california continues to suspend drivng license without due process -brief filed in the the ninth...

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Rehan Sheikh, Pro Se 1219 W. El Monte Street Stockton, California 95207 Telephone: (209) 475.1263 [email protected]

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REHAN SHEIKH Appellant (and plaintiff), v. Brian Kelly Secretary, California State Transportation Agency Appellee and Mark Tweety Manager, Department of Motor Vehicles Appellee

Case NO: 14 – 1 6 8 5 8 PLAINTIFF’S BRIEF

42. U.S.C. § 1983 The DMV continues to Suspend

Plaintiff’s Driving License without Hearing since 2011 Judge : Hon. Garland E. Burrell

Magistrate Judge Hon. Allison Claire District Court: 2: 14 –CV- 7 5 1 GEB AC

Case: 14-16858, 01/02/2015, ID: 9367955, DktEntry: 2, of 35

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Plaintiff’s Brief – Rehan Sheikh v. [DMV]

P a g e | i

I. QUESTIONS PRESENTED

A. The Department of Motor Vehicles (DMV) suspended plaintiff’s driving license

without any pre-deprivation hearing and the DMV denied all requests for post

deprivation hearing.

Does the DMV has a mandatory duty, in order to satisfy the Due Process

Clause, to provide a hearing on suspension of plaintiff’s driving license?

B. The DMV arbitrarily and intermittently demands that plaintiff take written

test, driving tests and submit to medical tests. The DMV doesn’t demand such

‘reexamination’ for renewal of license or even when individuals are involved in

auto accidents. The DMV denied requests for any hearing that would establish

justification for its demand.

Is the DMV’s arbitrary demand for plaintiff’s driving and medical tests

consistent with Equal Protection and Due Process Clauses?


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P a g e | ii

Table of Contents I. QUESTIONS PRESENTED ................................................................................................. i

II. STATEMENT OF CASES.................................................................................................. vii

III. STATEMENTS ....................................................................................................................... 1

IV. PROCEDURAL BACKGROUND ....................................................................................... 8

A. The DMV Suspended Plaintiff’s Driving License without Hearing ....................... 8

B. Traffic Citation for allegedly Not Completely stopping at a Stop Sign ................. 8

C. Defendants Notices of Denial remain inconsistent .................................................. 10

V. ARGUMENTS ...................................................................................................................... 13

a. The Rights involved in this Litigation are Significant ............................................... 13

b. Plaintiff Continues to suffer irreparable harm ............................................................. 16

c. The District Court ‘Erred’ by dismissing Plaintiff’s Complaint ................................ 17

d. The DMV’s Arbitrarily Demand for Plaintiff’s Driving, Written & Medical tests

constitutes violation of Equal Protection Clause .................................................................... 21

e. Suspension of Plaintiff’s Driving License without Hearing constituted Violation

of the Due Process Clause............................................................................................................. 24

VI. CONCLUSION ..................................................................................................................... 26

VII. PRAYER ................................................................................................................................ 27


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P a g e | iii

Table of Authorities

CASES

Aptheker v. Secretary of State,

378 US 500 (1964) ................................................................................................................... 13

Armstrong v. Manzo,

380 US 545 (1965) ................................................................................................................... 24

Bell v Burson,

402 U.S. 535 (1971) ................................................................................................................. 24

Cleveland Board of Education v. Loudermill,

470 U.S. 532, (1985) ................................................................................................................ 25

Collins v. City of Harker Heights,

503 U.S. 115 (1992) ................................................................................................................. 25

Conley v Gibson,

355 US 41 (1957) ...................................................................................................................... 18

Conley v. Gibson,

355 U.S. 41, (1957) .................................................................................................................. 18

Edwards v. California,

314 U.S. 160 (1941) ................................................................................................................. 13

Garrett v. City of San Francisco,


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P a g e | iv

818 F.2d 1515 (9th Cir. 1987) ............................................................................................... 20

Goldberg v. Kelly,

397 U.S. 254 (1970) ................................................................................................................. 16

Hughes v. Rowe,

449 U.S. 5 (1980) ...................................................................................................................... 18

In re Yochum,

89 F. 3d 661 (9th Cir. 1996)................................................................................................... 25

Kent v. Dulles,

357 U.S. 116 (1958) ................................................................................................................. 13

Louis v. Supreme Court of Nevada,

490 F.Supp. 1174, (D.C. Nevada, 1980) .............................................................................. 20

Orr v. Superior Court,

77 Cal. Rptr. 816, 454 P.2d 712 (1969) ............................................................................... 16

Perkins v. City of West Covina,

113 F.3d 1004 (9th Cir. 1997) ............................................................................................... 25

Rehan Sheikh v Cisco Systems,

No: C-07-00262 RMW. (N.D. Cal. Aug. 10, 2007) ............................................................. 18

Reno v Flores,

507 U.S. 292 (1993) ................................................................................................................. 24


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P a g e | v

Schechter v. Killingsworth,

93 Ariz. 273, 380 P.2d 136 (1963) ........................................................................................ 15

Schware v. Board of Bar Examiners,

353 U.S. 232 (1957) ................................................................................................................ 22

Shapiro v. Thompson,

394 U.S. 618 (1969) ................................................................................................................. 14

Sniadach v. Family Finance Corp.,

395 U.S. 337 (1969) ................................................................................................................. 16

Stanely v Illinois,

405 US 645 (1972) ................................................................................................................... 24

United States v. Guest,

383 U.S. 745 (1966) ........................................................................................................... 14, 15


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P a g e | vi

STATUTES

28 U.S.C. § 1291 ............................................................................................................................... 1

28 U.S.C. § 1367 ............................................................................................................................. 19

42. U.S.C. § 1983 .............................................................................................................................. 7

RULES

FRCP (56) .............................................................................................................................. 6, 19, 20

FRCP 12(b)(6) ............................................................................................................................. 6, 19

CONSTITUTIONAL PROVISIONS

Due Process Clause ........................................................................................................... 13, 24, 25

Equal Protection Clause ........................................................................................................... 6, 24

Fifth Amendment ...................................................................................................................... 9, 13

Fourteenth Amendment ................................................................................................... 13, 14, 25


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P a g e | vii

II. STATEMENT OF CASES

Ninth Circuit Court of Appeals

Plaintiff and plaintiff’s spouse are parties in the following cases;

1) Farzana Sheikh MD v Medical Board of California

Case Number: 10 – 17098

2) Rehan Sheikh v Cisco Systems Inc. Case Number: 10 – 17684

3) Rehan Sheikh v Brian Kelly (California Department of Motor Vehicles) Case Number: 14 – 16858

4) San Joaquin (County) General Hospital v Farzana Sheikh, MD Case Number: 14 – 17322

Eastern District of California

Plaintiff and plaintiff’s spouse are parties in the following cases;

1) Farzana Sheikh MD v Medical Board of California

Case Number: 2:10 – CV – 213 – FCD - GGH

2) Rehan Sheikh v Brian Kelly (DMV) Case Number: 2: 14 – CV – 751 – GEB – AC

3) San Joaquin (County) General Hospital v Farzana Sheikh, MD Case Number: 2:14 – CV – 1509 – MCE – AC


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P a g e | 1

Plaintiff submits this appeal on final dismissal of his complaint by Eastern

District of California. The Ninth Circuit Court of Appeals has jurisdiction pursuant to

28 U.S.C. § 1291. The Case involves plaintiff’s driving license. The applicable Standard

of Review is de novo.

III. STATEMENTS

1. The Department of Motor Vehicles (DMV) issued an unsigned & anonymous

order dated December 5, 2011, and suspended plaintiff’s driving license

effectively January 4, 2012 without any pre deprivation hearing. The DMV

assumed that plaintiff did not attend a court hearing to respond to an alleged

stop sign violation. The DMV assumed (or alleged) a Failure to Appear (FTA)

and Failure to Pay fine (FTP). The DMV did not inform plaintiff of his Right to

request any administrative hearing to challenge the suspension.

2. On or before January 4, 2012, Plaintiff timely appeared before the Court and

before the DMV. Plaintiff requested them to NOTE his attendance and restore

his driving license. Defendants did not remove their allegations of failure to

appear and did not restore plaintiff’s driving license.

3. During January, February and March 2012 plaintiff requested defendants to

renew his driving license. On each occasion, defendants denied renewal of his

driving license without a written Notice of Denial. Further, defendants denied

plaintiff’s requests for post deprivation hearing.


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P a g e | 2

4. In March 2014, Plaintiff submitted a complaint with the district Court alleging

five counts of violation of Due Process. Plaintiff also submitted a First Amended

Complaint adding a sixth cause of violation of Due Process.

5. After plaintiff filed the complaint, the parties consented to discovery. Defendants

issued multiple Notices of denial. In those notices of denial,

a. Defendants arbitrarily and intermittently demand that plaintiff take

written test, driving test and submit to unspecified medical tests.

Defendants stated that even if plaintiff passes those unspecified medical

tests, defendants are not obligated to restore his driving license.

b. The DMV alleges an unspecified or untested Failure to Appear (FTA)

presumably before San Joaquin County Court.

6. The DMV intermittently alleges that plaintiff did not appear at the County

Court to respond to his traffic citation;

a. In the Court proceedings, Defendants stated, “[Plaintiff] never

appeared” [Defendants’ Reply in support of Motion to Dismiss, Page 3,

Line 12”]. Defendants invited plaintiff to submit proof. [Defendants’ Reply

in support of Motion to Dismiss, Page 6, Line 2”]

7. Plaintiff submitted his affidavit (Docket#41) with specific dates that he

attended hearings at San Joaquin County Court from January - May 2012.

8. Plaintiff submitted a Request for admission (Docket#31) that stated

“Plaintiff requests that Defendant(s) admit or deny the following statements With reference to traffic citation, Plaintiff did not miss any hearing


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P a g e | 3

scheduled before the County of San Joaquin Superior Court.” a. Plaintiff invited defendants to specify a court date that plaintiff missed.

9. In response to plaintiff’s discovery letter and Request for Admission, the

defendants were NOT able to specify any Court hearing that plaintiff missed.

a. Nonetheless, defendants produced plaintiff’s Bench warrants from San

Joaquin County Court dated April 2012.

b. Plaintiff submitted a proof of his attendance signed and stamped by the

County Court dated March 2012. Plaintiff had already taken care of that

traffic citation in March 2012.

c. Later, in their Notices of denial dated May6, 2014, defendants admitted,

Since then, The DMV records show that you have cleared this FTA.

d. Nonetheless, the DMV did not remove its accusations of FTA and did not

restore plaintiff’s driving license.

10. The DMV does not have any process to challenge suspension of driving

license. The DMV denied all of plaintiff’s requests for any hearing. In the

hearing the district Court inquired (Transcript P12) ;

The Court: If Mr. Sheikh want to challenge the suspension itself, saying you were, you know, wrong to do it, you can’t make me go clear up these things because I should never have been suspended. Where, and when, and how did the department notify him how to do that?

Defendants were unable to answer that question since the DMV does not have

any process to challenge suspension of driving license. Whether California

should have a process to challenge suspension of driving license, in order to meet


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P a g e | 4

the Due Process Clause, is a point of fundamental importance. The district Court

did not rule on this important matter and now it is before the Ninth Circuit

Court of Appeals for its ruling.

11. In order to resolve defendants’ unspecified allegations of Failure to Appear,

Plaintiff submitted a Motion to Compel Admission. Defendants were not able

to present any specific opposition.

a. At the hearing (Transcript P4), defendants generally thought that

plaintiff’s Request for admission was untimely.

THE COURT: Mr. Besmer, did -- were you served with requests for

admissions? MR. BESMER: Just through the ECF service, Your Honor, and we did submit a letter to Mr. Sheikh --

THE COURT: Okay. MR. BESMER: -- addressing his, what we believe to be an untimely request for admission -- or a premature request for admission rather.

THE COURT: Okay. All right. So the requests for admission were propounded, although in an atypical sort of way, and you did respond to them?

MR. BESMER: Just in the letter format, Your Honor. We explained to Mr. Sheikh that discovery has not yet opened in this case.

b. The Court conceive that discovery did not begin (Transcript at P4);

THE COURT: there’s been no discovery and scheduling order. c. The Court issued an order to dismiss plaintiff’s Motion to Compel.

However, in the Recommendations, the court noted.


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P a g e | 5

As there does not appear to be a dispute concerning defendants’ responses

at this time, plaintiff’s request to compel admissions will be denied

(Recommendations of Magistrate Judge – Docket#44, P3)

d. On a few other occasions the Court conceived that discovery had begun. The

Court invited plaintiff to submit discovery requests with the Court when there is

a dispute between the parties (Transcript at Page 3). The Court noted to take

notice of exhibits (Recommendations, Docket#44 at P4). The Court engaged in

extensive discussion relevant to defendants’ accusations of alleged FTA, amount,

validity of fine and questioned the basis for Reexamination (Transcript P 17-20).

12. Plaintiff submitted a Motion for Declaratory Relief that defendants denied

plaintiff’s Right to Due Process (by suspending his driving license without pre

deprivation and without post deprivation hearing).

a. Defendants did not present any opposition and stated (Docket#35, P2)

“ [A Court may] issue other appropriate relief when nonmovant

cannot present facts essential to justify its opposition”.

b. Plaintiff requested the Court to grant his Motion for Declaratory Relief.

(Transcript P7)

Plaintiff: So in this case, defendants do not dispute, sorry -- and defendants do not dispute that they did not issue me timely notices of

denial, they do not dispute that over a period of last two years they denied me pre-deprivation and post-deprivation --

The Court conceived potential disputes (Transcript P7);

THE COURT: Well there are disputes about – this early in the litigation,


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P a g e | 6

when we’re not even clear on the final form that your complaint will take, it is too soon for anyone to tell me that things are undisputed.

13. Plaintiff submitted a Motion for Injunctive Relief to restore his driving

license.

a. In the hearing, the Court emphasized the importance of Driving License

in the hearing and stated (Transcript, P 12)

The court: I understand how important it is to you to have your driver’s

license back. I understand how important it is for people to have driver’s licenses.

b. In its written ruling, the district court dismissed Plaintiff’s Motion

without any guidance and stated that Motion is denied as “premature”.

14. Plaintiff is without his driving license for years now. During that time, plaintiff

was threatened, imprisoned, interrogated, and was exposed to life threatening

circumstances by the individuals working under color of state law.

15. Defendants artfully pleaded their FRCP 56 Motion for Summary Judgment

and disguised their Motion as FRCP 12(b)(6) Motion to Dismiss. In granting

defendants FRCP 12(b)(6) Motion to dismiss plaintiff’s complaint, the Court

discussed matter outside pleading.

16. Plaintiff submitted written arguments that defendants’ arbitrary demand for

plaintiff’s driving tests and medical tests is inconsistent with the Equal

Protection Clause of the United States Constitution. The district Court did not

rule on this important matter and now it is before the Ninth Circuit Court of

Appeals for its ruling.


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P a g e | 7

17. Plaintiff filed a complaint with the District Court alleging following five Counts

of violation of Due Process (42. U.S.C. § 1983 ).

Count I. January 2012 i. Defendants denied renewal of plaintiff driving license without a written

Notice of Denial.

Count 2 - January 2012 i. Defendants denied plaintiff’s request for pre-deprivation hearing

Count 3 - February 2012

i. Defendants denied renewal of plaintiff driving license without a written Notice of Denial. Count 4 - March 2012

i. Defendants denied renewal of plaintiff driving license without a written Notice of Denial. Count 5 - March 2012

i. Defendants denied plaintiff’s request for post-deprivation hearing Plaintiff submitted a First Amended Complaint (Docket #32) adding Sixth cause of Due Process Violation that stated;

Count 6 – December 2011 i. Defendants suspended plaintiff’s driving license without pre-

deprivation hearing.

The Court mistakenly noted (Recommendations #44 at P6, line 24),

Plaintiff first asserts that his due process rights were violated because he

did not receive notice of the license suspension.

18. The district Court applied a legal standard that stated (Docket#44 -P4),

“Thus, a defendant’s Rule 12(b)(6) motion challenges the court’s ability to grant

any relief on the plaintiff’s claims even if the plaintiff’s allegations are true”.


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P a g e | 8

IV. PROCEDURAL BACKGROUND

A. The DMV Suspended Plaintiff’s Driving License without Hearing

19. The DMV sent an anonymous ORDER OF SUSPENSION to plaintiff that was

generated by a computer program. That Order dated Dec 05, 2011, stated;

“YOUR DRIVING PRIVILEGE IS SUSPENDED AS OF JAN 04, 2012.” &

The suspension will remain in effect until all Failures to Appear (FTA) and

Failures to Pay a fine pursuant to section 42003(A) have been removed from

your record.

The Order of Suspension did not state name of a judge or any other person who

was authorized to issue such an order.

B. Traffic Citation for allegedly Not Completely stopping at a Stop Sign

20. On August 11, 2011, Plaintiff was stopped a few yards from his home and was

given a citation for allegedly not completely stopping at a Stop sign and

(allegedly) for lack of Proof of Insurance. The ticket was given by a police officer

who was parked on the perpendicular street facing the opposite direction. The

police officer had no possibility of viewing the stop line. The police officer worked

for a private university in Stockton adjacent to plaintiff’s residence.

21. Later plaintiff was stopped by Stockton Police on Feb 16, 20141

1 Traffic Citation dated February 16, 2012

. Police officers

i. Police officer stopped Plaintiff. Police officer informed plaintiff that he was stopped (allegedly)

for crossing a red light.


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P a g e | 9

continued to add traffic citations (6-7) until after plaintiff was ‘booked’.

ii. One officer searched plaintiff’s car without plaintiff’s permission. The other officer took

plaintiff’s driving license, car keys, called for a towing truck and possessed plaintiff’s car. A

third Police person arrived who introduced himself as Sergeant. The plaintiff was taken to a

City police facility, then he was taken to the County Jail.

iii. As plaintiff was being ‘booked’ in the County Jail, police officer (who issued the citation) asked

Jail officer to give him back a paper where police officer added multiple traffic citations. The

‘booking’ police officer had a conversation with the Jail police officer.

iv. The Jail Police officer started interrogation. Plaintiff said sir, I exercise my right to Fifth

Amendment”. Then several police officers surrounded plaintiff; inquiring officer became very

loud saying, I will ask you one more time [or else]; Plaintiff said, Sir, I take the fifth.

v. Plaintiff was moved with force to a ‘special place’ merely for exercising his Constitutional

Right to Fifth Amendment. Plaintiff remained deprived of critical medicine (including insulin)

and remained subconscious. Late night /early morning Plaintiff’s vitals were unstable; he was

taken to the County Hospital Emergency and was brought back to the Jail.

vi. On or around Feb 17, 2012 (Friday noon time), plaintiff was released from Jail. In the lobby

area, outside the Jail, plaintiff called his wife who came to bring him home. As plaintiff and his

wife were about to leave from the parking lot, a High ranking individual from Sheriff’s office

accompanied by a Sergeant and an officer asked the Officer to ‘book’ plaintiff one more time.

The High Ranking Sherriff told plaintiff, “I’m going to spend the weekend at home and you will

spend the weekend in Jail”.

vii. Plaintiff was again made to spend two more days in the County Jail before he was released on

late Sunday afternoon. During that time, Plaintiff often remained subconscious and his requests

for medical attention were denied.

viii. That was not the first or the last time when City Police and/or County Sheriff department

undertook unprofessional and adverse actions against plaintiff’s family. San Joaquin County

undersheriff sent an email to plaintiff April 5, 2013 that stated in Bold letters;

I DON’T WANT TO EVER HEAR FROM YOU AGAIN!


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P a g e | 10

22. On May 23, 2012 there was a trial at the San Joaquin County Superior Court

before Judge Hon. Erik Lundeberg to respond to all of those traffic citations. The

Court addressed only alleged Failure to completely stop at the STOP sign dated

August 11, 2011. All other allegations in the traffic citations dated August 11,

2011 and February 16, 2012 were previously resolved or withdrawn.

23. The police officer who issued the citation was present. In the Court proceedings,

the police officer was not able to identify the location where he was parked at the

time he issued the ticket; and stated, I do not have good recollection of the event

on that day. Additionally, the police officer did not work for city of Stockton.

Jurisdiction of the police officer was challenged.

24. The Judge announced to issue his opinion later (still pending). The Judge also

explained an appellate procedure before a three judge panel if any party

disagreed with his opinion. The Judge commented, We can issue the license if…

[then there was no guidance]. Plaintiff and his wife thanked the court.

C. Defendants Notices of Denial remain inconsistent

25. After plaintiff filed this complaint with the district court, the DMV issued

multiple Notice(s) of denial;

a. May 6, 2014 by Ms. Jennifer Berry - DMV

b. April 25, 2014 Thomas Laughter - DMV

c. July 14, 2014 Sharon Robinson - DMV

d. July 14, 2014 Matthew Besmer, DAG


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P a g e | 11

DMV’s Notices of Denial remain inconsistent.

26. The DMV is confused on Reexamination

a. Declaration of Sharon Robinson (Department of Motor Vehicles) dated

July 14, 2014 (Docket#40) shows one unpaid fine and one Failure to

Appear. In that Declaration, the DMV did not demand a ‘Re-examination’

b. Yet DMV’s attorney submitted legal arguments on the same date and

demanded ‘Reexamination’ (Docket#38).

c. The DMV’s attorney stated on reexamination (Transcript P20);, “Plaintiff

didn’t do it within the five days and his license was suspended” without

clarifying when the DMV restored plaintiff’s driving license.

27. The DMV is confused on Amount of Fine

a. The Deputy Attorney General (DAG) Matthew Thomas Besmer wrote (Docket

#39, P.2/26); The court clerk told me that Mr. Sheikh has not yet paid his fine

of $390 for his August 2011 citation. There was no court document showing

such fine. Another court document (Docket #39, P.10/26) shows a different

amount of fine.

28. The DMV is confused on Failure To Appear (FTA);

a. In the Court proceedings, Defendants stated, “[Plaintiff] never appeared”

[Defendants’ Reply in support of Motion to Dismiss, Page 3, Line 12” ].

b. In the letter dated July 14, 2014, the defendants wrote (Docket #39 P2);

“The clerk also told me that Mr. Sheikh has never appeared on citation No.


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P a g e | 12

A156283 (the February 2012 citation), and that a bench warrant was

issued in the amount of$20,000.”

c. At the court hearing dated Aug 13, 2014, defendants stated (Transcript

P13); “Mr. Sheikh eventually appeared on that traffic citation and that

suspension was removed when he showed up in court.”

d. The letter from DMV dated May 6, 2014 (Docket #) stated,

“Since then, the DMV records show that you have cleared this FTA,

However, the DMV records show that you have failed to pay (“FTP”) the

fine for your August 8, 2011, Vehicle Code Violations.”

e. The letter from DMV dated April 25, 2014 (Docket #), stated;

Once the FTA and FTP are cleared with Stockton Superior Court, you will

need to contact Stockton Driver Safety Office at (209) 948-7715 to schedule

an interview to discuss the priority reexamination referral of 02/16/2012.

Part of that interview will involve a written law test, vision test and drive

test; However, these tests can’t be administered if FTA suspension remains

in effect.

29. Plaintiff sought clarification from defendants in his letter dated July 9, 2014

and inquired (Docket # 31-1; P4),

Did the defendants remove the alleged FTA or not?


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P a g e | 13

V. ARGUMENTS

a. The Rights involved in this Litigation are Significant

30. The driver's license is significant parts of the liberty and property protected by

the due process clause of the Fourteenth Amendment and may be abridged only

by constitutionally appropriate procedures. The status of a driver's license as a

right deserving of constitutional protections was first most clearly stated in

Wall v. King, 206 F.2d 878 (1st Cir., 1953):

We have no doubt that the freedom to make use of one's own property, here a motor vehicle, as a means of getting about from place to place, whether in pursuit of business or pleasure, is a “liberty” which under the Fourteenth Amendment cannot be denied or curtailed by a state without due process of law. 206 F.2d at 882

31. "The right to travel is a part of the `liberty' of which the citizen cannot be

deprived without due process of law under the Fifth Amendment," Kent v.

Dulles, 357 U.S. 116 (1958) . In Aptheker v. Secretary of State, 378 US 500

(1964), the Supreme Court struck down a federal statute forbidding members of

Communist organizations to obtain passports. Both the majority and dissenting

opinions affirmed the principle that the right to travel is an aspect of the liberty

guaranteed by the Due Process Clause. In Edwards v. California, 314 U.S. 160

(1941) invalidating a California law which impeded the free interstate passage of

the indigent, the Court based its reaffirmation of the federal right of interstate

travel upon the Commerce Clause.


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“It is also well settled in our decisions that the federal commerce power authorizes Congress to legislate for the protection of individuals from violations of civil rights that impinge on their free movement in interstate commerce.“ United States v. Guest, 383 U.S. 745 (1966).

32. The concept of liberty has been buttressed by the delineation of a separate and

independent constitutional right of interstate travel and free movement.

United States v. Guest, 383 U.S. 745 (1966): Shapiro v. Thompson, 394 U.S. 618

(1969). Unmentioned explicitly in the language of the Constitution, this right of

interstate travel and free movement is nevertheless fundamental and basic to

the Constitution. It is a separate and individual right, not simply an aspect of

the “liberty” guaranteed by the due process clause of the Fourteenth

Amendment.

33. In Shapiro, supra, the right of interstate travel was held so crucial that any

infringement upon it “must be judged by the stricter standard of whether it

promotes a compelling state interest,” A complete prohibition on interstate

travel is not necessary to the application of the “stricter standard” mentioned in

Shapiro. In his concurring opinion, Mr. Justice Stewart compared the right to

interstate travel to that of association, terming it “a virtually unconditional

right.”

34. Suspending plaintiff’s driving license merely for a perceived failure to appear

before a third party county court does not make our roads safer. Suspension of

driving license would only make it cumbersome and expensive for the plaintiff to


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travel to the court. DMV was unable to produce any court order that mandated

suspension of plaintiff’s driving license. The courts have adequate procedures

available to compel attendance of individuals in the court. Whether California’s

claim to collect money or fine from plaintiff is valid or not, it does not outweigh

plaintiff’s rights to property, liberty and interstate travel.

35. California has begun to issue driving licenses to illegal immigrants so that

they could legally drive. California determined that their interest in driving

licenses outweighed the State’s perceived interest in enforcing laws such as

Failure to Appear (before authorities) and Failure to Pay (fees and fines).

California legislated to issue driving licenses to illegal immigrants (or yet to be

United States Citizens) because today’s social and economic circumstances have

made driver's license a necessity.

In the public interest the State may make and enforce regulations reasonably

calculated to promote care on the part of all, residents and non-residents alike,

who use its highways. Hess v. Pawloski, 274 US 352 (1927); also Bell v Burson

36. "[T]he right of the States in this mode to impede or embarrass the constitutional

operations of that government, or the rights which its citizens hold under it, has

been uniformly denied." United States v. Guest, 383 U.S. 745 (1966). The

Arizona Supreme Court interpreted its act to require pre-suspension hearings to

determine reasonable possibility of a damage judgment in Schechter v.

Killingsworth, 93 Ariz. 273, 380 P.2d 136 (1963). Thus, since 1963 the Arizona


http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=661&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=1971159881&serialnum=1963123443&vr=2.0&fn=_top&sv=Full&tf=-1&pbc=8BDDECB2&rs=WLW14.01.


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Highway Department has been granting hearings before suspension to those

persons so requesting. California Supreme Court found it necessary to review its

act in order to make explicit the requirement that fault and potential liability

must be the basis of the department's decision to suspend a driver's license. Orr

v. Superior Court, 77 Cal. Rptr. 816, 454 P.2d 712 (1969). The administrative

action, based on a finding of potential culpability, would then be subject to later

court review. Petitioner seeks no more than this in the present case.

37. In Sniadach v. Family Finance Corp., 395 U.S. 337 (1969) and in Goldberg v.

Kelly, 397 U.S. 254 (1970) the Supreme Court found improper the withholding of

wages and welfare benefits pending subsequent due process review. Whether or

not Georgia's protection of a potential creditor's possible future claim is valid, it

does not outweigh the individual rights to property, liberty and interstate travel.

Sniadach v. Family Finance Corp., supra,

38. The lack of due process in plaintiff’s case is more flagrant; Plaintiff has

no opportunity for any hearing either before or after suspension of his driving

license. Plaintiff now asks that his right to drive a car, necessary to his essential

life activities, receive the same due process protections.

b. Plaintiff Continues to suffer irreparable harm

39. What possible good can result from depriving a man of use of his car, the means




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of his survival, when he has in no way shown as unfit driver2

Due to suspension of driving license, plaintiff has suffered tremendous hardship.

Plaintiff is unable to perform fundamental functions of life. Not only Plaintiff

but his family is strained for lack of plaintiff’s driving license. Plaintiff is unable

to drive to a grocery store or a restaurant to buy food & supplies. Plaintiff is

unable to take his child to school or for any recreation. Plaintiff is unable to keep

up medical appointments and has encountered tremendous difficulty in this

regard. All of this constitutes irreparable harm. Under such circumstances, the

United States Judges are authorized to restore plaintiff’s driving license. This

Court is humbly requested to restore plaintiff’s driving license (Preliminary

Injunction) so that he can undertake basic necessities of life.

.

c. The District Court ‘Erred’ by dismissing Plaintiff’s Complaint

For all the following reasons, this court is requested to reverse the dismissal of

this complaint and remand the matter for further proceedings.

40. Plaintiff has stated sufficient facts in his complaint. “A motion to dismiss for

1. 2 People from broad spectrum of life have driving license.

a. 16 years old, b. 80 years old,

c. healthy people, d. not so healthy people, e. disabled people,

All have driving license to perform their daily functions of life.


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failure to state a claim will be denied unless it appears that the plaintiff can

prove no set of facts which would entitle it to relief”. “Federal Rules of Civil

Procedure do not require a claimant to set out in detail the facts upon which he

bases his claim. To the contrary, all the Rules require is "a short and plain

statement of the claim" that will give the defendant fair notice of what the

plaintiff's claim is and the grounds upon which it rests.” Conley v Gibson, 355

US 41 (1957). All material allegations in the complaint will be taken as true and

construed in the light most favorable to the plaintiff. See NL Indus., Inc. v.

Kaplan, 792 F.2d 896, 898 (9th Cir.1986).” Embury v. King, 191 F.Supp.2d 1071,

(N.D.Cal.2001) affirmed 361 F.3d 562 (9th Cir. 2004).

41. The district court erred by “striking” First amended complaint as plaintiff added

sixth cause of violation of due process. The Supreme Court has directed federal

trial courts to read pro se papers liberally. Hughes v. Rowe, 449 U.S. 5 (1980)

(per curiam). It would be a good use of discretion to grant leave to file the

complaint. Previously in a separate litigation involving plaintiff, the District

Court granted plaintiff leave to file Amended complaint without the need of

filing a Motion for leave of the Court. See Rehan Sheikh v Cisco Systems, No: C-

07-00262 RMW. (N.D. Cal. Aug. 10, 2007).

42. Defendants’ state law claims to collect money or fees, enforce any such state law

are NOT civil actions within original Jurisdiction of the district court. Neither

the district Court had supplementary Jurisdiction, nor it exercised


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supplementary jurisdiction over state law claims within the scope of 28

U.S.C. § 1367. The Court did a reversible error to rule on such matters without

exercising jurisdiction.

43. Defendants submitted a disguised Motion for Summary Judgment before the

District Court. Defendants artfully labeled the Motion for Summary Judgment

FRCP (56) as Motion to Dismiss FRCP 12(b)(6). Defendants’ motivation for their

Motion to Dismiss is to avoid Court’s review on Plaintiff’s Complaint.

44. The Court discussed controversial issues outside the scope of pleadings without

regard to federal rules; only for this reason, the dismissal must be reversed.

a. Defendants pleaded several statues outside the scope of plaintiff’s

complaint. In its rulings, the Court engaged in a discussion on validity of

California Codes without giving any opportunity to plaintiff to argue his

Constitutional Rights.

b. The Court engaged in discussion dismissing the action against named

defendants without offering any opportunity to plaintiff.

c. Defendants submitted records and court took notice of record. The Court

engaged in discussion relevant to the record, outside the scope of

pleadings. Plaintiff did not have an opportunity to present his arguments.

45. One important purpose of the federal rules is to ensure predictable court

proceedings and preserve fairness. Compliance with the Federal Rules is a


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matter of paramount importance. In the hearing the Court offered its guidance

on the fundamental importance of the Federal Rules (Transcript P5).

46. “[Defendants Motion for Dismissal] although not formally denominated as a

request under FRCP (56), under Ninth Circuit precedent plaintiff’s discovery

Motion was sufficient to raise the issue of whether he should be permitted

additional discovery. Hancock v. Montgomery Ward Long Term Disability Trust,

787 F.2d 1302 (9th Cir.1986).” Garrett v. City of San Francisco, 818 F.2d 1515

(9th Cir. 1987).

47. “Where waivers of a rule are not granted with consistency and no explanation is

given for the disparity of treatment, a finding of denial of equal protection may

be appropriate. This rule alone would suffice to keep the plaintiff in court at this

time as against the defendants' FRCP 12(b)(6) motion to dismiss for failure to

state a claim upon which relief can be granted. Where, as in this case, the

plaintiff contends that the defendants' actions promoted no legitimate state

interest and were without a rational basis, the plaintiff is entitled to an

opportunity to present specific facts in support thereof..” Louis v. Supreme Court

of Nevada, 490 F.Supp. 1174, (D.C. Nevada, 1980).

48. If the decision of the court below is allowed to stand, petitioner will lose his

driver's license and the use of his car. Justice demands and the Due Process

mandates that dismissal of this case be reversed.


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d. The DMV’s Arbitrarily Demand for Plaintiff’s Driving, Written &

Medical tests constitutes violation of Equal Protection Clause

49. Defendants arbitrarily demand plaintiff’s driving tests, written tests and

unspecified Medical tests. Defendants ‘label’ all of those tests as

‘Reexamination’.

50. Defendants demand that before taking Reexamination, plaintiff remove the

alleged ‘Failure to Appear’. Then defendants refuse to provide any hearing that

would remove that alleged ‘Failure to Appear’.

51. Defendants claim their ‘ability’ to deny an individual’s driving license even after

completing such a ‘reexamination’. Defendants stated in their brief (P 8);

If after completing the reexamination the DMV does not remove the

suspension form plaintiff’s license, he may seek a judicial review.

52. Defendants’ excuses for arbitrarily demanding plaintiff’s written, driving and

medical tests remain unsettled. Police issued traffic citation to plaintiff and

somehow police requested3

3 The defendants mention traffic citation issued by police as justification for police’s request for

reexamination. In their legal brief, defendants stated;

the DMV for plaintiff’s reexamination. Only

justification for reexamination is that because police said so. Police issues

millions of citations every year to California drivers, the defendants do not

demand all drivers to take driving and medical tests. Here police issued a traffic

This “police report” is in reference to the notice of priority reexamination that

plaintiff received because of numerous traffic violations.[February 16, 2012]”


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citation to plaintiff and defendants arbitrarily demands plaintiff’s driving and

medical tests. Police does not refer all drivers for such a ‘reexamination’ when

police issues traffic citations. Police does not refer drivers for ‘reexamination’

even when drivers are involved in traffic accidents.

53. The defendants have refused a hearing that would determine police’s interest for

requesting plaintiff’s reexamination. Defendants have not demonstrated how

plaintiff’s reexamination would make highways safer while it does not demand

such reexamination from individuals who are actually involved in auto

accidents. The city police that issued a ‘request’ for plaintiff’s reexamination, do

not respond to traffic accidents. If by chance, police officers are present at the

scene of an accident, they do not even issue a report.

54. Requiring driving and medical tests as a condition of issuing driving licensing is

at one end of the scale of the safety schemes. Requiring driving and medical tests

only from ‘arbitrarily identified’ individuals as a precondition of license renewal,

is at the other end of the scale. The federal courts are concerned when such

requirements are not applied to all applicants.

A state cannot exclude a person from [driving license] in a manner or for

reasons that contravene the due process or equal protection clauses.

Schware v. Board of Bar Examiners, 353 U.S. 232 (1957).

55. In the oral arguments, the Court stressed the need of a hearing that would

establish the justification for such a Reexamination.

The Court: As to the reexamination what opportunity, if any, does a driver have


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to contest the need for the reexamination? Office of Attorney General: There’s -- from the statutory framework that I’ve

reviewed, Your Honor, none. The – The Court: “But when it comes to the reexaminations, you know, if I am issued this notice for a reexamination -- and I’m making this up, right? But in a

hypothetical case, if I’m issued it because, you know, someone doesn’t like the way I’m dressed, right, I shouldn’t have to take that reexamination. It seems to me that I should be able to get to a hearing officer, even if it’s just one of those

telephone things the DMV does in some contexts, to say hey, this was given to me not because of anything I was doing as a driver that indicates my driving skills need to be tested, but because this person didn’t like the way I was

dressed, didn’t like the political slogan on my t-shirt. Doesn’t due process require that I have an opportunity to make that argument and try to convince someone that I shouldn’t have to retake the test?”

Office of Attorney General: Potentially under the facts that you just -- without conceding anything, Your Honor -- under the facts that you presented.

56. Plaintiff contested defendants’ arbitrary demand for re-examination before DMV

on or around March 26, 2012 and requested an administrative hearing. The

DMV denied an administrative hearing and demanded that plaintiff submit to

re-examination as a pre-condition for his request for administrative hearing.

57. Defendants’ demand for plaintiff’s reexamination is based on their supposition

that somehow plaintiff cannot drive a car. Rather than proving their claim, for

their convenience, defendants rely on their supposition that plaintiff cannot

drive a car.

a. Due Process Clause of the Constitution mandates a similar result here.


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[The defendants] insists on presuming rather than proving [Plaintiff’s]

unfitness solely because it is more convenient to presume than to prove.”

Reno v Flores, 507 U.S. 292 (1993).

b. The Supreme Court has unambiguously clarified such issue in cases; Bell

v Burson, 402 U.S. 535 (1971) and Stanely v Illinois, 405 US 645 (1972).

The State could not, while purporting to be concerned with fault in

suspending a driver's license, deprive a citizen of his license without a

hearing that would assess fault. Absent fault, the State's declared interest

was so attenuated that administrative convenience was insufficient to excuse

a hearing where evidence of fault could be considered.

58. Plaintiff requests this Court for a Declaratory Relief that the DMV’s arbitrary

demand for plaintiff’s written, driving and medical tests constituted violation of

Due Process Clause and constituted violation of Equal Protection Clause.

e. Suspension of Plaintiff’s Driving License without Hearing

constituted Violation of the Due Process Clause

59. The DMV sent an Order of Suspension and deprived plaintiff of his driving

license without any pre deprivation hearing and it continues to deny all request

for any post deprivation hearing. At the time DMV suspended plaintiff’s driving

license, there was no court order that mandated such suspension.

60. The fundamental requirement of due process is the opportunity to be heard and

it is an "opportunity which must be granted at a meaningful time and in a

meaningful manner." Armstrong v. Manzo, 380 US 545 (1965). At the time


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defendants suspended plaintiff’s driving license, there was no emergency that

mandated suspension of plaintiff’s driving license. Plaintiff never had an

opportunity to appear before any hearing officer to restore his driving license.

"[T]he Due Process Clause of the Fourteenth Amendment was intended to

prevent government `from abusing [its] power, or employing it as an

instrument of oppression."

Collins v. City of Harker Heights, 503 U.S. 115 (1992).

61. Such a suspension immediately deprived plaintiff of his driving license in

violation of Due Process clause of the Fourteenth Amendment. The Ninth Circuit

Court of Appeals has previously held that;

“Temporary, non final deprivation of property is nonetheless “deprivation”

subject to due process requirements of Fourteenth Amendment”.

Perkins v. City of West Covina, 113 F.3d 1004 (9th Cir. 1997)

62. In order to avoid erroneous deprivation, the Ninth Circuit Court of Appeals

issued strict guidelines and stated;

“to satisfy procedural due process, a deprivation of life, liberty, or property

must be "preceded by notice and opportunity for hearing appropriate to

the nature of the case." Cleveland Board of Education v. Loudermill, 470

U.S. 532, (1985) ; In re Yochum, 89 F. 3d 661 (9th Cir. 1996).

63. Plaintiff requests this Court for a Declaratory Relief that suspension of

plaintiff’s driving license without pre deprivation and without post deprivation

hearing constituted violation of the Due Process Clause.


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VI. CONCLUSION

64. The DMV sent a 30 day notice to suspend plaintiff driving license for an alleged

Failure to Appear (FTA). Plaintiff timely attended the County Court but DMV

continued to suspend plaintiff’s driving license. Despite plaintiff submitted a

proof of his attendance at the county court, the DMV continued to allege an FTA.

The DMV never offered any process to challenge suspension of driving license.

65. Plaintiff filed a complaint with the District Court. The Court dismissed

plaintiff’s complaint. In the district court proceedings, the court recognized the

importance of driving license but the court did not analyze if the DMV has an

obligation to provide a hearing on suspension of plaintiff’s driving license.

66. A short and plain statement of plaintiff’s claim is ‘chilling’:

The Department of Motor Vehicles (DMV) suspended plaintiff’s driving license

without any court order and without assessing plaintiff’s fault, the DMV

continues to deny any hearing that would assess plaintiff’s fault, and despite

plaintiff’s enormous efforts, DMV continues to suspend plaintiff’ driving license

for years. Plaintiff has no opportunity to restore his driving license.

67. The United States Courts have recognized peoples’ fundamental Rights in their

driving license and have mandated Constitutional Due Process for deprivation of

driving license. Respectfully, Plaintiff asks the Ninth Circuit Court of Appeals to

grant such protection to plaintiff’s driving license.


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VII. PRAYER

68. Plaintiff respectfully Prays before the Ninth Circuit Court of Appeals that;

a. The Court mandate the DMV to offer a hearing on suspension of plaintiff’s

driving license

b. The Court issue a Preliminary Injunction to restore plaintiff’s driving

license

c. The Court remand this matter to the district court for further proceedings.

Respectfully Submitted;

/s/ Rehan Sheikh

---------------------------------- Date: January 2, 2015 Rehan Sheikh Plaintiff


california continues to suspend drivng license without due process -brief filed in the the ninth...

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