petition.farzana sheikh v medical board of california ninth circuit court

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FARZANA SHEIKH, M.D., In Pro Per P.O. Box 869 French Camp, CA 95231 Telephone: (209) 982 9039 Prepared by; Rehan Sheikh, [email protected]

THE UNITED STATES COURT OF APPEALS

THE NINTH CIRCUIT COURT OF APPEALS (SAN FRANCISCO DIVISION)

FARZANA SHEIKH, M.D. Plaintiff, v. MEDICAL BOARD OF CALIFORNIA Defendant and STATE OF CALIFORNIA Defendant

CA9: 10 - 17098 PETITION (Code Civ. Proc. § 1094.5) Seeking Writ of the Court for Approval of her Application for Physicians and Surgeons License REQUEST(S) FOR DECLARATORY RELIEF (42 U.S.C. § 1983) Defendants Violated Plaintiff‟s Right to Due Process by Removing her from Residency Training (Aug 2008) Bus. & Prof. Code § 2227 is Inconsistent with the Eighth Amendment of the Constitution Bus. & Prof. Code § 2335 Violates Physicians Right To Due Process

Case: 10-17098 02/15/2011 Page: 1 of 65 ID: 7650341 DktEntry: 15

mailto:[email protected]

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Petition and Request(s) for Declaratory Relief

Farzana Sheikh, M.D. v. Medical Board of California et al (Ninth Circuit Court of Appeals)

Page | ii

Table of Contents I. INTORDUCTION..................................................................................................................... 1

II. FACTUAL BACKGROUND ................................................................................................ 3

III. DEFNDANTS VIOLATED DR. SHEIKH‟S RIGHT TO DUE PROCESS BY IMPROPERLY REMOVING HER FROM RESIDENCY TRAINING (AUG 2008)........................ 4

A. The Board Improperly Removed Dr. Sheikh from Residency Training without an Administrative Hearing ................................................................................................................ 4

B. The Board‟s Notice of Removal was Inadequate................................................................. 6

C. The Board Improperly Denied Multiple Requests for a Post Deprivation Hearing............... 6

D. The Fourteenth Amendment is meant to Protect from Unfair Conviction ............................ 7

IV. COMPOSITION OF 21ST

CENTURY MEDICAL BOARD OF CALIFORNIA AND MODERN ERA OF DISCIPLINE OF PHYSICIANS ...................................................................... 8

V. PROCEEDINGS WITH THE MEDICAL BOARD OF CALIFORNIA ............................... 11

A. The Board Abused its Authority by Denying Dr. Sheikh‟s License until Finding her Guilty . ......................................................................................................................................... 13

B. The Original Notice of Denial of Dr. Sheikh‟s Licensure was impermissibly Vague ......... 13

C. The Board Published Disciplinary Accusations without Any Ascertainable Standard ....... 14

D. The Board Abused its Authority by Denying Hearing on Demurrer .................................. 15

E. The Board Abused its Authority by Shifting Burden of Proof ........................................... 15

F. The Evidentiary Standard is Clear and Convincing Proof ..................................................... 16


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Page | iii

G. The Medical Board Abused the Process by Changing Theory of Dishonesty to Unprofessional Conduct ............................................................................................................. 17

H. The Board Failed to Perform Mandatory Duty of Due Diligence ...................................... 18

I. The Board Abused its Authority by Selective Enforcement .................................................. 19

J. The Board Abused its Authority by Improperly Denying Dr. Sheikh‟s Discovery Motion (Presented Before the Board at San Diego California Oct 30, 2009)............................................ 19

K. The Board adopted Proposed Decision in Violation of State Statues ................................. 20

L. The Board Failed to Bridge Analytical Gap between Evidence and Conclusion ................ 20

M. The Board Must Review Complete Records including all Application Forms ................... 21

VI. THE ADMINISTRATIVE HEARING PROCESS WAS NOT UNBIASED ........................ 23

A. The Hearing Officer Denied Dr. Sheikh‟s Request for a Three Day Trial .......................... 23

B. The Hearing Officer Denied Dr. Sheikh‟s Request for Continuance .................................. 23

C. Defendants Arbitrarily and Intermittently Denied Dr. Sheikh‟s Right to be Represented by a non-Attorney in an Administrative Proceedings .......................................................................... 24

D. The Hearing Officer Denied Hearing on Dr. Sheikh‟s Objections & Motions ................... 26

E. The Hearing Officer did not Review Any of the Records that Dr. Sheikh Submitted ......... 27

VII. PROCEEDINGS WITH THE DISTRICT COURT .............................................................. 27

A. Summary Dismissal for Failure to State a Claim did not Comply with FRCP 12 .............. 28

B. Summary Dismissal for Failure to State a Claim did not Comply with FRCP 56 .............. 31

C. The District Court Erred by Denying Plaintiff‟s Motion to Compel Discovery as “Moot”. 31


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Page | iv

D. The District Court Erred by „Construing‟ Dr. Sheikh‟s Petition as Complaint ................... 32

E. The District Court Erred by not Complying with FRCP 72 ............................................... 33

F. The District Court Erred by Denying Motion for Reconsideration (FRCP 60 & FRCP 1) ..... 34

G. The District Court Misunderstood its Local Rules ............................................................ 34

H. The District Court Erred by Terminating Dr. Sheikh‟s efiling Access ............................... 35

I. The District Court did not apply Appropriate Standard for Review of Petition ..................... 36

VIII. THE DOCTRINE OF DISCRETIONARY AND EXCESSIVE PUNISHMENT IS INCONSISTENT WITH EIGHTH AMENDMENT OF THE CONSTITUTION (BUS. & PROF. CODE § 2227) ............................................................................................................................... 36

IX. CALIFORNIA BUS. & PROF. CODE § 2335 IS UNCONSTITUTIONAL ......................... 39

A. Proceedings with the District Court on Request for Declaratory Relief ............................. 39

B. California State Constitution Explicitly States Doctrine of Separation of Power ............... 41

C. The Process of Discipline of Physicians and Doctrine of Separation of Power .................. 41

D. The Role and Function of the Board have Changed in the Recent Decades ....................... 42

E. The Process of Discipline of Physicians Undermines Doctrine of Internal Separation of Power ......................................................................................................................................... 43

F. The Farmers Relied upon Doctrine of Separation of Power to Protect Liberty ...................... 43

G. Legislative History of Senate Bill 916 .............................................................................. 44

H. The Independence of the Board is Reasonably Undermined Subsequent to Enactment of Bus. & Prof. Code § 2335 ........................................................................................................... 45

I. Presumption of Undue Professional Influence is without any Factual Justification ............... 46


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Page | v

J. The Urgency to Discipline Physicians is Achieved by Unintentionally Compromising Accuracy of the Disciplinary Process .......................................................................................... 47

K. Temporary Deprivation or Interim Suspension of a Professional License Must Conform to Procedural Due Process .............................................................................................................. 48

L. California Bus. & Prof. Code § 2335 Violates Physicians Right to Due Process ............... 50

M. Conclusion ....................................................................................................................... 51

X. PRYAYER .......................................................................................................................... 52


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Page | vi

TABLE OF AUTHORITIES

FEDERAL CASES

AAPS v Texas Medical Board, (5th Cir. 2010) ......................................................................................................................... 11

Bell v. Burson, 402 U.S. 535, (1971) ............................................................................................................... 49

Board of Regents v. Roth, 408 U.S. 564 (1972) .................................................................................................................. 5

Boumediene v. Bush, 128 S. Ct. 2229 (2008) ............................................................................................................. 43

Clements v. Airport Authority of Washoe County, 69 F.3d 321 (9th Cir. 1995)...................................................................................................... 27

Cleveland Board of Education v. Loudermill, 470 U.S. 532, (1985) ................................................................................................................. 5

Coker v. Georgia, 433 U.S. 584 (1977) ................................................................................................................ 36

Collins v. City of Harker Heights, 503 U.S. 115 (1992) .................................................................................................................. 7

Conley v Gibson, 355 US 41 (1957) .................................................................................................................... 28

Davidson v. Cannon, 474 U.S. 344 (1986) ................................................................................................................. 7

DeLaCruz v. Tormey, 582 F.2d 45 (9th Cir. 1978)...................................................................................................... 30

Doe v. Bolton, 410 U.S. 179 (1973) .................................................................................................................. 5


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Page | vii

Embury v. King, 191 F.Supp.2d 1071, (N.D.Cal.2001) affirmed 361 F.3d 562 (9th Cir. 2004) ........................... 29

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ................................................................................................................ 41

Garrett v. City of San Francisco, 818 F.2d 1515 (9th Cir. 1987) ............................................................................................ 30, 31

Giaccio v. Pennsylvania, 382 U.S. 399 (1966) ................................................................................................................ 49

Gibson v Office of State Attorney General, Docket No. 07-56124 (9th Cir. 2009) ...................................................................................... 26

Grolier Inc. v. FTC, 615 F. 2d 1215 (9th Cir. 1980) ................................................................................................. 43

Hall v. Hawaii, 791 F.2d 759 (9th Cir.1986)..................................................................................................... 31

Hancock v. Montgomery Ward Long Term Disability Trust, 787 F.2d 1302 (9th Cir.1986) ................................................................................................... 30

Hickey v. District of Columbia Court of Appeals, 457 F.Supp. 584 (D.C.D.C.1978) ............................................................................................. 30

Honey v. Distelrath, 195 F. 3d 531 (9th Cir. 1999) ................................................................................................... 33

In re Yochum, 89 F. 3d 661 (9th Cir. 1996)....................................................................................................... 5

Larkin v Withrow, 386 F.Supp 796 (1973) ........................................................................................................ 5, 41

Louis v. Supreme Court of Nevada, 490 F.Supp. 1174, (D.C. Nevada, 1980)............................................................................. 22, 30


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Page | viii

Lynn v. Regents of University of California, 656 F.2d 1337 (9th Cir. 1991) .................................................................................................. 29

Marshall v. Jerrico, 446 U.S. 238, (1980) ............................................................................................................... 27

Morgan v United States, 304 U.S. 1 (1938) .................................................................................................................... 39

Morgan v. United States, 298 U.S. 468 (1936) .......................................................................................................... 39, 50

Morrissey v. Brewer, 408 U.S. 471 (1972) ................................................................................................................ 41

Perkins v. City of West Covina, 113 F.3d 1004 (9th Cir. 1997) .................................................................................................. 49

Reno v Flores, 507 U.S. 292 (1993) ................................................................................................................ 49

Roberts v. Corrothers, 812 F.2d 1173, (9th Cir.1987) .................................................................................................. 29

Schaffer v. Weast, 546 US 49 (2005) .................................................................................................................... 16

Schware v. Board of Bar Examiners, 353 U.S. 232 (1957) ................................................................................................................ 22

Suarez v. Weaver, 484 F.2d 678 (7th Cir. 1973) ...................................................................................................... 5

Sutton v. Lionel, 585 F.2d 400 (9th Cir. 1978) .................................................................................................... 22

U.S. v. Jannotti, 673 F.2d 578 (3rd Cir. 1982) ..................................................................................................... 7


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Page | ix

United States v. Morgan, 313 U.S. 409 (1941) ................................................................................................................ 41

Wieman v. Updegraff, 344 U.S. 183 (1952) .................................................................................................................. 5

Wilwording v. Swenson, 502 F.2d 844, (8th Cir. 1974) ..................................................................................................... 7

Wisconsin v. Constantineau, 400 U. S. 433 (1971) ................................................................................................................. 5

Withrow v Larkin 421 U.S. 35 (1975) ............................................................................................................ 41, 42

Zinermon v. Burch, 494 U.S. 113 (1990) .................................................................................................................. 6

CALIFORNIA STATE CASES

Adamson v. People of State of California, 332 U.S. 46 (1947) .................................................................................................................... 7

Bekiaris v. Board of Education of City of Modesto, 6 Cal.3d 575 (1972) ................................................................................................................. 12

Bixby v. Pierno, 4 Cal.3d 130 (1971) ................................................................................................................. 12

Borrow v Department of Inv. 15 CA3d 531, 92 CR 525 (1971) ............................................................................................. 24

Brown v. City of Los Angeles, 102 CA4th 155 (2002) ............................................................................................................. 16

Cooper v. State Bd. of Medical Examiners, 217 P. 2d 630 (1950) ......................................................................................................... 49, 50


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Dresser v. Board of Medical Quality Assurance, 130 Cal.App.3d 506 (1982)...................................................................................................... 23

Drummey v. State Bd. of Funeral Directors, 13 Cal.2d 75, 85 (1939) .......................................................................................................... 12

Ettinger v Board of Medical Quality Assurance 135 CA3d 853 (1982) .............................................................................................................. 17

Furman v. State Bar 12 C2d 212, 83 P2d 12 (1938) ................................................................................................. 16

Gray v. Superior Court, 23 Cal.Rptr.3d 50 (2005) ......................................................................................................... 17

Haas v County of San Bernardino, 119 Cal.Rptr.2d 341 (2002) ..................................................................................................... 24

Hughes v Board of Architectural Examiners 17 C4th 763, (1998) ................................................................................................................ 16

Kattie v Superior Court, 130 Cal.App.4th 586 (2005) .................................................................................................... 17

Landau v. Medical Board of California, 71 Cal.Rptr.2d 54 (1998) ......................................................................................................... 46

Mann v DMV 76 CA4th 312 (1999) ............................................................................................................... 16

Mata v. City of Los Angeles, 20 Cal.App.4th 141 (1993) ...................................................................................................... 32

Medical Bd. of California v. Superior Court, 4 Cal.Rptr.3d 403 (2003) ........................................................................................................ 17

Neighbors of Cavitt Ranch v. County of Placer, 131 Cal.Rptr.2d 379 (2003) ..................................................................................................... 12


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Parker v City of Fountain Valley, 127 CA3d 99 (1981) ................................................................................................................ 16

Pipkin v Board of Supervisors, 82 CA3d 652 (1978) ................................................................................................................ 16

Silva v. Superior Court, 17 Cal.Rptr.2d 577 (1993) ....................................................................................................... 17

Topanga Assn. for a Scenic Community v. County of Los Angeles, 11 Cal.3d 506 (1974) ............................................................................................................... 20

Wheeler v. State Board of Forestry, 144 Cal. App. 3d 522 (1983) ......................................................................................... 14, 18, 20

Yaqub v Salinas Valley Memorial Healthcare System ................................................................... 24

OTHER STATE CASES

Batty v. Arizona State Dental Bd., 57 Ariz. 239, 112 P.2d 870 (1941) ........................................................................................... 22

Schireson v. Walsh, 354 Ill. 40, 187 N.E. 921 (1933) .............................................................................................. 16

PLEADINGS

Amicus Brief of Prof. Michael Asimow, State Bar of California v. Benninghoff ..................................................................................... 25

MBC‟s Brief Landau v. Medical Board of California, 71 Cal.Rptr.2d 54 (1998) ......................................................................................................... 36


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Page | xii

OTHER AUTHORITIES

James Madison; The Federalist Number 48, (1788) ....................................................................... 43

Laurence H. Tribe, Department of Justice; (Access to Justice Ninth Circuit Judicial Conference Aug 17, 2010) ........................................ 35

Licensing Manager, Medical Board of California; Licensing Outreach Workshop at Oakland California (Oct 8, 2009) ......................................... 15

Quarterly Newsletter of Medical Board of California (October 2010) .............................................. 9

Quarterly Newsletter of Medical Board of California, April 2009 .................................................. 50

Roger C. Cramton; A Comment on Trial-Type Hearing in Nuclear Power Plant Sitting, 58 Va. L. Rev., 585 (1972) ...................................................................................................... 47

State Medical Boards and the Politics of Public Protection (Author Carl Ameringer; ISBN; 08018-5987-5) .............................................................................................................. 42

Thomas Paine Dissertations on First Principles of Government (1790) ........................................................... 48

LEGISLATIVE MATERIAL

Senate Bill 609 .............................................................................................................................. 45

Senate Bill 916 ................................................................................................................... 43, 46, 48

CALIFORNIA STATE STATUE

Bus. & Prof. Code § 2066 ................................................................................................................ 4

Bus. & Prof. Code § 2224 ........................................................................................................ 19, 51

Bus. & Prof. Code § 2227 .............................................................................................................. 36

Bus. & Prof. Code § 2266 .............................................................................................................. 10

Bus. & Prof. Code § 2335 ....................................................................................................... passim

Code Civ. Proc. § 1085 .................................................................................................................. 39

Code Civ. Proc. § 1094.5 ................................................................................................ 1, 20, 31, 32


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Gov. Code § 11503.................................................................................................................. 14, 42

Gov. Code § 11509........................................................................................................................ 25

Gov. Code § 11524........................................................................................................................ 23

Gov. Code §11517......................................................................................................................... 40

FEDERAL STATUTES

28 U.S.C. § 1291 ............................................................................................................................. 3

28 U.S.C. § 455 ............................................................................................................................. 34

42 U.S.C. § 1983 ................................................................................................................... 1, 2, 32

RULES

FRCP 1 ......................................................................................................................................... 34

FRCP 12(b)(6)........................................................................................................................ passim

FRCP 12(d) ................................................................................................................................... 30

FRCP 56 (f) ................................................................................................................................... 30

FRCP 60(b)(1)............................................................................................................................... 33

Rule 56 .......................................................................................................................................... 30

Rule 56(f) ...................................................................................................................................... 31

CONSTITUTION OF THE STATE OF CALIFORNIA

Article 3 § 3 .................................................................................................................................. 40

Article 3 § 3.5 ............................................................................................................................... 19

CONSTITUTION OF THE UNITED STATES

Eighth Amendment ..............................................................................................................2, 37, 51

Fifth Amendment .......................................................................................................................... 10

Fourteenth Amendment ........................................................................................................7, 22, 49


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Page | 1

I. INTORDUCTION

1. Plaintiff1 Farzana Sheikh

2, M.D. hereby respectfully comes before the Ninth Circuit Court of

Appeals and submits her Petition seeking Writ of the Court for approval of her application for

Physicians and Surgeons license pending with the State Medical Board since 2007.

2. Denial of Dr. Sheikh‟s application for license by defendants is arbitrary and capricious; findings

are not supported by evidence and conclusion is not supported by the findings. The Board

abused its discretion by denying Dr. Sheikh‟s application for license.

3. Dr. Sheikh also Requests a Declaratory Relief that Bus. & Prof. Code § 2335 violates

physician‟s Constitutional right to Due Process 42 U.S.C. § 1983.

4. Dr. Sheikh submitted a Petition with Eastern District of California (Code Civ. Proc. § 1094.5)

for review of final decision of the Board denying her application for License. Dr. Sheikh also

submitted her Request for a Declaratory Relief that Bus. & Prof. Code § 2335 violates

physician‟s Constitutional right to Due Process 42 U.S.C. § 1983.

5. The District Court summarily dismissed Dr. Sheikh‟s Petition and Dr. Sheikh‟s Request for

Declaratory Relief without a merit review pursuant to defendants Motion for Dismissal for

failure to State a claim FRCP 12(b)(6).

6. Denial of Dr. Sheikh‟s Petition with the District Court was arbitrary and capricious. While

granting defendants Motion for dismissal of Dr. Sheikh‟s Petition for failure to state a claim, the

District Court did not consider the opposition submitted by Dr. Sheikh. The District Court did

not rely on appropriate standard for review of the Petition on the fundamental rights. The

District Court erred by primarily focusing on its Local Rules without regard to Federal Statues

or Federal Rules.

1 The terms Plaintiff and Petitioner may have been interchanging in the Motion.

2 Petitioner Farzana Sheikh, M.D. is hereby referred as Dr. Sheikh for clarification.


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7. Dr. Sheikh will present factual and legal arguments and she will seek relief from the Ninth

Circuit Court of Appeals both for approval of her application for license and a Declaratory

Relief that Bus. & Prof. Code § 2335 violates physician‟s Constitutional right to Due Process

(42 U.S.C. § 1983). Dr. Sheikh will also present factual arguments that Bus. & Prof. Code §

2227 is inconsistent with the Eighth Amendment of the Constitution.

8. Dr. Sheikh submitted a request for Investigation with the Office of State Attorney General in

January 2009 after denial of her application for license by defendants. The office of State

Attorney General did not agree to undertake investigation and wrote, “While the Attorney

General represents state departments in legal matters, he does not seek to impose his own policy

judgments or control the administration of the business of his client agencies (Plaintiff‟s Motion

for Injunctive Relief; Exhibit A).

9. Dr. Sheikh also submitted a confidential complaint against defendants with the Equal

Employment Opportunity Commission (EEOC) alleging violations of her Civil and

Constitutional Rights.

10. Dr. Sheikh also submitted a Request for Investigations with the Office of Administrative

Hearings (Presiding Administrative Law Judge) on or around Oct 29, 2009.

11. The Members of the Medical Board reviewed some of the records that were presented before

them and requested an investigation on „Business Practices‟ of the Medical Board.

12. Initially the Director of Graduate Medical Education and the Residency Program Director at

San Joaquin General Hospital (SJGH) undertook an investigation after denial of Dr. Sheikh‟s

license by the Board in November 2007. That investigation concluded that Dr. Sheikh‟s

Residency Program in Texas provided incorrect information to the Board that resulted in denial

of her application.

13. A primary theme in Dr. Sheikh‟s Petition before this Court is that all relevant records must be

considered by the Board before initiating and during a Disciplinary Action. The records must be


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made available to the physician who is being disciplined so that the physician can present

exculpatory evidence. The defendants affirm that they well understand Dr. Sheikh‟s request.

Defendants stated; “The issue is documents. I keep hearing. “We want documents. We want

documents”. Transcripts of Administrative Hearing (Medical Board v. Farzana Sheikh, M.D.)

on August 12, 2009 at page 34.

14. A primary theme for seeking a Declaratory Relief that the Bus. & Prof. Code § 2335 is

unconstitutional; is that members of the Board who are assumed to be “Independent Decision

Makers”, must be allowed to review records before proposing any disciplinary decisions.

15. Dr Sheikh also submitted a Motion for Injunctive Relief before the Ninth Circuit Court of

Appeals with additional arguments. That Motion was summarily denied by this Court without

an opinion. Dr. Sheikh requests that the Discriminatory motive of denial of her application for

license may not be disintegrated from the arguments submitted in this petition. Unless she is

successful in securing relief from this Court, the Court is requested to consider arguments

presented in her Motion for Injunctive Relief.

16. The Ninth Circuit Court of Appeals has jurisdiction on final decision of the District Court

pursuant to 28 U.S.C. § 1291.

II. FACTUAL BACKGROUND

17. Dr. Sheikh incorporates the records submitted by the parties with the District Court below,

including but not limited to, the following documents;

a. Request for Investigation with the office of State Attorney General.

b. Dr. Sheikh‟s Request for Admission on license

c. Dr. Sheikh‟s Request for Admission on Constitutionality of Bus. & Prof. Code § 2335.

d. Notice to Defense / Demurrer on Statement of Issues (Disciplinary accusations).


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III. DEFNDANTS VIOLATED DR. SHEIKH‟S RIGHT TO DUE PROCESS BY IMPROPERLY REMOVING HER FROM RESIDENCY TRAINING (AUG 2008)

18. Dr. Sheikh Requests a Declaratory Relief from the Ninth Circuit Court of Appeals that

defendants negligently and intentionally violated Dr. Sheikh‟s Right to Due Process by

removing her from her Residency Training via a letter dated August 8, 2008. Dr. Sheikh was

scheduled to complete her three year residency training on August 24, 2008.

A. The Board Improperly Removed Dr. Sheikh from Residency Training without an Administrative Hearing

19. Dr. Sheikh applied for a training license (referred as Postgraduate Training Authorization Letter -PTAL)

in 2002 and after meeting extensive requirements of the Medical Board, received approval during 2004.

The training license is deemed valid until completion of Residency Training with an approved Residency

Program in the State of California.

20. Dr. Sheikh trained for one year with a Family Medicine Residency Program in Texas and then she

transferred to the Family Medicine Residency Program at San Joaquin General Hospital (SJGH) in

Stockton California. Dr. Sheikh resumed her Residency Training at SJGH on or around July 1, 2006 with

an expected Residency Completion date of on or around August 24, 2008.

21. Though Dr. Sheikh already had been granted PTAL (training license until she completes her

residency training) by the Board, for sake of clarification, she contacted the Board on phone.

Pursuant to her discussion with an investigator of the Board, the Board sent her a completed

form for verification with a residency completion date of August 24, 2008. Dr. Sheikh signed

and mailed the form to the Board. The form was received and stamped by the Board on August

6, 2006.

22. During November 2007 when the Board did not approve Dr. Sheikh‟s application for license,

the Residency Program reconfirmed with the Board that Sheikh is scheduled to graduate on

August 24, 2008.

23. The Board again wrote a letter to Dr. Sheikh‟s (dated May 8, 2008) to confirm that Dr. Sheikh‟s

scheduled Residency completion date will be August 24, 2008.


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24. Nonetheless, the Board wrote a letter (dated August 8, 2008) to Dr. Sheikh‟s Family Medicine

Residency Program at SJGH instructing the Program to immediately remove Dr. Sheikh from

her Residency training. The Board took that action against Dr. Sheikh without any complaint

and without any pre-deprivation hearing. The Board cited California Bus. & Prof. Code § 2066

for its improper action of removing Dr. Sheikh from her residency training.

25. On the instructions of the Medical Board of California, Dr. Sheikh was removed from

Residency Training on August 13, 2008 (Dr. Sheikh and Residency Program received letter on

August 13, 2008). There was no Emergency or State interest at stake for removing Dr. Sheikh

from her three year residency training.

26. Dr. Sheikh Motion before an ALJ stated; (August 12, 2009 on page 3); Clear and convincing

standard of proof and due process requirements apply in the case of an interim license

suspension for a health care professional, even when the processional is accused of a criminal

offense. (Gray v. Superior Court, 23 Cal.Rptr.3d 50 (2005)).

27. “Procedural due process is required in those instances where a person stands to see significant

interference with his property rights or his liberty. Board of Regents v. Roth, 408 U.S. 564

(1972) . In our view, the interference with a physician's ability to practice his profession

qualifies as an interference with a property right. It is certainly "a sufficiently direct threat of

personal detriment" Doe v. Bolton, 410 U.S. 179 (1973)”

“The suspension of his license to practice medicine, as the result of charges of improper

conduct, presumptively has a serious adverse effect on the physician's reputation. Thus, it is

clear that the plaintiff's liberty is also at stake. 408 U.S. at 573, 92 S.Ct. 2701. "There is little

doubt but that a person's interest in his reputation is sufficient to trigger procedural due process

protection." Suarez v. Weaver, 484 F.2d 678 (7th Cir. 1973). See also Wisconsin v.

Constantineau, 400 U. S. 433 (1971) ; and Wieman v. Updegraff, 344 U.S. 183 (1952)”; Larkin

v Withrow, 386 F.Supp 796 (1973).


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28. The Ninth Circuit Court of Appeals has held that “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).

B. The Board‟s Notice of Removal was Inadequate

29. The letter from the Board dated August 8, 2008 was an inadequate notice as it did not inform

Dr. Sheikh of her right to appeal the adverse decision of the Medical Board. Dr. Sheikh was not

informed of any process that she could follow to restore her clinical privileges and timely

complete her residency training.

30. The letter from the Board dated August 8, 2008 was impressible abuse of authority of a lower

level investigator of the Board. Further, investigator was not trained in law and was not

authorized to construe the statues.

C. The Board Improperly Denied Multiple Requests for a Post Deprivation Hearing

31. Following the revocation of her clinical privileges, Dr. Sheikh‟s legal counsel wrote (Aug 18,

2008) that the Board misconstrued the statue. Dr. Sheikh legal counsel also requested the Board

to provide an administrative hearing so that Dr. Sheikh can complete her residency training. The

Board did not respond to that letter.

32. Dr. Sheikh again wrote a letter to the Board (dated Jan 7, 2009) requesting an administrative

hearing. The Board did not agree for Post deprivation hearing.

33. Because of defendants‟ action of removing Dr. Sheikh form her Residency training, 1)

deprivation of liberty was predictable, 2) the pre-deprivation hearing process was not

impossible and 3) the deprivation was the result of an official's "abuse of his position" and

therefore was not "random and unauthorized. Zinermon v. Burch, 494 U.S. 113 (1990);

discussed in Honey v. Distelrath, 195 F. 3d 531 (9th Cir. 1999).


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34. After Dr. Sheikh‟s removal from her residency training, the Board published multiple

accusations and offered a Probationary license. The terms of the Probation included restrictions

on Dr. Sheikh‟s travel. A legal professional commented on the probationary terms proposed by

the Board as “draconian”.

35. Further, the Board informed Dr. Sheikh that she will have to repeat one year residency training

if she does not complete her Residency Training within 90 days of revocation of her clinical

privileges knowing that Dr. Sheikh could not resume her clinical training without restoration of

her training license by the Board (Catch 22).

D. The Fourteenth Amendment is meant to Protect from Unfair Conviction

36. "[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." DeShaney v.

Winnebago County Dept. of Social Services, 489 U.S., at 196 (quoting Davidson v. Cannon, 474

U.S. 344 (1986) )” Collins v. City of Harker Heights, 503 U.S. 115 (1992).

37. Clear and central purpose of this amendment was to eliminate all official state sources of

invidious racial discrimination in states. Loving v. Virginia, 388 U.S. 1 (1967)

38. Protection of individuals against arbitrary government action is the great purpose of this clause.

Wilwording v. Swenson, 502 F.2d 844, (8th Cir. 1974). “The purpose of this clause is not to

protect an accused against a proper conviction but against an unfair conviction”. Adamson v.

People of State of California, 332 U.S. 46 (1947).

39. The State Defendants‟ actions can shock the conscience of any reasonable person and of any

legal intellectual. “A society cannot long remain free if we permit the law enforcer to offer more

than opportunity for transgression; a free society cannot and will not endure if it permits law

enforcers to select individuals arbitrarily, and then to proceed by deception to persuade, cajole,

entice, and implant a law-breaking disposition that was not theretofore present”. U.S. v.

Jannotti, 673 F.2d 578 (3rd Cir. 1982).


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40. Dr. Sheikh requests a Declaratory Relief from the Ninth Circuit Court of Appeals that;

Defendants violated Dr. Sheikh‟s Right to Due Process by each of the following actions;

i. By Removing Dr. Sheikh‟s from her Residency Training without a hearing.

ii. By Sending an inadequate notice without any grievance procedures and

iii. By Denying her post depravation hearing,

IV. COMPOSITION OF 21ST

CENTURY MEDICAL BOARD OF CALIFORNIA AND MODERN ERA OF DISCIPLINE OF PHYSICIANS

41. Practice of Medicine is a specialized field and this is not unreasonable to assume that the

licensing Board is run by individuals with intimate knowledge of the medical profession. This is

not unreasonable to assume that the licensing board will grant licensure to all qualified

applicants. This is not unreasonable to assume that Physicians may be disciplined for legitimate

reasons for their actions relevant to their profession. Unfortunately, the reality cannot be farther

from perception. Whether Medical Profession has any bearing on the Medical Board or

Discipline of Physicians, can be obvious from the composition of the Board. Because Mission

of the Board is “Protection of Public” (not necessarily to improve access to health care

Services), the percentage of the physician members in the Medical Board of California is lowest

in several decades.

42. The Board employs an army of investigators under its Chief investigator who work in tandem

with the Office of State Attorney General. All investigators of the Medical Board have a title of

“Peace Officer”. The Peace Officers/ Investigators are assigned to interview physicians on all

matters including matters relevant to healthcare and patient care. This is understood that none of

the investigators has any qualification in the medical field.

43. Now after recent changes; an experienced Chief of Licensing resigned and the Board has

appointed a new Chief of Licensing. The most relevant experience of the new Chief of


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Licensing is that he worked in licensing of Automotive Vehicle Repair. In his previous

assignment current Chief of Licensing3,

4 had relied on smog certification to assert fitness of

licensees.

“Prior to accepting this position, Mr. Worden was a program manager at the Bureau of

Automotive Repair for two years where he managed complaint intake, the toll-free call center,

statistical unit staff , and case settlements, citations and license denials.”

“[Mr. Worden] is technical advisor to the Board members and the primary liaison between the

Board, public, consumers, and licensees regarding all issues relating to the licensure of

physicians and affiliated healing arts professions overseen by the Board.” (Quarterly Newsletter

of Medical Board of California (October 2010) at page 75). Considering the above, this is

understandable that the Medical Board of California is confused on setting a standard for fitness

of physicians.

44. The effects of such composition of the Board are obvious from the following;

a. Dr. Sheikh completed Family Medicine Residency Training and received a certificate of

Residency Completion from University of California at Davis.

b. Before starting residency, Dr. Sheikh participated in Research along with faculty at Stanford

and was named a co-author on a number of topics published in professional journals.

c. Dr. Sheikh received excellent recommendations from VA Palo Alto, University of Texas

Medical Branch and from Stanford School of Medicine.

d. Two senior Residency Program Directors wrote letters in her support rating her as an

excellent and intelligent physician. Three different Residency Program Directors on several

3 Plaintiff merely echo‟s the point that was recently raised by Immediate Past President (IMPP) of Board at the Public

Meeting of the Board (Are we the best people for the Job?) He also stated” the Medical Board does not protect doctors”.

He also advised Board Members to perform their Ethical duty. (Quarterly Public Meeting of the Board, July 30, 2010).

On that day another Board member spoke for approval of Dr. Sheikh‟s application for license. 5 http://mbc.ca.gov/publications/newsletter_2010_10.pdf (Page 7)


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occasions testified under Penalty of Perjury (by completing L3 form) that Dr. Sheikh is

competent to practice Medicine.

e. Nonetheless, the Board accused Dr. Sheikh of incompetence.

f. The Board claims that Dr. Sheikh is not fit for licensure after she has reliably practiced as a

Resident Physician in the State for over two years.

45. Unfortunately, during recent decades, licensure of Physicians and Surgeons is based on the

State‟s mistaken belief that a Physician‟s license is a privilege arbitrarily available at its grace.

46. A physician can be disciplined for matters relevant to healthcare and a physician can also be

disciplined for matters not relevant to healthcare. Then the Board provides physicians a

disciplinary process and a physician can also be disciplined by the Disciplinary Process itself;

a. Generally, all citizens can contest a subpoena according to rules but a physician can be

found guilty of unprofessional conduct for contesting a subpoena issued by the Board.

b. Physicians are guilty of unprofessional conduct if they do not submit themselves to be

interviewed by peace officers of the Board though every citizen can claim Fifth

Amendment Right (against self incrimination).

c. A physician may be found guilty of unprofessional conduct for any reason as determined

at the discretion of the hearing officer6.

d. Merely contesting the disciplinary accusation of the Board is likely to result in the

conclusion that a physician cannot be rehabilitated7 8.

47. At this time any physician in the State of California can be accused and can be reliably found

guilty of unprofessional conduct for not maintaining accurate records (Bus. & Prof. Code §

2266) (for lack of any standards).

6 When a physician is found guilty only by the process, will the physician be considered acquitted or guilty? 7 Can a Process that is assumed to be Due Process be injurious by itself? 8 Can a State under the guise of regulating a professional, take away the rights of the licensees?


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48. At this time, a physician can be disciplined for correctly diagnosing and treating a patient. In

such matters, the Board can find the accused physician guilty for not complying with a

“Standard of Care”, an imaginary standard unknown to Medical Professionals.

49. A physician who opposes illegal discrimination is likely to be disciplined by the Board. A

woman physician who opposes any Harassment is likely to be disciplined by the Board. A

physician is likely to be disciplined for demanding reimbursement for his services form an

insurance company. A physician can be disciplined on request from a company not relevant to

healthcare. A physician is likely to suffer professional harm for supporting a physician‟s

licensure with the Board. Some physicians have relied on their ignorance of the problem; more

informed physicians have relied upon retaliation of the Board for keeping quite.

50. The Courts have begun to recognize the possibility of such prejudicial circumstances and

recently the Fifth Circuit Court of Appeals noted, “AAPS‟s complaint alleged, among other

things, abuses perpetrated on physicians by means of anonymous complaints, harassment of

doctors who complained about the Board, and conflicts of interest by decision-makers. If

practiced systemically, such abuses may have violated or chilled AAPS members‟ constitutional

rights”. AAPS v Texas Medical Board, (5th Cir. 2010).

51. An experienced woman physician, when explained abuse of the Board to Mr. Sheikh, had tears

in her eyes. Physicians of California are in shock and perhaps that is a consequence of

“Protection of Public”.

V. PROCEEDINGS WITH THE MEDICAL BOARD OF CALIFORNIA

52. Under the circumstances, as will be explained in this petition, the Ninth Circuit Court of

Appeals may directly review the denial by the Board and apply its independent Judgment.

“Were we directly reviewing the decision of the ALJ, the failure of the findings of fact to

support the determination of issues would necessitate reversal of the decision without further

discussion. (See Ruggiero v. Los Angeles City Unified Sch. Dist. (1973) 33 Cal. App.3d 970,


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973 [109 Cal.Rptr. 417].) But where the independent judgment of the superior court intervenes,

we review the action of the superior court, not of the agency. (Fellmuth & Folsom, Cal.

Regulatory Law and Practice, supra, at p. 155.) Here, however, because of the lack of a

statement of decision and the nebulousness of the tentative decision, the [District court's]

decision is ambiguous and unreviewable.” James v Board of Dental Examiners of the State of

California, 172 Cal.App.3d 1096 (1985).

53. Since the issue at stake in this petition is a professional license, the Ninth Circuit Court of

Appeals may undertake an independent judicial review of disciplinary findings, and conclusion.

"it necessarily follows that the court to which the application for mandate is made to secure the

restoration of a professional license must exercise an independent judgment on the facts...."

Drummey v. State Bd. of Funeral Directors, 13 Cal.2d 75, 85 (1939); Bixby v. Pierno, 4 Cal.3d

130 (1971).

54. The Court is likely to reverse the adverse decision of the Board after finding abuse of discretion.

“Abuse of discretion is established if board of education, in proceeding wherein teacher seeks

hearing relative to his impending dismissal, has not proceeded in manner required by law, order

or decision is not supported by findings, or, with regard to local boards, findings are not

supported by substantial evidence in light of entire record.” Bekiaris v. Board of Education of

City of Modesto, 6 Cal.3d 575 (1972). “An abuse of discretion is established if the agency has

not proceeded in a manner required by law or if the determination or decision is not supported

by substantial evidence.” Neighbors of Cavitt Ranch v. County of Placer, 131 Cal.Rptr.2d 379

(2003).

55. The Board has been mistaken, negligently and intentionally, for denying Dr. Sheikh‟s

application for license on a number of occasions since 2007.

56. During 2007, the Board stated in writing that Dr. Sheikh will qualify for licensure in July 2008

after reviewing all information and application forms. Dr. Sheikh noted in her Petition that was


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submitted with Superior Court of San Joaquin (at page 5 paragraph 11) “the Medical stated that

Dr. Sheikh will qualify for license in July 2008 or was that a „time trap‟? (implying that the

Board‟s intent was to delay the Disciplinary Accusations to her disadvantage).

57. For all of the following, the adverse decision of the Board denying Dr. Sheikh‟s Application for

Physicians and Surgeons License must be reversed by the Ninth Circuit Court of Appeals.

A. The Board Abused its Authority by Denying Dr. Sheikh‟s License until Finding her Guilty

58. At the time of application for Physicians license, Dr. Sheikh was already working as a Resident

Physician at San Joaquin General Hospital. She had reliably provided patient care for over two

years and she received commendations from her peers, faculty and multiple Residency Program

Directors. The Board had reviewed all of her records including application forms (Nov. 2007)

and stated that she will be eligible for licensure in July 2008.

59. The Board improperly removed her from the Residency Training and then the Board denied her

application for licensure, accusing her of Dishonesty. As Dr. Sheikh noted in her Motion that

was presented before the Quarterly Meeting of the Board at San Diego (page 3), “If

physician(s) are innocent until proven guilty, then she should be licensed until Board

demonstrates its accusations”. Under the circumstance, the appropriate procedure for the Board

was to grant her licensure and allow her to continue to provide patient care until Board could

prove her accusations. The Board abused its discretion by barring Dr. Sheikh from providing

patient care before proving its accusations.

B. The Original Notice of Denial of Dr. Sheikh‟s Licensure was impermissibly Vague

60. The Board denied Dr. Sheikh‟s application for licensure on Dec 16, 2009 prior to administrative

hearing. The letter denying Dr. Sheikh‟s licensure stated, “It has been determined that grounds

exist to deny your application for medical licensure pursuant to subdivision (a)(2), and (c) of

section 480 of the California Business and Professional Code. A copy of section 480 is attached


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for your review.” (Exhibit; Dr. Sheikh‟s Motion for Injunctive Relief). The denial of the Board

was impermissibly vague as that letter did not state appropriate justification for denial of Dr.

Sheikh‟s application for license.

C. The Board Published Disciplinary Accusations without Any Ascertainable Standard

61. The Disciplinary accusations of the Board against Dr. Sheikh in the Statement of Issues and in

the amended Statement of Issues were unverified (Gov. Code § 11503). As the Magistrate Judge

noted in his recommendations, “The entire administrative due process procedures are designed

to test the Board‟s initial decision.” (Page 8) (because accusations of the Board are not verified).

62. The Board arbitrarily published accusations of incompetency, lack of interpersonal skills and

Dishonesty against Dr. Sheikh without any standard. Neither the Board sought review from

appropriate experts on the accusations nor the Board allowed Members of the Board to review

records to determine accuracy of accusations against Dr. Sheikh.

63. The Board stated in denial, “applicant has not met her burden of showing that she is presently fit

for licensure” (Proposed Decision dated Nov. 3, 2011 at Page 5). The State does not have a

Standard for “fitness” and there is no guidance in the administrative decision whether fitness is

a requirement of Physician‟s license. Further, since there is no standard for fitness and absence

of any Standard this is not possible for a plaintiff to demonstrate fitness.

“Since the board has not prescribed a standard by which to measure [applicant fitness], it has

failed the constitutional and statutory mandate of the APA and cannot show [applicant] was

grossly incompetent.” Wheeler v. State Board of Forestry, 144 Cal. App. 3d 522 (1983).

64. The accusations of Dishonesty was so mistaken that the Board did not even attempt to present

any evidence of Dr. Sheikh‟s intent to deceive in the hearing process. Neither the Board was

able to demonstrate any substantial errors in the application forms that Dr. Sheikh completed.

65. The licensing manager stated that the purpose of the question about residency contract renewal

on the application form is not about residency training but is to measure applicant‟s dishonesty.


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The licensing manager further elaborated about standard for determination of dishonesty, “You

cannot consult an attorney. The way we determine dishonesty, an attorney cannot advise you”

[Licensing Manager, Medical Board of California; Licensing Outreach Workshop at Oakland

California (Oct 8, 2009)].

D. The Board Abused its Authority by Denying Hearing on Demurrer

66. In response to (initial) Statement of Issues Dr. Sheikh submitted a Demurrer/ Notice of Defense.

In that document Dr. Sheikh submitted over 76 objections on the Statement of Issues

(Disciplinary Accusations) of the Medical Board of California. The Board denied hearing on

Dr. Sheikh‟s objections. A hearing on Dr. Sheikh‟s objections could result in dismissal of

Disciplinary proceedings and approval of her application for license.

67. Denial of Hearing on Dr. Sheikh‟s Demurrer constituted violation of her Right to Due Process.

Because the Board denied hearing on Dr. Sheikh‟s objections, disciplinary proceedings against

her must be dismissed with prejudice.

68. Dr. Sheikh noted in her letter to the Application Review Committee (Nov 3, 2010), “Given the

assumption that the physicians have guaranteed Constitutional Right to Due Process, the

Medical Board may not deny to review any opposition submitted by physician. Medical Board,

though, is not bound to agree with the points raised in the Notice of defense presented by a

physician but the board is obligated to review and make a factual finding on each point raised.”

69. In that letter Dr. Sheikh also noted, “Perhaps at this time rules of the State Bar are equally

relevant to discipline of physicians if not more.”

E. The Board Abused its Authority by Shifting Burden of Proof

70. The Board claimed that the Board does not have a burden of proof to bring accusations of

Dishonesty against Dr. Sheikh who is otherwise eligible for license (Letter from defendants,

District Court Docket # 76).


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71. The Board publishes Statement of Issues (Disciplinary Accusations) for those physicians who

are otherwise eligible for License. The disciplinary decision(s) of the Board, as a matter of

standard format, discuss that the Board has Burden of Proof to prove disciplinary accusations.

The Board omitted such section in the denial of Dr. Sheikh‟s licensure and then the Board

improperly attempted to shift the Burden of Proof upon Dr. Sheikh by stating, “applicant has

not met her burden of showing that she is presently fit for licensure” (Proposed Decision dated

Nov. 3, 2011 at Page 5).

72. The Board denied Dr. Sheikh‟s license citing Bus. & Prof. Code § 480. The Board has a burden

to prove its disciplinary accusations against Dr. Sheikh.

“The moving party – that is, the party asserting the claim or making the charges- generally has

the burden of proof in an administrative hearing”. Schaffer v. Weast, 546 US 49 (2005); Brown

v. City of Los Angeles, 102 CA4th 155 (2002); Parker v City of Fountain Valley, 127 CA3d 99

(1981). “In proceeding to revoke license to practice medicine, burden of proof never shifts to

license holder” Schireson v. Walsh, 354 Ill. 40, 187 N.E. 921 (1933). “Absent a statute to the

contrary, the burden of proof in a licensing disciplinary action is on the party filing the charges

in the accusations, which ordinarily is the agency” Hughes v Board of Architectural Examiners

17 C4th 763, (1998); Parker v City of Fountain Valley, 127 CA3d 99 (1981); Pipkin v Board of

Supervisors, 82 CA3d 652 (1978).

73. Dr. Sheikh‟s letter to the Board (dated March 4, 2009) stated, “The Medical Board may seek a

review of the basic judicial standards /principles at an appropriate forum, in its entirety or any

part of it, without impacting Dr. Sheikh‟s application for license”. (District Court Docket #76).

F. The Evidentiary Standard is Clear and Convincing Proof

74. The Board incorrectly noted that the Evidentiary Standard is “Preponderance of Evidence”

rather than “Clear and Convincing Proof” (Letter; District Court Docket #76).



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75. An appropriate Evidentiary Standard in the disciplinary proceedings against physicians is Clear

and Convincing Proof. “In proceedings concerning professional license, a higher degree of

proof may be required, i.e., clear and convincing proof to a reasonable certainty.” Furman v.

State Bar 12 C2d 212, 83 P2d 12 (1938); Mann v DMV 76 CA4th 312 (1999); Ettinger v Board

of Medical Quality Assurance, 135 CA3d 853 (1982); Realty Projects, Inc. v Smith 32 CA3d

204 (1973). These cases involve the right to professional employment opportunity and vested

interests.

“In a proceeding before the Medical Board involving an accusation against a physician, the

standard of proof to revoke or suspend the physician's license should be clear and convincing

proof to a reasonable certainty and not a mere preponderance of the evidence”. Gray v. Superior

Court, 23 Cal.Rptr.3d 50 (2005). “To take disciplinary action against a medical license, the

State Medical Board is obligated to base its decision on clear and convincing proof to a

reasonable certainty and not a mere preponderance of the evidence”. Medical Bd. of California

v. Superior Court, 4 Cal.Rptr.3d 403 (2003). “Clear and convincing evidence standard, rather

than preponderance of evidence standard, applies at hearing on application for interim order

suspending or imposing restrictions on license of medical care professional”. Silva v. Superior

Court, 17 Cal.Rptr.2d 577 (1993).

76. “Clear and convincing evidence requires a finding of high probability, or evidence so clear as to

leave no substantial doubt; sufficiently strong evidence to command the unhesitating assent of

every reasonable mind”. Kattie v Superior Court, 130 Cal.App.4th 586 (2005).

G. The Medical Board Abused the Process by Changing Theory of Dishonesty to Unprofessional Conduct

77. The Medical Board denied Dr. Sheikh‟s application for license via letter dated Dec 16, 2008

citing only Bus. & Prof. Code Section 480. During the administrative proceedings, Board

improperly changed the theory from Dishonesty to unprofessional conduct without review by

staff or members of the Board.











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78. In First Amended Statement of Issues First Cause for Denial of Application (only cause)

Making a False Statement and/or Dishonesty. The accusation of unprofessional Conduct was

neither before the hearing officer nor before the Board itself.

“Wheeler was not charged in the accusation with gross incompetence for the claimed estimation

error; rather, the error was charged as a "deceit, misrepresentation, or fraud in his practice,"

separate grounds of discipline”. “The board implicitly took this interpretive route in equating a

misstatement with a misrepresentation. In the accusation misstatement was used in the sense of

false statement made with intent to mislead or deceive.” And “However, the board produced no

substantial evidence of Wheeler's intent to deceive.” Wheeler v. State Board of Forestry, 144

Cal. App. 3d 522 (1983). To telescope the meanings of unprofessional conduct, [Dishonesty,

and negligence- making a false statement] obviously violates the above rules of statutory

construction” and “Examining beyond the ALJ's characterization of the conduct, the findings of

fact do not support a determination of unprofessional conduct.” James v Board of Dental

Examiners of the State of California, 172 Cal.App.3d 1096 (1985).

H. The Board Failed to Perform Mandatory Duty of Due Diligence

79. During Nov. 2007, the Board took an adverse action against Dr. Sheikh‟s application for

licensure (denial) by stating that the Residency Program gave Dr. Sheikh less credit for her first

year training. Later during August 2008, the Board again took an adverse disciplinary action

against Dr. Sheikh by stating that the residency program offered full credit for her first year

training (Removing Dr. Sheikh from her Residency training when she needed a few more days

to complete three years training).

80. The Board improperly relied upon the Residency Program and expressed „concerns‟ on Dr.

Sheikh first year residency training without specifying whether the concerns were of

professional or social nature. Then the Board published Disciplinary accusations of

incompetence against Dr. Sheikh.


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81. The Board knew that it had previously relied upon the residency program for denying Dr.

Sheikh‟s licensure (Nov 2007) and that information by the Residency Program was grossly

incorrect. Dr. Sheikh wrote two or more letters to the Board requesting the Board to do Due

Diligence and to verify the information the Board relied upon for bringing disciplinary

accusations against Dr. Sheikh. The Board improperly refused to perform its mandatory duty of

Due Diligence resulting in improper denial of Dr. Sheikh‟s application for licensure.

I. The Board Abused its Authority by Selective Enforcement

82. The Board notes that 96% applicants incorrectly complete application forms. As this is obvious

from records, one residency Program provided incorrect information on credit that Dr. Sheikh is

entitled to for her residency training. As this is obvious from record, one Residency Program

completed application forms on behalf of Dr. Sheikh without informing Dr. Sheikh. The Board

only publishes disciplinary accusations against Dr. Sheikh.

83. The Board is an Administrative Body created by the State Constitution and the Board may not

selectively enforce violation of State Statues (California State Constitution Article 3 § 3.5).

J. The Board Abused its Authority by Improperly Denying Dr. Sheikh‟s Discovery Motion (Presented Before the Board at San Diego California Oct 30, 2009)

84. Dr. Sheikh appeared before the Board and presented a written Motion before the Board (District

Court Docket #45) requesting compliance with the subpoena signed by an ALJ/ hearing Officer.

The Board had the option either to comply with the subpoena signed by an ALJ or it could seek

a review in an appropriate Court.

85. The Board failed to perform its mandatory duty by denying Dr. Sheikh‟s written Motion and the

Board failed to perform its mandatory duty by denying Dr. Sheikh‟s Motion without a written

order.


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K. The Board adopted Proposed Decision in Violation of State Statues

86. Dr. Sheikh‟s submitted a Request for Admission (license) with the District Court. Paragraph 17

of her Request for Admission clarified that the disciplinary decision was taken without even

sending a ballot to members of the Board in defiance of Bus. & Prof. Code § 2335.

87. Dr. Sheikh‟s Request for Admission also clarified that the defendants delivered a final decision

of the Board without a review by the Members of the Board (Bus. & Prof. Code § 2224).

88. For violation of each of the above referenced state statues, The Ninth Circuit Court of Appeals

must dismiss disciplinary proceedings against Dr. Sheikh with prejudice.

L. The Board Failed to Bridge Analytical Gap between Evidence and Conclusion

89. The Board failed to provide any analysis binding its findings to the evidence and binding its

conclusion to its findings. The Board determines Dr. Sheikh‟s untruthfulness without finding

any intentional error. Without finding any intentional mistake with specific motive, the Board

may not accuse Dr. Sheikh of Dishonesty. The fact that the Board refused to use the keyword

“intentional” in its accusations is telling by itself. The findings of the Board fail to determine

that contract for residency training has any bearing on eligibility for license.

90. The conclusion of the Board finding applicant guilty of unprofessional conduct based on

dishonesty is not properly supported by the findings. The Board finds applicant guilty of

unprofessional conduct without finding that applicant intentionally provided any wrong

information relevant to eligibility of her licensure. The board's finding of unprofessional

conduct does no more than bootstrap a standardless conclusion which is unreviewable and

hence violates Code Civ. Proc. § 1094.5.

“Implicit in [Code Civ. Proc. § 1094.5] is a requirement that the agency which renders the

challenged decision must set forth findings to bridge the analytic gap between the raw evidence

and ultimate decision or order." Topanga Assn. for a Scenic Community v. County of Los

Angeles, 11 Cal.3d 506 (1974).


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“Topanga mandates there be a "bridge" between evidence and findings and findings and

decision. This requires a legally valid warrant of some kind, which links the evidence to the

findings and the findings to the order and which tells courts whether and to what extent the

licensee's conduct has anything to do with the claimed ground of discipline.” Wheeler v. State

Board of Forestry, 144 Cal. App. 3d 522 (1983).

M. The Board Must Review Complete Records including all Application Forms

91. Dr. Sheikh informed the Board during March 2007 that her contract for Residency training was

not renewed with her Residency Program in Texas. During September 2007 when she intended

to inform that her contract was not renewed with Residency Program in Texas, by mistake, she

informed the Board that her contract was not renewed with the Residency Program in

California. In fact her contract was renewed by the Residency Program in California on multiple

occasions. All the forms that Dr. Sheikh completed were also co-signed by the respective

Residency Program Director(s).

92. Further, Dr. Sheikh‟s Request for Admission clarified that she correctly informed the Board that

her contract was not renewed with a Residency Program in Texas.

93. A Senior Residency Program Director wrote a letter that stated, “I believed then and now,

Farzana was forthcoming in both the reasons for her contract non-renewal and the amount of

training she had received.” And; “In summary, I have considered Dr. Sheikh to be an ethical

practitioner and sufficiently skilled in her art to practice independently and reliably”.

94. The Board is obligated to review all application forms that Dr. Sheikh had completed and not

just the application form that fulfills the self serving prejudicial aspirations of the Board.

“Finally, the appellate court reviews the record to determine whether the trial court's findings

are supported by substantial evidence; Bixby v. Pierno, 481 P. 2d 242, 4 Cal.3d 130, 151 (1971)

at p. 143, fn. 10) “The reviewing court must consider the entire record ... and may not isolate

only the evidence which supports the board's findings [citation] and thus disregard relevant





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evidence in the record.” James v Board of Dental Examiners of the State of California, 172

Cal.App.3d 1096 (1985).

“The mere use by dentist of the names Batty and Battie was not evidence of fraud in practice of

his profession, so as to justify revocation of his license on ground of fraud, where names were

idemsonans and dentist had used both spellings at various times in his life without intent to

practice fraud upon anyone” Batty v. Arizona State Dental Bd., 57 Ariz. 239, 112 P.2d 870

(1941).

95. As the Board gives waiver to candidates who make mistakes on application forms, by denying

Dr. Sheikh‟s application for license and accusing her of Dishonesty, constituted arbitrary and

unequal treatment, resulting in violation of equal protection and due process guarantee of the

Fourteenth Amendment. Louis v. Supreme Court of Nevada, 490 F.Supp. 1174, (D.C. Nevada,

1980). The federal courts are concerned when such requirements are not applied to all

applicants. A state cannot exclude a person from the practice of law 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); Sutton v. Lionel, 585 F.2d 400 (9th Cir. 1978); Put another

way, a state may not, under the guise of regulating [profession], ignore constitutional rights.

N.A.A.C.P. v. Button, 371 U.S. 415 (1963).” Louis v. Supreme Court of Nevada, 490 F.Supp.

1174, (D.C. Nevada, 1980).

96. In fact Dr. Sheikh‟s application for license, including but not limited to all application forms,

were reviewed by the Board during November 2007 and the Board stated “If [plaintiff]

satisfactorily completes the full 24 month residency training at San Joaquin General Hospital

she qualifies for licensure (Para 12, Request for Admission-license). Dr. Sheikh has

satisfactorily completed all of her Residency Training. Dr. Sheikh relied on the Board to take

actions in Good Faith and issue a license as the Board had previously agreed.


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97. Considering all the above, Dr. Sheikh requests that the Ninth Circuit Court of Appeals to

dismiss Board‟s disciplinary proceedings and issue a Writ approving her application for

licensure. The issue of Dr. Sheikh‟s licensure is not limited to Civil Rights or Constitutional

Rights rather it has a strong bearing to Fundamental Human Rights. As Dr. Sheikh intends to

provide services in an underserved area critically in need of primary care physicians, the public

will also generally benefit with her licensure.

VI. THE ADMINISTRATIVE HEARING PROCESS WAS NOT UNBIASED

A. The Hearing Officer Denied Dr. Sheikh‟s Request for a Three Day Trial

98. The Board had denied Dr. Sheikh‟s application for license on multiple occasions since 2007.

Dr. Sheikh had requested a three day hearing because of extensive records and because of time

required for testimony of relevant experts. The Board insisted and scheduled for only half a day

hearing by stating that this is only a small issue of checking a wrong box. A general principal

applied in such matters is to consider „totality of the circumstances‟ and the same principal was

not applied. Generally, in disciplinary matters the hearing continues for days and sometimes

weeks if needed.

B. The Hearing Officer Denied Dr. Sheikh‟s Request for Continuance

99. Dr. Sheikh was successful in getting an order/subpoena signed by the hearing officer/ALJ so

that she could acquire necessary records in order to prepare for the administrative trial. The

Board immediately accused the hearing officer/ALJ of prejudice. The hearing officer/ALJ was

reassigned without a written order from Office of Administrative Hearing.

100. Dr. Sheikh informed OAH that the defendants have denied compliance with the Discovery

orders/ Subpoena signed by the ALJ and absence those records she cannot reliably prepare for

her trail. Nonetheless, OAH denied Dr. Sheikh‟s request for continuance though she presented a

good cause.


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The Hearing Officer of the Board (ALJ) is vested with authority to grant continuance upon

showing of a good cause Gov. Code § 11524. This provision vests an administrative law judge

with authority to grant a continuance upon a showing of good cause. Dresser v. Board of

Medical Quality Assurance, 130 Cal.App.3d 506 (1982).

101. In fact defendants maintain an unwritten policy that the hearing officer may not grant

continuance without prior verbal permission from the agency. Because of such a policy

impartiality of hearing officer can be reasonably questioned.

“The fair procedural requirement includes the right to an impartial adjudicator”. Yaqub v

Salinas Valley Memorial Healthcare System; in which the court applied the rule of Haas v

County of San Bernardino, 119 Cal.Rptr.2d 341 (2002) to a fair hearing case involving the

revocation of a physicians hospital privileges.

C. Defendants Arbitrarily and Intermittently Denied Dr. Sheikh‟s Right to be Represented by a non-Attorney in an Administrative Proceedings

102. Dr. Sheikh had a right to be represented by an attorney or by a non-attorney at her own

expense. “A party in a formal administrative adjudication proceeding has the right to be

represented by counsel at the party‟s own expense.” Borrow v Department of Inv. 15 CA3d 531,

92 CR 525 (1971).

103. Dr. Sheikh was initially represented by her husband in the administrative hearing process.

Mr. Sheikh submitted a Request for discovery, a detailed Notice of Defense and other

documents on her behalf. Then Mr. Sheikh submitted suggestions to the Board to improve the

Disciplinary Process. At that time, defendants opposed representation of Dr. Sheikh by her

husband without a good cause.

104. The Board Intermittently allowed and denied Dr. Sheikh to be represented by Mr. Sheikh:

i. April 2009, Initially Mr. Sheikh represented Dr. Sheikh in the administrative proceedings and

submitted a Notice of Defense/Demurrer on the accusations of the Board.


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ii. July 24, 2009, Mr. Sheikh presented written suggestions to the Board for the Disciplinary

Process of Physicians.

iii. July 27, 2009, the Office of administrative Hearing signed subpoena forms that were

submitted by Mr. Sheikh as representative of Dr. Sheikh.

iv. July 28, 2009, defendants presented a Motion (via a 4 page letter) that stated, “As a

preliminary matter, complainant formally objects to the representation of Mr. Sheikh by Mr.

Sheikh, who is not an attorney.”

v. July 29, 2009, the Office of administrative Hearing wrote, “Dr. Sheikh is not represented”

Request for Continuance was denied.

vi. July 31, 2009, Dr. Sheikh via Mr. Sheikh submitted opposition that stated, “The provisions in

[Gov. Code § 11509] should not be interpreted to prevent a party from being represented by

someone other than an attorney” (citing Amicus Brief of Prof. Michael Asimow, State Bar of

California v. Benninghoff).

vii. July 31, 2009 office of administrative hearing wrote, “At this time you are listed as

representative for respondent [Dr. Sheikh]”.

viii. August 12, 2009, the hearing officer ruled that Dr. Sheikh is not represented by Mr. Sheikh.

ix. August 13, 2009, Mr. Sheikh re-submitted his letter of representation with the office of

administrative hearing (OAH).

x. September 14, 2009, Defendants submitted a Motion that Dr. Sheikh cannot be represented

by Mr. Sheikh.

xi. Sep 16, 2009, OAH wrote, “As of the date of this order, respondent is not represented by a

counsel.”

xii. Nov 25, 2009, Dr. Sheikh received a denial of her application for license that stated;

“applicant‟s husband and self styled “representative” faxed a letter to OAH Presiding Judge”.


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105. Defendants knew that Administrative Procedure Act (APA) allows an individual to be

represented by a non-attorney in the administrative hearing process. Further, The Board

informed Dr. Sheikh that she will not be able to secure representation by a legal counsel.

(Transcript, Aug 12, 2009).

106. Plaintiff‟s right to be represented is not limited to the day of trial rather legal representation is

not less important before the trial. The defendants‟ arbitrarily and intermittent actions resulted

in undue prejudice against Dr. Sheikh denying her an opportunity to prepare for trial.

D. The Hearing Officer Denied Hearing on Dr. Sheikh‟s Objections & Motions

107. The Hearing Officer improperly denied hearing on Dr. Sheikh‟s Notice of Defense without a

written decision that constituted undue prejudice against Dr. Sheikh. Dr. Sheikh‟s success on

her notice of Defense could result in dismissal of the disciplinary accusations of the Board. For

this reason alone, the Court must dismiss disciplinary proceedings against Dr. Sheikh.

108. Dr. Sheikh had submitted a Motion before the Hearing officer (Aug 12, 2008) so that the

Board may seek an alternative counsel. Previously, Dr. Sheikh had submitted a Request for an

Investigation with the Office of State Attorney General. A hearing on that Motion could allow

Office of State Attorney General to perform its Constitutional duty rather than providing private

legal services to the Board.

109. In a recent case that was heard by the Ninth Circuit Court of Appeals, the Court did

not approve similar private legal services by OAG and noted, “The OAG has a legitimate

interest in regulating practice-related conduct of its lawyers to avoid any conflict of interest and

to avoid any potential prejudice to the OAG and its clients, as well as a legitimate interest in

ensuring that its employees are devoting their full attention to the business of the OAG”.

Gibson v Office of State Attorney General, Docket No. 07-56124 (9th Cir. 2009).


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E. The Hearing Officer did not Review Any of the Records that Dr. Sheikh Submitted

110. The Hearing Officer neither reviewed all the records available with the Board nor reviewed

any of the records that Dr. Sheikh submitted. The records that Dr. Sheikh submitted included,

but not limited to, Demurrer, several Application Forms and numerous letters of

recommendations.

111. A biased proceeding is not a procedurally adequate one. At a minimum, Due Process requires

a hearing before an impartial tribunal. Ward v Village of Monroeville, 409 U.S. 57, (1992). This

impartial tribunal requirement applies in both civil and criminal cases. Indeed, the requirement

that proceedings which adjudicate individuals' interests in life, liberty, or property be free from

bias and partiality has been "jealously guarded." Marshall v. Jerrico, 446 U.S. 238, (1980).

Thus, this neutrality principle has been applied to a variety of settings, including administrative

adjudications, in order to protect the "independent constitutional interest in fair adjudicative

procedure." Clements v. Airport Authority of Washoe County, 69 F.3d 321 (9th Cir. 1995).

112. As unbiased hearing is a fundamental requirement of Due Process and defendants failed to

provide such a hearing to Dr. Sheikh; disciplinary proceedings against Dr. Sheikh must be

dismissed with prejudice resulting in approval of her application for license.

VII. PROCEEDINGS WITH THE DISTRICT COURT

113. Dr. Sheikh initially submitted the Petition seeking review of adverse decision of the Medical Board.

She also submitted a Request for Declaratory Relief that California Bus. & Prof. Code § 2335 violates

Physicians Right to Due Process.

114. Dr. Sheikh also submitted two Requests for admission with the District Court; 1) seeking Approval of

her Application for Physicians and Surgeons License and 2) in support of her Request for Declaratory

Relief that Cal. Bus. & Prof. Code § 2335 violates Physicians Right to Due Process. Both the Requests

for Admission were admitted.


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115. The District Court gave defendants a fixed number of days to submit an opposition with that Court

but defendants failed to timely submit any opposition on merits of Dr. Sheikh‟s petition. Later District

Court granted defendants request for an extension to submit opposition that was filed after expiry of the

allotted time.

116. For all the following reasons, Dr. Sheikh requests the Court to reverse dismissal of her Petition and

her Request for Declaratory Relief by the District Court.

A. Summary Dismissal for Failure to State a Claim did not Comply with FRCP 12

117. Defendants submitted a Motion for Dismissal on Dr. Sheikh‟s Petition and her Request for

Declaratory Relief for failure to State a claim pursuant to FRCP 12(b)(6). The District Court did a

reversible error by granting Defendants‟ Motion for Dismissal. Plaintiff requests that for each of the

following reasons the Ninth Circuit Court of Appeals reverse the decision of the District Court

dismissing Dr. Sheikh‟s Petition and dismissing her Request for Declaratory Relief.

118. Dr. Sheikh had not consented to the jurisdiction of the Magistrate Judge in the District Judge. The

defendants erred by submitting a Motion for Dismissal before the Magistrate Judge. The Magistrate

Judge erred by granting hearing on defendants Dispositive Motion. The Magistrate Judge further erred

by granting defendants Motion for Dismissal without considering Dr. Sheikh‟s opposition (District

Court Docket #50).

119. The District Court did a reversible error by dismissing Dr. Sheikh‟s Petition; Dr. Sheikh‟s Petition

stated [page 2], “Dr. Sheikh will seek reversal of the order of Denial on factual, procedural, statutory and

finally on Constitutional basis. And; the denial of application by the Board is arbitrary and capricious.”

Later, Dr. Sheikh also submitted a Request for Admission with the District Court in support of her

Petition.

120. The District Court did a reversible error by dismissing Dr. Sheikh‟s Request for Declaratory Relief;

Bus. & Prof. Code § 2335 violates Physicians Right to Due Process. Dr. Sheikh‟s Petition also stated

[page 2], “The Members of the Medical Board make a final decision in a secret ballot without reviewing


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any records.” And “The Board Members only review limited information such as physician‟s Name,

Gender and Proposed „Disciplinary Punishment‟ before making a decision.” Later, Dr. Sheikh also

submitted a Request for Admission with the District Court in support of her Request for Declaratory

Relief.

121. “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).

122. “A motion to dismiss for 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. See Conley v. Gibson, 355

U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); also Fidelity Fin. Corp. v. Federal Home

Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th Cir.1986), cert. denied, 479 U.S. 1064,

107 S.Ct. 949, 93 L.Ed.2d 998 (1987). 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).

123. In the dismissal, the Magistrate Judge discussed the application forms for Dr. Sheikh‟s

application for license and those forms are a contested issue. “Moreover, the court may not

make fact findings of a controverted matter when ruling on a Rule 12(b)(6) motion.” Roberts v.

Corrothers, 812 F.2d 1173, (9th Cir.1987).

124. The defendant‟s Motion for dismissal of Dr. Sheikh‟s petition that was submitted pursuant to FRCP

12(b)(6), did not fully comply with procedure as set forth in FRCP 12(b)(6) as the District Court

considered matter/ record outside pleadings. Defendants submitted non-verified records for review of the

Magistrate Judge; those records were neither public records nor those records were available to plaintiff.


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125. Plaintiff was deprived of the opportunity to review records or submit any rebuttal. In fact that

goes to the heart of the Dr. Sheikh‟s Petition that defendants have continued meritless

prosecution of Dr. Sheikh without complying with discovery requests.

“[Plaintiff Lynn] requested that the University produce the file, the district court issued a

protective order. At trial, the University submitted the file to the court; the court reviewed it in

camera but refused to disclose the contents of the file to Lynn. Lynn asserts that the file was

submitted by the University, and used by the district court, as evidence, rather than for the

purpose of determining whether the contents of the file were privileged. Thus, Lynn contends

that the refusal to disclose the contents of the file violated due process. We agree.” Lynn v.

Regents of University of California, 656 F.2d 1337 (9th Cir. 1991).

126. “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. Hickey v.

District of Columbia Court of Appeals, 457 F.Supp. 584 (D.C.D.C.1978) . See also Webster v.

Wofford, 321 F.Supp. 1259 (N.D.Ga.1970). 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. DeLaCruz v.

Tormey, 582 F.2d 45 (9th Cir. 1978), cert. den. 441 U.S. 965, 99 S.Ct. 2416, 60 L.Ed.2d 1072

(1979).” Louis v. Supreme Court of Nevada, 490 F.Supp. 1174, (D.C. Nevada, 1980). (Dr.

Sheikh implying that the Board gives waiver to 96% applicants for license who complete their

application forms incorrectly while arbitrarily accusing Dr. Sheikh of Dishonesty without any

ethical opinion after she and her Residency Program Director made a miniscule mistake).











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B. Summary Dismissal for Failure to State a Claim did not Comply with FRCP 56

127. Further, FRCP 12(d) states, “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the

pleadings are presented to and not excluded by the court, the motion must be treated as one for

summary judgment under Rule 56. All parties must be given a reasonable opportunity to present

all the material that is pertinent to the motion.”

128. “[Defendants Motion for Dismissal] although not formally denominated as a request under

FRCP 56(f), under Ninth Circuit precedent Garrett'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) . (Pending motion to compel

discovery was sufficient to raise FRCP 56(f) consideration).” Garrett v. City of San Francisco,

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

C. The District Court Erred by Denying Plaintiff‟s Motion to Compel Discovery as “Moot”

129. Dr. Sheikh had submitted a Motion to compel defendant‟s compliance with the discovery

orders signed by an ALJ. Dr. Sheikh‟s pending Motion to Compel Discovery will prove all allegations

stated in her Petition, her Request for Declaratory Relief and in her Motion for Injunctive Relief that was

submitted before the Ninth Circuit Court of Appeals.

130. “The Court may continue a motion for summary judgment if the opposing party needs to

discover essential facts.” Hall v. Hawaii, 791 F.2d 759 (9th Cir.1986). Dr. Sheikh‟s pending

discovery motion (Motion to Compel defendants‟ compliance with Discovery) satisfied Rule

56(f). “In denying the discovery motion as "moot" after having first granted defendants'

summary judgment motion, the district court failed to exercise its discretion with respect to the

discovery motion.” Garrett v. City of San Francisco, 818 F.2d 1515 (9th Cir. 1987). While

reversing Plaintiff Garrett‟s dismissal by the District Court, the Ninth Circuit Court of Appeals

also noted, “[Plaintiff] was not collaterally estopped from litigating issue of disparate treatment”.


http://www.law.cornell.edu/rules/frcp/Rule12.htm#Rule56

http://scholar.google.com/scholar_case?case=9404089837468280016&q=818+F.2d+1515+&hl=en&as_sdt=2002




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D. The District Court Erred by „Construing‟ Dr. Sheikh‟s Petition as Complaint

131. The District Court erred by arbitrarily construing Dr. Sheikh‟s Petition that was submitted for

review of the Court by construing as complaint. As the District Court did not offer any guidance

for construing Dr. Sheikh‟s Petition as complaint, the Ninth Circuit Court of Appeals must

reverse unsupported assumption of the District Court.

132. Further, The District Court erred to construe Dr. Sheikh‟s Petition as complaint as;

i. Dr. Sheikh has submitted a confidential complaint with the Equal Employment

Opportunity Commission (EEOC). The EEOC has not completed its investigations.

ii. Dr. Sheikh has not requested a Right to Sue letter from EEOC and Dr. Sheikh has not

submitted a complaint with the District Court (or with any other Court).

iii. Neither Dr. Sheikh requested any relief other than reversal of adverse decision of

defendants in her Petition (Code Civ. Proc. § 1094.5) nor the District Court granted any

relief to Dr. Sheikh.

iv. The District Court may not review merits of any potential complaint that has yet to be

submitted with the Court.

133. Title page of Dr. Sheikh‟s Petition clearly stated, “Petition for writ of administrative review,

on denial of application for Physicians and Surgeons license by Medical Board of California”

and Code Civ. Proc. § 1094.5. Further, Second Page of her Petition included the statement,

“Dr. Sheikh is not stating any claim against Defendant(s) in this [Petition].”

134. During the administrative Process with the Medical Board Dr. Sheikh submitted a Notice of

Defense/Demurrer (District Court Docket #71) that stated on page 12, Dr. Sheikh or her

representative are not presenting any arguments or evidence whether the actions of [Residency

Program] or of the Medical Board are retaliatory”.

135. Dr. Sheikh‟s [potential] claim(s) against defendants are not barred merely because she

contested denial of her application for Physicians license and she sought a review of that denial

by the District Court.


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In fact, in Mata v. City of Los Angeles, 20 Cal.App.4th 141 (1993), the California Court of

Appeal held that a "mandamus proceeding is technically not regarded as an action at all. It is,

instead, described as a special proceeding" deserving of no preclusive effect. “Police officer's §

1983 action was not barred by doctrine of claim preclusion, or res judicata, as result of relief

awarded in administrative mandamus proceedings in which officer was reinstated to his

position, even if all of officer's primary rights were litigated in writ proceeding, since § 1983

action was on different cause of action, and mandamus proceeding was technically not “action,”

but rather was special proceeding. “Mata v. City of Los Angeles, 20 Cal.App.4th 141 (1993).

Based on the nature of the proceeding afforded by § 1094.5, the Ninth Circuit has held that even

a final determination on a writ petition does not bar a § 1983 claim. "Because the state

proceeding was a mandamus action, the ordinary claim preclusion rules that bar parties from

relitigating claims already decided by courts on the merits do not apply here." Honey v.

Distelrath, 195 F. 3d 531 (9th Cir. 1999).

E. The District Court Erred by not Complying with FRCP 72

136. Plaintiff did not have the opportunity to submit objections on Magistrate Judge‟s

recommendations to dismiss of her petition. Plaintiff submitted opposition before the Magistrate

Judge on Defendants‟ Motion to dismiss her Petition for failure to state a claim FRCP 12(b)(6).

The District Judge erred by construing plaintiff‟s opposition that plaintiff submitted before the

Magistrate Judge, as objections on recommendations of the Magistrate Judge.

137. In the dismissal by the District Court (Docket #58 dated August 20, 2010), the District Judge

reviewed de novo those portions of the proposed findings of facts to which objections were

made. As plaintiff did not have the opportunity to submit objections on the recommendations of

proposed findings of the Magistrate Judge, the District Court did not review any of the facts or

findings proposed by the Magistrate Judge before dismissing Plaintiff‟s Petition.




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F. The District Court Erred by Denying Motion for Reconsideration (FRCP 60 & FRCP 1)

138. The District Court denied Dr. Sheikh‟s request for reconsideration on dismissal of her

Petition for failure to state a claim and noted that the plaintiff had not presented any new

evidence warranting a review by the District Court. The District Court did a reversible error by

overlooking plaintiff‟s Motion for relief pursuant to FRCP 60(b)(1), “mistake, inadvertence,

surprise, or excusable neglect”. Defendants submitted documents for review of the Magistrate

Judge on a Motion to Dismiss for failure to state a claim FRCP 12(b)(6); Defendants knew that

no matter outside pleadings may be presented before the Court and the Court may not resolve

disputed facts on such Motion. Under the circumstances, that was within discretion of the

District Court to review the administrative record that plaintiff submitted for review with her

Motion for Reconsideration that was submitted.

139. Dr. Sheikh‟s Motion for Reconsideration also warranted review by the District Court

pursuant to FRCP 1 in order to secure just, speedy and inexpensive determination of her

Petition. The District Court did a reversible error by failing to exercise its discretion to review

records submitted by plaintiff.

G. The District Court Misunderstood its Local Rules

140. The Local Rules of the District Court are valid domain of exercise of its authority and this is

understood that the local rules may not hinder proper execution of the business of the District

Court.

a. During the District Court proceedings, Dr. Sheikh never had an opportunity to appear before

the District Judge (an article III Judge) ultimately resulting in dismissal of her Petition

without a review of merits of her Petition. The District Court clearly erred by construing its

local rules that a plaintiff in pro per may not appear before a District Judge.


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b. Dr. Sheikh had submitted a Motion for Recusal (28 U.S.C. § 455) of the District Judge. The

District Judge denied hearing on Dr. Sheikh‟s Motion for Recusal again citing procedural

deficiency but without stating the any deficieny the Court referred to in its minute order.

c. After Dr. Sheikh submitted a Motion to Compel defendants compliance with the ALJ‟s order,

the defendants evicted Dr. Sheikh from her home (that she owns) at a five day notice without

a hearing and without an order from a Court. Dr. Sheikh submitted a Request/Motion for

Status Conference with the District Judge. The District Judge denied Dr. Sheikh‟s request for

hearing based on a local rule but without citing any specific Local Rule the Court referred to

in its minute order.

This is understood that a District Court may not have Local Rule that hinder a plaintiff seeking

her Constitutional Rights. The District Court erred by construing its local rules. A Plaintiff in

Pro Per may exercise his/her right not consent to the jurisdiction of a Magistrate Judge and

instead may appear before a District Judge.

H. The District Court Erred by Terminating Dr. Sheikh‟s efiling Access

141. Electronic Submission of Documents (efiling) is the preferred method of submitting

documents with the federal Courts. The District Court, after some hesitation, granted

conditional efiling access because Dr. Sheikh was in Pro Per. After Dr. Sheikh submitted some

of the administrative records relevant to her application for license, the District Court construed

the submission by Dr. Sheikh as unreasonable without identifying any document that was not

relevant to her application for license (without finding fault).

142. In order to ensure equal access to Justice, the District Court may not treat Pro Se individuals

differently. “All litigants must have meaningful access to Court regardless of their status of

representation.” Laurence H. Tribe, Department of Justice; (Access to Justice Ninth Circuit

Judicial Conference Aug 17, 2010). Efiling was the only method of document submission as the


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District Court Clerk overlooked to file Dr. Sheikh‟s documents submitted by verified mail. The

District Court must restore Dr. Sheikh‟s account when needed.

I. The District Court did not apply Appropriate Standard for Review of Petition

143. The District Court erred by not reviewing all the records that were presented before the Court by

plaintiff. Dr. Sheikh‟s Request for Admission clarified that she correctly submitted application forms.

144. The appropriate for the District Court to apply on Plaintiff‟s petition is “Independent Judgment”.

Neither the Administrative Decision of denial of Dr. Sheikh‟s license nor the District Court applied (nor

stated) correct Standard as appropriate for review of Petition on denial of application for Physician‟s

license [a fundamental interest].

145. Considering all the above, this is appropriate that the Ninth Circuit Court of Appeals may

directly review the denial by the Board and apply its Independent Judgment.

VIII. THE DOCTRINE OF DISCRETIONARY AND EXCESSIVE PUNISHMENT IS INCONSISTENT WITH EIGHTH AMENDMENT OF THE CONSTITUTION (BUS. & PROF. CODE § 2227)

146. California Bus. & Prof. Code § 2227 permits the Board to propose any of the five9

Disciplinary punishments to any physician who is found guilty of any offense or guilty of any

negligence whether minor or sever. The offense or negligence can be relevant to patient care or

of a technical nature such as compliance with a bureaucratic procedure or regulation prescribed

by the Board.

“The Medical Board's discretion in the area of penalty is broad in scope. (Borden v. Division of

Medical Quality (1994) 30 Cal.App.4th 874, 883-884.) The Legislature, in enacting the Medical

9 Five Disciplinary Discretions granted to the Board by Bus. & Prof. Code Section 2227 (1) Have his or her license revoked upon order of the board.

(2) Have his or her right to practice suspended for a period not to exceed one year upon order of the board. (3) Be placed on probation and be required to pay the costs of probation monitoring upon order of the board.

(4) Be publicly reprimanded by the board. The public reprimand may include a requirement that the licensee complete

relevant educational courses approved by the board.

(5) Have any other action taken in relation to discipline as part of an order of probation, as the board or an administrative

law judge may deem proper.


http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=4041&FindType=Y&ReferencePositionType=S&SerialNum=1994238838&ReferencePosition=883




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Practice Act, has empowered the Medical Board to select from one or more of five disciplinary

options upon a finding that a licensee has violated the Act (i.e., Code § 2227: license revocation,

suspension, probation, public reproval, or other action). The Board is not required to select one

discipline for a particular type of violation in every case; nor is it precluded from imposing one

of the authorized penalties for a particular type of violation. Dissimilar penalties for similar

types of misconduct do not establish an abuse of discretion. (Talmo v. Civil Service Com.,

supra, 231 Cal.App.3d at p. 230.) Moreover, the Act makes no provision for a progressive or

proportional system of disciplinary sanctions. (Grannis v. Board of Medical Examiners (1971)

19 Cal.App.3d, 551, 565-566.)” (MBC‟s Brief Landau v. Medical Board of California, 71

Cal.Rptr.2d 54 (1998)).

147. In Coker v. Georgia, 433 U.S. 584 (1977), the Court was presented with a scenario where

State of Georgia had proposed capital punishment for an offense unrelated to murder. The Court

rejected the sentence of death and stated, “We have concluded that a sentence of death is grossly

disproportionate and excessive punishment for [the crime] and is therefore forbidden by the

Eighth Amendment as cruel and unusual punishment.”

The Coker Court also noted, “Eighth Amendment bars not only those punishments that are

"barbaric" but also those that are "excessive" in relation to the crime committed. Under [Gregg

v. Georgia, 428 US 153 (1976)] a punishment is "excessive" and unconstitutional if it (1) makes

no measurable contribution to acceptable goals of punishment and hence is nothing more than

the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion

to the severity of the crime.”

148. Colorado Board of Medical Examiners disciplined Dr. Chenoweth for advertising about

treating particular kind of diseases and organs (immoral advertisements). The Colorado Board

of Medical Examiners found the physicians guilty and revoked his license. The Supreme Court

of Colorado not only declared the statue as invalid and discriminatory but also declared the









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penalty of revocation of physician‟s license as „grossly excessive‟ and unconscionable.

“Besides, the penalty provided is so grossly excessive and unconscionable as to make the

statute repugnant to every sense of justice if not to render it void for such reason.” Chenoweth

v. Board of Medical Examiners, 57 Colo. 74 (1913).

149. Chenoweth Court also offered guidelines for proposing disciplinary penalties and stated,

“The police power is limited to enactments which have reference to the public health or

comfort, the safety or welfare of society. Laws which impose penalties on persons and interfere

with the personal liberty of the citizen cannot be constitutionally enacted, unless the public

health, comfort, safety, or welfare demands their enactment”.

150. In the recent years, the State of California disciplined a State Senator who had overlooked to

report a benefit of mere $151. The State proposed a fine of $400 (small fine because of a

miniscule oversight). Continuing the same logic, when physicians prescribe medicine to

patients, the strength of the medicine varies with the intensity of the sickness. A treatment for a

minor headache and a treatment for cancer are not likely to be the same.

151. Unfortunately, the State has not agreed to prescribe proportional punishment in the discipline

of physicians. A Physician can be disciplined whether treatment provided by the physicians

caused any harm to patient or otherwise. A physician may be discipline for a mere technical

violation of bureaucratic rules/regulations created by the Board. For a similar negligence by

different physicians, as permissible by Bus. & Prof. Code § 2227, the Board may arbitrarily

revoke one physician‟s license and may only issue a letter to reprimand to another physician.

152. The Board as a matter of standard practice proposes “Professional Death Sentence” or

Revocation of license even on trivial violations where a physician has not caused any harm to a

patient and where the matter is not even relevant to healthcare.

153. Dr. Sheikh via Mr. Sheikh initially requested defendants to adopt appropriate and

proportionate disciplinary punishment as opposed to excessive disciplinary punishment in the


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disciplinary proceedings (letter dated July 24, 2009; Quarterly Public Meeting of the Board).

There was no response from the Board.

154. In January 2011, Mr. Sheikh participated in the hearing on Disciplinary Guidelines for

Physicians. Mr. Sheikh again submitted proposal for adopting appropriate disciplinary

punishment and rejecting excessive punishment. The Board has refused to adopt the doctrine of

proposing appropriate and proportionate disciplinary punishment in the discipline Physicians (as

opposed to excessive).

155. Dr. Sheikh had raised this objection with the District Court but the District Court dismissed

her Petition before she could present any arguments.

156. Dr. Sheikh requests a Declaratory Relief from the Ninth Circuit Court of Appeals that

California‟s Bus. & Prof. Code § 2227 is unconstitutional as the Board proposes not only cruel

punishment of “Professional Death Sentence” or revocation of Professional license but also

proposes excessive disciplinary punishment. Alternatively, The Ninth Circuit Court of Appeals

may offer guidance and prescribe the Board to reconsider the Disciplinary Guidelines according

to the opinion of the Court (Cal. Code Civ. Proc. § 1085).

IX. CALIFORNIA BUS. & PROF. CODE § 2335 IS UNCONSTITUTIONAL

A. Proceedings with the District Court on Request for Declaratory Relief

157. Dr. Sheikh submitted a Request for Declaratory Relief with the District Court that California

Bus. & Prof. Code § 2335 violates physicians Right to Due Process.

158. In opposition to Dr. Sheikh‟s Request, Defendants relied on First Morgan Case and stated

(Memo of P&A at page 8); The United States Supreme Court in Morgan v. United States, 298

U.S. 468 (1936), announced the doctrine that “he who decides must hear,” but simultaneously

declared that “[e]vidence may be taken by an examiner [and e]vidence thus taken may be sifted

and analyzed by competent subordinates.” The reliance of defendants on the First Morgan case

is misplaced.


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159. In support of her Request to declare the statue unconstitutional, Dr. Sheikh in her letter to

State Board Docket#62 stated; “So far the State has submitted an opposition relying on First

Morgan Case, Morgan v. United States, 298 U.S. 468 (1936) while Dr. Sheikh intends to rely

on Second Morgan Case Morgan v United States, 304 U.S. 1 (1938), in which the Court reached

the merits of the Due Process.

160. Further, Dr. Sheikh submitted a Request for Admission (Constitutionality of Bus. & Prof.

Code § 2335) with the District Court. The Paragraph #13 of that Request for Admission stated;

“The Members of the Medical Board do not review a sample of evidence relevant to

discipline of physician before adopting or rejecting the proposed decision”.

161. The Magistrate Judge erred by considering the merits of the arguments on Defendants

Motion for Dismissal FRCP 12(b)(6). Further, the Magistrate Judge dismissing Dr. Sheikh‟s

Request for Declaratory Relief incorrectly relied on California Government Code and noted:

“Plaintiff‟s primary constitutional claim is that her due process rights were violated because

the Board adopted the ALJ‟s proposed decision without independently reviewing the

evidence, and that California B & P Code § 2335 is unconstitutional. Defendants argue that

there is no constitutional requirement that the Medical Board independently review the

record produced in an administrative hearing before it makes its final decision; Gov. Code §

11517.”

The Magistrate Judge erred by relying on California Government Code to determine

Constitutionality of Bus. & Prof. Code § 2335. Though a Vested property may be created by an

act of State but a State Statue may not dictate what process is due.

162. Considering the record that was presented before the District Court, Dr. Sheikh requests that

the Ninth Circuit Court of Appeals grant Dr. Sheikh‟s Request for Declaratory Relief that Bus.

& Prof. Code § 2335 is unconstitutional. Additionally, in order to assist this Court Dr. Sheikh

presents additional arguments before the Ninth Circuit Court of Appeals.


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B. California State Constitution Explicitly States Doctrine of Separation of Power

163. The Medical Board of California is an administrative agency created by the Constitution of

the State. California State Constitution explicitly declares doctrine of Separation of Power of

any department of State Government. Article 3 § 3 of Constitution of State of California states;

“The powers of state government are legislative, executive, and judicial. Persons

charged with the exercise of one power may not exercise either of the others except as

permitted by this Constitution.”

The Medical Board investigates complaints against physicians, brings disciplinary and then

makes a final determination on its own accusations. The Board acting as an administrative

agency of the State of California is non-compliant with the Constitution of the State.

C. The Process of Discipline of Physicians and Doctrine of Separation of Power

164. The United States Supreme Court has delved into the area of minimal due process

requirements. In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Court reaffirmed the principle of

Morrissey v. Brewer, 408 U.S. 471 (1972), that one of the minimum elements of such hearings

is "an independent decisionmaker." 411 U.S. at 786, 93 S.Ct. 1756. The state medical

examining board does not qualify as such a decision maker. It cannot properly rule with regard

to the merits of the same charges it investigated and, as in this case, presented to the district

attorney; Larkin v Withrow, 386 F.Supp 796 (1973).

165. On appeal from the three Judge panel of the District Court in Larkin, the Supreme Court

though granted relief to Dr. Larkin; reversed the ruling of unconstitutionality of the Statue.

Withrow v Larkin, 421 U.S. 35 (1975) stating; ``No specific foundation has been presented for

suspecting that the Board had been prejudiced by its investigation or would be disabled from

hearing and deciding on the basis of the evidence to be presented at the contested hearing. The

mere exposure to evidence presented in non adversary investigative procedures is insufficient

in itself to impugn the fairness of the Board members at a later adversary hearing." and

“Without a showing to the contrary, state administrators are assumed to be men of conscience






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and intellectual discipline, capable of judging a particular controversy fairly on the basis of its

own circumstances; United States v. Morgan, 313 U.S. 409 (1941) ” Withrow v Larkin, 421

U.S. 35 (1975).

“That the combination of investigative and adjudicative functions does not, without more,

constitute a due process violation, does not, of course, preclude a court from determining from

the special facts and circumstances present in the case before it that the risk of unfairness is

intolerably high.” Withrow v Larkin, 421 U.S. 35 (1975).

166. This is understood that the [men of …intellectual discipline] referred to by the Withrow

Court are considered to be Members of the Medical Board in this case. The Members neither

review any records before bringing disciplinary accusations against physicians nor they review

any records when they participate in a „Democratic Process‟ of approving or disapproving

decision(s) of the hearing officer.

D. The Role and Function of the Board have Changed in the Recent Decades

167. The Role and Function of the State Medical Boards have changed significantly since 1970s

and 1980s. Prior to those decades, the Board served a traditional role as „Gatekeepers‟ of the

Profession by performing their duty of licensing qualified physicians. Currently, Disciplinary

Process of the Board is based on „a mysterious understanding‟ that „Mission‟ of the Medical

Board is “Protection of Public”. One visible outcome is that numbers of disciplinary actions

taken against physicians by the Board have multiplied. The disciplinary actions against

physicians are neither initiated nor reviewed by the Board.

168. “The aggregate number of disciplinary actions against licensed physicians substantially

increased once board altered their missions”. “Disciplinary actions against physicians for

substandard care, incompetence, or negligence jumped from (7) during the period 1963-67 to

1,677 during the period 1986-1996”. State Medical Boards and the Politics of Public Protection

(Author Carl Ameringer; ISBN; 08018-5987-5) at 80.



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169. In Withrow v Larkin, 421 U.S. 35 (1975), “These findings and conclusions were verified”.

Strangely, The Medical Board of California brings unverified accusations; Gov. Code § 11503.

The legal counsel for the Board neither endorses nor stands behind the accusations.

170. The State has incorrectly self assumed the authority to arbitrarily deny licensure to well

qualified physicians for mere technicalities and it grants license to lesser qualified physician‟s.

E. The Process of Discipline of Physicians Undermines Doctrine of Internal Separation of Power

171. The executive staff of the Board investigates physicians for potential disciplinary actions and

executive staff also brings accusations against physicians. The final disciplinary decisions are

made by the Members of the Medical Board of California. This process is assumed to satisfy

appearance of internal Separation of power. The executive staff receives a proposed decision of

hearing officer and sends ballots to members of the Board. Then the executive staff advises

Members whether or not to adopt the decision resulting in violation of doctrine of internal

Separation of Power.

172. The Ninth Circuit Court of Appeals has noted role of Administrative Procedures Act (APA)

“In an effort to minimize any unfairness caused by this consolidation of responsibilities, the

APA mandates an internal separation of the investigatory-prosecutorial functions from

adjudicative responsibilities.” Grolier Inc. v. FTC, 615 F. 2d 1215 (9th Cir. 1980).

F. The Farmers Relied upon Doctrine of Separation of Power to Protect Liberty

173. “The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty”

and “This history was known to the Framers. It no doubt confirmed their view that pendular

swings to and away from individual liberty were endemic to undivided, uncontrolled power.

The Framers' inherent distrust of governmental power was the driving force behind the

constitutional plan that allocated powers among three independent branches. This design serves

not only to make Government accountable but also to secure individual liberty. Boumediene v.

Bush, 128 S. Ct. 2229 (2008).


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174. In the words of Madison (emphasizing on enforcement of the doctrine), “The conclusion

which I am warranted in drawing from these observations is that a mere demarcation on

parchment of the constitutional limits of the several departments, is not a sufficient guard

against those encroachments” James Madison; The Federalist Number 48, (1788).

G. Legislative History of Senate Bill 916

175. The Business & Professional Code §2335 was adopted subsequent to Senate Bill 916. The

Legislative History of the Bill shows that the Bill was written and sponsored by Center for

Public Interest Law (CPIL). “Several years ago, the author was instrumental in carrying legislation to

reform the disciplinary system of the State Bar and its attorney licensees. Subsequent to that reform,

disciplinary effectiveness of the State Bar dramatically increased. The author believes that similar

changes in the disciplinary system for licensees of the medical board would generate similar results.”

176. Key organizations and State entities opposing the Senate Bill included Union of American Physicians

and Dentists, California Society of Anesthesiologists, California Association of Hospitals and Health

Systems, Department of General Services, California Medical Association, Medical Board of California

and Office of State Attorney General.

177. A Senate Hearing on the Bill was held on April 12, 1993; SUBJECT: Medical quality: reporting;

disciplinary actions; hearings. Comprehensive restructuring of the Medical Board of California's

program for disciplining licensees, with transfer of the Board's investigatory authority to the Attorney

General and the Board's authority to hear and decide disciplinary cases to a new hearing panel in the

Office of Administrative Hearings.

178. First point of the Proposed Revisions of the Bill stated; “Eliminates the authority of the DMQ, the

MQRCs, and some of the "allied" health boards in the Medical Board to hear and decide disciplinary

matters”.

179. ARGUMENTS IN SUPPORT: CPIL believes that the current system for medical discipline is poorly

designed to produce satisfactory discipline, cumbersome, inefficient and slow, subject to undue


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professional influence, with ineffective oversight and review. CPIL believes that, as with the attorney

discipline system, the changes in procedures, authority, and structure provided for in this bill will help

resolve many of the perceived problems with the current system.

180. ARGUMENTS IN OPPOSITION: The Union of American Physicians and Dentists states that this

bill would allow unlimited access to investigators from the Attorney General's Office to medical records

even from patients who have not given consent, which the investigators deem "relevant" to disciplinary

action. They state that this is an example of invasion of privacy both from the patients' and physicians'

perspective.

181. A critical opposition came from office of State Attorney General; “AG also opposes the

provision to prohibit the licensing board from making its own finding of fact when it

reviews a case after non-adopting the ALJ's proposed decision,”

H. The Independence of the Board is Reasonably Undermined Subsequent to Enactment of Bus. & Prof. Code § 2335

182. Subsequent to the Senate Bill the investigative function is assigned to the Office of State Attorney

General. The Disciplinary hearings are assigned to the Office of Administrative Hearings and the Board

itself is barred from hearing any matter relevant to discipline of physicians. Even when the Member of

the Medical Board are not satisfied with the finding of the hearing officer, the Board is barred from

making its own finding. The Statue demands that “When considering a proposed decision, the board

or panel and the California Board of Podiatric Medicine shall give great weight to the findings

of fact of the administrative law judge”.

183. The independence of the Board is reasonably undermined when the Board cannot perform its

finding of facts even when the Board is not satisfied with the findings and the Board is

compelled to give great weight to the findings of facts of the hearing officer.

184. Subsequent to further legislation, independence of the Board has been further reduced and

State Attorney General had expressed concerns in this regard. “Section 10.5, when considered

in conjunction with another newly-amended provision of [Senate Bill 609], also has a strong


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tendency to withdraw disciplinary authority from the affected multi-member bodies and instead

concentrate it in decisions of individuals within state government and the judiciary. Current law

empowers the boards themselves to decide cases on consideration of the evidentiary record of

the hearings. Section 10.1 of SB 609 instead requires the affected boards to „give great weight

to the findings of fact‟ made by the individual employed to hold the hearing, thus concentrating

in a single functionary much of the power that was intended to be exercised through the

collective authority of the board's members. The decision resulting from this administrative

process is then subject to review by a single superior court judge, invoked by the filing of a

petition for writ of mandate by the disciplined licensee. When a writ of mandate is improperly

granted, section 10.5 means that the decision of that single judge will no longer be subject to

correction by obligatory appeal to the justices of the court of appeal. Thus, licensure of the

affected health care professions is substantially deprived of the benefit of the board's expertise

over licensing decisions, and of the collective wisdom of the court of appeal bearing upon the

process of judicial review.” (Letter from Attorney General to Hon. Herschel Rosenthal (Sept. 8,

1995) re: SB 609, supra, fn. omitted, emphasis in original.) (Landau v. Medical Board of

California, 71 Cal.Rptr.2d 54 (1998)).

I. Presumption of Undue Professional Influence is without any Factual Justification

185. The Senate Bill 916 incorrectly presumes that the Professional influence [of Medical Profession] is

somehow a barrier to legitimate discipline of physicians. That assumption is without any factual

justification; the discipline of physicians must not be isolated from „professional influence‟ so that the

discipline is relevant to physician‟s professional qualification.

186. During the hearing process, that was incorrectly presumed that physicians disciplining physicians

may favor physicians and hence the physicians [Members of Board] may not hear matter relevant to

discipline of physicians. That assumption clearly ignores the facts that matters relevant to discipline


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other professionals are heard by the professionals of same category such as discipline of attorneys is

heard by attorneys without any undue prejudice.

187. The Members of the Medical Board of California are appointed by the State of California via the

office of Governor, Speaker of the assembly and Senate Committee(s). The assumption that the

Members appointment by State will be prejudicial to any legitimate interest of the State and will favor

physicians in the disciplinary proceedings is only illusionary.

J. The Urgency to Discipline Physicians is Achieved by Unintentionally Compromising Accuracy of the Disciplinary Process

188. The Board initiates Disciplinary actions against physicians without review by members of the

Board. All Stipulations and Settlements are approved automatically. The interim decisions are

effective immediately without ever being reviewed by the Board. In only a fraction of the

disciplinary cases where a decision is reached after hearing before designated hearing officer

with office of administrative hearings, the Members approve decision via a ballot without

review of any records.

189. Primary complaint prior to legislation was that the disciplinary process was inefficient and

this statue was primarily meant to accelerate the discipline of physicians (by denying members

of the Board an opportunity to familiarize themselves with the evidence and circumstances

relevant to discipline of physicians).

190. Primary goal of procedures are to achieve correct results by applying correct principles.

“Procedures for most part are means to an end – the accomplishment of social purpose. But at

the same time the procedures in themselves may create or destroy important values.” Roger C.

Cramton; A Comment on Trial-Type Hearing in Nuclear Power Plant Sitting, 58 Va. L. Rev.,

585 (1972).

“[Roger Cramton] believes that the following formulation of competing considerations is

more helpful than “fairness” or “due process”; the extent to which the procedure furthers the

accurate selection and determination of relevant facts and issues, the efficient disposition of


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business and when viewed in the light of the statutory objectives, its acceptability to the

agency, the participants, and the general public.

The first consideration, accuracy, serves as a short-hand reference to the rational aspects of a

decision-making process. The ascertainment of truth or more realistically, as close an

approximation of reality as human fairly permits, is a major goal of most decision-making.

There are better and worse ways, in various contexts, of gathering relevant information,

selecting or formulating controlling principles, and applying the correct principles to the

probable facts”.

191. Thomas Paine a friend of one of our Founding fathers [Thomas Jefferson] made a relevant

point (warning that rushing to judgment may lead to disastrous consequences) [Thomas Paine

Dissertations on First Principles of Government (1790)] and stated:

“An avidity to punish is always dangerous to liberty. It leads men to stretch, to

misinterpret, and to misapply even the best of laws.”

192. The Constitution recognizes higher values than speed and efficiency; the Bill of Rights in

general, and this clause in particular, were designed to protect the fragile values of vulnerable

citizenry from the overbearing concern for efficiency and efficacy which may characterize

praiseworthy government officials no less, and perhaps more, than mediocre ones. Stanley v.

Illinois, 405 U.S. 645 (1972). See, also, Weaver v. O'Grady, D.C.Ohio 1972, 350 F.Supp. 403.

193. The Board is a legitimate authority for exercising its collective wisdom. Granting permission

to the Board to review disciplinary records, knowing that the Board is entrusted with vested

property of physicians, can only reduce risk of erroneous deprivation of vested property.

K. Temporary Deprivation or Interim Suspension of a Professional License Must Conform to Procedural Due Process

194. The Senate Bill 916 (Date of Hearing: August 24, 1993, Assembly Committee On Health)

paragraph 1 states; “[This Bill] Authorizes administrative law judges of the Medical Quality

Hearing Panel to issue an interim order suspending or restricting the license of a practitioner:


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Subsection (b) of Bus. & Prof. Code § 2335 states, “All Interim orders will be final when filed”.

195. Temporary decisions against physicians are obtained via Ex-Parte hearing where the hearing officer

of the Board concludes, without finding of facts, that the Board is likely to succeed on merits of its

[upcoming or pending] disciplinary decision. The risk of an erroneous deprivation can be reduced or

possibly eliminated by requiring a review of the Board on such matters.

196. The board assumes a lower evidentiary standard, Preponderance of Evidence as a basis for seeking an

interim suspension order. Later, at the administrative trial, after adverse interim decision against a

physician has been executed, the presumption of innocence is rather treated as presumption of guilt.

197. “Procedure by presumption is always cheaper and easier than individualized determination.

But when, as here, the procedure forecloses the determinative issues … It therefore cannot

stand”. “Bell v. Burson, 402 U.S. 535, (1971), held that 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.

“We think the Due Process Clause mandates a similar result here. The State's interest in caring

for Stanley's children is de minimis if Stanley is shown to be a fit father. It insists on presuming

rather than proving Stanley's unfitness solely because it is more convenient to presume than to

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

198. One of basic purposes of this clause is to protect person against having government impose

burdens upon him except in accordance with valid laws of the land. Giaccio v. Pennsylvania,

382 U.S. 399 (1966). A Physician‟s license is physician‟s means of earning livelihood for

his/her family. A physician‟s license to practice medicine is physician‟s fundamental interest

and vested property thus entitled to Due Process protection of the Constitution.





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199. 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).

L. California Bus. & Prof. Code § 2335 Violates Physicians Right to Due Process

200. The State‟s reliance on Cooper v. State Bd. of Medical Examiners, 217 P. 2d 630 (1950) in

opposition to unconstitutionality of Bus. & Prof. Code § 2335 is misplaced. The Cooper Court

primarily addressed a different issue of presence of the Board Members at the time of hearing.

“We are of the view that the Legislature did not, by the provision of subsection (a) of section

11517 of the Government Code, relied upon by petitioner, intend to require auditory

perception10

of all the evidence by each board member who votes” Cooper v. State Bd. of

Medical Examiners, 217 P. 2d 630 (1950)

201. The Supreme Court stated in Morgan v. United States, 298 U.S. 468 (1936) `The officer

who makes the determinations must consider and appraise the evidence which justifies them ...

The "hearing" is the hearing of evidence and argument. If the one who determines the facts

which underlie the order has not considered evidence or argument, it is manifest that the hearing

has not been given. Cooper v. State Bd. of Medical Examiners, 217 P. 2d 630 (1950).

“The officer who makes the determinations must consider and appraise the evidence which

justifies them. That duty undoubtedly may be an onerous one, but the performance of it in a

substantial manner is inseparable from the exercise of the important authority conferred”

Morgan v. United States, 298 U.S. 468 (1936).

10 Dissenting Opinion (in part); Hon. EDMONDS, J.

Cooper v. State Bd. of Medical Examiners, 217 P. 2d 630 (California Supreme Court 1950)

It cannot be said that the failure of the board to comply with section 11517 of the Government Code did not prejudice the

rights of the petitioner. Had the members of the board who were not present at the hearing listened to Dr. Cooper's

testimony and the evidence adduced in his behalf, they might have evaluated it quite differently than they did upon

reading the record.



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M. Conclusion

202. This is a well known assumption that the Medical Board of California is an independent

Entity. As Dr. Sheikh suggested earlier, “No one may represent Medical Board of California

more than the members of the Medical Board”.

203. Certainly all disciplinary actions are executed against physicians in the name of the Board.

As the Board has stated the principle;

“Can physicians simply sign-on, lend their names on paper to a salon or spa, collect “up to”

$400 a month, and escape any liability or responsibility for the patients treated by the business?

NO!” (Quarterly Newsletter of Medical Board of California (April 2009) at page 111

).

With such logic, this is more than appropriate that the Board appraise disciplinary actions that

are taken in the name of the Board by reviewing relevant records.

204. Bus. & Prof. Code § 2224 states [in part]; “The board shall not delegate its authority to take

final disciplinary action against a licensee”. As the Members of the Medical Board have not

delegated authority to make final decisions against a licensee, only the members can make a

final decision.

205. As the Members of Medical Board of California are understood [assumed] to be

“independent decision makers”; they must be allowed to review records relevant to disciplinary

decisions taken in their name. Since the Entity making a decision must consider evidence, and

in the discipline of physicians the interest at stake is fundamental; Bus. & Prof. Code § 2335

violates Constitutional Right to Due Process.

//

//

11 http://www.mbc.ca.gov/publications/newsletter_2009_04.pdf


www.mbc.ca.gov/publications/newsletter_2009_04.pdf

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X. PRYAYER

WHEREFORE, Dr. Sheikh respectfully Prays before the Ninth Circuit Court of Appeals that;

206. The Court issue a Writ approving Dr. Sheikh‟s application for Physicians and Surgeons

License and dismiss the disciplinary proceedings of the Board with prejudice.

207. The Court grant Dr. Sheikh‟s Motion to Compel that was submitted with the District Court.

Plaintiff also requests the Court to rule on sanctions and/or contempt proceedings as the Court

may deem appropriate. Alternatively, the Court may refer the determination of Sanction to the

District Court in consistent with opinion of this Court.

208. The Court issue a Declaratory Relief that defendants denied Dr. Sheikh‟s Right to Due

process by improperly removing her from her Residency Training in August 2008.

209. The Court issue a Declaratory Relief that California Bus. & Prof. Code § 2227 is inconsistent

with the Eighth Amendment of the Constitution; Alternatively, the Court may offer its guidance

barring the Board from proposing excessive Disciplinary Punishment to Physicians.

210. The Court issue a Declaratory Relief that California Bus. & Prof. Code § 2335 violates

Physicians‟ Constitutional Right to Due Process.

211. The Court issue a Declaratory Relief that Dr. Sheikh is not barred from bringing a complaint

against defendants mere by submitting a Petition with the District Court.

212. The Court Grant costs and fee(s) to plaintiff.

213. The Court Grant any other relief as the Court may deem just and appropriate.

Respectfully Submitted by;

/s/ Farzana Sheikh

Date: February 15, 2011 ----------------------------------

Farzana Sheikh, M.D. Pro Se


This disposition is not appropriate for publication and is not precedent *

except as provided by 9th Cir. R. 36-3.

The panel unanimously concludes this case is suitable for decision **

without oral argument. See Fed. R. App. P. 34(a)(2).

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FARZANA SHEIKH, M.D.,

Plaintiff - Appellant,

v.

MEDICAL BOARD OF CALIFORNIA;

STATE OF CALIFORNIA,

Defendants - Appellees.

No. 10-17098

D.C. No. 2:10-cv-00213-FCD-

GGH

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, Jr., District Judge, Presiding

Submitted March 6, 2012**

Before: B. FLETCHER, REINHARDT, and TASHIMA Circuit Judges.

Farzana Sheikh, M.D., appeals pro se from the district court’s judgment

dismissing her 42 U.S.C. § 1983 action alleging due process violations. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Telesaurus VPC, LLC v.

FILEDMAR 13 2012

MOLLY C. DWYER, CLERKU.S. COURT OF APPEALS

Case: 10-17098 03/13/2012 ID: 8101394 DktEntry: 35-1 Page: 1 of 3

10-170982

Power, 623 F.3d 998, 1003 (9th Cir. 2010). We affirm.

The district court properly dismissed Sheikh’s procedural due process claim

because the process Sheikh was afforded, which included a full hearing before an

administrative law judge, and the California statutory scheme under which she was

afforded that process, provided a meaningful opportunity to be heard. See

Matthews v. Eldridge, 424 U.S. 319, 333 (1976) (“The fundamental requirement of

due process is the opportunity to be heard ‘at a meaningful time and in a

meaningful manner.’”(citation omitted)).

Sheikh’s remaining contentions, including those concerning the authority of

the magistrate judge, are unpersuasive.

We do not consider Sheikh’s arguments that were not raised before the

district court, including that the medical board proceedings violated the Eighth

Amendment and that she was improperly removed from her residency program.

See Cold Mountain v. Garber, 375 F.3d 884, 891 (9th Cir. 2004) (an appellate

court will not consider arguments not raised before the district court absent

exceptional circumstances).

The district court did not mention Sheikh’s petition for writ of review in the

order granting the motion to dismiss. We deem that the district court denied

supplemental jurisdiction over the petition for writ of review.


10-170983

Sheikh’s motion for judicial notice over the Medical Board membership list

and Sheikh’s letter to the Medical Board is denied.

AFFIRMED.


Motion for Clarification

No: 10 – 17098

IN THE

THE UNITED STATES COURT OF APPEALS


Farzana Sheikh, M.D. Appellant, v

Medical Board of California &

The State of California Appellee,

On Appeal from the United States District Court

for the Eastern District of California

District Court No. 2:10-CV-00213-FCD-GGH

The Honorable Frank C. Damrell Jr. Presiding

APPELLANT’s MOTION for CLARIFICATION (C.R. 27)

Re; Court’s Opinion dated March 13, 2012

Farzana Sheikh, M.D.

Plaintiff in Pro Per

[email protected]

P.O. Box 7978

Stockton CA 95267

Case: 10-17098 03/15/2012 ID: 8105727 DktEntry: 36 Page: 1 of 4

Appellant’s Motion for Clarification on the Ninth Circuit Court’s Opinion dated March 13, 2012 Farzana Sheikh M.D. v. Medical Board of California & State of California (The Ninth Circuit Court of Appeals)

Page | 1

Appellant Farzana Sheikh M.D. submits this Motion requesting clarification; The

Ninth Circuit Court of Appeals submitted its three page opinion on March 13,

2012 by the three Judge panel consisting of Hon. Judge BETTY FLETCHER, Hon.

Judge STEPHEN REINHARDT and Hon. Judge WALLACE TASHIMA.

I. ISSUES

1. The Ninth Circuit Court of appeals opinion dated March 13, 2012 stated (on p2)

“We deem that the district court denied supplemental jurisdiction over the

petition for writ of review”

a. Appellant is requesting a clarification on which issues the District Court

did not exercise supplemental jurisdiction in the opinion of this Court.

2. The Court has not offered written opinion on any of the numerous arguments

that Dr. Sheikh had raised in the District Court. For example;

a. The Board claims that the Board does not have a burden of proof to bring

accusations against Dr. Sheikh who is otherwise eligible for license

(D.C. Docket# 76).

b. The Board had denied compliance with the Judge’s orders/ subpoena

signed by the Administrative Law Judge. Dr. Sheikh had submitted a

Mt. to Compel defendant’s compliance with the Discovery orders/

subpoena signed by the Administrative Law Judge (D.C. Docket#33).



Page | 2

[The administrative record was not available in the District Court

because defendants withheld the records in defiance of subpoena signed

by ALJ’s).

3. The Court has not offered guidance on the Standard of Review

II. STANDARD

that was applied

for review of this petition and whether the Court of Appeals can review all

records that were available to the Medical Board in the administrative

proceedings.

4. Cal. Gov. Code § 11425.5 requires disciplinary decisions to be in writing.

5. Hon. Justice Brown, Hon. Justice Kennard & Hon. Justice Mosk of California

Supreme Court offered detailed guideline in this regard in their dissenting

opinions in two disciplinary cases1

III. PRAYER

; one case involving discipline of a

physician and the other case involving discipline of an attorney;.

6. Physicians study long years before they become qualified and before they can

be gainfully employed. Since the issue is of fundamental interest, the Ninth

1 Leone v Medical Board of California (94 Cal.Rptr.2d 61, Cal Sup Court, 2000) In Re Rose (993 P.2d 956, Cal Sup Court, 2000)



Page | 3

Circuit Court of Appeals is sincerely requested to offer its guidance on

fundamental issues as much it may deem appropriate.

Respectfully Submitted,

/s/ Farzana Sheikh --------------------------------- Farzana Sheikh, M.D.


UNITED STATES COURT OF APPEALS


FARZANA SHEIKH, M.D.,

Plaintiff - Appellant,

v.

MEDICAL BOARD OF CALIFORNIA

and STATE OF CALIFORNIA,

Defendants - Appellees.

No. 10-17098

D.C. No. 2:10-cv-00213-FCD-

GGH

Eastern District of California,

Sacramento

ORDER

Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.

Sheikh’s motion for clarification is construed as a petition for panel

rehearing, and, as such, is denied.

No further filings shall be accepted in this closed case.

FILEDSEP 26 2012

MOLLY C. DWYER, CLERKU.S. COURT OF APPEALS


Request for Admission Federal Rules for Civil Procedures (FRCP) 36

(Bus. & Prof. Code §2335)

FRCP 36 (a) (3) Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served. The Medical Board did not oppose the Request for Admission.

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FARZANA SHEIKH, M.D., In Pro Per P.O. Box 869 French Camp, CA 95231 Telephone: (209) 982 9039 Prepared by; REHAN SHEIKH, Engineer [email protected]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA (SACRAMENTO DIVISION)

FARZANA SHEIKH, M.D. Plaintiff, v. MEDICAL BOARD OF CALIFORNIA Defendant STATE OF CALIFORNIA Defendant

CASE: 2:10-CV-00213 – FCD - GGH PLAINTIFF’S REQUEST FOR ADMISSION FRCP 36 FOR DECLARATORY RELIEF ON UNCONSTUTIONALITY OF CALIFORNIA’S BUSINESS AND PROFESSIONAL CODE §2335

Plaintiff Farzana sheikh, M.D. requests that Defendant(s) Medical Board of California and State of

California admit or deny the following statements. If objection is made, please state the reason for

the objection. Please submit an affidavit by Member of Medical Board of California in reference to

any information reviewed (if any) by the members of the Medical Board in reference to Discipline of

Physicians. Please specifically deny the matter or set forth in detail the reasons why the answering

party cannot truthfully admit or deny the matter.

//

Case 2:10-cv-00213-FCD-GGH Document 72 Filed 09/19/10 Page 1 of 3


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PETITION: Sheikh v. State of California Page --- PLAINTIFF’S REQUEST FOR ADMISSION (B&P §2335)

| 2

The following statement will be deemed admitted within 30 days. Plaintiff intents to submit a

Motion with the District Court to shorten the number of days to less than 30.

Plaintiff requests Defendant(s) to admit that:

1) The Medical Board of California is a State agency empowered to grant license to eligible

physicians to practice in the State of California.

2) The Executive Director of the Medical Board brings accusations against physicians in his/her

official capacity.

3) The Executive Director of the Medical Board, as permitted by California Government Code

section 11503, is not required to verify the truthfulness of facts or accusations.

4) The accusations against a physician are heard by a Hearing Officer working at Office of

Administrative Hearings.

5) The hearing officers of the Medical Board are attorneys working at the Office of

Administrative Hearings.

6) Hearing Officers of the Medical Board of California take a condensed 8 hour training course

on Medical Education before qualifying to hear issues relevant to discipline of physicians.

7) Hearing Officers make judgment on issues including but not limited to ‘Standard of Care’

and ‘Quality of Care’ provided by physician in the patient care.

8) Hearing Officers prepare a proposed decision and submits the proposed decision to the

Executive Director of the Medical Board.

9) Staff of the Medical Board engages in Ex-Parte Communications with the Hearing Officers

of the Medical Board on matters relevant to discipline of physicians.

10) Attorney for the Medical Board engages in Ex-Parte Communications with the Hearing

Officers of the Medical Board on matters relevant to discipline of physicians.

11) The Executive Director/Staff of the Medical Board sends a ballot to the Board Member(s)

with the Name and gender of the physician and a proposed ‘disciplinary punishment’.


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PETITION: Sheikh v. State of California Page --- PLAINTIFF’S REQUEST FOR ADMISSION (B&P §2335)

| 3

12) The members of the Medical Board do not review complete evidence relevant to discipline of

the physician before adopting or rejecting the proposed decision.

13) The members of the Medical Board do not review a sample of evidence relevant to discipline

of the physician before adopting or rejecting the proposed decision.

14) The members of the Medical Board do not review complete transcript relevant to discipline

of the physician before adopting or rejecting the proposed decision.

15) The members of the Medical Board do not review a sample of transcript relevant to

discipline of the physician before adopting or rejecting the proposed decision.

16) The members of the Medical Board make a decision to adopt or not to adopt the proposed

decision without reviewing evidence, without reviewing transcript and without reviewing the

proposed order.

17) The Executive Staff of the Medical Board engages in Ex-Parte Communications with the

Member(s) of the Medical Board on matters relevant to discipline of physicians.

18) Attorney for the Medical Board engages in Ex-Parte Communications with the Member(s)

of the Medical Board on matters relevant to discipline of physicians.


/s/ Farzana Sheikh

Date: Sep 19, 2010 ----------------------------------



Request for Admission Federal Rules for Civil Procedures (FRCP) 36

(License)

FRCP 36 (a) (3) Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served. The Medical Board did not oppose the Request for Admission.

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FARZANA SHEIKH, M.D., In Pro Per P.O. Box 869 French Camp, CA 95231 Telephone: (209) 982 9039 Prepared by; REHAN SHEIKH, Engineer [email protected]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA (SACRAMENTO DIVISION)

FARZANA SHEIKH, M.D. Plaintiff, v. MEDICAL BOARD OF CALIFORNIA Defendant The STATE OF CALIFORNIA Defendant

CASE: 2:10-CV-00213 – FCD - GGH PLAINTIFF’S REQUEST FOR ADMISSION FRCP 36 ON DENIAL OF PLAINTIFF’S APPLICATION FOR PHYSICAIN’S AND SURGEON’S LICENSE

Plaintiff Farzana sheikh, M.D. requests that Defendant(s) Medical Board of California and State of

California admit or deny the following statements. If objection is made, please state the reason for

the objection. Please submit an affidavit by Member of Medical Board of California in reference to

the information reviewed (if any) by the members of the Medical Board in reference to plaintiff’s

application for Physician’s and Surgeon’s license. Please specifically deny the matter or set forth in

detail the reasons why the answering party cannot truthfully admit or deny the matter.

//



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PETITION: Sheikh v. State of California Page --- PLAINTIFF’S REQUEST FOR ADMISSION (License)

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The following statement will be deemed admitted within 30 days. Plaintiff intents to submit a

Motion with the District Court to shorten the number of days to less than 30.

Plaintiff requests Defendant(s) to admit that:

1) Defendants denied Plaintiff’s, Farzana Sheikh M.D., application for physician’s license on

Dec 5, 2008.

2) In the amended statement of issues dated May 21, 2009, the only cause of action was

Dishonesty.

3) A hearing was held before the Hearing Officer of the Medical Board.

4) The proposed decision of the Hearing Officer of the Medical Board (dated November 3,

2009) did not find plaintiff guilty of Dishonesty according to law (Exhibit Government Code

section 11425.50).

5) The proposed decision by the Hearing Officer of the Medical Board (dated November 3,

2009) did not even use the keyword ‘Dishonesty’.

6) Staff of the Medical Board engaged in Ex-Parte Communications with the Hearing Officer of

the Medical Board in reference to discipline of plaintiff.

7) Attorney for the Medical Board engaged in Ex-Parte Communications with the Hearing

Officers of the Medical Board in reference to discipline of plaintiff.

8) Plaintiff correctly checked the box on the application form reflecting that her contract was

NOT renewed by the Residency Program (Exhibit application form completed by plaintiff

Farzana Sheikh, M.D.).

9) Renewal of contract with the Residency Program is NOT a pre-requisite of Physicians and

Surgeons License to practice Medicine in the State of California.

10) The Resident physicians who are unable to get a renewal of contract by a Residency Program

can be licensed if they are eligible otherwise.


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11) The Resident Physicians who are unable to complete Residency Training can be licensed if

they are eligible otherwise.

12) During November 2007, after defendants reviewed plaintiff’s application forms defendants

stated;

If [plaintiff] satisfactorily completes the full 24 month residency training at San

Joaquin General Hospital she qualifies for licensure (Exhibit).

13) Plaintiff has successfully and satisfactorily completed 24 months (or more) Residency

Training with the Family Medicine Residency Program at San Joaquin General Hospital.

14) Plaintiff has satisfactorily completed Family Medicine Residency Training and plaintiff has

been awarded certificate of completion of Family Medicine Residency Training from San

Joaquin General Hospital.

15) Plaintiff has satisfactorily completed Family Medicine Residency Training and plaintiff has

been awarded certificate of completion of Family Medicine Residency Training from

University of California at Davis.

16) The Executive Staff of the Medical Board generally sends a ballot to the Board Member(s)

with the Name and gender of the physician and a proposed ‘disciplinary punishment’.

17) The Executive Staff of the Medical Board did not send a ballot to the Members of the

Medical Board in reference to discipline of plaintiff Farzana Sheikh’s denial of application

for Physician’s and Surgeon’s License.

18) The Members of the Medical Board did not review complete evidence relevant to discipline

of the plaintiff Farzana Sheikh, M.D. before adopting the proposed decision of the Hearing

Officer.

19) The members of the Medical Board did not review a sample of evidence relevant to

discipline of plaintiff Farzana Sheikh, M.D. before adopting the proposed decision.


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20) The members of the Medical Board did not review complete transcript relevant to discipline

of plaintiff Farzana Sheikh, M.D. before adopting the proposed decision.

21) The members of the Medical Board did not review a sample of transcript relevant to

discipline of plaintiff Farzana Sheikh, M.D. before adopting the proposed decision.

22) The Executive Staff of the Medical Board engaged in Ex-Parte Communications with the

Hearing Officer and with the Member(s) of the Medical Board of California on matters

relevant to discipline of plaintiff Farzana Sheikh, M.D.

23) Defendants did not grant a hearing on plaintiff’s Notice of Objections/Demurrer (dated April

27, 2009) on Statement of Issues / Amended Statement of Issues.

24) Defendants did not comply with the subpoena signed by the administrative law judge and

defendants did not provide requested documentation to plaintiff Farzana Sheikh, M.D.


/s/ Farzana Sheikh

Date: Sep 20, 2010 ----------------------------------



petition.farzana sheikh v medical board of california ninth circuit court

Documents

give great weight

unintentionally compromising accuracy

ninth circuit court

licensing outreach workshop

author carl ameringer

engineer rehansheikh yahoo

proportionate disciplinary punishment

bridge analytical gap