29

Estelle v. Gamble429 U.S. 97 (1976) ................................................................................. 17

Illinois v. Batchelder463 U.S. 1112 (U.S. 1983) ............................................................... 19, 20

Kokkonen v. Guardian Life Ins. Co. of America511 U.S. 375 (1994) ............................................................................... 17

Kushner v. Shiomoto2014 Cal. App. Unpub. .................................................................... 23, 24

Laisne v. California State Board of Optometry19 Cal. 2d 831 (Cal. 1942) ..................................................................... 24

Litmon v. Harris768 F.3d 1237 (9th Cir. 2014) ................................................................ 31

Mackey v. Montrym443 U.S. 1 (1979)............................................................................passim

Mathews v. Eldridge424 U.S. 319 (1976) ................................................................... 15, 20, 26


TABLE OF AUTHORITIES(continued)

Page

iv

Multistar Indus. v. United States DOT707 F.3d 1045 (9th Cir. 2013) ................................................................ 17

People v. Bailey133 Cal. App. 3d Supp. 12 (Cal. App. Dep't Super. Ct. 1982) .......... 22, 23

Pollack v. Dep't of Motor Vehicles38 Cal. 3d 367 (Cal. 1985) ..................................................................... 29

Rector v. City & County of Denver348 F.3d 935 (10th Cir. 2003) ................................................................ 18

Roelfsema v. Department of Motor Vehicles(1995) 41 Cal.App.4th 871..................................................................... 29

Wash. Legal Found. v. Legal Found. of Wash.271 F.3d 835 (9th Cir. 2001) .................................................................. 17

Williams v. Department of Motor Vehicles2 Cal. App. 3d 949 (Cal. App. 1969) ...................................................... 23

Wright v. Riveland219 F.3d 905 (9th Cir. 2000) ............................................................ 19, 27

STATUTES

California Code of Regulations Title 13, 100.01(a)(1)-(6) ................................................................ 7, 25

California Evidence Code 664 ...................................................................................................... 29


TABLE OF AUTHORITIES(continued)

Page

v

California Vehicle Code 12804.9(a)(1)(A)-(E) ............................................................................ 6 12807(a) .......................................................................................... 7, 18 12807(c) .......................................................................................... 7, 18 12818 ............................................................................................ 27, 32 12818(a) ................................................................................................ 6 12818(b) ........................................................................................... 6, 7 12819 ...........................................................................................passim 13106 .................................................................................................... 4 13365(a)(2) ................................................................................. 3, 4, 15 13365(b) ................................................................................. 3, 4, 5, 21 13801 .................................................................................................. 25 13950 .................................................................................. 7, 16, 28, 32 14101(a) .................................................................................... 8, 21, 25 21061(a) .......................................................................................... 5, 29 21061(b) ............................................................................................... 5 21062 .............................................................................................. 6, 32 40509.5(a) ............................................................................. 4, 5, 21, 22 40509.5(b) .................................................................................. 3, 4, 21

CONSTITUTIONAL PROVISIONS

United States Constitution Fourteenth Amendment ..................................................................passim

COURT RULES

Federal Rules of Civil Procedure 12(b)(1) .................................................................................................. 19

Federal Rules of Evidence 302 ......................................................................................................... 29


1INTRODUCTION

In January 2012, the California Department of Motor Vehicles denied

Rehan Sheikhs request to renew his drivers license because he had failed to

appear in court on a traffic citation. Despite the suspension, Sheikh

continued to drive. He was stopped in February 2012, for multiple traffic

violations. He was arrested that day and issued a traffic citation, and a

notice requiring him to retake the drivers license exam to demonstrate his

fitness for diving. Sheikh, however, refused to complete the exam on March

26, 2012. Sheikh subsequently appeared in traffic court for his first citation.

On May 23, 2012, he was found guilty and ordered to pay a fine. Sheikh,

however, has refused to pay that fine, and he has refused to resolve the

outstanding failure to appear for his February 2012 traffic citation. Each of

these refusals provide separate grounds to suspend Sheikhs license. After

Sheikh clears his traffic fine and failure to appear with the San Joaquin

County Superior Court, and after he successfully completes the

reexamination of his driving privileges, the DMV will lift the suspensions.

On March 24, 2014, Sheikh filed a complaint for injunctive and

declaratory relief seeking renewal of his drivers license. He alleged that his

Fourteenth Amendment due process rights had been violated because he had

not been provided with an administrative hearing to review his license


2suspensions. The District Court for the Eastern District of California

dismissed Sheikhs complaint without leave to amend for failing to state a

claim on September 19, 2014. The dismissal should be affirmed because the

statutes that govern Sheikhs license suspensions comply with the

Fourteenth Amendment. The statutes are sufficiently detailed to protect

against erroneous suspensions and they provide licensees with a remedial

process to remove the suspensions. Sheikhs license remains suspended, not

because of a lack of due process, but because he has refused to avail himself

of the due process provided by California law.

ISSUES PRESENTED

1. Does the procedural due process clause of the Fourteenth

Amendment require the California Department of Motor Vehicles to provide

Appellant with an administrative hearing to review his drivers license

suspensions for failing to appear in court and pay a fine, when the traffic

court provides Appellant with due process to remove the suspensions?

2. Does the procedural due process clause of the Fourteenth

Amendment require the California Department of Motor Vehicles to provide

Appellant with an administrative hearing to review his drivers license

suspension for refusing to complete a priority reexamination of his driving


3privileges, when Appellant may remove the suspension by successfully

completing the reexamination?

3. Can Appellant state a viable equal protection claim on appeal

when he failed to allege an equal protection claim in his complaint, and even

if he did, the claim could not be brought against the California Department

of Motor Vehicles?

STATEMENT OF THE CASE

I. STATUTORY FRAMEWORK

A. Drivers License Suspensions for Failing to Pay TrafficFines

Court clerks are authorized to notify the Department of Motor Vehicles

(DMV)1 when a person has willfully failed to pay a lawfully imposed

fine. Cal. Veh. Code 40509.5(b). Upon notification, the DMV is required

to suspend that persons license. Cal. Veh. Code 13365(a)(2). The

suspension is effective no sooner than 60 days after the DMV receives

notification from the court clerk. Cal. Veh. Code 13365(b). The DMV

mails notice of the suspension to the licensee, effective 30 days later,

providing the licensee with time to resolve the failure before the suspension

1 Appellees Brian Kelly, Secretary, California State TransportationAgency and Mark Tweety, Manager, Department of Motor Vehicles arecollectively referred to as (DMV).


4takes effect. See Cal. Veh. Code 13365(b), 13106(a). Once the fine is

fully paid, the magistrate or clerk of the court shall issue and file with the

department a certificate showing that the fine or bail has been paid. Cal.

Veh. Code 40509.5(b). The suspension continues until the licensees

driving record does not contain any notifications for failure to pay a fine.

Cal. Veh. Code 13365(b).

B. Drivers License Suspensions for Failing to Appear inCourt

The process for suspending and removing suspensions for failing to

appear in court is similar to the process for failing to pay traffic fines. Court

clerks are authorized to notify the DMV when a person has failed to appear

in court. Cal. Veh. Code 40509.5(a). Upon notification, the DMV is

required to suspend that persons license. Cal. Veh. Code 13365(a)(2).

The suspension is effective no sooner than 60 days after the DMV receives

notification from the court clerk. Cal. Veh. Code 13365(b). The DMV

mails notice of the suspension to the licensee, effective 30 days later,

providing the licensee with time to resolve the failure before the suspension

takes effect. See Cal. Veh. Code 13365(b), 13106(a). Once the matter is

adjudicated, or the person appears in court and satisfies the courts order,

the magistrate or clerk of the court hearing the case shall sign and file with


5the department a certificate to that effect. Cal. Veh. Code 40509.5(a).

The suspension continues until the driving record does not contain any

notifications for failure to appear. Cal. Veh. Code 13365(b).

C. Drivers License Suspensions for Refusing to Submit to aReexamination

A traffic officer may issue a notice of reexamination to any person who

violates a traffic law, and who at the time of the violation, exhibits evidence

of incapacity which leads the traffic officer to reasonably believe that the

person is incapable of operating a motor vehicle in a manner so as not to

present a clear or potential danger of risk of injury to that person or others if

that person is permitted to resume operation of a motor vehicle. Cal. Veh.

Code 21061(a). Evidence of incapacity means evidence, other than

violations of this division, of serious physical injury or illness or mental

impairment or disorientation which is apparent to the traffic officer and

which presents a clear or potential danger or risk of injury to the person or

others if that person is permitted to resume operation of a motor vehicle.

Cal. Veh. Code 21061(b).

The officer who issues the notice of reexamination is required to

transmit the notice to the DMV within one working day. Cal. Veh. Code


6 21062. Within five days of receipt, the DMV is required to enter the

notice onto the persons driving record. Id. The person must request

reexamination during those five days, or the persons license will be

suspended. Cal. Veh. Code 12819. The suspension remains in effect until

the person has completed the reexamination, and the DMV determines

whether to take remedial action, if any, such as suspending, revoking, or

restricting the persons license. Cal. Veh. Code 12819, 12818(a)-(b).

A reexamination includes a test of the applicants knowledge and

understanding of the rules of the road, the ability to read and understand

simple English used on traffic signs, the understanding of traffic signs and

signals, an actual demonstration of the ability to operate a motor vehicle, a

hearing and eyesight test, and other matters that may be necessary to

determine the applicants mental and physical fitness to operate a motor

vehicle. Cal. Veh. Code 12804.9(a)(1)(A)-(E).

A person issued a notice of reexamination is deemed to have refused

the reexamination if he or she doe not appear as scheduled, fails to provide

information requested by the DMV, fails to complete a drive test (if

required), fails to complete a vision examination (if required), is not

responsive to questions during the reexamination, or the department does not


7timely receive a medical examination (if required). Cal. Code Regs., tit. 13,

100.01(a)(1)-(6).

After a licensee completes the reexamination, the DMV will decide

whether to restrict the license, suspend the license, or revoke the license.

Cal. Veh. Code 12818(b). If the DMV proposes to take adverse action

based on the results of the examination, the licensee is entitled to notice and

an opportunity to be heard before the action takes effect. Cal. Veh. Code

13950.

D. Drivers Licenses Cannot be Renewed When ASuspension is In Effect

California law prohibits the DMV from renewing a drivers license

when the license has been suspended, unless the cause for suspension has

been removed. Cal. Veh. Code 12807(a). More specifically, when the

DMV receives notice that a person has failed to pay a fine or appear in court,

the DMV is prohibited from renewing that persons license until the court

clerk sends a certificate to the DMV clearing the failure to pay or appear.

Cal. Veh. Code 12807(c).

E. There is no Right to a Hearing When the Suspension isMandated by the Vehicle Code

There is no right to a hearing for mandatory license suspensions, or the

non-renewal of a license, on grounds that a person has failed to appear in


8court, pay a fine, or refused to complete a reexamination. See Cal. Veh

Code 14101(a) (a person is not entitled to a hearing when the action by

the department is mandatory by this code).

II. FACTUAL BACKGROUND

On August 11, 2011, Sheikh was cited for failing to stop at a stop sign,

and for not having proof of insurance. Appellants Brief (App. Brief)

8:17-23; Appellees Excerpts of Record filed herewith (E.R.) (Doc. 45)

00128:22-26; Request for Judicial Notice filed herewith (RJN), Ex. A.

Sheikh did not initially appear in court on this citation. E.R. (Doc. 45)

00125:5-12. The DMV mailed a notice to Sheikh dated December 5, 2011,

advising him that his license would be suspended effective January 4, 2012,

until all failures to appear and pay fines were removed from his driving

record. Id.; App. Brief, 1:10-15; 8:6-12. Around the beginning of January

2012, Sheikh applied to renew his drivers license. E.R. (Doc. 1) 00003: 8.

The DMV, however, informed Sheikh that he was ineligible to renew his

license because of the failure to appear on his driving record. Id. at 9.

Even though his license had been suspended, Sheikh continued to

drive. On February 16, 2012, Sheikh was stopped for multiple traffic

violations. App. Brief, 8:24-28. According to Sheikh, the officers

continued to add traffic citations (6-7) until he was arrested and booked


9into county jail. App. Brief, 9:3. Sheikh was cited for speeding, two red

signal violations, driving with a suspended license, failing to provide proof

of financial responsibility, failing to yield to emergency vehicles, and

following too closely. RJN, Ex. B. According to Sheikh, he was released

from jail five days later on February 17, 2012. App. Brief, 9:18.

Sheikh was issued a notice of priority reexamination in connection with

his February 12, 2012 traffic violations which he has characterized as an

arbitrary demand for a driving test, written test, and unspecified medical

tests. App. Brief, 21:5-8, 18-19. Sheikh admits that he refused to complete

the reexamination on March 26, 2012, and instead, demanded an

administrative hearing. App. Brief, 23:18-21. The DMV maintains that the

notice of suspension for his refusal to complete the reexamination was

timely issued, and Sheikh concedes that in the course of this litigation he has

received further notice from the DMV advising him of the need to schedule

an interview with DMVs Driver Safety Office to complete a written law

test, vision test, and a driving test. App. Brief, 12:14-20.

On or about May 23, 2012, Sheikh appeared in court on his August 11,

2011 traffic citation and he was found guilty and ordered to pay a fine. App.

Brief, 10:3-8; E.R. (Doc. 45) 00127:17-28; RJN, Ex. A. During the hearing

on Defendants motion to dismiss on August 22, 2014, Sheikh admitted that


10

he had not paid this fine. Motion to Dismiss Hearing Transcript (TR.)

17:1-19. As of May 21, 2014, the San Joaquin County Superior Court traffic

court records also show that Sheikh has an outstanding failure to appear for

his February 12, 2012 traffic citation, and that a bench warrant was issued

for his arrest. RJN, Exs. A and B.

III. PROCEDURAL HISTORY

Sheikh filed a complaint against the DMV for injunctive and

declaratory relief in the United States District Court for the Eastern District

of California on March 24, 2014. E.R. (Doc. 1) 00001. Sheikh asserted five

counts for alleged violations of substantive and procedural due process

under the Fourteenth Amendment. E.R. (Doc. 1) 00001-000010. Sheikh

initially alleged that the DMV failed to provide written notice of his license

suspensions (E.R. (Doc. 1) 00004: 11, 15; 00005: 21), but he has since

admitted that he did in fact receive written notice of the first suspension on

December 5, 2011. App. Brief, 1:10-13; TR. 6:14-16. Sheikh also alleged

that the DMV violated his due process rights by not providing a pre-

deprivation or post-deprivation hearing in connection with the suspensions.

E.R. (Doc. 1) 00003:8; 00004:11, 12, 15; 00005:21, 22. Sheikh

further alleged the DMV did not provide him with a remedial procedure to

allow him to renew his drivers license. E.R. (Doc. 1) 00007:31, 36;


11

00009:45. Sheikh is not seeking damages. Instead, he is seeking a

declaration that the DMV violated his due process rights, an injunction

requiring the DMV to renew his license, and an injunction to bar the DMV

from enforcing unconstitutional or burdensome policies. E.R. (Doc. 1)

00010:48.

To moot Sheikhs claims that he was not provided with written notice

or a remedial process to remove the suspensions, Sharon Robinson of the

DMV caused a letter to be mailed to Sheikh dated May 6, 2014. E.R. (Doc.

22) 00028; E.R. (Doc. 23) 00032-00034. The letter advised Sheikh that he

needs to pay the fine for his August 11, 2011 traffic citation (San Joaquin

County Superior Court Case No. A158647), and he needs to address the

failure to appear on his February 12, 2012 traffic citation (San Joaquin

County Superior Court Case No. A156283). Id. The letter instructed Sheikh

to resolve these issues with the San Joaquin County Superior Court in

Stockton, California. E.R. 00034. The letter also informed Sheikh that he

needs to submit to a reexamination. Id. Enclosed with the letter were the

multiple notices that had been sent to Sheikh about his license suspensions

since December 5, 2011, including a notice dated October 23, 2012,

informing Sheikh of the suspension for failing to pay a fine and appear in

court. E.R. (Doc. 23) 00036-00048.


12

On May 7, 2014, the DMV filed a motion to dismiss for mootness,

standing, and for failure to state a claim. E.R. (Doc. 20) 00012-00013. The

motion argued that Sheikhs claims were moot because regardless of what

happened previously, the DMV provided Sheikh with written notice on May

6, 2014, of the reasons his license was suspended and outlined the remedial

process he needs to follow to remove the suspension to become eligible to

renew his license. E.R. (Doc. 20) 00013; E.R. (Doc. 21) 00019-00022. The

motion also argued that Sheikh lacked standing to pursue his claim because

he was not challenging the underlying reasons his license was suspended.

E.R. (Doc. 20) 00013; E.R. (Doc. 21) 00022-00024. Finally, the motion

argued that Sheikh could not state a claim because he is not entitled to the

relief he is seeking. E.R. (Doc. 20) 00013; E.R. (Doc. 21) 00024-00026.

For example, Sheikh is not entitled to an order directing the DMV to renew

his license because he did not allege facts to establish his eligibility to renew

his license. Id.

In response to a premature request for admission, DMVs trial counsel

sent Sheikh a letter dated July 14, 2014. E.R. (Doc. 39) 00074-00075,

00077-00079. The letter provided Sheikh with additional notice about his

license suspensions, and reiterated the steps he needs to take to become

eligible renew his license. The letter explained, in detail, the reasons Sheikh


13

must submit to a priority reexamination, and enclosed a copy of the police

report regarding his February 12, 2012 traffic citation and arrest. According

to the report, Sheikh was observed speeding, he ran a red light, and he was

following another vehicle too closely. E.R. (Doc. 39) 000089-00091. He

also failed to immediately stop in response to emergency lights and sirens.

E.R. (Doc. 39) 00091. The officer reported that for several blocks Sheikh

made no attempt to slow down and pull over, even though he had several

opportunities to do so. Id. When Sheikh finally stopped, the officer

discovered that he was driving with a suspended license. Id. The officer

reported that Sheikhs demeanor was initially calm, but he suddenly became

angry when asked whether he had a valid drivers license and insurance. Id.

While the first officer was speaking to a second officer who had arrived

on scene, Sheikh honked his horn, turned his brake lights on and off, and hit

his steering wheel. E.R. (Doc. 39) 00091. Then Sheikh exited his vehicle

and when asked to get back inside, he said F--k You to the officer. Id.

Sheikh was given the opportunity to either sit in his vehicle or in the patrol

vehicle, but he refused to comply and was handcuffed and placed in the

backseat of the patrol vehicle. Id. While the officer was preparing the

citation, Sheikh kicked the rear driver side door of the patrol vehicle. Id.

Sheikh refused to sign the citation and requested to be arrested. Id. At the


14

police station, Sheikh continued to refuse to sign the citation and was

booked into the San Joaquin County Jail. Id. Sheikhs traffic violations and

behavior on February 12, 2012, lead the officer to issue Sheikh a notice of

priority reexamination. Id. The letter dated July 14, 2014, enclosed a copy

of a notice dated March 27, 2012, which advised Sheikh that his driving

privileges would remain suspended until he successfully completes the

reexamination. E.R. (Doc. 39) 00098.

On August 22, 2014, United State Magistrate Judge Allison Claire

issued an Order and Findings and Recommendation to dismiss Sheikhs

complaint without leave to amend. E.R. (Doc. 44) 00111-00119. The court

found that Sheikh had been provided with written notice of his license

suspensions and that he had an adequate remedial procedure to address the

suspensions for his failure to pay and failure to appear through the traffic

court. E.R. (Doc. 44) 00117:1-3, 00117:26-00118:5. As to the

reexamination, the court found that Sheikh was not entitled a hearing before

submitting to the examination because if Sheikhs license was suspended

after he completed the reexamination, he would be entitled to a remedial

hearing. E.R. (Doc. 44) 00118:6-25. The court declined to rule on the

DMVs standing and mootness arguments. E.R. (Doc. 44) 00114:10-12,

00119:17. Sheikh filed objections to the magistrate judges findings and


15

recommendations on September 5, 2014. E.R. (Doc. 45) 00120-00145. The

district court judge adopted the magistrate judges ruling and entered

judgment in favor of DMV on September 19, 2014. E.R. (Docs. 46, 47)

00146-00148.

STANDARD OF REVIEW

This Court reviews de novo a decision granting a motion to dismiss for

failure to state a claim. See, e.g., Colony Cove Props., LLC v. City of

Carson, 640 F.3d 948, 955 (9th Cir. 2011).

SUMMARY OF ARGUMENT

California law requires the DMV to suspend a drivers license when it

receives notice from a court clerk that the licensee has failed to pay a fine or

appear in court. Cal. Veh. Code 13365(a)(2). The Fourteenth Amendment

does not require the DMV to provide an administrative hearing in

connection with these suspensions because the statutory framework is

sufficiently detailed to protect against erroneous suspensions, and because a

remedial process exists to allow licensees to remove the suspensions. See

Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (recognizing that the process

that is due depends on the private interest involved, the risk of erroneous

deprivation, and the probative value and government burden of additional

safeguards). Licensees have the right to appear in traffic court to clear their


16

suspensions for failing to pay fines or appear in court. Here, Sheikh has

refused to avail himself of this due process.

California law requires the DMV to suspend a drivers license when the

licensee has failed to schedule and complete a reexamination of his driving

privileges within five days of receiving notice of the reexamination. Cal.

Veh. Code 12819. The Fourteenth Amendment does not require the DMV

to provide an administrative hearing before, or after, suspending a license for

refusing to complete the reexamination because sufficient due process exists

to protect against erroneous suspensions, and a remedial procedure exists to

allow Sheikh to remove the suspension by successfully completing the

reexamination. Cal. Veh. Code 12819. If the DMV takes further action

against his license after he completes the reexamination, Sheikh is entitled to

a hearing to review the DMVs decision. Cal. Veh. Code 13950. Sheikh,

so far, has refused to avail himself of this due process.

ARGUMENT

I. LEGAL STANDARD ON A MOTION TO DISMISS FORFAILURE TO STATE A CLAIM

To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on

its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation


17

marks omitted). A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. Id.

Generally speaking, pro se complaints must be liberally construed and

held to less stringent standards than pleadings prepared by lawyers. See,

e.g., Estelle v. Gamble, 429 U.S. 97, 106 (1976). But a liberal

interpretation of a . . . civil rights complaint may not supply essential

elements of the claim that were not initially pled. Chapman v. Pier 1

Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011) (en banc) (citation and

quotation marks omitted).

II. SHEIKH LACKS STANDING TO PURSUE HIS APPEAL

Without standing, federal courts do not have jurisdiction to hear a

claim. Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835, 847

(9th Cir. 2001). To satisfy Article III standing, a plaintiff must show (1) an

injury in fact, (2) a causal connection between the injury and the challenged

action, and (3) that it is likely and not merely speculative that the injury will

be redressed by a favorable decision. Multistar Indus. v. United States DOT,

707 F.3d 1045, 1054 (9th Cir. 2013). Plaintiff has the burden of establishing

jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S.

375, 377 (1994) (stating that [i]t is to be presumed that a cause lies outside


18

this limited [federal] jurisdiction [citation omitted] and the burden of

establishing the contrary rests upon the party asserting jurisdiction [citation

omitted]).

[T]he Constitution does not protect procedure for procedures sake.

The Fourteenth Amendment, by its terms, does not guarantee due process; it

protects against deprivations of life, liberty, or property without due

process. Rector v. City & County of Denver, 348 F.3d 935, 943-44 (10th

Cir. 2003). Indeed, [u]nless a person asserts some basis for contesting a

governmental deprivation of life, liberty, or property, he is not injured by

defective procedures he has no occasion to invoke. Id.

Sheikh lacks standing because he cannot establish a causal connection

between not being provided with an administrative hearing, and the DMVs

decision not to renew his license. Sheikh admitted at the hearing on the

DMVs motion to dismiss that he has not paid his fine for his August 11,

2011 traffic citation. TR. 17:18-19. Therefore, in addition to other grounds,

Sheikh is not eligible to renew his license. The lack of an administrative

hearing has caused him no harm. Cal. Veh. Code 12807(a) and (c)

(stating that a license cannot be renewed while suspended, and cannot be

renewed until the court clerk files certificates of compliance to clear the


19

failure to pay and appear). Because Sheikh is not eligible to renew is

license, he is not entitled to declaratory or injunctive relief.

Based on the foregoing, Sheikhs appeal should be dismissed under

Federal Rule of Civil Procedure 12(b)(1) because he lacks standing.

III. SHEIKH FAILED TO STATE A PROCEDURAL DUEPROCESS CLAIM

Even if Sheikh has standing to pursue his appeal, the District Courts

dismissal should be affirmed because Sheikh has failed to state a procedural

due process claim. The Due Process Clause of the Fourteenth Amendment

prohibits the states from depriving any person of life, liberty, or property,

without due process of law. U.S. Const. amend. XIV, 1. To state a

procedural due process claim, a plaintiff must allege (1) a liberty or

property interest protected by the Constitution; (2) a deprivation of the

interest by the government; [and] (3) lack of process. Wright v. Riveland,

219 F.3d 905, 913 (9th Cir. 2000).

The suspension of a drivers license for statutorily defined cause

implicates a protectible property interest. Illinois v. Batchelder, 463 U.S.

1112, 1116-117 (U.S. 1983) (quoting Mackey v. Montrym, 443 U.S. 1, 10

(1979)). At issue is what process is due to protect against an erroneous

deprivation of that interest. Id. This issue is resolved by considering three


20

factors: first, the private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of additional or substitute

procedural safeguards; and third, the Government's interest, including the

function involved and the fiscal and administrative burdens that the

additional or substitute procedural requirement would entail. Batchelder,

463 U.S. at 1117 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

Sheikhs procedural due process claims fail as a matter of law because

the statutory framework for suspending drivers licenses comports with

Mathews.

A. The Fourteenth Amendment does not Require the DMVto Provide an Administrative Hearing to Review aDrivers License Suspension For Failing to Appear inCourt or Pay a Traffic Fine

Sheikh argues that the Fourteenth Amendment requires the DMV to

provide an administrative hearing to review his license suspensions for

failing to pay a fine and appear in court. Appellants Brief, 1:10-2:6. While

Sheikh is entitled to due process, the DMV is not required to provide an

administrative hearing because Californias statutory framework complies

with Mathews.


21

First, Sheikh has complete control over the length of his license

suspension. Sheikh may address his outstanding fine and failure to appear

with the San Joaquin County Superior Court, but so far, he has refused to do

so. Second, a detailed statutory framework governs the process for

suspending licenses to guard against errors and provides a remedial process

to remove the suspensions. The DMV was required to suspend Sheikhs

license when it received notice from the San Joaquin County Superior Court

that he had failed to appear in court and pay a fine. Cal. Veh. Code

13365(a)(2), 40509.5(a)-(b). Sheikh had at least 60 days after the DMV

first received notice of his delinquency, and 30 days after he received notice

of the suspension to resolve the issues before the suspensions took effect.

Cal. Veh. Code 13365(b), 13106. Because the suspensions were

mandatory, Sheikh was not entitled to an administrative hearing under

California law. See Cal. Veh Code 14101(a).

The DMV will remove the failure to pay suspension when the clerk of

the San Joaquin County Superior Court files a certificate showing that the

fine or bail has been paid. Cal. Veh. Code 40509.5(b). As of August 22,

2014, Sheikh had not paid his fine for his August 11, 2011 traffic citation.

TR. 17:18-19. When Sheikh satisfies the courts order to appear on his

February 16, 2012 traffic citation, the court clerk will file a certificate of


22

compliance, and the DMV will remove the failure to appear suspension.

Cal. Veh. Code 40509.5(a).

Requiring the DMV to provide Sheikh with an adjudicatory hearing

would add minimal, if any, procedural safeguards to protect against an

erroneous suspension. The hearing would do no more than confirm that the

DMV does not have the certificates of compliance to clear the suspensions.

Two California courts have held that the statutory framework for suspending

licenses for failing to appear and pay a fine comports with due process. The

former appellate department of the Los Angeles County Superior Court

stated that:

It would be a legal absurdity to require the Departmentof Motor Vehicles to grant a hearing on the question ofwhether a person did in fact violate his written promiseto appear on a traffic citation, when the court whereappearance was required has already made such afinding. (See Veh. Code 40509, subd. (a).) n3 If thedefaulting citee has a valid excuse for hisnonappearance, the place to submit his explanation is inthe court, not before the department.

People v. Bailey, 133 Cal. App. 3d Supp. 12, 15 (Cal. App. Dep't Super. Ct.

1982). The Bailey court concluded that the determination of license

suspension by the Department of Motor Vehicles without affording the

licensee an opportunity for a hearing beyond the court appearances directed

by the summons on the traffic citations sufficiently complies with due


23

process. Id. at 16 (citing Bell v. Burson, 402 U.S. 535, 541-42 (1971)).

More recently, the California Court of Appeal held in an unpublished

opinion that due process doe not require the DMV to provide a licensee with

a hearing before suspending his license for failing to pay a fine. Kushner v.

Shiomoto, 2014 Cal. App. Unpub. LEXIS 6626 (Cal. App. 2014).

The statutory framework for suspending licenses for failing to appear

and pay a fine holds drivers accountable for their traffic violations and

undoubtedly furthers the states legitimate interest in public safety. Without

such a procedure, the noncomplying drivers could continue to violate

highway safety regulations without consequence.

If Sheikh contends that the traffic court records are in error (i.e., he has

paid his fine or appeared in court) and that the certificates of compliance

should have been issued, his remedy is to file a petition for writ of mandate

directly against the San Joaquin County Superior Court. Williams v.

Department of Motor Vehicles, 2 Cal. App. 3d 949, 953-54 (Cal. App. 1969)

(individual whose license was suspended by the DMV pursuant to a

mandatory provision in the Vehicle Code had to seek a writ of mandamus

directly against the criminal court to challenge the validity of one of his

convictions for driving under the influence of alcohol). The DMV does not

have authority to review the accuracy of the San Joaquin County Superior


24

Courts records, or to correct any alleged errors in those records. Kushner v.

Shiomoto, 2014 Cal. App. Unpub. LEXIS 6626 (Cal. App. 2014) ([t]he

independent review of traffic court proceedings sought by [the licensee] is

nowhere authorized by the Vehicle Code) (citing Williams, 2 Cal. App. 3d

at 953-54 (Cal. App. 1969) (the DMV cannot exercise judicial power

required to nullify a prior conviction); see generally Laisne v. California

State Board of Optometry, 19 Cal. 2d 831, 834-35 (Cal. 1942) (explaining

limits on administrative agencys ability to exercise judicial power).

Based on the foregoing, the Fourteenth Amendment does not require

the DMV to provide Sheikh with an administrative hearing to review his

license suspensions for failing to appear in court and pay a traffic fine.

Sheikh, therefore, has failed to state a claim.

B. The Fourteenth Amendment Does Not Require the DMVto Provide an Administrative Hearing Before or AfterSuspending a Drivers License for Refusing to Completea Reexamination

Sheikh argues that the Fourteenth Amendment requires the DMV to

provide an administrative hearing in connection with his license suspension

for refusing to complete a priority reexamination of his driving privileges.

App. Brief, 21:17-20; 23:17-19. Sheikh is wrong. The DMVs

reexamination process satisfies the Fourteenth Amendment because the pre-


25

suspension procedures adequately protect against erroneous suspensions,

and remedial procedures exist to remove the suspension.

The DMV was required to suspend Sheikhs license when he initially

failed to schedule the reexamination within five days of receiving notice,

and the DMV was required to continue the suspension when Sheikh

appeared for the reexamination on March 26, 2012, but refused to complete

it. App. Brief, 21:17-20; 23:17-19; Cal. Veh. Code 12819, 13801; Cal.

Code Regs., tit. 13, 100.01(a)(1)-(6) (failing to provide requested

information, to complete a drive test, a vision test, and failing to be

responsive to questions constitutes a failure to submit or complete a

reexamination). Sheikh was not entitled to a hearing under California law

because the suspension was mandated by statute. Cal. Veh. Code

14101(a). The suspension will continue until Sheikh successfully

completes the reexamination. Cal. Veh. Code 12819.

The mandatory suspension in this case is similar to the mandatory

suspension that the United States Supreme Court upheld in Mackey v.

Montrym, 443 U.S. 1 (U.S. 1979). In Mackey, Montrym was arrested for

driving under the influence of alcohol. He initially refused to take a breath

analysis test, but retracted his refusal 20 minutes later after talking with his

attorney. Id. at 5. The police officer declined to comply with Montryms


26

belated request, and his license was summarily suspended for 90 days

because of his initial refusal. Id. In applying the Mathews factors, the

Supreme Court upheld the constitutionality of the Massachusetts implied

consent statute and found that it did not violate the Fourteenth Amendments

due process clause. Id. at 19.

Weighing in favor of constitutionality, the Supreme Court noted

Montryms right to an immediate post-suspension hearing. [W]hen prompt

postdeprivation review is available for correction of administrative error, we

have generally required no more than that the predeprivation procedures

used be designed to provide a reasonably reliable basis for concluding that

the facts justifying the official action are as a responsible governmental

official warrants them to be. Mackey, 443 U.S. at 13. Further, the Court

asserted that the length of the deprivation is an important factor when

assessing the impact official action has on a private interest, and in regards

to Montrym, his license was suspended for only 90 days. Id. at 12. Finally,

considering the public safety interest in removing intoxicated drivers from

the road, the Supreme Court recognized that [a] presuspension hearing

would substantially undermine the state interest in public safety by giving

drivers significant incentive to refuse the breath-analysis test and demand a

presuspension hearing as a dilatory tactic. Id. at 18.


27

Vehicle Code sections 12818 and 12819 provide an adequate pre-

deprivation procedure that guards against errors, just as the pre-deprivation

procedure did in Mackey. There is no dispute that Sheikh refused to

complete the reexamination on or about March 26, 2012, and that section

12819 required an automatic suspension based on that refusal.2 App. Brief,

21:17-20; 23:17-19. A pre-suspension hearing would add little, if any,

procedural safeguards. The hearing would do no more than establish that

Sheikh refused to complete the reexamination.3

The Vehicle Code provides post-suspension due process by giving

Sheikh the right to schedule and complete a reexamination, similar to the

right Montrym had to an immediate post-suspension hearing in Mackey. See

Cal. Veh. Code 12818 (the suspension continues until the person

2 Although a suspension was initially imposed for failing to timelyschedule the reexamination, this point became moot when Sheikh appearedfor the reexamination on March 26, 2012, but refused to complete it. App.Brief, 21:17-20; 23:17-21.

3 While not clear, Sheikh seems to argue that he should have beenprovided with a hearing before being required to submit to a reexamination.This argument does not state a procedural due process claim. The desire notto complete a reexamination is not a liberty or property interest protected bythe Fourteenth Amendment. See Wright v. Riveland, 219 F.3d 905, 913 (9thCir. 2000) (the Fourteenth Amendment protects liberty and propertyinterests). Conducting a pre-examination hearing would be redundant of thepurpose of the reexamination. It would be tantamount to holding anadministrative hearing to determine the validity of traffic citations beforethey are adjudicated in traffic court.


28

successfully completes the reexamination and the department takes final

action). In this regard, the reexamination is the administrative hearing. Had

Sheikh timely and successfully completed the reexamination in the first

place, his license may have never been suspended. If the DMV takes

adverse action after Sheikh completes the reexamination, Sheikh will have

the right to a hearing to challenge the DMVs decision. See Cal. Veh. Code

13950 (when the DMV determines upon reexamination that grounds for

suspension exist notice and an opportunity to be heard shall be given before

taking the action).

Also weighing in favor of satisfying the Fourteenth Amendment is the

length of Sheikhs suspension which is less severe than Montryms

mandatory 90 day suspension in Mackey. Vehicle Code section 12819 does

not prescribe a minimum suspension for refusing to complete a

reexamination. Sheikhs suspension could have been lifted nearly as soon as

it was imposed if only he had completed the reexamination.

Finally, the significant public safety interest weighs in favor of finding

that the suspension without an adjudicatory administrative hearing comports

with due process. The United States Supreme Court has held that due

process does not require an administrative hearing prior to revocation of

driving privileges where the threat to public safety is sufficiently obvious to


29

justify immediate termination. Pollack v. Dep't of Motor Vehicles, 38 Cal.

3d 367 (Cal. 1985) (citing Dixon v. Love, 431 U.S. 105 (1977). Here,

notices of priority reexamination are issued to protect public safety.4 See

Cal. Veh. Code 21061(a) (a traffic officer may issue a notice of priority

reexamination where there is evidence of incapacity leading to a reasonable

belief that a driver is incapable of operating a motor vehicle in a manner so

as not to present a clear or potential danger of risk of injury to that person or

others if that person is permitted to resume operation of a motor vehicle).

Requiring a pre-suspension hearing would impede public safety by

delaying the fitness-for-driving determination, and by keeping potentially

unsafe drivers on the road. See Dixon, 431 U.S. at 114 (the requirement of a

pretermination hearing in every case would impede the public interests of

4The notice of priority examination is presumed to have been properlyissued to Sheikh. Fed. R. Evid. 302 (state law presumptions apply in civilcases); Cal. Evid. Code 664 ([i]t is presumed that official duty has beenregularly performed); see e.g. Roelfsema v. Department of Motor Vehicles(1995) 41 Cal.App.4th 871, 880 (under Evidence Code section 664, sobrietycheckpoints are presumed constitutional in administrative hearings). Furthersupporting this presumption are facts indicating Sheikhs incapacity derivedfrom his arrest and the numerous citations he received on February 12, 2012 speeding, two red signal violations, driving with a suspended license,failing to provide proof of financial responsibility, failing to yield toemergency vehicles, and following too closely. App. Brief, 8:24-28; 9:3-28;RJN, Ex. B.


30

administrative efficiency as well as highway safety, which is promoted by

the prompt removal of hazardous drivers). In this regard, the Supreme Court

in Mackey recognized that [a] presuspension hearing would substantially

undermine the state interest in public safety by giving drivers significant

incentive to refuse the breath-analysis test and demand a presuspension

hearing as a dilatory tactic. Id. at 18. Similarly, a pre-suspension hearing

for refusing to complete the reexamination could be used as a dilatory tactic

and jeopardize public safety.

Based on the foregoing, the Fourteenth Amendment does not require

the DMV to provide Sheikh with an administrative hearing to review the

suspension for his refusal to complete a priority reexamination. Sheikh,

therefore, has failed to state a claim.

IV. SHEIKH FAILED TO STATE AN EQUAL PROTECTIONCLAIM

A. Sheikhs Complaint Did Not Allege an Equal ProtectionClaim

Sheikh alleges that the notice of reexamination violated his equal

protection rights. App. Brief, 21:3-4. Sheikh, however, never alleged an

equal protection claim in his complaint, nor did he allege any facts that


31

would suggest an equal protection claim. E.R. (Doc. 1) 00001-00010.5

Therefore, he cannot raise an equal protection claim on appeal. Litmon v.

Harris, 768 F.3d 1237, 1241 (9th Cir. 2014) (a liberal interpretation of a

pro se civil rights complaint may not supply essential elements of the claim

that were not initially pled).

B. Even if Sheikh had alleged an Equal Protection Claim inhis Complaint, It Would Have Failed Because HisComplaint is Against the Stockton Police Department,Not the DMV

Sheikh points out that on February 12, 2012, he was issued a citation,

and a notice of reexamination. App. Brief, 21:17-21. He claims that the

[o]nly justification for reexamination is that because police said so. App.

Brief, 21:20-21. Sheikh further argues that Police does not refer all drivers

for such a reexamination when police issues traffic citations. App. Brief,

22:4-5. Sheikhs argument is about how the citing police officer allegedly

treated him unequally or in an arbitrarily or capricious manner. Sheikhs

equal protection claim, if one exists, would be against the police officer and

his law enforcement agency, not the DMV.

5 Sheikh improperly filed a non-operative first amended complaint(Doc. 32), which did not allege an equal protection claim.


32

Once the DMV receives a notice of priority reexamination, the DMV is

required to conduct a reexamination or suspend the license for refusal to

complete the reexamination. See Cal. Veh. Code 21062, 12819. The

DMV has no discretion6 in responding to the notice of reexamination, and

therefore, no opportunity to treat licensees differently from one another, or

in an arbitrary or capricious manner.

Accordingly, Sheikhs equal protection claim should not be entertained

on appeal.

6 Discretionary decision making attaches only after a licenseecompletes the reexamination and the DMV takes action on the results. SeeCal. Veh. Code 12818, 12819, 13950.


33

CONCLUSION

This Court should affirm the dismissal without leave to amend of

Sheikhs complaint because he failed to allege a Fourteenth Amendment due

process claim.

Dated: April 29, 2015 Respectfully submitted,

KAMALA D. HARRISAttorney General of CaliforniaALICIA M. B. FOWLERSenior Assistant Attorney GeneralDAVID J. NEILLSupervising Deputy Attorney General

/S/ Matthew T. Besmer

MATTHEW T. BESMERDeputy Attorney GeneralAttorneys for Appellees Brian Kelly,Secretary, California State TransportationAgency; and Mark Tweety, ManagerDepartment of Motor Vehicles

SA201411832795139163.doc


34

14-16858

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REHAN SHEIKH,

Plaintiff-Appellant,

v.

BRIAN KELLY, Secretary, CaliforniaState Transportation Agency; MARKTWEETY, Manager, Department of MotorVehicles,

Defendants and Appellees.

STATEMENT OF RELATED CASES

To the best of our knowledge, there are no related cases.

Dated: April 29, 2015 Respectfully Submitted,

KAMALA D. HARRISAttorney General of CaliforniaSUSAN E. SLAGERActing Senior Assistant Attorney GeneralDAVID J. NEILLSupervising Deputy Attorney General

/s/ Matthew T. Besmer

MATTHEW T. BESMERDeputy Attorney GeneralAttorneys for Appellees Brian Kelly,Secretary, California State TransportationAgency; and Mark Tweety, ManagerDepartment of Motor Vehicles


CERTIFICATE OF COMPLIANCEPURSUANT TO FED.R.APP.P 32(a)(7)(C) AND CIRCUIT RULE 32-1

FOR 14-16858

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 attachedopening/answering/reply/cross-appeal brief is

xProportionately spaced, has a typeface of 14 points or more and contains 7,347 words(opening, answering and the second and third briefs filed in cross-appeals must not exceed14,000 words; reply briefs must not exceed 7,000 words

or isMonospaced, has 10.5 or fewer characters per inch and contains ____ words or ___ lines oftext (opening, answering, and the second and third briefs filed in cross-appeals must not exceed14,000 words or 1,300 lines of text; reply briefs must not exceed 7,000 words or 650 lines oftext).

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 30pages or a reply brief of no more than 15 pages.

orThis brief complies with a page or size-volume limitation established by separate court orderdated ______________ and is

Proportionately spaced, has a typeface of 14 points or more and contains ______________words,

or isMonospaced, 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 CircuitRule 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 notexceed 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 75pages or 1,950 lines of text; reply briefs must not exceed 35 pages or 910 lines of text).


4. Amicus Briefs.

Pursuant to Fed.R.App.P 29(d) and 9th Cir.R. 32-1, the attached amicus brief is proportionallyspaced, has a typeface of 14 points or more and contains 7,000 words or less,

or isMonospaced, has 10.5 or few characters per inch and contains not more than either 7,000words or 650 lines of text,

or isNot subject to the type-volume limitations because it is an amicus brief of no more than 15pages and complies with Fed.R.App.P. 32 (a)(1)(5).

4/29/15 /S/ Matthew T. Besmer

Dated Matthew T. BesmerDeputy Attorney General


CERTIFICATE OF SERVICE

Case Name: Sheikh, Rehan v. Kelly, Brian,et al.

No. 14-16858

I hereby certify that on April 29, 2015, I electronically filed the following documents with theClerk of the Court by using the CM/ECF system:

APPELLEES' ANSWERING BRIEFParticipants in the case who are registered CM/ECF users will be served by the CM/ECF system.I am employed in the Office of the Attorney General, which is the office of a member of theCalifornia State Bar at which member's direction this service is made. I am 18 years of age orolder and not a party to this matter. I am familiar with the business practice at the Office of theAttorney General for collection and processing of correspondence for mailing with the UnitedStates Postal Service. In accordance with that practice, correspondence placed in the internalmail collection system at the Office of the Attorney General is deposited with the United StatesPostal Service with postage thereon fully prepaid that same day in the ordinary course ofbusiness.I further certify that some of the participants in the case are not registered CM/ECF users. OnApril 29, 2015, I have caused to be mailed in the Office of the Attorney General's internal mailsystem, the foregoing document(s) by First-Class Mail, postage prepaid, or have dispatched it toa third party commercial carrier for delivery within three (3) calendar days to the following non-CM/ECF participants:

Rehan Sheikh1219 W. El Monte StreetStockton, CA 95207

I declare under penalty of perjury under the laws of the State of California the foregoing is trueand correct and that this declaration was executed on April 29, 2015, at Fresno, California.

Terri E. Broderick /S/ Terri E. BroderickDeclarant Signature

95139179.doc


14-168589 Main Document - 04/29/2015, p.19 Additional Document - 04/29/2015, p.44Sheikh ER Pleading (2)Sheikh ER Complete Revised 4-29-15Sheikh Excerpts of Record Combined - BatesSheikh Excerpts of Record CombinedComplaint Doc. 1Defendants NOM and MTD Doc. 20Defendants Memo ISO MTD Doc. 21Declaration of Robinson Doc. 22Exhibit A to Robinson Declaration Doc. 23First Amended Complaint Doc 32JURISDICTIONTHE PARTIESPLAINTIFFDEFENDANTSFACTUAL ALLEGATIONS

Opposition to Motion to Dismiss Doc. 36BACKGROUNDLEGAL STANDARDSUMMARY

Reply to Motion to Dismiss Doc. 38Besmer Declaration Doc. 39Second Dec of Robinson Doc. 40Magistrates Findings and Recommendations Doc. 44Objection to Magistrates Findings and Recommendations Doc. 45SUMMARY OF ARGUMENTSBACKGROUNDDefendants Suspended Plaintiffs Driving License without Pre Deprivation Hearing via an Anonymous Order in December 2011Defendants have denied to issue a Written Notice of Denial and Post Deprivation Hearing since January 2012Defendants claim that defendants do not have Burden of Proof to demonstrate Plaintiffs Failure to Appear is thoughtfulTraffic Citations were previously withdrawn, or pending or resolved

Defendants Accusations of Failure to Appear are fluidPlaintiffs Request for Admission - for ClarificationDefendants incorrectly claim that Plaintiff did not appear for his traffic citation Plaintiffs Declaration in support of his Request for Admission

The DMV undermined its Independence by relying on Third Party information without verificationDefendants Arbitrarily Demand for Driving, Written & Medical testsDefendants' Demand for Reexamination is a disguised Catch 22Defendants Arbitrary demand for plaintiffs Reexamination violates Equal Protection Clause of the United States Constitution[For their Convenience] Defendants assume plaintiffs inability to drive car and demand Reexamination as Pre condition for Hearing

The DMVs Anonymous Order improperly Suspended Plaintiffs Driving License without Pre Deprivation HearingThe DMV has denied Post Deprivation Hearing since Dec 2011

Prayer for ReliefStatement of Cases Eastern District of CaliforniaADDITIONAL ARGUMENTSDefendants did not issue Written Notices of Denial at the time of DenialDefendants had a Mandatory Duty of Pre Deprivation HearingSuspension of Driving License without Pre Deprivation and Post Deprivation hearing has inflicted excessive punishment on plaintiff in violation of Eighth Amendment of the Constitution of the United StatesFactual issues needs to be addressed in findings & RecommendationsPlaintiffs Request for Admission is unopposed by defendantsDefendants have not presented a good cause to dismiss claims against individual defendantsThe Magistrate Judge could properly exercise her discretion by not dismissing plaintiffs First Amended ComplaintDefendants Motion to Dismiss FRCP (12) does not satisfy Rule 12 RequirementsThe Court may consider Plaintiffs Hardship and irreparable harm

District Court Order Doc. 46Judgment Doc. 47

Sheikh Federal Court Docket.pdf

9 Additional Document - 04/29/2015 (2), p.203RJNRJN Ex A Cover pageTraffic Citation A158647RJN Ex B Cover pageTraffic Citation A156283

ca9!14!16858-9-1 dmv's initial brief

Documents