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2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA Defendant CA9: 10 - 17098 FARZANA SHEIKH, M.D. Plaintiff, v. MEDICAL BOARD OF CALIFORNIA Defendant and PETITION (Code Civ. Proc. 1094.5) Seeking Writ of the Court for Approval of her Application for Physicians and Surgeons License THE UNITED STATES COURT OF APPEALS THE NINTH CIRCUIT COURT OF APPEALS (SAN FRANCISCO DIVISION) Prepared by; Rehan Sheikh, rehansheikh@yahoo.com FARZANA SHEIKH, M.D., In Pro Per P.O. Box 869 French Camp, CA 95231 Telephone: (209) 982 9039

REQUEST(S) FOR DECLARATORY RELIEF (42 U.S.C. 1983) Defendants Violated Plaintiffs 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

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Table of Contents
I. II. INTORDUCTION..................................................................................................................... 1 FACTUAL BACKGROUND ................................................................................................ 3

III. DEFNDANTS VIOLATED DR. SHEIKHS 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. C. D. The Boards Notice of Removal was Inadequate................................................................. 6 The Board Improperly Denied Multiple Requests for a Post Deprivation Hearing............... 6 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 The Board Abused its Authority by Denying Dr . Sheikhs License until Finding her Guilty . ......................................................................................................................................... 13 The Original Notice of Denial of Dr. Sheikhs Licensure was impermissibly Vague ......... 13 The Board Published Disciplinary Accusations without Any Ascertainable Standard ....... 14 The Board Abused its Authority by Denying Hearing on Demurrer .................................. 15 The Board Abused its Authority by Shifting Burden of Proof ........................................... 15

B. C. D. E.

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

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G. The Medical Board Abused the Process by Changing Theory of Dishonesty to Unprofessional Conduct ............................................................................................................. 17 H. I. The Board Failed to Perform Mandatory Duty of Due Diligence ...................................... 18 The Board Abused its Authority by Selective Enforcement .................................................. 19

J. The Board Abused its Authority by Improperly De nying Dr. Sheikhs Discovery Motion (Presented Before the Board at San Diego California Oct 30, 2009)............................................ 19 K. L. The Board adopted Proposed Decision in Violation of State Statues ................................. 20 The Board Failed to Bridge Analytical Gap between Evidence and Conclusion ................ 20 The Board Must Review Complete Records including all Application Forms ................... 21 THE ADMINISTRATIVE HEARING PROCESS WAS NOT UNBIASED ........................ 23 The Hearing Officer Denied Dr. Sheikhs Request for a Three Day Trial.......................... 23 The Hearing Officer Denied Dr. Sheikhs Request for Continuance .................................. 23

VI. A. B.

C. Defendants Arbitrarily and Intermittently Denied Dr. Sheikhs Right to be Represented by a non-Attorney in an Administrative Proceedings .......................................................................... 24 D. The Hearing Officer Denied Hearing on Dr. Sheikhs Objections & Motions ................... 26 The Hearing Officer did not Review Any of the Records that Dr. Sheikh Submitted ......... 27 PROCEEDINGS WITH THE DISTRICT COURT .............................................................. 27 Summary Dismissal for Failure to State a Claim did not Comply with FRCP 12 .............. 28 Summary Dismissal for Failure to State a Claim did not Comply with FRCP 56 .............. 31 The District Court Erred by Denying Plaintiffs Motion to Compel Discovery as Moot. 31

VII. A. B. C.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Presumption of Undue Professional Influence is without any Factual Justification ............... 46


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D. E.

The District Court Erred by Construing Dr. Sheikhs Petition as Complaint ................... 32 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. H. I. The District Court Misunderstood its Local Rules ............................................................ 34 The District Court Erred by Terminating Dr. Sheikhs efiling Access ............................... 35 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. A. B. C. D. CALIFORNIA BUS. & PROF. CODE 2335 IS UNCONSTITUTIONAL ......................... 39 Proceedings with the District Court on Request for Declaratory Relief ............................. 39 California State Constitution Explicitly States Doctrine of Separation of Power ............... 41 The Process of Discipline of Physicians and Doctrine of Separation of Power .................. 41 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

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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. M. X. California Bus. & Prof. Code 2335 Violates Physicians Right to Due Process ............... 50 Conclusion ....................................................................................................................... 51 PRYAYER .......................................................................................................................... 52

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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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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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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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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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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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

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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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1 2 3 4 5 6 7 8 9 10 11 12 13 14 OTHER STATE CASES 15 16 17 18 19 20 21 22 23 24 25 26 27 28


Petition and Request(s) for Declaratory Relief Farzana Sheikh, M.D. v. Medical Board of California et al (Ninth Circuit Court of Appeals)
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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

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

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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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1

I. INTORDUCTION
1. Plaintiff1 Farzana Sheikh2, 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. Sheikhs 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. Sheikhs application for license. 3. Dr. Sheikh also Requests a Declaratory Relief that Bus. & Prof. Code 2335 violates physicians 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 physicians Constitutional right to Due Process 42 U.S.C. 1983. 5. The District Court summarily dismissed Dr. Sheikhs Petition and Dr. Sheikhs 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. Sheikhs Petition with the District Co urt was arbitrary and capricious. While granting defendants Motion for dismissal of Dr. Sheikhs 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.

27
2

The terms Plaintiff and Petitioner may have been interchanging in the Motion. Petitioner Farzana Sheikh, M.D. is hereby referred as Dr. Sheikh for clarification. Petition and Request(s) for Declaratory Relief Farzana Sheikh, M.D. v. Medical Board of California et al (Ninth Circuit Court of Appeals)
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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 physicians 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 (Plaintiffs 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. Sheikhs license by the Board in November 2007. That investigation concluded that Dr. Sheikhs Residency Program in Texas provided incorrect information to the Board that resulted in denial of her application. 13. A primary theme in Dr. Sheikhs 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. Sheikhs 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. Sheikhs Request for Admission on license c. Dr. Sheikhs 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. SHEIKHS 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. Sheikhs 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. Sheikhs 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. Sheikhs (dated May 8, 2008) to confirm that Dr. Sheikhs 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. Sheikhs 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 Boards 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. Sheikhs 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. Sheikhs remo val from her residency training, the Board published multiple accusations and offered a Probationary license. The terms of the Probation included restrictions on Dr. Sheikhs 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. Sheikhs Right to Due Process by each of the following actions; i. ii. iii. By Removing Dr. Sheikhs from her Residency Training without a hearing. By Sending an inadequate notice without any grievance procedures and 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 Licensing 3, 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
Plaintiff merely echos 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. Sheikhs application for license.
5 4

had relied on smog certification to assert fitness of

http://mbc.ca.gov/publications/newsletter_2010_10.pdf (Page 7) Petition and Request(s) for Declaratory Relief Farzana Sheikh, M.D. v. Medical Board of California et al (Ninth Circuit Court of Appeals)
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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 States mistaken belief that a Physicians 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 officer 6. 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).

When a physician is found guilty only by the process, will the physician be considered acquitted or guilty? 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? Petition and Request(s) for Declaratory Relief Farzana Sheikh, M.D. v. Medical Board of California et al (Ninth Circuit Court of Appeals)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 physicians 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, AAPSs 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. Sheikhs 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 Boards intent was to delay the Disciplinary Accusations to her disadvantage). 57. For all of the following, the adverse decision of the Board denying Dr. Sheikhs 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. Sheikhs 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. Sheikhs Licensure was impermissibly Vague 60. The Board denied Dr. Sheikhs application for licensure on Dec 16, 2009 prior to administrative hearing. The letter denying Dr. Sheikhs 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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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for your review. (Exhibit; Dr. Sheikhs Motion for Injunctive Relief). The denial of the Board was impermissibly vague as that letter did not state appropriate justification for denial of Dr. Sheikhs 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 Boards 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 t here is no guidance in the administrative decision whether fitness is a requirement of Physicians 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 Bo ard 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. Sheikhs 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 applicants 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. Sheikhs objections. A hearing on Dr. Sheikhs objections could result in dismissal of Disciplinary proceedings and approval of her application for license. 67. Denial of Hearing on Dr. Sheikhs Demurrer constituted violation of her Rig ht to Due Process. Because the Board denied hearing on Dr. Sheikhs 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. Sheikhs 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. Sheikhs 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. Sheikhs 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. Sheikhs 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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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. Sheikhs 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 c onduct, 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. Sheikhs 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. Sheikhs licensure (Nov 2007) and that information by the Res idency 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. Sheikhs 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. Sheikhs 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. Sheikhs written Motion and the Board failed to perform its mandatory duty by denying Dr. Sheikhs Motion without a written order.

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K. The Board adopted Proposed Decision in Violation of State Statues 86. Dr. Sheikhs 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. Sheikhs 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. Sheikhs 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. Sheikhs 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. Sheikhs 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. Sheikhs 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 Boards disciplinary proceedings and issue a Writ approv ing her application for licensure. The issue of Dr. Sheikhs 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. Sheikhs Request for a Three Day Trial

98. The Board had denied Dr. Sheikhs 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. Sheikhs 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. Sheikhs req uest 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. Sheikhs 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 partys 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. ix.

August 12, 2009, the hearing officer ruled that Dr. Sheikh is not represented by Mr. Sheikh. 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; applicants 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. Plaintiffs 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. Sheikhs Objections & Motions 107. The Hearing Officer improperly denied hearing on Dr. Sheikhs Notice of Defense without a written decision that constituted undue prejudice against Dr. Sheikh. Dr. Sheikhs 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 no ted, 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. Sheikhs 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. Sheikhs 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. Sheikhs 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. Sheikhs opposition (District Court Docket #50).

119. The District Court did a reversible error by dismissing Dr. Sheikhs Petition; Dr. Sheikhs 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. Sheikhs Request for Declaratory Relief; Bus. & Prof. Code 2335 violates Physicians Right to Due Process. Dr. Sheikhs 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 physicians 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. Sheikhs 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 defendants Motion for dismissal of Dr. Sheikhs 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. Sheikhs 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 Plaintiffs Motion to Compel Discovery as Moot 129. Dr. Sheikh had submitted a Motion to compel defendants compliance with the discovery orders signed by an ALJ. Dr. Sheikhs 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. Sheikhs 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 Garretts dismissal by the District Court, the Ninth Circuit Court of Appeals also noted, [Plaintiff] was not collaterally estopped from litigating issue of disparate treatment.

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iv. iii. ii.

D. The District Court Erred by Construing Dr. Sheikhs Petition as Complaint 131. The District Court erred by arbitrarily construing Dr. Sheikhs 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. Sheikhs 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. Sheikhs 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. 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). 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. 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. Sheikhs 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. Sheikhs [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 Judges 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 plaintiffs 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 Plaintiffs 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. Sheikhs request for r econsideration 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 plaintiffs 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. Sheikhs 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.

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. Sheikhs 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 ALJs 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. Sheikhs 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. Sheikhs 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. Sheikhs documents submitted by verified mail. The District Court must restore Dr. Sheikhs account when neede d.

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. Sheikhs Request for Admission clarified that she correctly su bmitted application forms.

144. The appropriate for the District Court to apply on Plaintiffs petition is Independent Judgment.
Neither the Administrative Decision of denial of Dr. Sheikhs license nor the District Court applied (nor stated) correct Standar d as appropriate for review of Petition on denial of application for Physicians 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 five 9 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

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. Petition and Request(s) for Declaratory Relief Farzana Sheikh, M.D. v. Medical Board of California et al (Ninth Circuit Court of Appeals)
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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.) (MBCs 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 physicians 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 physicians 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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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Californias 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. Sheikhs 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. Sheikhs Request for Declaratory Relief incorrectly relied on California Government Code and noted: Plaintiffs primary constitutional claim is that her due process rights were violated because the Board adopted the ALJs 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. Sheikhs 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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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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, a nd 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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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 169. 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 physicians. 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 professiona l influence so that the discipline is relevant to physicians 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] believe s 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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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 individual ized 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 Physicians license is physicians means of earning livelihood for his/her family. A physicians license to practice medicine is physicians 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 du e 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 States 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).

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. Petition and Request(s) for Declaratory Relief Farzana Sheikh, M.D. v. Medical Board of California et al (Ninth Circuit Court of Appeals)
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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. // //

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http://www.mbc.ca.gov/publications/newsletter_2009_04.pdf Petition and Request(s) for Declaratory Relief Farzana Sheikh, M.D. v. Medical Board of California et al (Ninth Circuit Court of Appeals)
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Case: 10-17098 02/15/2011 Page: 65 of 65

ID: 7650341 DktEntry: 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Pro Se Date: February 15, 2011 /s/ Farzana Sheikh ---------------------------------Farzana Sheikh, M.D.

X. PRYAYER
WHEREFORE, Dr. Sheikh respectfully Prays before the Ninth Circuit Court of Appeals that; 206. The Court issue a Writ approving Dr. Sheikhs application for Physicians and Surgeons License and dismiss the disciplinary proceedings of the Board with prejudice. 207. The Court grant Dr. Sheikhs 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. Sheikhs 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;

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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)
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Case: 10-17098

03/13/2012

ID: 8101394

DktEntry: 35-1

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FILED
NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MAR 13 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

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-FCDGGH

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 courts 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.

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).
**

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Power, 623 F.3d 998, 1003 (9th Cir. 2010). We affirm. The district court properly dismissed Sheikhs 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)). Sheikhs remaining contentions, including those concerning the authority of the magistrate judge, are unpersuasive. We do not consider Sheikhs 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 Sheikhs 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.
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Sheikhs motion for judicial notice over the Medical Board membership list and Sheikhs letter to the Medical Board is denied. AFFIRMED.

10-17098

Motion for Clarification

Case: 10-17098

03/15/2012

ID: 8105727

DktEntry: 36

Page: 1 of 4

No:

10 17098 IN THE

THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Farzana Sheikh, M.D. v Medical Board of California & The State of California

Appellant,

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

APPELLANTs MOTION for CLARIFICATION (C.R. 27) Re; Courts Opinion dated March 13, 2012

Farzana Sheikh, M.D. Plaintiff in Pro Per rehansheikh@yahoo.com P.O. Box 7978 Stockton CA 95267

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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 Judges orders/ subpoena signed by the Administrative Law Judge. Dr. Sheikh had submitted a Mt. to Compel defendants compliance with the Discovery orders/ subpoena signed by the Administrative Law Judge (D.C. Docket#33).
Appellants Motion for Clarification on the Ninth Circuit Courts Opinion dated March 13, 2012 Farzana Sheikh M.D. v. Medical Board of California & State of California (The Ninth Circuit Court of Appeals)
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[The administrative record was not available in the District Court because defendants withheld the records in defiance of subpoena signed by ALJs). 3. The Court has not offered guidance on the Standard of Review 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.
II. STANDARD

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 cases 1; one case involving discipline of a physician and the other case involving discipline of an attorney;.
III. PRAYER

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

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) Appellants Motion for Clarification on the Ninth Circuit Courts Opinion dated March 13, 2012 Farzana Sheikh M.D. v. Medical Board of California & State of California (The Ninth Circuit Court of Appeals)
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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.

Appellants Motion for Clarification on the Ninth Circuit Courts Opinion dated March 13, 2012 Farzana Sheikh M.D. v. Medical Board of California & State of California (The Ninth Circuit Court of Appeals)
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FILED
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
SEP 26 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

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

No. 10-17098 D.C. No. 2:10-cv-00213-FCDGGH Eastern District of California, Sacramento

ORDER Defendants - Appellees.

Before:

B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.

Sheikhs 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.

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.

Case 2:10-cv-00213-FCD-GGH Document 72

Filed 09/19/10 Page 1 of 3

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 FARZANA SHEIKH, M.D. Plaintiff, v. MEDICAL BOARD OF CALIFORNIA Defendant STATE OF CALIFORNIA Defendant FOR DECLARATORY RELIEF ON UNCONSTUTIONALITY OF CALIFORNIAS BUSINESS AND PROFESSIONAL CODE 2335 PLAINTIFFS REQUEST FOR ADMISSION FRCP 36 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA (SACRAMENTO DIVISION) Prepared by; REHAN SHEIKH, Engineer rehansheikh@yahoo.com FARZANA SHEIKH, M.D., In Pro Per P.O. Box 869 French Camp, CA 95231 Telephone: (209) 982 9039

Case 2:10-cv-00213-FCD-GGH Document 72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Filed 09/19/10 Page 2 of 3

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.
PETITION: Sheikh v. State of California Page --- PLAINTIFFS REQUEST FOR ADMISSION (B&P 2335) |2

Case 2:10-cv-00213-FCD-GGH Document 72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28


Date: Sep 19, 2010

Filed 09/19/10 Page 3 of 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.

Respectfully Submitted by;

/s/ Farzana Sheikh ---------------------------------Farzana Sheikh, M.D.

PETITION: Sheikh v. State of California Page --- PLAINTIFFS REQUEST FOR ADMISSION (B&P 2335) |3

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.

Case 2:10-cv-00213-FCD-GGH Document 73

Filed 09/20/10 Page 1 of 12

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 pla intiffs application for Physicians and Surgeons license. 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 FARZANA SHEIKH, M.D. Plaintiff, v. MEDICAL BOARD OF CALIFORNIA Defendant The STATE OF CALIFORNIA Defendant ON DENIAL OF PLAINTIFFS APPLICATION FOR PHYSICAINS AND SURGEONS LICENSE PLAINTIFFS REQUEST FOR ADMISSION FRCP 36 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA (SACRAMENTO DIVISION) Prepared by; REHAN SHEIKH, Engineer rehansheikh@yahoo.com FARZANA SHEIKH, M.D., In Pro Per P.O. Box 869 French Camp, CA 95231 Telephone: (209) 982 9039

Case 2:10-cv-00213-FCD-GGH Document 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Filed 09/20/10 Page 2 of 12

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 Plaintiffs, Farzana Sheikh M.D., application for physicians 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.

PETITION: Sheikh v. State of California Page --- PLAINTIFFS REQUEST FOR ADMISSION (License) Page | 2

Case 2:10-cv-00213-FCD-GGH Document 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Filed 09/20/10 Page 3 of 12

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 plaintiffs 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 discip line of plaintiff Farzana Sheikhs denial of application for Physicians and Surgeons 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.

PETITION: Sheikh v. State of California Page --- PLAINTIFFS REQUEST FOR ADMISSION (License) Page | 3

Case 2:10-cv-00213-FCD-GGH Document 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28


Date: Sep 20, 2010

Filed 09/20/10 Page 4 of 12

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 plaintiffs 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.

Respectfully Submitted by;

/s/ Farzana Sheikh ---------------------------------Farzana Sheikh, M.D.

PETITION: Sheikh v. State of California Page --- PLAINTIFFS REQUEST FOR ADMISSION (License) Page | 4