Docket - Ca9.dr - Sheikh.v.mbc.8 1

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ID: 7580580 DktEntry: 8-1
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: TIME: TBD TBD STATE OF CALIFORNIA Defendant FARZANA SHEIKH, M.D. Plaintiff, v. MEDICAL BOARD OF CALIFORNIA Defendant and CA9: 10 - 17098 PLAINTIFFS MOTION FOR INJUNCTIVE RELIEF & MOTION FOR TEMPORARY INJUNCTION 42 U.S.C. 181 42 U.S.C. 183 FRAP 8 FOR APPROVAL OF PLAINTIFFS 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
JUDGE: TBD
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Plaintiffs Motion for Injunctive Relief Seeking Approval of her Application for Physicians and Surgeons License Farzana Sheikh, M.D. v. Medical Board of California et al
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Table of Contents
I. II. III. A. B. INTORDUCTION..................................................................................................................... 1 JURISDICTION AND VENUE ............................................................................................. 3 FACTUAL BACKGROUND ................................................................................................ 5 Statement of Undisputed Facts ........................................................................................... 5 Statement of Disputed Facts ............................................................................................... 5
C. Plaintiff Presents Letter from the Medical Board Admitting that Plaintiff correctly informed the Board regarding non-renewal of her contract with the Residency Program ............... 6 D. Three Residency Program Director(s) have testified under Penalty of Perjury that Plaintiff is competent to safely practice Medicine ....................................................................................... 7 IV. A. DISCUSSION AND ARGUMENTS ..................................................................................... 8 An Overview of Violations of Plaintiffs Rights ................................................................. 8 Unreasonable Searches ....................................................................................................... 9
C. Violation of First Amendment (For Speaking on Matter of Public Policy): ....................... 10 a. The Member(s) of Medical Board of California have requested an Unprecedented Investigation on Business Practices of the Medic al Board ....................................................... 12 Gender Discrimination ..................................................................................................... 12 Retaliation ........................................................................................................................ 13
E.
F. Denial of Procedural Due Process and Denial of Substantive Due Process ........................... 13 G. Plaintiffs Motion to Compel Defendants Compliance with Administrative Law Judges Discovery Orders is pending ....................................................................................................... 16
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1 2 3 4 5 6 7 8 9 10 11 12 13 L. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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H. The Medical Board Must Review Complete Records including all Application forms completed by Dr. Sheikh ............................................................................................................ 18 I. The Court Must Look Beyond The Label of Accusations ..................................................... 19
J. The Burden Created By Question 14 on Form L1B Are Unnecessary Because Question 14 is an Unnecessary Eligibility Criteria ............................................................................................. 20 a. Licensing Manager of the Medical Board stated that four percent of Applicants correctly complete Application Forms - Licensing Outreach Workshop at Oakland California November 16, 2010 ........................................................................................................................................... 21 b. K. Licensing Committee Meeting at Long Beach California Nov 4, 2010 ................................. 21 FEHA and Title VIIs Prohibition on Retaliation .............................................................. 22 Preliminary Injunction Standard ....................................................................................... 22
M. Likelihood of Success on Merits of Plaintiffs Application for Physicians and Surgeons License ....................................................................................................................................... 24 N. O. Public Interest .................................................................................................................. 26 Irreparable Harm .............................................................................................................. 27
a. Defendants have refused compliance with the State Statues and Plaintiff is not required to prove Irreparable Harm............................................................................................................... 27 P. Final Report of Enforcement Monitor submitted with California State Senate ...................... 27 V. VI. SUMMARY OF LEGAL ARGUMENTS AND CONCLUSION ......................................... 28 PRAYER for Injunctive Relief............................................................................................. 32
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TABLE OF AUTHORITIES FEDERAL CASES Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045 (9th Cir.2000) ......................................................................................... 25 Canal Authority of Florida v. Callaway, 489 F.2d 567 (5th Cir.1974)..................................................................................................... 24 Conant v. Walters, 309 F.3d 629, 637 (9th Cir. 2002) ............................................................................................ 12 Ex Parte Wall, Supreme Court of the United States, 107 U.S. 265, 2 S.Ct. 569 (1883) .................................... 32 Ex Parte Young, 209 U.S. 123 (United States Supreme Court 1908) .................................................................. 25 Garrett v. City of San Francisco, 818 F.2d 1515 (9th Circuit 1987) .............................................................................................. 17 Hall v. Hawaii, 791 F.2d 759, 761 (9th Cir.1986) ............................................................................................. 18 Hancock v. Montgomery Ward Long Term Disability Trust, 787 F.2d 1302, 1306 (9th Cir.1986) ........................................................................................ 18 Johnson v. United States Department of Agriculture, 734 F.2d 774 (11th Cir 1984) .................................................................................................... 24 Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1996) ........................................................................................... 17 McNabb v. United States 63 S.Ct. 608, 318 U.S. 332, 347 (1943).................................................................................... 31 Robinson v. Shell Oil Co., 519 U.S. 337, 345-46 (1997).................................................................................................... 23
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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 OTHER STATE CASES Alan Mishler v. The State of Nevada Board of Medical Examiner, 849 P.2d 291 (Supreme Court of Nevada 1993) ................................................................. 21, 33 Bennett v. New Hampshire State Medical Board (Superior Court of County of Merrimack, 2006) ...................................................................... 25 Rawles v. Jenkins, 279 S.W. 350 (KY.,1925) ........................................................................................................ 31
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Schware v. Board of Bar Examiners 353 U.S. 232, fn. 5 238-239, (1957) ........................................................................................ 30 Studebaker Corp. v. Gittlin, 360 F.2d 692 (C.A.2, 1966) ..................................................................................................... 29 Thomas v. Collins, 323 U.S. 516, 531 (1945) ......................................................................................................... 12 CALIFORNIA STATE CASES (Steve P. Rados, Inc. v. California Occupational Saf. & Health Appeals Bd. , 89 Cal.App.3d 590, 595, 152 Cal.Rptr. 510 (Court of Appeals, 1979) ..................................... 20 Bixby v. Pierno, 481 P. 2d 242, 4 Cal.3d 130, 151 (Supreme Court of California 1971) ............................... 20, 32 Cartwright v. Board of Chiropractic Examiners, 548 P.2d 1134, (Supreme Court of California, 1976) .............................................................. 32 Gray v. Superior Court, 23 Cal.Rptr.3d 50 (Cal.App.1.Dist.,2005) ................................................................................ 17 Rinaldo vs. Board of Directors, 268 P. 1076 (Cal. App.2.Dist., 1928) ....................................................................................... 15 Rodriguez v. Department of Real Estate 51 Cal.App.4th 1289 (1996) .................................................................................................... 30
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Fellmuth & Folsum, California Regulatory Law and Practice (1981) ............................................. 20 19 20 21 22 23 24 25 26 27 28
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Smith v. N.H. Bd. of Psychologists, 138 N.H. 548, 550, 645 A.2d 651, 652 (1994) ......................................................................... 25 State Bar of Nevada v. Claiborne, 104 Nev. 115, 211, 756 P.2d 464, 526 (1988) .......................................................................... 21 Thompson v. New Hampshire Board of Medicine, 143 N.H. 107, 719 A.2d 609 (Supreme Court of New Hampshire 1998) .................................. 25 PLEADINGS Plaintiffs Brief Sheikh v. Cisco Systems Inc. (Supreme Court of California 2009 WL 1968227) ................................................................... 18 Recommended Findings Of Fact And Conclusions Of Law Of The United States As Amicus Curiae; Julie Ann Clark V. Virginia Board Of Bar Examiners (E.D. Virginia) ..................................... 22
OTHER AUTHORITIES Barket and Snyder, California Administrative Mandamus (C.E.B. Supp.1984) .............................. 20
The Prosecutor's Constitutional Duty to Disclose Exculpatory Evidence; Winter 1994; 25 U. Mem. L. Rev. 735, The University of Memphis Law Review .................... 16 The Tyranny of Good Intentions at 15 (Authors; Roberts, Stratton; ISBN: 0-7615-2553-x) ................................................................ 11 LEGISLATIVE MATERIAL Enforcement Monitor Final Report ................................................................................................ 27 Senate Bill 1950 (Figueroa) ........................................................................................................... 26
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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 CONSTITUTION OF THE UNITED STATES Eight Amendment ......................................................................................................................... 22 First Amendment ................................................................................................................... 1, 8, 10 Fourteenth Amendment ...................................................................................................... 1, 3, 9, 16 Fourth Amendment ................................................................................................................ passim Sixth Amendment ............................................................................................................................ 1
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FEDERAL STATUTES 28 U.S.C. 1291 ............................................................................................................................. 3 28 U.S.C. 1341 ....................................................................................................................... 4, 31 28 U.S.C. 1292 .............................................................................................................................. 3 28 U.S.C. 1331 .............................................................................................................................. 3 28 U.S.C. 1332 .............................................................................................................................. 3 28 U.S.C. 1343 .............................................................................................................................. 3 28 U.S.C. 1345 .............................................................................................................................. 3 42 U.S.C. 2000e et seq ................................................................................................................ 2 42 U.S.C. 2000e-5(f) ..................................................................................................................... 3 42 U.S.C.A 1983 ........................................................................................................................... 2 42 U.S.C.A. 2000e-5(g) .............................................................................................................. 23 CALIFORNIA STATE STATUES Business and Professional Code 480 ............................................................................................ 26 Business and Professions Code. 2220.1 ...................................................................................... 29 Cal. Gov. Code 12900 et seq. ("FEHA") ........................................................................................ 2 CCP 1094.5 ................................................................................................................................... 2 Gov. Code 11120........................................................................................................................ 12 Gov. Code 11120 et al (Bagley-Keene Open Meeting Act) ................................................... 11, 12 Gov. Code 11503........................................................................................................................ 26 RULES FRCP 12 (b)(6)................................................................................................................................ 2 FRCP 12(b)(6)............................................................................................................................... 26 FRCP 56 ....................................................................................................................................... 26 FRCP 56 (f) ................................................................................................................................... 18 FRCP 72 ....................................................................................................................................... 27
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LIST OF EXHIBITS
Exhibit A
Plaintiffs Request for Investigation Submitted with the Office of State Attorney General
Exhibit B
Plaintiffs Request fo r Admission (license) submitted with the District Court
Exhibit C
Letter from the Medical Board Admitting that Dr. Sheikh provided correct information to the Board
Exhibit D
Suggestions to Improve Physicians Disciplinary Process of the Medical Board Presented on Quarterly Public Meeting in Sacramento July 2009
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Plaintiff1 Farzana Sheikh2, M.D. hereby respectfully comes before the Ninth Circuit Court of Appeals and submits this Motion for injunctive relief seeking approval of her application for Physicians and Surgeons license pending with the Medical Board of California (MBC) since 2007. Plaintiff also seeks ruling of this Court on her Motion to Compel defendants compliance with the Administrative Law Judges Discovery orders (previously submitted with the District Court).
I. INTORDUCTION
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. The training license is issued after thorough review of records including Medical School records and transcripts, only to those physicians who graduate from the approved Medical Schools and who will be eligible for license to practice medicine in the State of California after completing Residency Training. A twelve (12) month residency training is required before a license is issued to a physician who graduates from a Medical School in the United States and a 24 month residency training is required before a license is issued to a physician who graduates from an International Medical School. Dr. Sheikh started her Second year Family Medicine Residency Training at San Joaquin General Hospital (SJGH) on or around July 1, 2006 after completing one year residency training in Austin Texas. During October 2007, she submitted an application for Physicians and Surgeons license with the State Medical Board. Since then, the Medical Board has refused to issue a license to Dr. Sheikh for reasons that have varied with time. Dr. Sheikh requested administrative Hearing with the Medical Board of California resulting in denial of her application for license.
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The terms Plaintiff and Petitioner may have been interchanging in the Motion. Ms. Sheikh has also submitted a petition for review of administrative Mandamus on denial of her application for license in addition to a confidential complaint against Defendants.
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Petitioner Farzana Sheikh, M.D. is hereby referred as Dr. Sheikh for clarification. Plaintiffs Motion for Injunctive Relief Seeking Approval of her Application for Physicians and Surgeons License Farzana Sheikh, M.D. v. Medical Board of California et al
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Dr. Sheikh submitted a Petition (CCP 1094.5) with Eastern District of California for review of final decision of Medical Board of California. Plaintiff submitted a Motion to compel defendants
compliance with the Administrative Law Judges (ALJ) Discovery orders seeking a copy of specific records that the ALJ determined were relevant to plaintiffs application for Physicians and Surgeons license. Defendants submitted a Motion for dismissal of plaintiffs petition for failure to state a claim as set
forth in FRCP 12 (b) (6). Plaintiffs Motion to Compel and defendants Motion for Dismissal were heard on or around June 10, 2010 before a Magistrate Judge. The Magistrate Judge granted defendants Motion to Dismiss and plaintiffs Motion to Compel Discovery was considered moot. Defendants secretly (ex-parte) submitted unverified documents for review of the Magistrate Judge without providing a copy to plaintiff. Plaintiff has submitted a Notice of Appeal with the Ninth Circuit Court of Appeals and the parties are expected to submit merit briefs in the coming weeks. The actions taken against Dr. Sheikh were so raw and inappropriate that the respectable members of the Medical Board of California took notice and requested an unprecedented investigation of Business Practices of the Medical Board. Dr. Sheikh has sought a Declaratory Relief that California Business & Professional Code 2335 violates physicians right to Due Process (42 U.S.C. 1983). Dr. Sheikh also submitted a Request for Admission with the District Court on the Constitutionality of the above referenced statue that was admitted. Dr. Sheikh alleges that denial of her application for Physicians license is arbitrary. She has submitted a confidential complaint against defendants (with Equal Employment Opportunity Commission EEOC) alleging Discrimination (Gender based) and Retaliation under Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e et seq., and the California Fair Employment and Housing Act, Cal. Gov. Code 12900 et seq. ("FEHA"). Plaintiffs complaint includes violations of Plaintiffs Constitutional Rights, including but not limited to violations of First Amendment, Fourth Amendment, Sixth Amendment, Eighth Amendment and Fourteenth Amendment of the Constitutions of the United States. The complaint against the State Medical Board et al was initially
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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 submitted with EEOC on or around October 28, 2009 and Dr. Sheikh received a final denial from the Medical Board on November 25, 2009.
II. JURISDICTION AND VENUE

1. A Federal Court (District Court and Court of Appeals) has jurisdiction under 28 U.S.C.
1331, 28 U.S.C. 1345, and 42 U.S.C. 2000e-5(f).

2. A federal Court has Diversity Jurisdiction 28 U.S.C. 1332 as one of the parties in
defiance of administrative law judges disco very order is in Texas.

3. A federal Court has Civil Rights jurisdiction pursuant to 28 U.S.C. 1343. 4. Additionally, the Ninth Circuit Court of Appeals also has jurisdiction to grant hearing on the above referenced Motions pursuant to 28 U.S.C. 1291 and 28 U.S.C. 1292 (on final and
interlocutory orders of the District Court).

5. Plaintiffs Petition for administrative review of denial of her application for Physicians and Surgeons license is pending with the Ninth Circuit Court of appeals until after parties submit merit brief according to briefing schedule. 6. The Ninth Circuit Court of appeals is the only Court available to plaintiff for immediate hearing on this Motion for prospective Injunctive Relief. 7. The Ninth Circuit Court of Appeals is an appropriate Court for immediate hearing on plaintiffs motion for injunctive relief as any other venue, even if available, may result in further delay resulting in irreparable harm to plaintiff.
i.
While plaintiffs Motion to compel was pending with the Eastern District of California, plaintiff was evicted from her home that was fully paid; without a hearing and without a written order from the State Court. The defendants improperly used its police power to evict plaintiff from her home at a five days notice. At that time, plaintiff needed another two weeks before completion of her daughters school year.
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ii.
From the exhibits submitted with the District Court, this is clear that denial of plaintiffs application for license, forced eviction from her home and denial of Judges discovery orders are mutually linked.
iii. iv.
Defendants have denied hearing on plaintiffs Notice of Defense/demurrer. Defendants have improperly refused to comply with an order from the Administrative Law Judge to release a copy of Dr. Sheikhs records available with the defendants.
v.
The final decision of the Board denying Dr. Sheikhs application for Physicians and Surgeons license was delivered in violation of 28 U.S.C. 1341. The decision was adopted on November 25, 2009, mailed from Sacramento California on November 25, 2009 under penalty of perjury and arrived at French Camp California before 8:00AM on the morning of November 25, 2009.
vi.
A California State Senator is supporting actions of Defendants against Dr. Sheikh.
vii.
Defendants adverse actions against plaintiff are ongoing. Defendants took actions against Dr. Sheikh under color of State Law.
viii.
All of the above is irreparable harm; Defendants claim that a physician may not seek any relief by any other claim. Defendants may enjoy qualified immunity for some of their discretionary actions.
8. Plaintiffs Motion for injunctive relief, if plaintiff is successful in getting a hearing, will not only affirm Dr. Sheikhs Civil and Constitutional rights but will also result in general welfare of patient population of County of San Joaquin specifically declared as underserved for acute shortage of Primary Care Physicians.
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III.
FACTUAL BACKGROUND 9. Plaintiff incorporates her Request for Investigations with the Office of State Attorney General dated January 9, 2009 as if fully stated. The Request for investigation is submitted as Exhibit A (previously submitted with E.D. CA. Docket# 75). 10. Plaintiff incorporates her Request for Admission (license) dated Sep 20, 2010 as if fully stated. The Request for Admission is submitted as Exhibit B (previously submitted with E.D. CA. Docket# 73). 11. Plaintiff incorporates her Amended Petition that was submitted with Eastern District of California on Feb 17, 2010 (previously submitted with E.D. CA. Docket# 14).
A. Statement of Undisputed Facts

The following are undisputed facts between the parties: 12. Dr. Sheikh has successfully met the criteria for Physicians and Surgeons License in the State of California 3. 13. Dr. Sheikh is eligible to practice in the State of California without any reservations by defendants4 .
B. Statement of Disputed Facts 14. The Defendants claim that plaintiff incorrectly answered subsections of question 14 5
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of application form for Physician and Surgeons license and defendants further claim
Medical Board agreed in writing If plaintiff satisfactorily completes the full 24 month residency training at San Joaquin she qualifies for licensure. Plaintiffs (Second) Request for Admission (License)- Eastern District of California.
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The Medical Board has offered Dr. Sheikh, during the litigation process, unrestricted license to practice in the State of California. The Board improperly demands that Dr. Sheikh sign a written confession of Unprofessional Conduct as a condition for licensure (See Second Settlement offer May 2009). That was third attempt to coerce plaintiff for an inappropriate confession. Previously Dr. Sheikh has satisfactorily provided patient care, without any complaint, for over two years at San Joaquin General Hospital in Stockton California. Dr. Sheikh received numerous recommendations from her faculty and colleagues for her work and those recommendations were submitted with the Medical Board.
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Question 14 of application forms makes the following inquires; Have you ever had a postgraduate training program contract not be renewed or offered for the following year?
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Did you ever take a leave of absence or break from your training?
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that wrong answers by plaintiff constitute Dishonesty (fraud or deceit with the intent to substantially benefit himself or another; California Business & Professional Section 480)8. C. Plaintiff Presents Letter from the Medical Board Admitting that Plaintiff correctly informed the Board regarding non-renewal of her contract with the Residency Program 15. This is already established from Dr. Sheikhs Request for Admission (license) that Dr. Sheikh correctly completed and submitted first form L1 that she submitted with the Board informing that her contract with the Residency Program was not renewed. 16. After plaintiff correctly completed application form and submitted with the Medical Board, she received a letter from the Medical Board dated May 12, 20007 that stated (Exhibit C); Please submit a personal explanation regarding your positive responses to the questions regarding your postgraduate training (leave of absence or break in training; non-renewal of your postgraduate training contract). Please request that the program officially submits a statement regarding these issues directly to the board.
All application forms that plaintiff completed were also co-signed by respective Residency Program Director(s). Dr. Sheikhs contract for residency training was not renewed in Austin Texas where she completed first year Residency training and she did take a one month leave of absence during first year training.
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Dr. Sheikhs contract for residency training was renewed three times during her residency training with San Joaquin General Hospital in Stockton California.
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California Business and Professional Code 480 (a) (2) Done any act involving dishonesty, fraud or deceit with the intent to substantially benefit himself or another, or substantially injure another; or (c) A board may deny a license regulated by this code on the ground that the applicant knowingly made a false statement of fact required to be revealed in the application for such license.
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D. Three Residency Program Director(s) have testified under Penalty of Perjury that Plaintiff is competent to safely practice Medicine 17. The Medical Board has required plaintiff and the Residency Program Directors on numerous occasions to complete application forms for Plaintiffs application for Physicians License. The forms include L3 forms. The L3 form on page 2 states ; The Program Director signing this form is formally certifying and documenting under penalty of perjury that the trainee received instructions appropriate for the particular postgraduate training level and that he/she has satisfactorily completed periods of training in accordance with the accepted standards and the criteria defined as equating to satisfactory perfo rmance as stated below. The program director will personally be attesting to the fact that the trainee has acquired skill and qualification necessary to safely assume the unrestricted practice of medicine in this state. 18. The following L3 forms for Plaintiffs application for physicians license were submitted by Residency Program Directors. a. Dated Sep 21, 2007 by Dr. Lo Residency Program Director at SJGH b. Dated July 3rd, 2008 by Dr. Zuniga Residency Program Director at SJGH c. September 22nd, 2008 by Dr. Zuniga Residency Program Director SJGH d. Dated June 7, 2007 by Dr. Adkins Residency Program Director in Austin Texas 19. Additionally One or more application forms were completed on behalf of Dr. Sheikh without plaintiffs knowledge. Those forms include the following L3 form; a. Dated November 2007 by Dr. Lo Residency Program Director at SJGH (L3 form on page 1 states; Part I; to be completed by applicant- Plaintiff was not informed who completed that section of the application form (to be completed by applicant) on her behalf.
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IV.
DISCUSSION AND ARGUMENTS
A. An Overview of Violations of Plaintiffs Rights9 20. Dr. Sheikh informed defendants on multiple occasions, including but not limited to the following, i. ii. iii. Demurrer/Notice of Defense May 2009, Request to verify information provided by the Residency Programs July 2009, Plaintiffs Motion to compel Discovery presented on Quarterly Public Meeting of the Board on Oct 30, 2009); that defendants actions against plaintiff are discriminatory and retaliatory. Yet defendants adverse actions against Dr. Sheikh have continued. Defendants took adverse actions against Dr. Sheikh under color of Sate law. 21. Plaintiff has also submitted a confidential complaint with the Equal Employment Commission (EEOC). The alleged violations by defendants include but not limited to the following: i. ii. Violation of First Amendment for speaking on matters of public policy. Unreasonable Searches in violations of Fourth Amendment of the Constitution of the United States. iii. Gender Based Discrimination (The Board is more critical in evaluating applications from women physicians and it recommends harsher Disciplinary Punishment for Female physicians as compare to Male Physicians with similar accusations/offenses). iv. Retaliation for opposing Discrimination and Harassment (The Medical Board is more critical and harsh on physicians who oppose Discrimination, Harassment and/or Sexual Harassment).
As plaintiff complaint is pending with EEOC and all the facts are not available for review of the Ninth Circuit Court of Appeals at this time to make a final determination. Plaintiffs Motion for Injunctive Relief Seeking Approval of her Application for Physicians and Surgeons License Farzana Sheikh, M.D. v. Medical Board of California et al
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Violation of Procedural Due Process and Substantial Due Process in violation of Fourth Amendment and Fourteenth Amendment of the Constitution of the United States.
B. Unreasonable Searches 22. An investigator of the Medical Board wrote letter dated August 8, 2008 revoking Dr. Sheikhs clinical privileges without her right to due process a few working days short of completion of her Residency Training. In that letter the Board improperly questioned Dr. Sheikhs performance and demanded that the Residency Program hand over all of Dr. Sheikhs records to the Board. The Board requested those documents without a good cause. 23. Dr. Lo Program Director of the Residency Program initially informed Dr. Sheikh that Board does not have authority to request such information from a residency program, however, later Program Director submitted her records to the Board. The Medical Board requested those records in order to continue its fishing exercise against Dr. Sheikh. All the above constitutes unreasonable searches in violation of the Fourth Amendment of the Constitution of the United States. 24. The Family Medicine Residency Program at San Joaquin General Hospital (SJGH) is affiliated with University of California Davis. The Residency Program is accredited by American Council for Graduate Medical Education (ACGME) and all of Dr. Sheikhs Residency training is approved by American Board of Family Medicine (ABFM). 25. During 2007, the Board requested Dr. Sheikhs records from the Residency Program in Austin Texas without a good cause. Before the Medical Board requested records, the Residency Program Director had already testified under penalty of perjury that Dr. Sheikh is competent to practice medicine by signing L3 form for application for license.
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26. The United States Attorney General and later Supreme Court Justice Robert Jackson said in 1940 that; the most dangerous power of [the Medical Board of California /prosecutor ] is that he will pick people that he thinks should get, rather than pick cases that need to be prosecuted. With law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work to pin some offense on him. The Tyranny of Good Intentions at 15 (Authors; Roberts, Stratton; ISBN: 0 -76152553-x). C. Violation of First Amendment (For Speaking on Matter of Public Policy): 27. The Board has taken several actions to discourage Mr. Sheikh to participate in the Public Meetings of the Medical Board in retaliation for speaking on matters of Discipline of Physicians and Operations of the Medical Board. 28. Mr. Sheikh on behalf of Plaintiff (his wife) attended public meeting of the Medical Board during May 2009 and attempted to comment on an agenda item (Ethical Decision Making) but he was not allowed to present his comments before the Medical Board in violation of Gov. Code 11120 et al (Bagley-Keene Open Meeting Act). 29. Mr. Sheikh then attended next Quarterly Public Meeting of the Board in Sacramento California on or around July 24, 2009. Sheikh presented written suggestions, a two page letter, to improve disciplinary process of the Medical Board (Exhibit D). In retaliation for speaking on the matter of disciplinary policy of the Board, within a few days, the Board presented a Motion before its own Hearing Officer (an ALJ with Office of
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Administrative Hearing) and demanded that Mr. Sheikh cannot represent Dr. Sheikh (his wife) in the administrative proceedings 10. Defendants knew that Administrative Procedures Act (APA) allows a physician to be represented by a non-attorney. 30. The Executive Director of the Medical Board denied to share Mr. Sheikhs written suggestions with the Members of the Medical Board of California in violations of State Statues including but not limited to Gov. Code 11120 et al (Bagley-Keene Open Meeting Act) (also See Mr. Sheikhs letter dated August 3, 2009, Docket # 45 -3; E.D. California). 31. On November 30, 2009, Dr. Sheikh presented a written Motion before the Medical Board seeking Boards compliance with orders of the Administrative Law Judge. (Submitted with Eastern District of California Docket# 45). On November 25, 2009 Dr. Sheikh received final denial of application for Physicians license by the Board. 32. During Public Meeting of the Board, November 4-5, 2010, the Board denied specific requests for compliance with State Statues including Gov. Code 11120. 33. During Public Meeting of the Board, November 4-5, 2010, the Board denied specific requests for compliance with Americans with Disability Act (Gov. Code 11123). 34. The fact that doctors are members of a regulated profession does not...result in a surrender of First Amendment rights. 1 Smolla & Nimmer on Freedom of Speech 10:44 (2005); Conant v. Walters, 309 F.3d 629, 637 (9th Cir. 2002) (Being a member of a regulated profession does not...result in a surrender of First Amendment rights.); Thomas v. Collins, 323 U.S. 516, 531 (1945) (the rights of free speech and a free press are not confined to any field of human interest.).
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The Defendants presented multiple Motions that Mr. Sheikh cannot represent his wife in the Administrative Proceedings before the Board. The disposition of such Motions alternated on four occasions. In the final proposed decision that was adopted by the Board Dr. Sheikh was represented by her husband (Mr. Sheikh).
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a. The Member(s) of Medical Board of California have requested an Unprecedented Investigation on Business Practices of the Medical Board
35. In December 2009, plaintiff submitted a few documents for review of the Board Members and in January 2010 the Board officially requested an unprecedented Investigation on Business Practices of the Medical Board (See plaintiffs request for Judicial Notice submitted with the District Court). The documents submitted before the Board Member(s) included two letters that were previously submitted before Administrative Law Judge(s) of the Office of Administrative Hearing (dated August 12, 2009 and dated October 29, 2009. Those letters comprised of a Motion and a Request for Investigation). 36. The Executive Director, Chief of Licensing of the Medical Board, among others, have been replaced since the Medical Board announced investigations during January 2010 (See Dr. Sheikhs Request for Judicial Notice with the District Court). 37. Unfortunately, the respectable members of the Board do not have enough muscle to take a corrective action against Dr. Sheikhs application for license. T he State advises the Board Member(s) not to participate in day to day affairs of the Board such as approval or denial of an application for license.
D. Gender Discrimination 38. The Medical Board overlooked checking the wrong box by Residency Program Director and accused Dr. Sheikh of Dishonesty for checking the same box. The Board invited Dr. Lo to correct his mistake by resubmitting the application form but did not invite Dr. Sheikh to correct the same mistake because Dr. Sheikh is woman. The Board then accepted explanation of the Program Director for providing same information while at the same time accused Dr. Sheikh of Dishonesty. 39. Plaintiff will demonstrate, pending discovery (Plaintiffs Motion to Compel Discovery) , that the Medical Board of California is more critical and harsh in evaluating applications from women physicians. Further the Board recommends harsher Disciplinary
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Punishment for Female physicians as compared to Male Physicians for similar accusations/offenses. E. Retaliation 40. During November 2007 the Board took an adverse action against Dr. Sheikhs application for license (denied her license) after stating that the Residency Program had offered partial credits. During August 2008, the Board again took an adverse action against Dr. Sheikh and removed her from residency training after stating that the Residency Program offered full credit for her residency training in Austin. 41. Defendants informed plaintiff that the Residency Program in Austin, Texas had expressed serious concerns to the medical board. The serious concerns remain unspecified by the Board and the Board refuses to state whether the concerns expressed by the residency program were relevant to professional duties or of social nature. Though the Board removed keyword serious in the Amended Statement of Issues after plaintiff submitted Notice of Defense/Demurrer, use of keyword concerns remain undefined. 42. The Defendants took adverse actions against Dr. Sheikh because she opposed Discrimination and Harassment with the Residency Program in Texas. The Boards actions will reasonably deter a physician to complain violations of Civil Rights with a Residency Program. F. Denial of Procedural Due Process and Denial of Substantive Due Process 43. During November 2007, The Medical Board denied plaintiffs application for Physicians and Surgeons License without a written notice and without advising her of her right to appeal the adverse decision of the Medical Board. The Board claimed that Residency Program in Austin Texas gave plaintiff credit for only seven month in lieu of one year training with that program.
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44. If plaintiff had an opportunity to appeal the adverse decision of the Medical Board, she could prove that she was entitled to full credit for her training with the Residency Program in Austin Texas. The Boards failure to send a written notice of denial constitutes violation of the Due Process clause of the Constitution of the United States. 45. Plaintiff requested defendants to do due diligence and rely on verified information for evaluating her application for physicians license. Plaintiff wrote letters to defendants on July 24, 2009 (quarterly public meeting of the Medical Board at Sacramento California) and then on or around August 5 2009. Defendants did not respond and continued meritless denial of plaintiffs application for Physicians license. Due Diligence is not a discretionary duty rather a mandatory obligation of the Medical Board acting as an administrative agency of the State entrusted with; Rinaldo vs. Board of Directors, 268 P. 1076 (Cal. App.2.Dist., 1928): Board of medical examiners had no jurisdiction to [revoke/deny] license to practice medicine, where evidence heard by board was hearsay. 46. Plaintiff submitted Demurrer/ Notice of Defense on the accusations (referred to Statement of Issues by defendants) of the Medical Board. In that Notice of Defens e plaintiff had submitted over 76 objections and pleaded that the defendants were not entitled to bring those accusations against plaintiff. Defendants refused to grant hearing on plaintiffs Demurrer/objections. 47. Defendants improperly denied multiple requests for discovery of specific relevant information. Plaintiff also served defendants discovery orders/ subpoena(s) signed by the administrative law Judge to release specific documentation and information to plaintiff. Yet defendants have improperly denied compliance with those discovery orders in violations of the rules of the Court (See Plaintiffs Motion to Compel Eastern District of California). Additionally, this is a constitutional duty of a prosecutor to
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provide exculpatory evidence to plaintiff. The Prosecutor's Constitutional Duty to Disclose Exculpatory Evidence; The University of Memphis Law Review (Winter 1994; 25 U. Mem. L. Rev. 735) 48. Plaintiff started her residency training at Family Medicine Residency Program at San Joaquin General Hospital on or around July 1, 2006. The Medical Board of California, on three occasions, confirmed in writing that Dr. Sheikhs residency completion date will be August 24, 2008; Initially during August 2006, then during November 2007 and finally during May 2008. Yet the Board wrote a letter dated August 8, 2008 to the Residency Program to immediately remove Dr. Sheikhs from Residency training. The Board has denied post deprivation hearing despite multiple requests from plaintiff. 49. Prior to removal from the Residency training, Dr. Sheikh has reliably provided patient care in the State of California for over two years during her Family Medicine Residency training. During that period, Dr. Sheikh treated thousands of inpatients and outpatients. There was no Government interest for such an adverse action against Dr. Sheikh without an Administrative Hearing.
50. All the above constitutes violation of Procedural Due Process and Substantive Due
Process clause of the Fourth Amendment and Fourteenth Amendment of the Constitution of the United States. Matthews v. Eldridge 424 U.S. 319, 96 S.Ct. 893 (1996); The Supreme Court discussed a three prong balancing test (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and (3) the Government's interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail. In Gray v. Superior Court, 23 Cal.Rptr.3d 50 (Cal.App.1.Dist.,2005), the Court noted;
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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 The 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 professional is accused of a criminal offense. G. Plaintiffs Motion to Compel Defendants Compliance with Administrative Law Judges Discovery Orders is pending 51. Plaintiff has submitted a Motion with the District Court to compel defendants compliance with the discovery orders signed by States administrative Law Judge. The discovery includes specific application forms erroneously completed by applicants for physicians and surgeons license with the Medical Board. Those application forms (along with other documents requested) will prove that defendants intensely scrutinize forms completed by women physicians and that the Board intensely scrutinizes applications from physicians who oppose illegal Discrimination, Harassment and/ or Sexual Harassment. Further, the Board proposes harsher disciplinary punishment for such physicians. 52. The Ninth Circuit Court of Appeals has previously ruled on a very similar case; In Garrett v. City of San Francisco, 818 F.2d 1515 (9th Circuit 1987), denial of similar discovery lead to denial of applicants claim; that was correctly reversed by the Ninth Circuit Court of Appeals. Plaintiffs Brief Sheikh v. Cisco Systems Inc. (Supreme Court of California 2009 WL 1968227). 53. The Garrett Court noted; [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, 1306 (9th Cir.1986). (pending motion to compel discovery was sufficient to raise FRCP 56(f) consideration). The Court may continue a motion for summary judgment
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if the opposing party needs to discover essential facts. Hall v. Hawaii, 791 F.2d 759, 761 (9th Cir.1986). 54. Garrett, a former fire fighter, who was discharged for violation of fire department rules, brought Title VII action alleging disparate treatment on basis of race. The United States District Court for the Northern District of California, granted fire department's motion for summary judgment and denied as moot former fire fighter's pending motion to compel discovery; former fire fighter appealed. The Garrett Court (Ninth Circuit Court of Appeals) noted; Both motions were to be heard on [the same day]. At the hearing, the district court addressed the summary judgment motion first. It found that given the hearing procedure, the nature of the violation, the overwhelming evidence of [plaintiffs guilt], and the lack of evidence of disparate treatment, there was no material issue of fact; therefore, it granted defendants' motion for summary judgment. Having granted defendants' dispositive motion, the court then denied [plaintiffs] discovery motion as moot without considering it on the merits. 55. In the District Court of California proceedings, Dr. Sheikh submitted a Motion to compel Discovery (previously ordered by States Administrative Law Judge) and defendants presented a Motion for Dismissal for failure to State a claim (further, defendants secretly submitted unverified documents for review of the District Court without sharing a copy with Dr. Sheikh). Both the Motions were scheduled to be heard on June 10, 2010. Defendants Motion to dismiss the case was granted and Dr. Sheikhs Motion to Compel was incorrectly considered moot. The District Court erred by not complying with FRCP 12 (b)(6) and by not complying with FRCP 56 (f). 56. In Garrett Case, The Ninth Circuit Court of Appeals reversed the ruling of the District Court and held that:
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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 (1) trial court failed to exercise discretion in denying discovery motion as moot after having first granted summary judgment motion; (2) former fire fighter was not collaterally estopped from litigating issue of disparate treatment. H. The Medical Board Must Review Complete Records including all Application forms completed by Dr. Sheikh 57. During March 2007 Dr. Sheikh completed form L1 answering question 14 Have you ever had a postgraduate training program contract not renewed or offered for a following year. She correctly checked YES. 58. During September 2007, Dr. Sheikh completed L1 and L3 forms. a. On Form L3A answering the question Did the program decline to renew or offer the trainee a postgraduate program training contract for the following year?, by mistake she checked yes. Form L3A was specific to the Residency Program at San Joaquin General Hospital. A correct answer was NO as her contract with that Residency Program was renewed on multiple occasions. b. By mistake on form L1 answering question 14 Have you ever had a postgraduate training program contract not renewed or offered for a following year. She checked NO. A correct answer would be YES as her contract was not renewed in Austin Texas. 59. Both the forms were completed at the same time by Dr. Sheikh and the Residency Program Director, signed by the Residency Program Director and mailed to the Medical Board in one envelope. The applicant cannot gain any advantage by intentionally providing incorrect information to the Board as those questions are irrelevant to the qualification for license (Plaintiffs Request for Admission). The Board erred by relying only on one form without reviewing all the forms that were completed by Dr. Sheikh. Finally, the appellate court reviews the record to determine whether the trial
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court's findings are supported by substantial evidence. (Bixby v. Pierno, 481 P. 2d 242, 4 Cal.3d 130, 151 (Supreme Court of California 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 evidence in the record. [Citation.] (Steve P. Rados, Inc. v. California Occupational Saf. & Health Appeals Bd., 89 Cal.App.3d 590, 595, 152 Cal.Rptr. 510 (Court of Appeals, 1979); see Fellmuth & Folsum, California Regulatory Law and Practice (1981) 176, 177, pp. 154-155; Barket and Snyder, California Administrative Mandamus (C.E.B. Supp.1984) pp. 182-183.) James v. Board of Dental Examiners of the State of California, 172 Cal.App.3d 1096, 218 Cal.Rptr. 710 (Court of Appeal, Fifth District, California 1985) I. The Court Must Look Beyond The Label of Accusations 60. This Court may want to take a closer look at the label given to accusations of the Medical Board of California in the discipline of plaintiff Ms. Sheikh as did the Mishler Court; Alan Mishler v. The State of Nevada Board of Medical Examiner, 849 P.2d 291 (Supreme Court of Nevada 1993) stated; With respect to a disciplinary proceeding against a licensed professional, this court has an obligation ... to look beyond the label given to a conviction to the true nature of the facts, in order to determine whether the underlying circumstances of the conviction warrant discipline. State Bar of Nevada v. Claiborne, 104 Nev. 115, 211, 756 P.2d 464, 526 (1988). 61. The Court must take a notice of the timeframe when Medical Board raised the issue of checking the wrong box with Dr. Sheikh. During November 2007 MBC denied Dr. Sheikhs application for physicians license stating that the Residency Program in Austin Texas gave her credit for seven month residency training. Director Graduate Medical Education at SJGH initiated an investigation to determine the credit that Dr.
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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 information that may be of private nature; an individual may take leave of absence for personal emotional issues such as bereavement, separation from relationship or because
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Sheikh will be entitled to for her residency training in Austin Texas. During MarchApril 2008, the investigation concluded that Dr. Sheikh will be entitled to a full credit for her Residency training in Austin and that the Residency Program Director in Austin Texas provided incorrect information to the Medical Board that contributed to denial her application for license with the Medical Board. 62. Around mid April 2008, Residency Program Director in Stockton demanded that Dr. Sheikh sign a pre-typed letter stipulating that there were valid concerns on Dr. Sheikhs performance in Austin Texas (see Dr. Sheikhs letter to EEOC District Court Docket#45). On the instructions of her legal counsel, Dr. Sheikh did not agree to accept the questionable stipulation. At that time, the Board sent a letter to Dr. Sheikh raising the issue of checking the wrong box. During September 2008 the Medical Board offered a Probationary license to Dr. Sheikh, if she would sign a stipulation (with harsh terms including restriction on her travel.). During May 2009, the Medical Board proposed a standard unrestricted license to Dr. Sheikh but again demanded that Dr. Sheikh accept the accusations of the Medical Board (Exhibits submitted with the District Court). Dr. Sheikh proposed an alternative that was not acceptable to Defendants. J. The Burden Created By Question 14 on Form L1B Are Unnecessary Because Question 14 is an Unnecessary Eligibility Criteria 63. The Board's licensure inquiry as stated in Question 14 of form L3 is invasive not only because it requires persons who answer the questions in the affirmative to provide information about these issues, but because it also requires them to disclose details about issues that does not present any criteria for qualification or fitness to practice and
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1 2 3 4 5 6 fledged exploration of an applicant's condition with the person's colleagues and 7 8 9 10 11 12 13 14 15 16 received by the Medical Board are initially submitted correctly and completely. One of 17 18 19 20 21 22 23 24 25 26 27 28 A licensing manager testified before the committee of select Board Members that applicants (for license) are having problems understanding some questions and often
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of sickness or severe illness or disability of some nature. 64. Of potentially even more harm is the Board's attempt to obtain information about the person's fitness from others; the Board's investigators apparently may engage in a full-
supervisors, asking questions regarding the person's diagnosis or treatment for mental, emotional or nervous disorders. It is not difficult to imagine the attendant potential damage to an individual's reputation; Recommended Findings Of Fact And Conclusions Of Law Of The United States As Amicus Curiae; Julie Ann Clark V. Virginia Board Of Bar Examiners (E.D. Virginia). a. Licensing Manager of the Medical Board stated that four percent of Applicants correctly complete Application Forms - Licensing Outreach Workshop at Oakland California November 16, 2010 A licensing Manager disclosed that only four percent of the application forms
65.
the licensing managers is assigned to visit several University Hospitals and Residency Programs holding licensing workshops for Residency Physicians. One of the stated objectives for the licensing outreach workshops is to explain questions on the application forms so that applicants for physicians and Surgeons license can complete application form without making mistakes. During last year, dozens of such licensing workshops have been held throughout the State. b. Licensing Committee Meeting at Long Beach California Nov 4, 2010 In that meeting complexity of the application form was considered by the committee.
66.
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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 iv. iii. i. ii. K. FEHA and Title VIIs Prohibition on Retaliation 67. The United States Supreme Court has rejected an interpretation of Title VII's retaliation provision that would have undermined its effectiveness in providing "unfettered access to statutory remedial mechanisms." Robinson v. Shell Oil Co., 519 U.S. 337, 345-46 (1997) (rejecting interpretation of 704 of Title VII to prohibit only retaliation against current employees because, inter alia, it "would be destructive of [the] purpose of the anti retaliation provision for an employer to be able to retaliate with impunity against an entire class of acts under Title VII for example, complaints regarding discriminatory termination"). 68. Thus, the primary policy consideration in interpreting a provision prohibiting retaliation against an individual for complaining about or opposing employment discrimination should be to ensure that the provision is construed in a way that encompasses all effective forms of retaliation. L. Preliminary Injunction Standard 69. When ruling on a motion for a preliminary injunction, the court must examine four factors: A substantial likelihood that plaintiff will prevail on the merits, A substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted, That the threatened injury to plaintiff outweighs the threatened harm the injunction may do to defendant. And; That granting the preliminary injunction will not disserve the public interest submit form without completing and/or without correctly completing all the forms. Mr. Sheikh suggested the committee to consider removing question 14 from the application form. A response from the Board is pending.
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Canal Authority of Florida v. Callaway, 489 F.2d 567 (5th Cir.1974). Accord, United States v. Lambert, 695 F.2d 536 (11th Cir.1983); Southern Monorail Co. v. Robbins & Myers, Inc., 666 F.2d 185 (5th Cir. Unit B 1982). Johnson v. United States Department of Agriculture, 734 F.2d 774 (11th Cir 1984). 70. The court in an action under Title VII may grant such injunctive relief as it deems appropriate. 42 U.S.C.A. 2000e-5(g). Injunctive relief includes, but is not limited to, reinstatement. 42 U.S.C.A. 2000e-5(g). When a federal statute authorizes injunctive relief, the presumption is that Congress intends the courts to exercise their traditional equitable discretion. 71. The [court] has the power to grant injunctive relief where a party would otherwise suffer immediate irreparable harm. See UniFirst Corp., 130 N.H. at 13, 533 A.2d at 374. It is within the trial court's sound discretion to grant an injunction after consideration of the facts and established principles of equity. See Smith v. N.H. Bd. of Psychologists,138 N.H. 548, 550, 645 A.2d 651, 652 (1994) A County Superior Court granted injunction dismissing disciplinary proceedings against Dr. Bennett by New Hampshire Board of Medicine. Bennett v. New Hampshire State Medical Board (Superior Court of County of Merrimack, 2006). The Supreme Court of New Hampshire Granted temporary and permanent injunction when physician s Due Process rights were violated by the State Medical Board in the disciplinary proceedings. Thompson v. New Hampshire Board of Medicine, 143 N.H. 107, 719 A.2d 609 (Supreme Court of New Hampshire 1998). 72. The Ex Parte Young doctrine, Ex Parte Young, 209 U.S. 123 (United States Supreme Court 1908) provides that the Eleventh Amendment does not bar suits for prospective injunctive relief brought against state officers "in their official capacities, to enjoin an
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alleged ongoing violation of federal law." Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045 (9th Cir.2000); M. Likelihood of Success on Merits of Plaintiffs Application for Physicians and Surgeons License 73. The Court need not decide that the plaintiffs will prevail on all issues as it is sufficient to note that the plaintiffs will likely prevail at least in part. However, there are several factors that make it likely for plaintiff to prevail on merits on her Petition for Writ of Review that will be submitted before the Ninth Circuit Court of Appeals. The factors include but not limited to the following;
i. A punishment of denial of application for Physicians and Surgeons license or Professional Death Sentence is excessive and violates Eight Amendment of the Constitution of the United States when; a. A physician is found guilty of a minor infraction and when defendants have not demonstrated any harm to public; and especially when b. A Physician is found Not Guilty. ii. The Medical Board brought accusations against Dr. Sheikh with a mistaken belief that the Board does not have a burden of proof to bring accusations of Dishonesty against Dr. Sheikh who is otherwise eligible for license. iii. The Defendants accused plaintiff of Dishonesty without seeking any ethical opinion and without seeking any report from any expert. iv. The Board published Statement of Issues (Accusations) against Dr. Sheikh and the Board improperly denied hearing on plaintiffs Demurrer / Notice of Defense. Plaintiff had argued that the Board has not met the criteria to bring accusations against her. For Example; a. Objection#54; Defendants failed to state that plaintiff intentionally provided wrong information. Defendants published Statement of Issues without compliance with
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Business and Professional Code 480 and Gov. Code 11503. Thus defendants
were barred from bring accusations of Dishonesty against plaintiff.

v. vi. Defendants have denied compliance with the Administrative Law Judges discovery orders. With reference to plaintiffs Petition that was submitted before the District Court, defendants Motion for dismissal pursuant to FRCP 12(b) (6) did not fully comply with procedure as set forth in FRCP 12(b)(6). vii. With reference to plaintiffs Petition that was submitted before the District Court, defendants Motion for dismissal pursuant to FRCP 12(b) (6) did not fully comply with procedure as set forth in FRCP 56 (f). viii. With reference to proceedings with Eastern District of California on plaintiffs petition, Plaintiff did not have the opportunity to submit objections on Magistrate Judges recommendations as set forth in FRCP 72 before District Judge dismissed plaintiffs petition. ix. The District Court did not review all records relevant to administrative decision of denial of plaintiffs application for license. The District Court dismissed Dr. Sheikhs petition before reviewing records that she submitted for review of the Court. x. The District Court overlooked to do an Independent review of relevant facts and applicable law. The Administrative Decision of denial of plaintiffs license and District Court erred by not mentioning the Standard of review relied upon for reviewing Dr. Sheikhs discip linary records. xi. xii. Defendants submitted non-verified records for review of the District Court. Question 14 of the application form for Physicians and Surgeons License is unrelated to eligibility, qualification and fitness for practice of Medicine in the State of California. xiii. Like all members of our society, Physicians are innocent until proven guilty. Until the Board proves its accusations, Dr. Sheikh must be licensed.
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xiv.
The Medical Board had agreed in writing during November 2007 that Ms. Sheikh will be eligible for licensure in July 2008 (Plaintiffs Request for admission).
xv.
The final accusation of the Medical Board (Amended Statement of Issues) against Dr. Sheikh was Dishonesty and the final decision of the Board did not find plaintiff guilty of the accusations of Dishonesty (Plaintiffs Request for Admission); Thus denial of plaintiffs application for Physicians and Surgeons license by the Board is arbitrary and capricious.
xvi.
With reference to discipline of a physician a final decision can adopted only by the Members of the Medical Board according to the prescribed procedure. The proposed decision of the Hearing Officer (denying Dr. Sheikhs license) was adopted without review by Members of the Medical Board of California (Request for Admission-license).
xvii.
California Business and Professional Code Section 2335 violates Physicians Right to Due Process as the Members of the Medical Board of California are NOT allowed to review ANY records relevant to the disciplinary decision that are proposed/adopted with the authority of the Medical Board of California (see Plaintiffs Request for Admission on Constitutionality of the State Statue).
N. Public Interest
74. This is well understood that County of San Joaquin is declared underserved critically in need of primary care physicians. That was presented and discussed in the Quarterly Meeting of the Medical Board in July 2010 that there is generally need for 30% more primary physicians and that demand is likely to rise with the additional coverage of millions of individuals with the enactment of new healthcare legislation. As Mr. Sheikh stated in the letter that he wrote to the Medical Board (dated March 3, 2009, District Court Docket# 76); Dr. Sheikh intends to provide Medical Services in an underserved area. The
population needs the services of qualified of primary care physicians. The licensure 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 Dr. Sheikh will allow her to provide patient care and the public will benefit from her services. O. Irreparable Harm
75. Considering all the factors pleaded in the Motion, there is no doubt that Dr. Sheikh will suffer irreparable harm if she is not successful in convincing the Court to review her Motion for injunctive relief.
a. Defendants have refused compliance with the State Statues and Plaintiff is not required to prove Irreparable Harm 76. During the Public Quarterly Meeting of the Board November 4-5, 2010, defendants have denied request for compliance with the State Statues. Further, Plaintiff asking injunctive relief because of defendant's violation of statute need not show that otherwise rigor mortis will set in forthwith; all that irreparable injury means in this context is that unless injunction is granted, plaintiff will suffer harm which cannot be repaired, at least where only consequence of injunction is that defendant must effect compliance with statute as he ought to have done before. Studebaker Corp. v. Gittlin, 360 F.2d 692 (C.A.2, 1966). P. Final Report of Enforcement Monitor submitted with California State Senate 77. As a result of the Legislatures 200102 sunset review of the Medical Board of California (MBC), Senate Bill 1950 (Figueroa) added section 2220.1 to the Business and Professions Code. 2220.1 provides for the appointment of an independent Medical Board Enforcement Program Monitor for a two-year period. 78. The final report of the enforcement monitor that was submitted to California State Senate stated (also see plaintiffs letter to Medical Board, dated March 4, 2009; Re: Burden of Proof); MBCs enforcement program is also important to physicians who practice medicine in California. Those who become license as physicians have spent years in and many
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11
dollars on medical school, clinical education and postgraduate training programs, and often additional training and examination necessary to become certified by national specialty boards; the laws views their license as a property right which may not be taken by the state absent substantive and procedural due process. All segments of society need competent and qualified physicians to assist in preventing, detecting, and treating disease and other medical conditions. Thus, trained physicians should not be barred from the marketplace for insignificant reason. In this era of managed care, the impact of MBC investigative and disciplinary activity can have momentous ramifications for a physicians ability to practice medicine. Thus, the fairness, consistency, and quality of MBC disciplinary decision making are of significant importance to Californias physician population. Enforcement Monitor Final Report11 (Chapter 2 at 8).
V. SUMMARY OF LEGAL ARGUMENTS AND CONCLUSION

79. A license to practice one's profession is a vested, fundamental right. (Rodriguez v. Department of Real Estate (1996) 51 Cal.App.4th 1289, fn. 5.). As the United States Supreme Court put it, the practice of one's chosen profession ... is not a matter of the State's grace. (Schware v. Board of Bar Examiners (1957) 353 U.S. 232, 238-239, fn. 5 [holding that a person cannot be excluded from an occupation in violation of constitutional guarantees of due process and equal protection].). The expression in the Constitution, life, liberty and the pursuit of happiness, is generally in character and includes many rights which are inherent and inalienable. Many of the rights referred to in this expression are included in the general guaranty of liberty. The happiness here referred to may consist in many things or depend on
28
http://www.mbc.ca.gov/publications/enforcement_report.html
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many circumstances but unquestionably includes the right of the citizen to follow his individual preference in the choice of occupation. The Chenoweth Court stated (Chenoweth v. State Board of Medical Examiners et al., 57 Colo. 74, 141 P. 132 (Supreme Court of Colorado, 1913)). 80. The Chenoweth Court stated (Chenoweth v. State Board of Medical Examiners et al., 57 Colo. 74, 141 P. 132 (Supreme Court of Colorado, 1913)); 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. The Rawles Court noted; State exceeds police power, when it requires moral qualifications to engage or continue in business no more dangerous to public than any other ordinary occupation of life. Rawles v. Jenkins, 279 S.W. 350 (KY.,1925) State's power to regulate a profession cannot be used arbitrarily to penalize conduct having no demonstrable bearing upon fitness for its practice. Cartwright v. Board of Chiropractic Examiners, 548 P.2d 1134, (Supreme Court of California, 1976). The Board admits that a significant numbers of applicants for Physicians and Surgeons license are incorrectly completing application forms. The Board has not met its burden to demonstrate that an honest mistake by Dr. Sheikh can harm public health, comfort and/or safety while such honest mistakes by 96% of other applicants conform to public health, comfort and safety.
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81. In Bixby v. Pierno, 481 P. 2d 242, 4 Cal.3d 130, 151 (Supreme Court of California 1971) the California Supreme Court characterized as arbitrary and capricious any administrative decision which has no reasonable basis in law or no substantial basis in fact. In the case at issue, as explained in the Motion, there is clearly no basis for the disturbing discipline imposed on Dr. Sheikh. 82. The Supreme Court of the United State noted in Ex Parte Wall, 107 U.S. 265, 2 S.Ct. 569 (Supreme Court of the United States, 1883); To disbar an attorney is to inflict upon him a punishment of the severest character. He is admitted to the bar only after years of study. The profession may be to him the source of great emolument. If possessed of fair learning and ability, he may reasonably expect to receive from his practice an income of several thousand dollars a year, equal to that derived from a capital of one or more hundred thousand dollars. To disbar him having such a practice is equivalent to depriving him of this capital. It would often entail poverty upon himself and destitution upon his family. Surely the tremendous power of inflicting such a punishment should never be permitted to be exercised unless absolutely necessary to protect the court and the public from one shown by the clearest legal proof to be unfit to be a member of an honorable profession. 83. Dr. Sheikh has been deprived of her constitutionally protected right to practice the profession to which she has dedicated decades of study and toil. That deprivation has not been accompanied by the procedural safeguards the law demands. The history of liberty has largely been the history of observance of procedural safeguards. McNabb v. United States 63 S.Ct. 608, 318 U.S. 332, 347 (1943) (opn. of Frankfurter, J.).
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84. Dr. Mishler, supra, suffered discipline by the State Medical Board where disciplinary action was taken without producing relevant records. The State Medical Board, further, attempted to shift the burden of preservation of records on the physician. 85. In the discipline of Dr. Sheikh, Medical Board of California has the records, the Board denies compliance with the written orders of the Administrative Law Judge to release the records to Dr. Sheikh. When Dr. Sheikh requested defendants compliance with the Judges orders, Defendants took further adverse actions including but not limited to evicting Dr. Sheikh from her home without a hearing and without a written order from the Court at a five day notice. The Board brings accusation of Dishonesty and then disturbingly claims that the Board does not have a burden of proof to bring accusations against Dr. Sheikh. The Board brings accusations of Dishonesty without any ethical opinion. The Board refuses to grant hearing on over 76 objections that Dr. Sheikh had submitted in her Demurrer /Notice of Defense on the accusations the Board. The Hearing Officer of the Medical Board did NOT find Dr. Sheikh guilty of accusation of Dishonesty, nonetheless the Board denied Dr. Sheikhs application for license. The final decision of the Board denying Dr. Sheikhs application for Physicians and Surgeons license was delivered in violation of 28 U.S.C. 1341. 86. The Mishler Court, Alan Mishler v. The State of Nevada Board of Medical Examiner, 849 P.2d 291 (Supreme Court of Nevada 1993); was clear and concluded; In short, we conclude that the Board's actions and the proceedings against Dr. Mishler constituted a disturbing abuse of its power. Therefore, we reverse the disciplinary order of the Board in its entirety and dismiss all proceedings against Dr. Mishler with prejudice.
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Pro Se Date: December 14, 2010 /s/ Farzana Sheikh ---------------------------------Farzana Sheikh, M.D. Respectfully Submitted by;
VI.
PRAYER for Injunctive Relief
The plaintiff Dr. Sheikh respectfully prays this Honorable Court; 87. To grant an Injunctive Relief and temporary injunction for approval of Dr. Sheikhs application for Physicians and Surgeons license pending with the Medical Board of California since 2007 until Disciplinary Proceedings are concluded and until further order from this Court. (Dr. Sheikh was practicing medicine before the Board improperly instructed the Residency Program, a few days before completion of three years, to remove her from Residency Training). 88. To grant a permanent injunction dismissing disciplinary proceedings of the Board against Dr. Sheikh with prejudice. 89. To grant Plaintiffs Motion to Compel Defendants compliance with the Administrative Law Judges Discovery Orders. 90. To grant Cost and fee(s) to plaintiff. 91. To grant such other and further relief as is just and equitable.
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Docket - Ca9.dr - Sheikh.v.mbc.8 1

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Plaintiffs Request fo r Admission (license) submitted with the District Court

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II. JURISDICTION AND VENUE

1331, 28 U.S.C. 1345, and 42 U.S.C. 2000e-5(f).

defiance of administrative law judges disco very order is in Texas.

interlocutory orders of the District Court).

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A California State Senator is supporting actions of Defendants against Dr. Sheikh.

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A. Statement of Undisputed Facts

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DISCUSSION AND ARGUMENTS

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