Seyed Takieh v. Banner Health ( 2022 )


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  •                            NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FILED
    FOR THE NINTH CIRCUIT
    FEB 16 2022
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    SEYED MOHSEN SHARIFI TAKIEH, an                  No.   21-15326
    individual,
    D.C. No. 2:19-cv-05878-MTL
    Plaintiff-Appellant,
    v.                                              MEMORANDUM*
    BANNER HEALTH, an Arizona not-for-
    profit corporation; MICHAEL O’MEARA,
    M.D. and Husband; JANICE COHEN
    DINNER, Wife; STEVEN MAXFIELD,
    M.D. and Husband; MICHAEL
    O’CONNOR, M.D. and Husband; PETER
    S. FINE, Husband; CHRISTOPHER
    VOLK, Husband
    Defendants-Appellees,
    and
    O’MEARA, Jane Doe O’Meara and Wife;
    DEAN M. DINNER, Husband; STEPHEN
    HU, M.D. and Husband; HU, Jane Doe Hu
    and Wife; MAXFIELD, Jane Doe
    Maxfield and Wife; JAMES LYONS,
    M.D. and Husband; LYONS, Jane Doe
    Lyons and Wife; O’CONNOR, Jane Doe
    O’Connor and Wife; REBECCA AILES-
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    FINE, Wife; VOLK, Wife,
    Defendants.
    Appeal from the United States District Court
    for the District of Arizona
    Michael T. Liburdi, District Judge, Presiding
    Argued and Submitted December 7, 2021
    Pasadena, California
    Before: W. FLETCHER and RAWLINSON, Circuit Judges, and
    BENCIVENGO,** District Judge. Dissent by Judge BENCIVENGO.
    Seyed Mohsen Sharifi Takieh (Dr. Sharifi) appeals the district court order
    granting a motion to dismiss his claims brought pursuant to 
    42 U.S.C. § 1981
    . Dr.
    Sharifi contends that the district court impermissibly took judicial notice of the
    Arizona Superior Court’s decision that substantial evidence supported Appellee-
    Banner’s stated reasons for terminating his Physician Services Agreement (PSA),
    and erred when it gave preclusive effect to the ruling to conclude that Dr. Sharifi
    failed to state a plausible claim.
    We have jurisdiction pursuant to 
    28 U.S.C. § 1291
    , and review de novo an
    order granting a motion to dismiss for failure to state a claim. See Palm v. Los
    Angeles Dep’t of Water & Power, 
    889 F.3d 1081
    , 1085 (9th Cir. 2018). We review
    **
    The Honorable Cathy Ann Bencivengo, United States District Judge
    for the Southern District of California, sitting by designation.
    2
    the district court’s decision to take judicial notice of the Arizona Superior Court’s
    ruling for an abuse of discretion. See Ritter v. Hughes Aircraft Co., 
    58 F.3d 454
    , 458 (9th Cir. 1995).
    Because the district court’s decision adhered to the United States Supreme
    Court’s ruling in Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 
    140 S. Ct. 1009
    , 1019 (2020), we AFFIRM.
    1. Dr. Sharifi brought his claim under § 1981, which requires a showing of
    intentional discrimination based on race. See Evans v. McKay, 
    869 F.2d 1341
    ,
    1344 (9th Cir. 1989). Under Comcast, race must be a but-for cause of a § 1981
    plaintiff’s injury. See 140 S. Ct. at 1013, 1019 (vacating the Ninth Circuit’s ruling
    that a § 1981 plaintiff need only “plead facts plausibly showing that race played
    ‘some role’ in the defendant’s decisionmaking process”) (citation omitted).
    2. The district court did not abuse its discretion by taking judicial notice of
    the Arizona Superior Court’s decision upholding the termination of Dr. Sharifi’s
    PSA. The decision is a public record whose accuracy cannot be reasonably
    questioned. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 
    442 F.3d 741
    , 746 n.6
    (9th Cir. 2006) (“We may take judicial notice of court filings . . . ”).
    3. We apply state law in determining the preclusive effect of a prior court
    decision. See Pike v. Hester, 
    891 F.3d 1131
    , 1138 (9th Cir. 2018). Under Arizona
    3
    law, the Arizona Superior Court’s ruling was not entitled to preclusive effect
    because it resolved a different issue: whether substantial evidence supported
    Appellee-Banner’s termination of Dr. Sharifi’s PSA. See Kulas v. Flores, 
    255 F.3d 780
    , 783–84 (9th Cir. 2001) (concluding that an Arizona trial court’s ruling on a
    witness tampering charge in a criminal case did not have preclusive effect in a §
    1983 lawsuit alleging perjury by a police officer during his grand jury testimony
    because “[t]he issues in the two proceedings were entirely different”).
    Nevertheless, because Dr. Sharifi incorporated the Arizona Superior Court’s
    decision into his First Amended Complaint (FAC), the decision is relevant to our
    determination of whether Dr. Sharifi’s claims are plausible, and any error by the
    district court regarding the ruling’s preclusive effect was “of no consequence.”
    Azami v. Apfel, 
    24 F. Supp. 2d 1007
    , 1010 (C.D. Cal. 1998).
    4. Dr. Sharifi failed to state a plausible § 1981 claim under Comcast. As
    stated above, the FAC incorporated the Arizona Superior Court’s decision. In turn,
    the court’s decision articulated three non-discriminatory grounds for the
    termination of Dr. Sharifi’s PSA: patient care issues, alteration of medical records,
    and disruptive behavior. These non-discriminatory reasons render the allegation
    that race was the but-for cause of the termination of Dr. Sharifi’s PSA implausible.
    See Orellana v. Mayorkas, 
    6 F.4th 1034
    , 1043 (9th Cir. 2021) (observing that “the
    4
    complaint itself undermines [plaintiff’s] theory of the case and renders it
    implausible”).
    5. The allegations regarding disparate treatment of Dr. Sharifi as compared
    to non-Arab physicians fail to establish that race was a but-for cause of the
    revocation of Dr. Sharifi’s PSA because the non-Arab physicians were not
    “similarly situated” to Dr. Sharifi. Specifically, none of these physicians generated
    patient care issues, altered medical records, and exhibited disruptive behavior. See
    Vasquez v. Cnty. of Los Angeles, 
    349 F.3d 634
    , 641–42 (9th Cir. 2004), as
    amended (concluding that the plaintiff’s colleagues were not similarly situated to
    him because one was not “involved in the same type of offense” and the other did
    not “engage in problematic conduct of comparable seriousness”).1
    AFFIRMED.
    1
    Our colleague in dissent takes issue with the “similarly situated”
    requirement of our precedent. However, she cites no authority that calls into
    question that requirement as articulated in Vasquez, 
    349 F.3d at 641-42
    .
    5
    FILED
    Seyed Takieh v. Banner Health, et al, No. 21-15326
    FEB 16 2022
    BENCIVENGO, District Judge, dissenting:                         MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    In conducting an analysis under Rule 12(b)(6), the district court must accept
    the facts alleged in the complaint as true and determine whether those allegations
    “plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678
    (2009). The district court erred by failing to accept Dr. Sharifi’s factual allegations
    as true and instead finding Defendants’ competing explanation “so convincing” as
    to render Dr. Sharifi’s allegations of racial discrimination implausible.
    A plaintiff asserting a claim under 
    42 U.S.C. § 1981
     must identify an impaired
    contractual relationship under which he has rights and allege that the defendant
    impaired that relationship on account of intentional discrimination. See Gen. Bldg.
    Contractors Ass’n v. Pennsylvania, 
    458 U.S. 375
    , 389 (1982). The plaintiff must
    also show that race was a but-for cause of his injury, meaning that but for his race,
    he “would not have suffered the loss of a legally protected right.” Comcast Corp. v.
    Nat’l Ass’n of Afr. Am.-Owned Media, 
    140 S. Ct. 1009
    , 1019 (2020).
    Dr. Sharifi’s allegations plausibly establish that Defendants’ actions arose
    from intentional racial discrimination.       Dr. Sharifi alleges that Defendants
    O’Connor, O’Meara, Maxfield, and Dinner made disparaging remarks motivated by
    racial animus toward him, some of which related to an alleged scheme to terminate
    Dr. Sharifi’s clinical privileges at Banner. Dr. Sharifi also alleges that five other
    1
    non-Arab physicians at Banner committed similar patient care errors but were not
    reported to any medical boards or disciplined to the same degree. These allegations
    establish intentional discrimination based on disparate treatment, as Dr. Sharifi
    plausibly claims that other similarly situated physicians not of Arab descent were
    treated more favorably. See Davis v. Team Elec. Co., 
    520 F.3d 1080
    , 1089 (9th Cir.
    2008). The district court’s holding that the non-Arab physicians needed to have
    committed the same three transgressions as Dr. Sharifi improperly required that the
    physicians be identically situated, rather than similarly situated. 1 This is an overly
    burdensome standard to impose at the pleading stage. See Bell Atl. Corp. v.
    Twombly, 
    550 U.S. 544
    , 556 (2007) (holding that a plaintiff need only plead “enough
    facts to raise a reasonable expectation that discovery will reveal evidence” of the
    alleged wrongdoing). Moreover, Defendants’ claim at oral argument that the non-
    Arab doctors engaged in different or less culpable conduct than Dr. Sharifi is an
    assertion of fact outside the complaint and cannot be considered at this stage.
    1
    The majority cites Vasquez v. Cnty. of Los Angeles, 
    349 F.3d 634
    , 641-42 (9th Cir.
    2004) for the proposition that those treated more favorably had to have been
    “involved in the same type of offense” or have “engage[d] in problematic conduct
    of comparable seriousness” to be “similarly situated” to the plaintiff. However, the
    Vasquez court was considering the evidence before it at the summary judgment
    stage, rather than accepting the plaintiff’s allegations as true as required on a Rule
    12(b)(6) motion. Vasquez therefore is inapplicable to analysis of a motion to
    dismiss, which is governed by the Iqbal/Twombly standard.
    2
    Dr. Sharifi has alleged sufficient factual matters to plausibly claim his
    termination would not have occurred but for his race. Dr. Sharifi alleges that he was
    injured by Defendants’ termination of his contractual relationship, that he was
    terminated when similarly situated physicians were not, and that Defendants would
    not have revoked his clinical privileges but for his race. At the pleading stage, his
    factual allegations are to be accepted as true.       See Iqbal, 
    556 U.S. at 678
    .
    Accordingly, Dr. Sharifi’s allegations are sufficient to state a claim under 
    42 U.S.C. § 1981
    . The district court should be reversed.
    3