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

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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 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 intiff’s application for Physician’s and Surgeon’s license. Please specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. // 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 PLAINTIFF’S APPLICATION FOR PHYSICAIN’S AND SURGEON’S LICENSE PLAINTIFF’S 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

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The following statement will be deemed admitted within 30 days. Plaintiff intents to submit a Motion with the District Court to shorten the number of days to less than 30. Plaintiff requests Defendant(s) to admit that: 1) Defendants denied Plaintiff’s, Farzana Sheikh M.D., application for physician’s license on Dec 5, 2008. 2) In the amended statement of issues dated May 21, 2009, the only cause of action was Dishonesty. 3) A hearing was held before the Hearing Officer of the Medical Board. 4) The proposed decision of the Hearing Officer of the Medical Board (dated November 3, 2009) did not find plaintiff guilty of Dishonesty according to law (Exhibit Government Code section 11425.50). 5) The proposed decision by the Hearing Officer of the Medical Board (dated November 3, 2009) did not even use the keyword ‘Dishonesty’. 6) Staff of the Medical Board engaged in Ex-Parte Communications with the Hearing Officer of the Medical Board in reference to discipline of plaintiff. 7) Attorney for the Medical Board engaged in Ex-Parte Communications with the Hearing Officers of the Medical Board in reference to discipline of plaintiff. 8) Plaintiff correctly checked the box on the application form reflecting that her contract was NOT renewed by the Residency Program (Exhibit application form completed by plaintiff Farzana Sheikh, M.D.). 9) Renewal of contract with the Residency Program is NOT a pre-requisite of Physicians and Surgeons License to practice Medicine in the State of California. 10) The Resident physicians who are unable to get a renewal of contract by a Residency Program can be licensed if they are eligible otherwise.

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

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11) The Resident Physicians who are unable to complete Residency Training can be licensed if they are eligible otherwise. 12) During November 2007, after defendants reviewed plaintiff’s application forms defendants stated; If [plaintiff] satisfactorily completes the full 24 month residency training at San Joaquin General Hospital she qualifies for licensure (Exhibit). 13) Plaintiff has successfully and satisfactorily completed 24 months (or more) Residency Training with the Family Medicine Residency Program at San Joaquin General Hospital. 14) Plaintiff has satisfactorily completed Family Medicine Residency Training and plaintiff has been awarded certificate of completion of Family Medicine Residency Training from San Joaquin General Hospital. 15) Plaintiff has satisfactorily completed Family Medicine Residency Training and plaintiff has been awarded certificate of completion of Family Medicine Residency Training from University of California at Davis. 16) The Executive Staff of the Medical Board generally sends a ballot to the Board Member(s) with the Name and gender of the physician and a proposed ‘disciplinary punishment’. 17) The Executive Staff of the Medical Board did not send a ballot to the Members of the Medical Board in reference to discip line of plaintiff Farzana Sheikh’s denial of application for Physician’s and Surgeon’s License. 18) The Members of the Medical Board did not review complete evidence relevant to discipline of the plaintiff Farzana Sheikh, M.D. before adopting the proposed decision of the Hearing Officer. 19) The members of the Medical Board did not review a sample of evidence relevant to discipline of plaintiff Farzana Sheikh, M.D. before adopting the proposed decision.

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

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Date: Sep 20, 2010

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20) The members of the Medical Board did not review complete transcript relevant to discipline of plaintiff Farzana Sheikh, M.D. before adopting the proposed decision. 21) The members of the Medical Board did not review a sample of transcript relevant to discipline of plaintiff Farzana Sheikh, M.D. before adopting the proposed decision. 22) The Executive Staff of the Medical Board engaged in Ex-Parte Communications with the Hearing Officer and with the Member(s) of the Medical Board of California on matters relevant to discipline of plaintiff Farzana Sheikh, M.D. 23) Defendants did not grant a hearing on plaintiff’s Notice of Objections/Demurrer (dated April 27, 2009) on Statement of Issues / Amended Statement of Issues. 24) Defendants did not comply with the subpoena signed by the administrative law judge and defendants did not provide requested documentation to plaintiff Farzana Sheikh, M.D.

Respectfully Submitted by;

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

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

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EXHIBIT

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conducted under Chapter 5 (formal hearing procedure) by an administrative law judge employed by the Office of Administrative Hearings, this provision authorizes the Office of Administrative Hearings, and not the agency for which the Office of Administrative Hearings is conducting the proceeding, to provide for peremptory challenge of the administrative law judge.

§ 11425.50. Decision to be in writing; Statement of factual and legal basis (a) The decision shall be in writing and shall include a statement of the factual and legal basis for the decision. (b) The statement of the factual basis for the decision may be in the language of, or by reference to, the pleadings. If the statement is no more than mere repetition or paraphrase of the relevant statute or regulation, the statement shall be accompanied by a concise and explicit statement of the underlying facts of record that support the decision. If the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination, and on judicial review the court shall give great weight to the determination to the extent the determination identifies the observed demeanor, manner, or attitude of the witness that supports it. (c) The statement of the factual basis for the decision shall be based exclusively on the evidence of record in the proceeding and on matters officially noticed in the proceeding. The presiding officer's experience, technical competence, and specialized knowledge may be used in evaluating evidence. (d) Nothing in this section limits the information that may be contained in the decision, including a summary of evidence relied on. (e) A penalty may not be based on a guideline, criterion, bulletin, manual, instruction, order, standard of general application or other rule subject to Chapter 3.5 (commencing with Section 11340) unless it has been adopted as a regulation pursuant to Chapter 3.5 (commencing with Section 11340).
HISTORY: Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997. LAW REVISION COMMISSION COMMENTS: (1995) Section 11425.50 supersedes the first two sentences of Section 11518. See also former subdivision (f)(4) of Section 11500. Subdivision (a) is drawn from the first sentence of 1981 Model State APA 4-215(c). The decision must be supported by findings that link the evidence in the proceeding to the ultimate decision. Topanga Ass'n for a Scenic Community v. County of Los Angeles, 11 Cal. 3d 506, 522 P. 2d 12, 113 Cal. Rptr. 836 (1974). The requirement that the decision must include a statement of the basis for the decision is particularly significant when an agency develops new policy through the adjudication of specific cases rather than through rulemaking. Articulation of the basis for the agency's decision facilitates administrative and judicial review, helps clarify the effect of any precedential decision (see Section 11425.60), and focuses attention on questions that the agency should address in subsequent rulemaking to supersede the policy that has been developed through adjudicative proceedings. The decision must only explain its actual basis. It need not eliminate other possible bases that could have been, but were not, relied upon as the basis for the decision. Thus, for example, if the decision imposes terms and conditions, it need not explain why other terms and conditions were not imposed. Subdivision (a) requires the decision to contain a statement of the "factual .... basis for the decision," while former Section 11518 required the decision to contain "findings of fact." The new language more accurately reflects case law, and is not a substantive change. See Topanga Ass'n for a Scenic Community v. County of Los Angeles, supra; Swars v. Council of the City of Vallejo, 33 Cal. 2d 867, 872-73, 206 P.2d 355 (1949). The requirement in subdivision (b) that a mere repetition or paraphrase of the relevant statute or regulation be accompanied by a statement of the underlying facts is drawn from the second sentence of 1981 Model APA 4-215(c). Subdivision (b) adopts the rule of Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951), requiring that the reviewing court weigh more heavily findings by the trier of fact (the presiding officer in an administrative adjudication) based on observation of witnesses than findings based on other evidence. This generalizes the standard of review used by a number of California agencies. See, e.g., Garza v. Workmen's Compensation Appeals Bd., 3 Cal. 3d 312, 318-19, 475 P. 2d 451, 90 Cal. Rptr. 355 (1970) (Workers' Compensation Appeals Board); Millen v. Swoap, 58 Cal. App. 3d 943, 947-48, 130 Cal. Rptr. 387 (1976) (Department of Social Services); Apte v. Regents of Univ. of Cal., 198 Cal. App. 3d 1084, 1092, 244 Cal. Rptr. 312 (1988) (University of California); Unemp. Ins. App. Bd., Precedent Decisions P-B-10, P-T-13, P-B-57; Lab. Code 1148 (Agricultural Labor Relations Board). It reverses the existing practice under the administrative procedure act and other California administrative procedures that gives no weight to the findings of the presiding officer at the hearing. See Asimow, Toward a New California Administrative Procedure Act: Adjudication Fundamentals, 39 UCLA L. Rev. 1067, 1114 (1992), reprinted in 25 Cal. L. Revision Comm'n Reports 321, 368 (1995). Findings based substantially on credibility of a witness must be identified by the presiding officer in the decision made in the adjudicative proceeding. This requirement is derived from Washington law. See Wash. Rev. Code Ann. §§ 34.05.461(3), 34.05.464(4) (West 1990). However, the presiding officer's identification of such findings is not binding on the agency or the courts, which may make their own determinations whether a particular finding is based substantially on credibility of a witness. Even though the presiding officer's determination is based substantially on credibility of a witness, the determination is entitled to great weight only to the extent the determination derives from the presiding officer's observation of the demeanor, manner, or attitude of the witness. Nothing in subdivision (b) precludes the agency head

Administrative Procedure Act Statutes and Regulations Page 35

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EXHIBIT

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