San Joaquin County Hospital V Dr. Sheikh 1st Petition For Enbanc Hearing

Case: 17-16586, 02/05/2018, ID: 10752613, DktEntry: 7-1, Page 1 of 12
3 Rehan Sheikh
1219 W. El Monte Street
4 Stockton, California 95207
5 Telephone:
rehansheikh@yahoo.com
6
IN THE UNITED STATES COURT OF APPEALS
7
FOR THE NINTH CIRCUIT
8
CA9 No: 17 – 1 6 5 8 6
9
FRAP 35
10
San Joaquin County General PETITION FOR EN BANC HEARING –
11
Hospital Multiple order(s) dated Jan 22, 2018 and other
12 Plaintiff & Appellee
1) Need for Uniform ERISA
13 v.
Preemption– Re San Joaquin
14 Farzana Sheikh M.D. and Rehan
County & Cisco Systems
15 Sheikh
Respondent(s) & Appellant
16 2) Conspiracy and San Joaquin
17 County
18
19 Eastern District No:2:17–CV-1178 Gerald
20 Burrell
21
22 The 9th Circuit, like the Court below, rushed to close the court door on Appellants. The Court
23
records demonstrate that Appellee have not filed any opposition or any Motion to Remand. No Judge
24
has held any hearing or ruled on any of arguments. The En Banc consideration is necessary to
25
restore Right to Judicial process and to restore Access to Justice.
26
27
28
4 I. PRIMARY ISSUES IN THIS LITIGATION

5
For over a decade or so San Joaquin County state agencies have engaged in a
6
pattern of conspiracy, Retaliation, perjury, and obstruction of justice to deprive
7
Respondent of her Rights, property, home, licenses, services and money etc.; that
8
9 has continued due to systematic denial of Access to Justice; as the Court is denying
10 Judicial process. This is another lawsuit by San Joaquin that is obviously malicious
11
and is removed to the federal court. The record shows no Motion to Remand filed by
12
San Joaquin; No United States Judge held any Jurisdictional or Evidentiary or
13
cursory hearing. Yet electronic orders arrived via internet with names of Judges
14
15 and unauthorized clerks, commissioners; reviewing unspecified records. Previously
16 lower court without any legal or factual guidance on any of the matters including
17
the following;
18
A. Appellant’s Right to Jury Trial as clearly stated in the Notice of Removal.
19
B. The specific Local Rules of District Court are unconscious, or unconstitutional
20
21 and deny access to Justice as no Judge holds any hearing. Governor is giving
22 money to illegal aliens for Access to Justice but denies such money to lawful
23
Americans.
24
C. Ruling Janta of San Joaquin County is taking people’s property without a judge
25
order via a court stamp as many such courts stamps are in circulation.
26
27 D. The lawsuit requires administration of ERISA & requires preemption.
28
Petition for En Banc– 3rd Removal – San Joaquin County Hospital v. Farzana Sheikh, M.D.
P a g e |i
4 Table of Contents
5
I. PRIMARY ISSUES IN THIS LITIGATION ..................................................................... i
6
7 II. The Court should grand this Petition for En Banc ........................................................ 1
8 III. Denial of Judicial Process by United States Courts via Orders ................................. 1
9
IV. San Joaquin’s Hospital’s another malicious Lawsuit.................................................... 3
10
11 A. ERISA Preemption - San Joaquin County .................................................................. 3

B. ERISA Preemption - Cisco Systems .............................................................................. 4
12
13
14 V. JURISDICTION..................................................................................................................... 5
15 A. United States District Court ........................................................................................... 5

16 B. The Ninth Circuit Court of Appeals .............................................................................. 6
C. Standard of Review............................................................................................................ 6
17
VI. Contested Local Rules of Eastern District of California .............................................. 7
18
VII. San Joaquin Hospital can file a Motion to Remand ...................................................... 7
19
20 A. County Court lacks Jurisdiction ..................................................................................... 8

21 B. No Relief is available in County Court ......................................................................... 9
VIII. How Ninth Circuit Court of Appeals can Restore Access to Justice .......................... 9
22
23 IX. PRAYER .................................................................................................................................. 9
24
25
26
27
28
P a g e | ii
4 II. The Necessity for this Petition for En Banc Hearing

5
The en banc consideration is necessary for the following fundamental factors;
6
a) To prevent manifest injustice
7
b) to restore Right to the Trial, to restore Right to Judicial Process and
8
9 to restore Access to Justice BOTH at local san Joaquin county court and
10 at the United States Courts

11
c) to maintain uniformity of this Court’s proceedings/ procedures and
12
d) to preserve the Role of the Court
13
e) to preserve Civil Rights Jurisdiction of this Court
14
15 f) In summary this Court of Appeals is closing its doors to injured parties
16 without every hearing. This requires an En Banc review of the Court.

17
18
III. Denial of Judicial Process by United States Courts
19
1. This Court and the Court below has relied on vague orders to deny the Judicial
20
process and to deny access to Justice.
21
22 2. The district Court via hon. Gerald Burrell abused his discretion or exhibited
23 pattern of Abdication of judicial duty; denied Right to hearing and improperly

24
denied Right to Trial. His Court improperly remanded the case to the local
25
county court without stating any factual or legal justification. The local county
26
court is also a party in this court of appeals and the issues raised in the Appeal,
27
28 cannot be heard by the local county court for lack of Jurisdiction. Any Judge of
P a g e |1
3 this Court can testify to this simple matter.

4
3. This Court refused to issue briefing schedule 1 and rather issued first order with
5
legal arguments via Court Clerk, then a second order via a Court Commissioner.
6
4. In response to the Court Commissioner’s order dated Oct 19, appellant urged the
7
8 court to issue a briefing schedule and submitted;
9 This is yet another matter where appellees/ San Joaquin County Hospital,
10 while acting under color of state law, is defying the United States Courts by its
11
Failure to Appear in the Court. The honorable Commissioner noted in the
12
order “there is no appearance by appellee”. Appellee’s inaction is intentional,
13
disrespectful to the United States Court(s) and is meant to deprive Appellant
14
access to the Court; a forum to resolve differences. The Hospital did not file
15
16 any opposition to the complaint and this is reasonably believed that appellees/
17 Hospital do not dispute any of the allegations. In such matter this Court may
18 issue default judgment to Appellant or grant any other relief so the family can
19
proceed with their careers and lives. This Court may compel Hospital’s
20
appearance by issuing a briefing schedule and by setting a hearing date.
21
5. Appellants received an order Dated Jan 22 via internet by with the name of
22
23 three respectable Judges who have chambers in different cities. In their order,
24 the court again indicated to review unspecified records but never held an
25
evidentiary hearing. The court did not address the lack of judicial process that
26
27 1
As Hon. Alex Kozinski Ex Judge suggested “Judges look the other way” in his famous video Re_ Johnny
Baca v Derral Adams (CA 9; 13-56132) (Jan 2015).
28
P a g e |2
3 has been denied. The order from this Court dated Jan 22 introduced another
4
new term ‘insubstantial’ without any hearing what constitutes substantial or
5
‘insubstantial’. What is reference that panel considered; tens or hundreds of
6
thousand dollars could be insubstantial for some. San Joaquin Hospital does not
7
8 dispute that the amount in controversy is significant and mandates a Trial.
10 IV. San Joaquin’s Hospital’s malicious Lawsuit

11
6. For a decade or so San Joaquin County state agencies have engaged in a pattern
12
of conspiracy, Retaliation, perjury, and obstruction of justice to deprive
13
Respondent of her Rights, property, home, licenses, services and money etc.; that
14
15 has continued due to systematic denial of Access to Justice. This is yet another
16 malicious lawsuit that San Joaquin has directly filed against Appellants. This
17
case is another example where this court has rushed to close the door giving
18
waiver to state actors who have engaged in above referenced scheme.
19
20 A. ERISA Preemption - San Joaquin County

21
7. This is yet another malicious lawsuit that the representatives of San Joaquin
22
County, Mr. Mark Myles has artfully pleaded and improperly filed in the local
23
county court. The notice of Removal clearly depicted the real intentions of the
24
25 San Joaquin that includes to cover up the evidence and to permanently deny
26 federal ERISA money that San Joaquin owes to Petitioners. Even a cursory
27
hearing by United States Court will expose motives of ‘hospital’.
28
P a g e |3
3 8. A few years ago, in a hearing before Eastern District of California, Mr. Mark
4
Myles admitted that “San Joaquin” owed ERISA money. According, this lawsuit
5
relates to administration of ERISA requires application of ERISA complete
6
preemption doctrine.
7
8
B. ERISA Preemption - Cisco Systems
9
9. Over a decade ago, the Petitioner filed a state law Civil Rights action against
10
Cisco Systems in a local county court in the silicon valley (Rehan Sheikh v Cisco
11
12 Systems CA9 No; 10 – 17098 (2012) . The Cisco removed that action to the
13 United States court alleging ERISA Preemption even when alleged ERISA
14
benefits had been previously resolved via a state litigation because those
15
benefits were governed via state law. In that matter, the United States Court on
16
its own exercised supplemental Jurisdiction over all state law claims.
17
18 10. In this matter (San Joaquin), If somehow a united states judge determines that
19 this lawsuit does not ‘relates to’ or involves administration of ERISA, then in
20
order for uniform procedure, the court can exercise supplementary jurisdiction
21
over all state law claims.
22
11. The En Banc Court needs to address this fundamental matter to uniformly apply
23
24 ERISA preemption the 9th Circuit Court of Appeals and in order to prevent the
25 appearance of manifest miscarriage of justice. If somehow, the Court determines

26
that this matter involving San Joaquin does not involve application of ERISA
27
money it should exercise supplementary Jurisdiction. The Ninth Circuit has
28
P a g e |4
3 previously addressed application of supplementary Jurisdiction after a wrongful

4
conviction by Eastern District without Evidentiary hearing- Farzana Sheikh
5
M.D. v Medical Board of California (CA9 Number: 10 – 17098 (2011).
6
7
V. JURISDICTION
8
9
A. United States District Court
10
12. The District Court has original Jurisdiction of ERISA sections under 29 U.S.C. §
11
1132(E). Removal jurisdiction exists pursuant to 28 U.S.C. § 1441(b).
12
13 13. Supplementary Jurisdiction
14 14. Civil Rights Jurisdiction; District Court has Civil Rights Jurisdiction under 28
15
U.S.C. § 1443. Removal Jurisdiction exists pursuant to 28 U.S.C. § 1343. The
16
case presents federal question arising under 42. U.S.C. § 1983. Removal
17
Jurisdiction exists pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1332 and 28 U.S.C.
18
19 § 1343.
20 a. Petitioners Dr. Sheikh requested the Court for an evidentiary hearing to

21
demonstrate jurisdiction of the court.
22
15. United States Courts have jurisdiction over Deprivation of Rights under color of
23
Law and Conspiracy against Rights 18 U.S.C. § 241, 18 U.S.C. § 242.
24
25 16. Appellant’s Notice of removal clearly enumerates Rights and privileges
26 applicable in this matter. In United States v Guest 383 US 745 (1966) the Court
27
clarified nature of Rights or privileges covered under the statue and noted;
28
P a g e |5
3 We have made clear in Price that when § 241 speaks of "any right or
4 privilege secured . . . by the Constitution or laws of the United
5 States," it means precisely that.
6 B. The Ninth Circuit Court of Appeals

7
17. The Ninth Circuit Court of Appeals has jurisdiction pursuant to 28 U.S.C. §1291.
8
9 C. Standard of Review
10 18. The applicable Standard of Review is de novo and no such review has been
11
granted by this Court so far. We also review the removal of the case from state
12
court to federal court de novo. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194
13
14 (9th Cir. 1988). United Brotherhood of Carpenters And Joiners Of America, (9th
15 Cir. 2014).
16 19. In a recent Court decision where Eastern District declined Jurisdiction, Ricky
17
Henry v Central Freight Lines (CFL) CA9 17-15993, a three Judge panel of this
18
Court noted (P4) “Reviewing the district court’s remand order de novo”. Because
19
20 of the review, In that matter, the Court discussed amount of controversy;
21 reversed and remanded. The Court concluded, “We therefore reverse and remand
22 with the instruction to the District Court that CFL has established CAFA
23
jurisdiction”.
24
20. In the absence of any evidentiary hearing or Jurisdictional discovery, Appellants
25
26 only needs to make a prima facie case showing jurisdictional facts and they have
27 done so.
28
P a g e |6
3 “Although the burden is on the plaintiff to demonstrate that the court has
4 jurisdiction over the defendant, in the absence of an evidentiary
5 hearing, the plaintiff need only make a prima facie showing of
6 jurisdictional facts to withstand the motion to dismiss; additionally,

uncontroverted allegations in plaintiff's complaint must be taken as true”
7
8
VI.Contested Local Rules of Eastern District of California
9
10 21. The Local Rules of Eastern District of California that deny Constitutional Right
11 to hearing before an Article III United States Judge to a particular politically
12 oppressed class of individuals. Local Rules discriminate Rich and Poor and deny
13
poor Access to Justice who cannot spend money to afford attorney.
14
22. As Senator Kamala Harris tweeted on Dec 26, 2016 quoting Frederick Douglass’
15
16 inspiring statement about justice that stated;
17 Before the law, there should be no rich, no poor, no high no low, no white,
18 not black but common country common citizenship equal rights, and a
19 common destiny.
23. Plaintiff seeks a declaratory relief that Local Rules 302, and 303 including but
20
21 not limited to Local Rule 302 (c) (21) are unconstitutional. The Local Rules deny
22 hearing to a select class of individuals before an Article III Judge. Hon. Garland
23
Burrell of the District Court did not present any opposition.
24
25
VII. San Joaquin Hospital can file a Motion to Remand
26
24. As San Joaquin believed that the United States Courts have Jurisdiction over
27
28 this matter, so it did not file a Motion to Remand. It was very convenient for
P a g e |7
3 defendants to file such a Motion as Burden of Proof will be on non-moving party;

4
(on Appellants) to establish Jurisdiction.
5
“The party asserting jurisdiction bears the burden of establishing subject matter
6
jurisdiction.” In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546
7 F.3d 981, 984 (9th Cir. 2008). “Dismissal for lack of subject matter jurisdiction is
8 appropriate if the complaint, considered in its entirety, on its face fails to allege facts
9 sufficient to establish subject matter jurisdiction.” Bishop Paiute Tribe v. Inyo
County (CA 15-16604) (Jun 2017).
10
25. This Court noted in Bishop supra,
11
“Our role … to adjudicate live cases or controversies consistent with the powers granted
12
13 the judiciary in Article III of the Constitution. In this case, the two most relevant
14 justiciability doctrines are ripeness and mootness.
15 Bishop Court concluded remanding the case back to Eastern District of

16
California; Because the district court has subject matter jurisdiction over claims involving
17
federal common law and because the Tribe’s case is ripe and not moot, we REVERSE and
18
REMAND for further proceedings.
19
20 26. Obviously San Joaquin has not filed the Motion to Remand is a telling sign that
21 the specific issues raised, factual and legal arguments mandate a hearing in the
22 United States Court. In such circumstances, there is no justification to Remand
23
this matter to local county court.
24
25 A. County Court lacks Jurisdiction

26
27. Local san Joaquin County Court has no mandate or Jurisdiction to address any
27
of the matters presented in this lawsuit.
28
P a g e |8
3 B. No Relief is available in County Court

4
28. There is no relief available to Petitioner in the County Court. Availability of
5
Relief is a fundamental matter that the Courts have carefully addressed in
6
considering to Remand the matter .
7
9 VIII. How Ninth Circuit Court of Appeals can Restore Access to Justice
10 29. The Court can take simple steps; e.g. The Court can grant a Jurisdictional
11
Hearing and evidentiary hearing. The Court can issue a briefing schedule and
12
set up a hearing date so that San Joaquin Hospital can present its opposition.
13
14
IX. PRAYER
15
16 30. Appellants respectfully asks the Court to grant this Petition, vacate district
17 court’s order to Remand to county court and restore this matter to the
18
appropriate federal court calendar.
19
20
Respectfully Submitted;
21
22 /s/ Rehan Sheikh
23 ----------------------------------
Rehan Sheikh and
24
Date: February 5, 2018 Farzana Sheikh M.D.
25 Appellant(s)
26
27
28
P a g e |9
Case:
Case:17-16586,
17-16586,02/05/2018,
01/22/2018,ID:
ID:10752613,
10733753,DktEntry:
DktEntry:7-2,
6, Page
Page11ofof11
UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JAN 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SAN JOAQUIN GENERAL HOSPITAL, a No. 17-16586
division of the County of San Joaquin,
D.C. No. 2:17-cv-01178-GEB-DB
Plaintiff-Appellee, Eastern District of California,
Sacramento
v.
ORDER
FARZANA SHEIKH, M.D.; REHAN
SHEIKH,
Defendants-Appellants.
Before: REINHARDT, TROTT, and HURWITZ, Circuit Judges.
A review of the record and the response to the August 15, 2017 order
indicates that the questions raised in this appeal are so insubstantial as not to
require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir.
1982) (stating standard).
Accordingly, we summarily affirm the district court’s judgment.
AFFIRMED.
Case:
Case:17-16586,
17-16586,02/05/2018,
10/19/2017,ID:
ID:10752613,
10623778,DktEntry:
DktEntry:7-3,
4, Page
Page11ofof22
UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT OCT 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SAN JOAQUIN GENERAL HOSPITAL, a No. 17-16586
division of the County of San Joaquin,
D.C. No.
Plaintiff-Appellee, 2:17-cv-01178-GEB-DB
Eastern District of California,
v. Sacramento
FARZANA SHEIKH, M.D. and REHAN ORDER

SHEIKH,
Defendants-Appellants.
Before: Peter L. Shaw, Appellate Commissioner.
Appellants’ request for clarification and reconsideration of the court’s
August 15, 2017 order to show cause is denied (Docket Entry No. 3).
Within 21 days after the date of this order, appellants may file a response to
the August 15, 2017 order to show cause. Appellants may elect to file an opening
brief in lieu of a response to the August 15, 2017 order to show cause. A panel of
three judges will determine whether to summarily affirm the district court’s
remand order based on the response or opening brief submitted. See 9th Cir. R. 3-
6(b). Because there is no appearance by appellee, no response by appellee or
answering brief will be filed.
All other requests for relief contained in appellants’ September 5, 2017
response (Docket Entry 3) will be addressed by separate order after appellants
DA/Pro Se
Case:
Case:17-16586,
17-16586,02/05/2018,
10/19/2017,ID:
ID:10752613,
10623778,DktEntry:
DktEntry:7-3,
4, Page
Page22ofof22
filing of either a response to the August 15, 2017 order to show cause or an
opening brief.
If appellants do not comply with this order, this appeal will be automatically
dismissed by the Clerk for failure to prosecute. See 9th Cir. R. 42-1. If appellants
submit a response to this order other than a response to the order to show cause or
opening brief, the court may summarily affirm the district court’s remand order
based on the record in the district court without further opportunity to respond.
DA/Pro Se 2

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Case: 17-16586, 02/05/2018, ID: 10752613, DktEntry: 7-1, Page 1 of 12

19 Eastern District No:2:17–CV-1178 Gerald

4 I. PRIMARY ISSUES IN THIS LITIGATION

15 and unauthorized clerks, commissioners; reviewing unspecified records. Previously

27 D. The lawsuit requires administration of ERISA & requires preemption.

11 A. ERISA Preemption - San Joaquin County .................................................................. 3

15 A. United States District Court ........................................................................................... 5

20 A. County Court lacks Jurisdiction ..................................................................................... 8

23 IX. PRAYER .................................................................................................................................. 9

4 II. The Necessity for this Petition for En Banc Hearing

10 at the United States Courts

15 f) In summary this Court of Appeals is closing its doors to injured parties

16 without every hearing. This requires an En Banc review of the Court.

23 pattern of Abdication of judicial duty; denied Right to hearing and improperly

3 this Court can testify to this simple matter.

8 court to issue a briefing schedule and submitted;

8 dispute that the amount in controversy is significant and mandates a Trial.

10 IV. San Joaquin’s Hospital’s malicious Lawsuit

20 A. ERISA Preemption - San Joaquin County

25 appearance of manifest miscarriage of justice. If somehow, the Court determines

3 previously addressed application of supplementary Jurisdiction after a wrongful

13 13. Supplementary Jurisdiction

20 a. Petitioners Dr. Sheikh requested the Court for an evidentiary hearing to

25 16. Appellant’s Notice of removal clearly enumerates Rights and privileges

5 States," it means precisely that.

6 B. The Ninth Circuit Court of Appeals

20 of the review, In that matter, the Court discussed amount of controversy;

5 hearing, the plaintiff need only make a prima facie showing of

6 jurisdictional facts to withstand the motion to dismiss; additionally,

11 to hearing before an Article III United States Judge to a particular politically

16 inspiring statement about justice that stated;

3 defendants to file such a Motion as Burden of Proof will be on non-moving party;

14 justiciability doctrines are ripeness and mootness.

15 Bishop Court concluded remanding the case back to Eastern District of

25 A. County Court lacks Jurisdiction

3 B. No Relief is available in County Court

22 /s/ Rehan Sheikh

UNITED STATES COURT OF APPEALS FILED

Before: REINHARDT, TROTT, and HURWITZ, Circuit Judges.

1982) (stating standard).

Accordingly, we summarily affirm the district court’s judgment.

UNITED STATES COURT OF APPEALS FILED

FARZANA SHEIKH, M.D. and REHAN ORDER

Before: Peter L. Shaw, Appellate Commissioner.

Appellants’ request for clarification and reconsideration of the court’s

6(b). Because there is no appearance by appellee, no response by appellee or

answering brief will be filed.

All other requests for relief contained in appellants’ September 5, 2017

response (Docket Entry 3) will be addressed by separate order after appellants

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