Jeffrey Isaacs v. USC Keck School of Medicine ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY ISAACS, Dr., No. 20-55239
Plaintiff-Appellant, D.C. No.
2:19-cv-08000-DSF-RAO
v.
USC KECK SCHOOL OF MEDICINE; et MEMORANDUM*
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted April 14, 2021**
Pasadena, California
Before: M. SMITH and IKUTA, Circuit Judges, and STEELE,*** District Judge.
Appellant Jeffrey Isaacs challenges the district court’s grant of Appellees’
motion to dismiss and special motion to strike pursuant to California Code of Civil
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable John E. Steele, United States District Judge for the
Middle District of Florida, sitting by designation.
Procedure § 425.16. Because the parties are familiar with the facts, we do not
recount them here, except as necessary to provide context to our ruling. Our
review is de novo for both the granting of Appellees’ motion to dismiss, L.A.
Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 800 (9th Cir. 2017), and Appellees’
special motion to strike, Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th
Cir. 2003). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. A district court may grant a motion to dismiss a complaint based on an
affirmative defense, such as a statute of limitations, when the “defense is obvious
on the face of a complaint.” Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902
(9th Cir. 2013). Here, the district court did not err in granting Appellees’ motion
to dismiss Isaacs’s civil Racketeer Influenced and Corrupt Organizations Act
(RICO) and state law claims because it is obvious from the face of the complaint
that these claims are time barred.
“The statute of limitations for civil RICO actions is four years.” Pincay v.
Andrews, 238 F.3d 1106, 1108 (9th Cir. 2001). This period “begins to run when a
plaintiff knows or should know of the injury which is the basis for the action.”
Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 365 (9th Cir.
2005). “The plaintiff is deemed to have had constructive knowledge if [he] had
enough information to warrant investigation which, if reasonably diligent, would
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have led to discovery of the fraud.” Pincay, 238 F.3d at 1110 (quoting Beneficial
Standard Life Ins. Co. v. Madariaga, 851 F.2d 271, 275 (9th Cir. 1988)).
Isaacs’s complaint alleges that in June of 2015—when his appeal of the
revocation of his medical license was dismissed—he “became reasonably
suspicious, and informed, that [University of Southern California Keck School of
Medicine (USC)] was not complying with the Settlement Agreements.” Because
the basis of his RICO claim is his inability to practice medicine and reputational
harm caused by the revocation of his license, it is undeniable that Isaacs was aware
of his injury by June of 2015. Isaacs filed his current lawsuit on September 16,
2019—over four years after his medical license was revoked and his injury was
apparent.1 Accordingly, it is obvious from the face of the complaint that Isaacs’s
RICO claim is time barred.
Pursuant to California law, contract and recission claims are subject to a
four-year statute of limitations. Cal. Civ. Proc. Code §§ 337(a), (b). Again,
Isaacs’s complaint alleges that in June 2015, Isaacs suspected USC “was not
1
Throughout his complaint, Isaacs alleges that he learned of his injury—the
negative impact on his medical career, education and reputation—in 2019 when he
found a copy of his Association of American Medical Colleges (AAMC) profile,
which reflected his dismissal from USC for “Non Academic Reasons.” Because
the limitations period is triggered when an individual becomes aware of or
suspects an injury (not when he finds smoking-gun evidence of his injury), the year
in which Isaacs discovered this document does not affect our statute of limitations
analysis.
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complying with the Settlement Agreements.” The limitations period, therefore,
began running in June of 2015, rendering his current contract and recission claims
time barred.
Intentional interference with contract is subject to a two-year statute of
limitations. Cal. Civ. Proc. Code § 339(1). Isaacs’s complaint alleges that John
Doe—an unnamed defendant—notified Dartmouth’s residency program of Isaacs’s
disciplinary records at USC, and thus, “deliberately defeated the purpose of the
[settlement] agreements.” Given that Dartmouth terminated Isaacs in 2012, Isaacs’s
claim against John Doe is time barred. Isaacs alleges that the New Hampshire Board
of Medicine published “a fake order to the public, which is meant to defeat [Isaacs’s]
consideration vested by the settlement agreements.” Again, the New Hampshire
Board of Medicine published its initial order in 2014 and its finalized order in June
2015—thus, it is obvious from the face of the complaint that Isaacs’s claim is time
barred.
Finally, fraud and constructive fraud claims are subject to a three-year
statute of limitations. Cal. Civ. Proc. Code § 338(d). The limitations period begins
to run when the plaintiff “suspect[s] or should have suspected that an injury was
caused by wrongdoing.” Kline v. Turner, 105 Cal. Rptr. 2d 699, 702 (Ct. App.
2001). Isaacs’s complaint alleges that “USC represented it would seal [his]
disciplinary records” but that “representation was false.” Again, Isaacs’s
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complaint alleges that by June of 2015, he suspected USC “was not complying
with the Settlement Agreements.” Therefore, he was aware of his injury more than
three years before he filed his claim, rendering both his fraud claims time barred.
2. The district court did not err in granting Appellees’ motion to dismiss as
to Isaacs’s retaliation claim. Under both the Rehabilitation Act and the Americans
with Disabilities Act (ADA), “[a] prima facie case of retaliation requires a plaintiff
to show: ‘(1) involvement in a protected activity, (2) an adverse employment
action[,] and (3) a causal link between the two.’” Coons v. Sec’y of U.S. Dep’t of
Treasury, 383 F.3d 879, 887 (9th Cir. 2004) (quoting Brown v. City of Tucson, 336
F.3d 1181, 1187 (9th Cir. 2003)). Isaacs failed to allege that he was an employee
of USC.
3. The district court did not err in granting Appellees’ motion to dismiss
Isaacs’s 42 U.S.C. § 1983 claim against the New Hampshire Board of Medicine for
violating his Eighth Amendment rights. Pursuant to well-settled law, “[s]tate
agencies . . . are not ‘persons’ within the meaning of [42 U.S.C.] § 1983, and are
therefore not amenable to suit under that statute.” Maldonado v. Harris, 370 F.3d
945, 951 (9th Cir. 2004) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70
(1989)). It is undisputed that the New Hampshire Board of Medicine is a state
agency. Therefore, Isaacs’s Eighth Amendment claim, made via § 1983, is barred
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by the Eleventh Amendment.2
4. Isaacs’s remaining constitutional claims were also properly dismissed.
Isaacs alleges that Gibson Dunn and Crutcher LLP (Gibson Dunn) and USC
violated his right to due process and his First Amendment right to “assemble and
speak at USC events” when they “unilaterally restricted [his] freedom” to access
the USC campus. The First and Fourteenth Amendments, however, do not apply
to private actors unless those actors are exercising a function “traditionally
exclusively reserved to the State.” Manhattan Cmty. Access Corp. v. Halleck, 139
S. Ct. 1921, 1926 (2019) (quoting Jackson v. Metropolitan Edison Co., 419 U.S.
345, 352 (1974)). Both USC and Gibson Dunn are private actors, and neither party
was exercising traditional, exclusively state functions. Accordingly, Isaacs’s
claims fail as a matter of law.
5. The district court did not err in granting Appellees’ motion to strike
Issacs’s state law claims pursuant to California’s anti-SLAPP statute, California
Code of Civil Procedure § 425.16. “[A] party may file a motion to strike a cause
of action against it if the complaint ‘aris[es] from any act of that person in
furtherance of the person’s right of petition or free speech under the United States
Constitution or the California Constitution in connection with a public issue.’”
2
In his brief, Isaacs argues that his claim is primarily against an investigator for
New Hampshire Board of Medicine. Isaacs, however, did not name this person as
a party to the suit. As such, the Eleventh Amendment precludes his claim.
6
Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 595 (9th Cir. 2010) (quoting Cal.
Civ. Proc. Code § 425.16(b)(1) (second alteration in original)). A court
considering a party’s motion to strike engages in a two-part inquiry: (1) “the
defendant must make a prima facie showing that the plaintiff’s suit arises from an
act in furtherance of the defendant’s rights of petition or free speech”; and (2) the
plaintiff must “demonstrate a probability of prevailing on the challenged claims.”
Id. (internal quotation marks omitted).
Isaacs’s stricken claims relate to emails between him, a Gibson Dunn
attorney, and USC’s in-house counsel. Appellees’ statements in these emails
constitute protected speech, and most of them are reiterations of USC’s legal
position, “made in direct response to [Isaacs’s] threats.” Moreover, Isaacs did not
establish a likelihood of success on the merits of these claims. Isaacs does not
have a protected right to being on USC’s campus—USC is a private school and
may exclude Isaacs. The Gibson Dunn emails do not amount to “extreme and
outrageous conduct,” Hughes v. Pair, 209 P.3d 963, 976 (Cal. 2009) (listing the
elements of a cause of action for intentional infliction of emotional distress), or
“intentional acts designed to induce a breach or disruption of [a] contractual
relationship,” Reeves v. Hanlon, 95 P.3d 513, 517 (Cal. 2004) (listing the elements
of intentional interference with contractual relations). The district court, therefore,
did not err in granting the motion to strike.
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AFFRIMED.
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