(PS) Rhee v. Alvarez ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HANNA Q. RHEE, No. 2:18-CV-0105-KJM-DMC 12 Plaintiff, 13 v. SUPPLEMENTAL FINDINGS AND RECOMMENDATIONS 14 BIGGS-GRIDLEY MEMORIAL HOSPITAL, et al., and 15 Defendants. FINDINGS AND RECOMMENDATIONS 16 17 18 19 Plaintiff, who is proceeding pro se, brings this civil action. Pending before the 20 Court are: (1) the motion to dismiss, ECF No. 12, filed by Defendants Medical Board of 21 California, Kimberly Kirchmeyer, Michelle Bholat, Nathan Lavid, Reinhardt Hilzinger, Roberto 22 Moya, Xavier Becerra, Alexandra Alvarez, and Megan O’Carroll (State Defendants); and (2) the 23 motion to dismiss, ECF No 14, filed by Defendants Biggs-Gridley Memorial Hospital, dba 24 Orchard Hospital, Steven Lee Stark, James Brown, Jr., Kirsten Storne-Piazza, Herry Starkes, Jr., 25 April Plasencia Buttacavolli, John Harris, Margaret Isley Brown, Edwin Becker, Jr., Clark 26 Redfield, Joe Cunha, Curt Engen, Art Cota, and Jatinder Kullar (Hospital Defendants). The 27 matters are before the undersigned for issuance of supplemental findings and recommendations 28 addressing the State Defendants’ motion and new findings and recommendations addressing the 1 Hospital Defendants’ motion, ECF No. 40. 2 In considering a motion to dismiss, the Court must accept all allegations of 3 material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The 4 Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer 5 v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 6 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All 7 ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 8 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual 9 factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). 10 In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. 11 See Haines v. Kerner, 404 U.S. 519, 520 (1972). 12 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 13 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 14 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 15 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 16 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 17 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 18 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 19 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 20 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 21 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 22 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but 23 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 24 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 25 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 26 to relief.” Id. (quoting Twombly, 550 U.S. at 557). 27 / / / 28 / / / 1 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials 2 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 3 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1) 4 documents whose contents are alleged in or attached to the complaint and whose authenticity no 5 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 6 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 7 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 8 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 9 1994). 10 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 11 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 12 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 13 14 I. PLAINTIFF’S ALLEGATIONS 15 This action proceeds on Plaintiff’s original complaint. See ECF No. 1. Plaintiff 16 invokes this Court’s federal question jurisdiction based on claims allegedly arising under 42 17 U.S.C. §§ 1981, 1983, 1985, and 300a-7(d). See ECF No. 1, pg. 2. Plaintiff names the following 18 as defendants: 19 - Medical Board of California (MBOC). 20 - Biggs-Gridley Memorial Hospital dba Orchard Hospital (OH) and its affiliated outpatient clinic Medical Specialty Center (OHMSC). 21 - Kimberly Kirchmeyer, an MBOC director. 22 - Megan O’Carroll, Esq., counsel for MBOC. 23 - Medestar, a temporary employment service. 24 - Michelle A. Bholat, an MBOC member. 25 - Nathan E. Lavid, M.D., a physician consultant for MBOC. 26 - Reinhardt Bordon Hilzinger, M.D., a physician consultant for MBOC. 27 - Roberto Moya, a senior investigator for MBOC. 28 1 - Steven Lee Stark, the Chief Executive Officer for OH. 2 - Kirsten Storne-Piazza, a director at OHMSC. 3 - Henry B. Starkes, Jr., M.D., a former medical director at OHMSC. 4 - James C. Brown, Jr., D.O., the chief medical officer at OHMSC. 5 - April Plasencia Buttacavoli, medical assistant at OHMSC 6 - Alexandra M. Alvarez, Esq., Supervising Deputy Attorney General. 7 - May Usman, physician contact support at Medstar. 8 - John T. Harris, Chairman of the Board of OH. 9 - Margaret Brown, Vice-Chairman of the Board of OH. 10 - Edwin A. Becker, Jr., Chief Financial Officer of OH. 11 - Clark S. Redfield, Board Secretary of OH. 12 - Joe Cunha, Board Member of OH. 13 - Curt Engen, Board Member of OH. 14 - Art Cota, Board Member of OH. 15 - Jatinder S. Kullar, Board Member of OH. 16 ECF No. 1, pgs. 3-4. 17 Plaintiff, who is a physician, alleges wrongdoing in connection with proceedings 18 initiated by Defendant Medical Board of California to revoke her license to practice medicine in 19 the state. Plaintiff alleges as follows: 20 Plaintiff graduated from University of South Florida College of Medicine in 2002. 21 Plaintiff was first licensed to practice medicine in the State of California 22 by Defendant MBOC [Medical Board of California] in 2011 and was issued Physician and Surgeon Certificate #A116932. 23 On February 24, 2017, member spoke by phone to Medestar Locum 24 Tenens Physician Recruiter Dustin Attaway to discuss job opportunities. During the recruitment phone call, when Attaway specifically asked “what 25 procedures do you do or not do” Plaintiff states “I do not do do [sic] breast or genital exams; I do not do Pap smears or bimanual exams.” Thereafter, 26 Attaway presented two possible job opportunities one of which was at OH [defendant Biggs-Gridley Memorial Hospital dba Orchard Hospital] which 27 Attaway stated had agreed to the contracted worked [sic] even though Plaintiff stated she did not perform the specified procedures. Plaintiff has 28 never been asked why certain procedures were not done. The phone 1 discussion was followed up with an email listing application procedures. 2 On February 27, 2015, Plaintiff completed and submitted OH paperwork. On page 8 entitled “Request for Privileges Medical,” Plaintiff did NOT 3 check boxes “Diseased of ovary, fallopian tube parametrium; Epididymitis; Sexually Transmitted Disease; Orchitis; Prostatitis” since 4 she had already informed Plaintiff [sic] did not perform genital exam nor Pap smears/bimanual exams. And since no Medical Bylaws were 5 received, Plaintiff did not sign confirmation and called Defendant Medestar’s Usman who stated “you will get a copy when you arrive at 6 OH. But you have to sign this before I let you work up there. Don’t worry; you will receive a copy up there.” Upon arrival to OH, Plaintiff 7 was told by Storne-Piazza “they should have given you one at Medestar.” Later, CEO Start stated “you can look online for a standard template of 8 hospital bylaws.” Plaintiff then asked Defendant OH’s Physician Liaison Christine Villa who stated “sorry, I can’t help you. . . I’m the INpatient 9 liaison, NOT the OUTpatient physician liaison.” (In Jan 2017 when emailing OH’s Patricia Stahlberg ((“Head of Medical Staff Services” 10 unknown to Plaintiff at time of contracted employment in 2015)) Stahlberg stated Medestar has a copy of Bylaws; however Defendant’s 11 Stefanie Burney stated they do not have any copies of Bylaws, only the facilities. Therefore, Defendants Medestar and OH conspired to deprive 12 Plaintiff of due process since the Bylaws were withheld from her until 2017). 13 In an email dated February 27, 2015 entitled “Confirmation Letter” from 14 Medestar, statement read “This letter is to confirm your acceptance to provide locum tenens coverage March 2nd – March 31st (M-F 8A-5P) at 15 Orchard Hospital. . . . “If during the course of this assignment, any concerns arise regarding your assignment which may include, among 16 other things: The scope of the practice you are being asked to perform. . . You should call your Account Manager during regular business hours. In 17 the event of an emergency, outside of these hours, please call Medestar’s after-hours emergency number. . . .” Upon arrival to OHMSC on March 18 2, 2015, Plaintiff was given a tour of the facilities, introduced to the staff and met with Clinic Director Kirsten Storne-Piazza. After pleasantries, 19 she specifically asked me the limits on the scope of my practice “so I’ll know what to tell the schedules” and I informed her “I don’t do Ped’s, 20 genital exams, Pap smears/bimanual exams” to which she replied “that’s fine we don’t have a problem with that. . . We’re just glad you’re here.” 21 Again, she never asked why I limit the scope of my practice as it is standard for physicians to have limits as to a locum tenens. Subsequently, 22 no patients complaining of genital issues nor Pap smears were scheduled to see me since Day 1 of my work at OH. Therefore I made no phone 23 calls to Medestar complaining about being asked to perform beyond the scope of our agreement. 24 On or about March 3, 2015, I thereafter met Dr. Starkes and informed him 25 I did not perform genital exams nor Pap smears/bimanual exams which he agreed to. He never asked why I do not perform them as limits are 26 standard with locum tenens providers. 27 ECF No. 1, pgs. 6-7 (italics in original). 28 / / / 1 Plaintiff next summarizes emails from Medestar dated March 31, 2015, and April 2 16, 2015, confirming that Plaintiff will provide locum tenens coverage at Orchard Hospital in 3 April and May that year. See id. at 7-8. 4 Plaintiff then alleges: 5 While Plaintiff worked at OHMSC (OH Medical Specialty Center, the outpatient clinic) March 2, 2015, to May 29, 2015, while contracted under 6 Medestar, she was then offered a contract to work directly with OHMSC. 7 On April 15, 2015, the Plaintiff and Defendant’s CEO Stark signed OH Professional Services Agreement. However, no updated Medical Bylaws 8 were provided and no Code of Conduct were provided. 9 The Professional Services Agreement 1.5(f) stated “In compliance with, and shall maintain such compliance with, Hospital’s Code of Conduct, 10 which is attached hereto as Exhibit C and incorporated by reference. Page Exhibit C “Code of Conduct” states “Please see attached.” No 11 attachment is found. 12 On June 1, 2015, Plaintiff started her first day working under the new contract with OHMSC who agreed to the same work limits which Plaintiff 13 had been performing consistently for the prior three months. When Plaintiff asked again for copies of Medical Bylaws, she was told by CEO 14 Stark to look online for a standard template. 15 While under the new OHMSC contact, Plaintiff treated an increasing number of patients previously treated by Dr. Starkes and noted the high 16 number of prescriptions for controlled substances, lack of preventative care addressed, failure to obtain standard studies in pain patients, 17 substandard care in the elderly and disabled patients. 18 From June 1st to September as Plaintiff’s patient list for the day increased, Dr. Starkes instructed his medical assistant Lacey Cassidy to remove 19 patients from Plaintiff’s list and post them under his daily list of patients. In one instance, Plaintiff noticed a wheelchaired patient in the middle of 20 the hallway with medical assistants Lacey Cassidy and Danielle Grimes. When asked about the commotion, the patient stated “I told them to take 21 me out of Dr. Starkes room because I was here to see you.” After wheeling the patient into Plaintiff’s exam room, Cassidy stated shrugging 22 her shoulders “Dr. Starkes told me to put her on his list. . . take her off yours.” In the middle of clinic, Dr. Starkes accosted Plaintiff stating 23 “someone told me you said something about me to a patient.” When apologizing for not knowing what he was referring to, Dr. Starkes abruptly 24 walked out of the room. When Plaintiff pulled out her mail out of one of the cubby holes in the mail area, she noticed a paper addressed to Dr. 25 Starkes. Thinking someone had accidentally misfiled her mail, she placed it in Dr. Starkes’ cubby hole. Dr. Starkes publicly accosted Plaintiff 26 stating “Did you touch my mail. . . Yes or no. . . answer me yes or no.” 27 ECF No. 1, pgs. 8-9 (bold in original). 28 / / / 1 According to Plaintiff, in August 2015 she was accused by CEO Stark, Dr. 2 Starkes, and Storne-Piazza “of violations of Defendant OH Code of Conduct.” Id. at 9. Plaintiff 3 states she refused to sign a counseling report and again demanded a copy of the Code of Conduct. 4 See id. Plaintiff claims Stark, Starkes, and Storne-Piazza refused to provide her a copy, stating “it 5 is the standard scope of conduct any physician anywhere is expected to follow.” Id. On 6 September 3, 2015, Plaintiff was informed in writing that she had been placed on “precautionary 7 suspension.” Id. That same day, Plaintiff informed Storne-Piazza of her decision to resign “due 8 to ongoing harassment and inability to receive fair treatment from Defendant OH.” Id. The 9 following day, Plaintiff provided a formal written resignation and “subsequently opened a clinic a 10 few blocks away.” Id. 11 Plaintiff claims she requested a review process and was informed that a “peer 12 review committee” meeting had been scheduled for November 10, 2015. ECF No. 1, pg. 9. 13 According to Plaintiff, she has never been informed of the committee’s findings and never had an 14 opportunity to address the committee. See id. 15 Plaintiff states that, on November 16, 2015, “a California 805 Report” was filed by 16 Orchard Hospital with the Medical Board of California, Central Complaint Unit. See id. The 17 complaint was assigned to Senior Investigator Roberto Moya on November 18, 2015. See id. at 18 10. On December 30, 2015, Plaintiff initiated a complaint with the California Department of 19 Public Health to report “substandard care at OH.” Id. 20 Plaintiff next states that Orchard Hospital “submitted a Title IV Clinical Privileges 21 Action” into the National Physician Database (NPDB) on January 11, 2016. Id. Plaintiff 22 received notice of the NPDB posting in the mail in February 2016. See id. According to 23 Plaintiff, she “responded online” and that “[t]his action by Plaintiff is the first written evidence of 24 her work as a federal ‘whistleblower.’” Id. 25 / / / 26 / / / 27 / / / 28 / / / 1 Plaintiff alleges that she met with defendant Medical Board of California without 2 representation on January 3, 2017. See id. Plaintiff states: 3 . . .Defendant California Assistant District Attorney Meghan O’Carroll, Esq., Defendant MBOC Senior investigator Moya, MBOC expert 4 physician, Plaintiff were present at the recorded meeting. In the meeting, Plaintiff was advised by MBOC Senior investigator Roberto Moya to 5 report allegations against OH “or you could be held liable you know.” 6 ECF No. 1, pg. 10. 7 Next, Plaintiff states that she “began cooperating with the Drug Enforcement 8 Agency (DEA) as an informant” on January 3, 2016. See id. 9 According to Plaintiff: 10 On July 18, 2017, an order was signed by Defendant MBOC Board member Michelle Anne Bholat MD for a mental status examination based 11 on a review by Board-Uncertified MBOC expert Hilzinger’s review of information. Plaintiff never met with [Hilzinger] in person. Hilzinger did 12 not submit a Report of his Psychiatric findings; he submitted only a Declaration. 13 Id. 14 15 Plaintiff states she underwent the examination on August 18, 2017, conducted by Nathan Lavid, 16 M.D. See ECF No. 1, pg. 10. 17 Plaintiff states that Defendant Medical Board of California “publicly posted to 18 their website the extensive Accusation filed against Plaintiff” on January 11, 2018. Id. at 11. 19 According to Plaintiff, Defendants violated her rights under the First, Fourth, Fifth, 20 Eighth, and Fourteenth Amendments. See id. at 2. More specifically, Plaintiff claims the 21 foregoing factual allegations support the following legal claims: (1) “Right to equal protection 22 under the law”; (2) Violation of Right to Privacy and related due process, et al.”; (3) “Violation of 23 Right to Free Speech, Press, Peaceably Assemble, et al.”; and (4) “Violation of Right to work and 24 related due process, et al.” Id. at 12-15. Plaintiff seeks monetary damages and injunctive relief. 25 See id. at 15. 26 / / / 27 / / / 28 / / / 1 II. PROCEDURAL HISTORY 2 Plaintiff paid the filing fees and summons was issued by the Clerk of the Court for 3 each of the entities and individuals named in the complaint. See ECF No. 2. Waivers of service 4 were returned executed for Defendants Moya, Medical Board of California, Kirchmeyer, 5 O’Carroll, Bholat, Alvarez, and Hilzinger. See ECF No. 11.1 Plaintiff thereafter filed proofs of 6 service of process for Defendants Buttacavoli, Medestar, and Biggs-Gridley Memorial Hospital. 7 See ECF Nos. 25-28. To date, Defendant Medestar has not responded to the complaint and 8 Defendant May Usman, a Medestar employee, has not been served.2 9 In response to Plaintiff’s complaint, the State Defendants filed a motion to dismiss. 10 See ECF No. 12.3 In their motion, the State Defendants primarily argue the Court should decline 11 to exercise jurisdiction under Younger v. Harris, 401 U.S. 37 (1971). See ECF No. 12-1. The 12 State Defendants also argue: (1) Defendant Medical Board of California (MBOC) as well as the 13 individual State Defendants acting in their official capacities are immune from suit under the 14 Eleventh Amendment; (2) Defendants Bholat, Kirchmeyer, O’Carroll, and Alvarez are entitled to 15 absolute immunity as judges/prosecutors; (3) Defendants Lavid, Hilzinger, and Moya are entitled 16 to qualified immunity; (4) Plaintiff cannot state a claim under 42 U.S.C. § 1983 against any of the 17 State Defendants acting in his or her official capacity; and (5) Plaintiff fails to allege facts 18 showing any violation of federal law as to any State Defendant. See id. 19 The Hospital Defendants filed a separate motion to dismiss. See ECF No. 14. In 20 their motion, the Hospital Defendants argue: (1) Plaintiff’s complaint must be dismissed for 21 failure effectuate timely service of process on the Hospital Defendants; (2) Plaintiff’s complaint 22 fails to state any factual allegations against the Hospital Defendants; and (3) all claims prior to 23 January 17, 2016 are time-barred. See ECF No. 14-1. 24 / / / 25 1 Though not named as a defendant in the complaint, waiver of service was also 26 returned executed for Xavier Becerra, the California Attorney General. No summons has been issued as to Attorney General Becerra. 27 2 Plaintiff has not sought entry of default as to non-answering Defendant Medestar. 3 The state Defendants’ motion is also filed on behalf of California Attorney 28 General Xavier Becerra, who is not named in Plaintiff’s complaint. 1 The Court issued findings and recommendations addressing both motions. See 2 ECF No. 35. Specifically, the findings and recommendations addressed the immunity and 3 Younger arguments and concluded the Court should abstain under Younger and dismiss the entire 4 action without further consideration of Defendants’ remaining arguments. See ECF No. 35. The 5 Hospital Defendants filed a request for clarification of and objections to the findings and 6 recommendations regarding the issue of service of process. See ECF No. 36. The District Judge 7 thereafter issued an order adopting the findings and recommendations in part and referring the 8 matter back to the assigned Magistrate Judge for further consideration of Defendants’ motions to 9 dismiss. See ECF No. 40. 10 As to the State Defendants’ motion, the District Judge held: 11 1. Plaintiff’s claims against Defendant Medical Board of California are barred in their entirety by the Eleventh Amendment. 12 2. Plaintiff’s claims for damages against the State Defendants are barred 13 by the Eleventh Amendment to the extent the State Defendants are sued in their official capacities. 14 3. Plaintiff’s claims against Defendants Medical Board of California, 15 Kirchmeyer, O’Carroll, and Bholat are dismissed with prejudice on the basis of absolute quasi-judicial and/or quasi-prosecutorial immunity. 16 4. Plaintiff’s claims for damages against Defendants Alvarez and Becerra 17 are dismissed with prejudice. 18 5. Plaintiff claims for injunctive relief against Defendants Alvarez and Becerra are dismissed with leave to amend. 19 See id. 20 21 The District Judge referred the State Defendants’ motion back to the assigned Magistrate Judge 22 for further analysis of the Younger issue. See id. 23 Relative to the Hospital Defendants’ motion, the District Judge directed 24 consideration of “how Younger abstention affects plaintiff’s claims against the hospital 25 defendants.” Id. at 4. The District Judge further directed: “The hospital defendants’ motion to 26 dismiss (ECF No. 14) is referred back to the magistrate judge for preparation of new findings and 27 recommendations taking into account the contents of this order and defendants’ request for 28 clarification.” Id. at 5. The District Judge also directed the assigned Magistrate Judge to address 1 the Hospital Defendants’ request for clarification regarding service of process filed in response to 2 the initial findings and recommendations. See id. at 2. 3 4 III. DISCUSSION 5 A. The State Defendants’ Motion to Dismiss 6 The District Judge has directed preparation of supplemental findings and 7 recommendations addressing “the exception to the Younger doctrine for proceedings undertaken 8 in bad faith or for harassment, which appears to be at the heart of plaintiff’s claim in this case.” 9 Id. at 4, 5 (citing Younger, 401 U.S. at 53-54).4 As discussed below, the Court concludes that 10 Younger does not apply. It is thus appropriate to now also consider the remainder of the State 11 Defendants’ arguments not previously addressed. These arguments are as follows: (1) Plaintiff’s 12 complaint fails to state a claim under 42 U.S.C. § 1983 against any of the State Defendants acting 13 in their official capacities; and (2) Defendants Lavid, Hilzinger, and Moya are entitled to 14 qualified immunity. 15 1. Applicability of Younger 16 “Younger abstention applies to state civil proceedings when the proceeding: (1) is 17 ongoing, (2) constitutes a quasi-criminal enforcement actions, (3) implicates an important state 18 interest, and (4) allows litigants to raise a federal challenge.” Citizens for Free Speech, LLC v. 19 Cty. Of Alameda, 953 F.3d 655, 657 (9th Cir. 2020) (citing ReadyLink Healthcare, Inc. v. State 20 Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014)). “Each of these requirements must be 21 ‘strictly met.’ Rynearson v. Ferguson, 903 F.3d 920, 925 (9th Cir. 2018) (citing 22 AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1148 (9th Cir. 2007)). Where there is an 23 entry of a final judgment in state court, then the state court proceedings are clearly no longer 24 ongoing for purposes of Younger. See Page v. King, 932 F.3d 898, 902 (9th Cir. 2019). 25 / / / 26 / / / 27 4 In her order, the District Judge directed: “The portion of the [State Defendants’] motion arguing Younger abstention should apply is referred back to the magistrate judge for 28 preparation of supplemental findings and recommendations.” ECF No. 40, pg. 5. 1 Here, the first element is not met. The Court may take judicial notice pursuant to 2 Federal Rule of Evidence 201 of matters of public record. See U.S. v. 14.02 Acres of Land, 530 3 F.3d 883, 894 (9th Cir. 2008). Thus, this Court may take judicial notice of state court records. 4 See Kasey v. Molybdenum Corp. of America, 336 F.2d 560, 563 (9th Cir. 1964). Following the 5 District Judge’s order, the State Defendants filed a request for judicial notice of proceedings in 6 the Medical Board of California and the Los Angeles County Superior Court. See ECF No. 43. 7 These documents reflect the Medical Board of California found that cause existed for restriction 8 of Plaintiff’s medical license due to mental condition of persecutory type delusional disorder and 9 that cause existed to discipline Plaintiff for gross negligence, repeated negligent acts, falsifying 10 medical records, and failing to maintain adequate and accurate medical records. See id. The 11 documents further reflect that Plaintiff, through counsel, filed a petition for writ of administrative 12 mandamus in the Los Angeles County Superior Court challenging the MBOC’s final decision. 13 See id. Finally, publicly available state court records show that the Los Angeles County Superior 14 Court has denied Plaintiff’s mandamus petition and entered judgment leaving the MBOC’s final 15 decision intact. See Hanna Queen Rhee, M.D. v. Medical Board of California, Los Angeles 16 County Superior Court Case No. 19STCP03849. 17 Because there are no longer ongoing state court or agency proceedings relevant to 18 Plaintiff’s claims, Younger does not apply.5 19 2. Failure to State a Claim Under Section 1983 20 The State Defendants contend that Plaintiff cannot state a claim under 42 U.S.C. 21 § 1983 for two reasons. First, the State Defendants argue that they are not “persons” under § 22 1983 to the extent they are alleged to have acted in their official capacities. Second, the State 23 Defendants assert that Plaintiff’s factual allegations do not show the violation of any federal law. 24 / / / 25 / / / 26 / / / 27 5 The Court expresses no opinion as to the preclusive effect, if any, of the MOBC’s or Los Angeles County Superior Court’s final decisions on the merits of Plaintiff’s claims in this 28 case because the issue is not before the Court on proper motion. 1 a. Official Capacity Claims Against the State Defendants 2 The State Defendants contend: 3 A claim pursuant to 42 U.S.C. §1983 is the mechanism for vindicating a violation of federal or constitutional rights by “persons” 4 acting under the color of state law. Thorton v. City of St. Helena, 425 F.3d 1158, 1166-1167 (9th Cir. 2005). “Section 1983 does not create any 5 substantive rights; rather it is the vehicle whereby plaintiffs can challenge actions by governmental officials.” Henderson v. City of Simi Valley, 305 6 F.3d 1052, 1056 (9th Cir. 2002). Importantly, as a matter of law, state agencies and state officials acting in their official capacity are not 7 “persons” within the meaning of 42 U.S.C. §1983. Will v. Michigan Dept. of State Police, supra, 491 U.S. at 69-71; Hafer v. Melo, 502 U.S. 21, 25, 8 112 S. Ct. 358 (1991). 9 ECF No. 12-1, pg. 16. 10 Under § 1983, a plaintiff must allege a violation of a right protected by the 11 Constitution or created under federal law which is proximately caused by a “person” acting under 12 color of state law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). State officials 13 sued in their official capacity for damages are not persons for purposes of § 1983. See Arizonans 14 for Official English v. Arizona, 520 U.S. 43, 69 n.24 (1997). State officials sued in their official 15 capacities for injunctive relief, however, are persons. See Will v. Mich. Dep’t of State Police, 16 491 U.S. 58, 71 n.10 (1989). To maintain an official-capacity suit against state officials, the 17 plaintiff must allege that a policy or custom of the government entity of which the official is an 18 agent was the moving force behind the violation claimed. See Hafer v. Melo, 502 U.S. 21, 25 19 (1991); Kentucky v. Graham, 473 U.S. 159, 166 (1985). State officials sued in their personal 20 capacity, either for damages or injunctive relief, are also persons under § 1983. See Hafer, 502 21 U.S. at 31; see also Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003). 22 Where, as here, the complaint does not clearly indicate the capacity in which a 23 defendant is being sued, the Court must make the determination. In doing so, the Court observes 24 at the outset that the capacity in which the official acted when engaging in the alleged conduct 25 does not determine the capacity in which the official is sued. See Hafer, 201 U.S. at 26. To 26 determine capacity, the Court examines the nature of proceedings. See Graham, 473 U.S. at 167. 27 When, also as in this case, a plaintiff is seeking damages against a state official but does not 28 specifically allege the capacity in which the state official is sued, there is a strong presumption in 1 favor of a personal-capacity suit because an official-capacity suit for damages would, as 2 discussed above, be barred. See Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999). 3 In light of these principles, the Court will presume that Plaintiff sues the State 4 Defendants in their personal capacities and finds that they are persons for purposes of § 1983. 5 b. Sufficiency of Plaintiff’s Factual Allegations 6 The State Defendants argue that Plaintiff’s complaint fails to allege facts sufficient 7 to show a violation of any federal law. According to the State Defendants: 8 . . .In this case, there are no factual allegations as to any federal or constitutional violations by the eight individual State Defendants. Instead, 9 Plaintiff appears to be critical of the MBOC itself. (See, e.g., ECF No. 1 at pp. 13-14 (relying on medical experts with no training or experience in 10 cultural or religious diversity, bias in favor of Board-certified physicians, failure to divulge all experts involved in investigation of Plaintiff).) 11 Accordingly, Plaintiff failed to state a claim under 42 U.S.C. § 1983 against any State Defendant. 12 ECF No. 12-1, pgs. 16-17. 13 14 In their motion, the State Defendants offer the Court no analysis of any of Plaintiff’s specific 15 factual allegations in this context of this somewhat conclusory argument. See id. 16 Here, the State Defendants are: (1) Medical Board of California, (2) Kimberly 17 Kirchmeyer, (3) Michelle Bholat, (4) Nathan Lavid, (5) Reinhardt Hilzinger, (6) Roberto Moya, 18 (7) Xavier Becerra, (8) Alexandra Alvarez, and (9) Megan O’Carroll. All claims against 19 Defendants Medical Board of California, Kirchmeyer, Bholat, and O’Carroll have been dismissed 20 with prejudice. Plaintiff’s claims for damages against Defendants Alvarez and Becerra have been 21 dismissed with prejudice. Plaintiff’s claims for injunctive relief against Defendants Alvarez and 22 Becerra have been dismissed without prejudice and with leave to amend. The Court will, 23 therefore, direct its analysis to Plaintiff’s allegations against those individual State Defendants 24 against whom Plaintiff has surviving claims not already subject to amendment – all claims against 25 Defendants Lavid, Hilzinger, and Moya. 26 / / / 27 / / / 28 / / / 1 Plaintiff alleges Defendants Lavid and Hilzinger are physician consultants for the 2 MBOC. See ECF No. 1, pg. 3. Plaintiff alleges Defendant Moya is a Senior Investigator for 3 MBOC. See id. Plaintiff’s factual allegations relating to these three defendants are as follows: 4 On November 18, 2015, the case was assigned to Defendant MBOC’s Senior Investigator Roberto Moya (“Moya”) (this date revealed to her in 5 MBOC’s Petition for ISO). 6 * * * 7 On January 3, 2017, Plaintiff med [sic] with Defendant MBOC without representation. Defendant California Assistant District Attorney Meghan 8 O’Carroll, Esq., Defendant MBOC Senior Investigator Moya, MBOC expert physician, Plaintiff were present at the recorded meeting. In the 9 meeting, Plaintiff was advised by MBOC Senior Investigator Roberto Moya to report allegations against OH [Orchard Hospital] “or you could 10 be held liable you know.” 11 * * * 12 On July 18, 2017, an order was signed by Defendant MBOC Board member Michelle Anne Bholat MD for a mental status examination based 13 on a review by Board-Uncertified MBOC expert Hilzinger’s review of information. Plaintiff never met with Plaintiff [sic] in person. Hilzinger 14 did not submit a Report of his Psychiatric findings; he submitted only a Declaration. 15 On August 18, 2017, Plaintiff underwent a comprehensive MBOC-ordered 16 forensic psychiatric evaluation conducted by Nathan Lavid MD. 17 On August 24, 2017, Plaintiff provided feedback to Defendant MBOC regarding evaluation by Lavid by email. 18 Id. at 10-11. 19 20 Plaintiff also mentions these defendants in her “Statement of Claim + Causes of 21 Action.” Under the heading “Right to equal protection under the law,” Plaintiff adds: 22 . . .Plaintiff underwent a MBOC-ordered comprehensive forensic evaluation by Nathan Lavid MD which concluded “Diagnosis by DSM-5: 23 NONE.”. . . 24 Defendant MBOC relies on ‘medical experts’ such as Hilzinger and Lavid who have absolutely NO training nor experience with cultural and 25 religious diversity in health care as noted on their very extensive resumes. . . . 26 * * * 27 28 / / / 1 Defendant MBOC’s Lavid conflicting assessment contradicting himself illustrates a bias against non-Board certified physicians as being inferior to 2 Board certification. There has never been statistically-significant retrograde analysis which supports the bias as measured by patient 3 morbidity/mortality and healthcare costs. However, an MBOC medical expert who has lost his Board certification may necessitate the question of 4 why a Board-Uncertified medical expert is continuing to be used by the Defendant. 5 Id. at 12-13. 6 Plaintiff further mentions Defendant Lavid under the heading “Violation of Right 7 to Privacy and related due process, et al.” Plaintiff claims Defendants MBOC and O’Carroll – 8 both of whom have been dismissed with prejudice – violated Plaintiff’s constitutional rights by 9 publicly disclosing Plaintiff’s personal information and allegations based on “exaggerated 10 statements and false information without due process in the name of public safety.” Id. at 13. In 11 the context of this claim against defendants who have been dismissed, Plaintiff discusses her 12 August 2017 evaluation by Defendant Lavid: 13 In August 2017, Plaintiff was ordered to undergo forensic psychiatric 14 exam based on an exaggerated, false, racially biased order amounting to a “warrantless search” of her mind. The quality of the psychiatric interview 15 fell well below the standard examination process. Lavid began the interview with NO open-ended questions. He then concluded “Diagnosis 16 by DSM-5: NONE (ICD-10 Code Z71.1) then later contradicted himself by stating “I did not find that Dr. Rhee meets diagnostic criteria for a 17 mental disorder. However, I found that she has thoughts that can be construed as paranoia, which fit within the persecutory delusional 18 disorder. Based on this paranoia, I concluded that Dr. Rhee is not able to safely practice medicine at this time due to this impairment.” 19 Id. at 13-14. 20 21 In light of these allegations, the Court finds that the State Defendants’ objection to 22 Plaintiff’s complaint is well-taken with respect to Defendants Lavid, Hilzinger, and Moya. 23 As to Defendant Moya, Plaintiff alleges nothing more than he was an investigator 24 assigned to Plaintiff’s case and that he was present at a meeting on January 3, 2017, during which 25 he advised Plaintiff she could face liability if she didn’t report her allegations against Orchard 26 Hospital. Plaintiff’s allegations against Defendant Hilzinger are similarly sparse. The Court is 27 hard-pressed to see how these allegations remotely suggest either Defendant Moya or Defendant 28 Hilzinger violated any rights guaranteed to Plaintiff under the Constitution or federal law. 1 Notably, Defendant Moya is not referenced at all in Plaintiff’s “Statement of Claim + Causes of 2 Action” and Defendant Hilzinger is mentioned under this heading only insofar as Plaintiff accuses 3 him of having no training. 4 The Court also finds that Plaintiff fails to state a claim against Defendant Lavid. 5 Plaintiff appears to accuse Defendant Lavid of violating her rights to equal protection, privacy, 6 and due process. The facts Plaintiff alleges, however, establish only that Defendant Lavid 7 performed an evaluation of Plaintiff in August 2017, that he rendered an opinion thereafter, and 8 that Plaintiff believes Defendant Lavid’s evaluation was flawed and his report contradictory. 9 When taken in context, Plaintiff’s references to Defendant Lavid relate to her claims against other 10 defendants who relied on Defendant Lavid’s assessment, specifically the MBOC and O’Carroll, 11 who have both been dismissed with prejudice. 12 Defendants Moya, Lavid, and Hilzinger should also be dismissed with prejudice. 13 3. Qualified Immunity 14 The State Defendants argue that Defendants Lavid and Hilzinger – who are the 15 MBOC’s physician consultants – and Defendant Moya – who is an investigator with the 16 California Health Quality Investigation Unit – are entitled to qualified immunity. The State 17 Defendants contend: 18 In this case, Plaintiff alleges no facts showing that Defendants Physician Consultants Dr. Lavid, Dr. Hilzinger, and HQIU Investigator 19 Roberto Moya violated any of her federal or constitutional rights. Plaintiff is merely critical of the physician consultants’ qualifications and 20 thoroughness of the forensic psychiatric examination, (ECF No. 1 at pp.10-13), and a statement made by Investigator Moya, (ECF No. 1 at 21 p.10). Thus, based solely on the first prong of the Saucier analysis, these Defendants are entitled to qualified immunity. 22 ECF No. 12-1, pgs. 15-16. 23 24 The Court agrees. Government officials enjoy qualified immunity from civil 25 damages unless their conduct violates “clearly established statutory or constitutional rights of 26 which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 27 In ruling upon the issue of qualified immunity, the initial inquiry is whether, taken in the light 28 most favorable to the party asserting the injury, the facts alleged show the defendant’s conduct 1 violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201 (2001). Because, as 2 discussed above, the Court finds Plaintiff has failed to allege facts sufficient to show Defendants 3 Moya, Lavid, or Hilzinger violated any constitutional or statutory right, let alone one that is 4 clearly established, Defendants Moya, Lavid, and Hilziger are entitled to qualified immunity. For 5 this additional reason, the Court recommends these defendants be dismissed with prejudice. 6 B. The Hospital Defendants’ Motion to Dismiss 7 In their motion to dismiss, the Hospital Defendants argue: (1) Plaintiff’s complaint 8 must be dismissed for failure to effectuate timely service of process; (2) Plaintiff’s complaint fails 9 to state any factual allegations against the Hospital Defendants; and (3) all claims prior to January 10 17, 2016, are time-barred. See ECF No. 14. The Hospital Defendants’ contentions regarding 11 service of process are further outlined in their request for clarification. See ECF No. 36. 12 Consistent with the District Judge’s order, the Court herein considers these arguments as well as 13 the impact of Younger on Plaintiff’s claims against the Hospital Defendants. 14 Regarding the latter question first, as explained above, the Court concludes that 15 Younger is inapplicable in this case because there are no longer ongoing state court or agency 16 proceedings relative to Plaintiff’s claims which would preclude this Court’s exercise of 17 jurisdiction. Any exceptions to the application of Younger which are suggested by Plaintiff’s 18 allegations are thus irrelevant. Younger has no impact on Plaintiff’s claims as against any 19 defendant. 20 The Court next addresses the Hospital Defendants’ contentions regarding service 21 of process, the statute of limitations, and the sufficiency of Plaintiff’s complaint. 22 1. Statute of Limitations 23 In their motion to dismiss, the Hospital Defendants argue that all claims prior to 24 January 17, 2016, are time-barred by the applicable statute of limitations. See ECF No. 14-1. 25 California’s two-year statute of limitations for personal injury actions governs 26 Plaintiff’s claims. See Cal. Code Civ. Pro. § 335.1; Colony Cove Props., LLC v. City of Carson, 27 640 F.3d 948, 956 (9th Cir. 2011). Plaintiff’s original complaint was filed on January 17, 2018. 28 See ECF No. 1. Thus, all claims that accrued more than two years prior, or before January 17, 1 2016, are untimely and must be dismissed. 2 Plaintiff’s fourth cause of action for violation of the right to work is time barred. 3 Plaintiff alleges that she worked at the Hospital from March 2015 to September 2015. Id. at 14. 4 Plaintiff’s right to work claim accrued on September 3, 2015, when she stopped working for the 5 Hospital. As such, the undersigned finds that any potential right to work claims against the 6 Hospital or any of the Hospital Defendants are time-barred. The Hospital Defendants’ motion to 7 dismiss should be granted as to Plaintiff’s right to work claim. 8 2. Failure to State a Claim 9 In their motion to dismiss, the Hospital Defendants argue that Plaintiff’s complaint 10 fails to state any factual allegations against the Hospital Defendants. See ECF No. 14-1. 11 Plaintiff’s remaining causes of action are: (1) violation of the right to equal 12 protection under the law; (2) violation of the right to privacy; and (3) conspiracy to violate 13 Plaintiff’s right to free speech, press, and peaceably assemble. See ECF No. 1, pgs. 12-15. The 14 undersigned analyzes each cause of action as it relates to the Hospital Defendants. 15 a. Equal Protection 16 Plaintiff’s first cause of action begins by alleging that the Hospital, as well as 17 several other individuals, deprived Plaintiff of her right to religious freedom. See ECF No. 1, pg. 18 12. However, the facts that follow do not demonstrate how the Hospital violated Plaintiff’s 19 religious freedom rights. See id. at 12-13. In fact, Plaintiff only mentions the Hospital once in a 20 conclusory manner listed amongst other individuals. See id. at 12. To state a claim under 42 21 U.S.C. § 1983, the plaintiff must allege an actual connection or link between the actions of the 22 named defendants and the alleged deprivations. See Monell v. Dep’t of Social Servs., 436 U.S. 23 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). No other Hospital Defendants are mentioned 24 under Plaintiff’s equal protection claim. See id. at 12-13. Therefore, the Hospital Defendants’ 25 motion to dismiss should be granted as to Plaintiff’s equal protection claim against the Hospital 26 Defendants. 27 / / / 28 / / / 1 b. Right to Privacy 2 Plaintiff’s second cause of action does not list the Hospital or any of the individual 3 Hospital Defendants. See id. at 13. Therefore, the Hospital Defendants’ motion to dismiss 4 should also granted as to Plaintiff’s right to privacy claim as against the Hospital Defendants. 5 c. Conspiracy under § 1985 and 1983 6 Plaintiff, in relevant part, states the following in her third cause of action: 7 Defendant O’Carroll and OH conspired to violate Plaintiff’s right to free speech, press, and to peaceably assemble online at her business’ 8 community Facebook page to discuss patient safety and resources available to the community. Defendant MBOC provided to OH Attorney Dale 9 KuyKendall the name and phone number of a contact close to Plaintiff in which to harass and intimidate Plaintiff into deleting her online post which 10 served to congregate members and to call for a Town Hall-type meeting with Defendant OH. 11 Id. at 14. 12 i. Conspiracy under § 1985 13 In order to allege conspiracy under § 1985 a plaintiff must allege that defendants 14 did 15 conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving either directly or indirectly, any person or class of 16 persons of the equal protection of the laws or of equal privileges and immunities under the laws (and) in any case of conspiracy set forth in this 17 section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is 18 injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or 19 deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators. 20 Griffin v. Breckenridge, 403 U.S. 88, 92 (1971) (quoting 42 U.S.C. § 21 1985(3)). 22 Further, “there must be some racial, or perhaps otherwise class-based, invidiously discriminatory 23 animus behind the conspirators’ action.” Id. at 102. 24 Here, Plaintiff has failed to connect the alleged conspiracy to a class-based, 25 invidiously discriminatory animus. Therefore, the Hospital Defendants’ motion to dismiss should 26 be granted as to Plaintiff’s conspiracy claim under § 1985 against the Hospital Defendants. 27 / / / 28 / / / 1 ii. Conspiracy under § 1983 2 “A civil conspiracy is a combination of two or more persons who, by some 3 concerted action, intend to accomplish some unlawful objective for the purpose of harming 4 another which results in damage.” Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 5 1999) (quoting Vieux v. E. Bay Reg’l Park Dist., 906 F.2d 1330, 1343 (9th Cir. 1990)). “A 6 conspiracy claim under § 1983 has two elements: (1) an express or [] implied agreement to 7 deprive the plaintiffs of constitutional rights and (2) a resulting deprivation of rights.” Santana v. 8 Cty. of Yuba, 2016 WL 8673061, at *18 (E.D. Cal. Aug. 19, 2016) (citing Avalos v. Baca, 59 9 F.3d 583, 592 (9th Cir. 2010)). “[T]he plaintiff must show that the conspiring parties ‘reached a 10 unity of purpose or a common design and understanding, or a meeting of the minds in an 11 unlawful arrangement.’” Gilbrook, 177 F.3d at 856 (quoting Vieux, 906 F.2d at 1343). “Vague 12 [] claims that a defendant was involved in a conspiracy do not suffice.” Santana, 2016 WL 13 8673061, at *18 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). 14 Here, Plaintiff fails to state a claim for conspiracy under § 1983. Plaintiff’s only 15 factual allegation of conspiracy is that Defendants’ counsel “received Plaintiff’s Attorney contact 16 info from MBOC as no one else is aware Attorney is representing Plaintiff.” ECF No. 1, pg. 11. 17 This is insufficient to imply an agreement to deprive Plaintiff of constitutional rights. Therefore, 18 the Hospital Defendants’ motion to dismiss as to Plaintiff’s conspiracy claims should also be 19 granted. 20 3. Service of Process 21 The Hospital Defendants move to dismiss pursuant to Rule 12(b)(5) of the Federal 22 Rules of Civil Procedure on the grounds that Plaintiff failed to serve the summons and complaint 23 within the 90-day period required by Rule 4(m) of the Federal Rules of Civil Procedure. See ECF 24 No. 14-1, pgs. 10, 11. Rule 4(m) provides, in relevant part, “If a defendant is not served within 25 90 days after the complaint is filed, the court – on motion or on its own after notice to the plaintiff 26 – must dismiss the action without prejudice against that defendant or order that service be made 27 within a specified time.” The Hospital Defendants contend that Plaintiff’s attempts to effectuate 28 service within 90 days were improper in that Plaintiff did not serve the correct persons under Rule 1 4(e) and Rule 4(h) of the Federal Rules of Civil Procedure. See ECF No. 14-1, pgs. 6-7. 2 The Hospital Defendants’ position regarding service of process is further outlines 3 in their request for clarification of and objections to the Court’s initial findings and 4 recommendations. See ECF No. 36. In their filing, the Hospital Defendants state: 5 . . . The Hospital Defendants respectfully seek clarification, or in the alternative object to, the F&R’s conclusion that the Hospital 6 Defendants were properly served. (See Doc. 35, p. 5). Due to the lengthy and frequently changing list of defendants, the 7 Hospital Defendants respectfully clarify for the Court that the Hospital Defendants include: Orchard Hospital, Steven Lee Stark, James C. Brown 8 Jr., D.O., Kirsten Storne-Piazza, Henry B. Starkes Jr., M.D., April Plasencia Buttacavoli, John T. Harris, Margaret Isley Brown, Edwin A. 9 Becker Jr., Clark S. Redfield, Joe Cunha, Curt Engen, Art Cota, and Jatinder S. Kullar. 10 After the Hospital Defendants moved to dismiss, Plaintiff filed proofs of service on Defendants Medestar, Winshall, Orchard Hospital, 11 Margaret Brown, Starkes, Storne-Piazza, and Buttacavoli. (Docs. 25-29) The Court referred to these proofs of service in making its finding that the 12 Hospital Defendants had been served. (Doc. 35, p. 5) The Hospital Defendants respectfully clarify that these proofs of 13 service do not establish that the Hospital Defendants have all been served. The Hospital Defendants do not include Medestar or Winshall, neither of 14 which has appeared in this action. With respect to Orchard Hospital, Margaret Brown, Starkes, and Storne-Piazza, service was improper for the 15 reasons set forth in the Hospital Defendants’ motion to dismiss, i.e. Plaintiff attempted to effectuate service through unauthorized individuals. 16 Perhaps with the exception of the alleged personal service on Buttacavoli, Plaintiff failed to establish proof of service on the Hospital Defendants. 17 Service on Orchard Hospital, Margaret Brown, Starkes, and Storne-Piazza was improper, and Plaintiff failed to serve or file proofs of 18 service for Defendants Stark, James Brown, John Harris, Edwin Becker, Clark Redfield, Joe Cunha, Curt Engen, Art Cota, and Jatinder Kullar. 19 Plaintiff’s failure to properly serve the Hospital Defendants was one basis for their motion to dismiss, and the Hospital Defendants accordingly 20 request the Court make this clarification for the record. 21 ECF No. 36, pgs. 2-3. 22 “Once a defendant challenges service of process, the plaintiff has the burden of 23 establishing the validity of service of process under Rule 4.” Schauf v. Am. Airlines, 2015 WL 24 5647343, at *4 (E.D. Cal. Sept. 24, 2015). Federal Rule of Civil Procedure 4(h) governs service 25 over domestic and foreign corporations, and provides that a corporation may be served: 26 (1) in a judicial district of the United States: 27 (A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or 28 1 (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other 2 agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the 3 statute so requires—by also mailing a copy of each to the defendant; or 4 (2) at a place not within any judicial district of the United States, in 5 any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i). 6 Fed. R. Civ. P. 4(h). 7 8 Rule 4(e) provides for service of process on individuals allowing service 9 by: 10 (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is 11 located or where service is made; or 12 (2) doing any of the following: 13 (A) delivering a copy of the summons and of the complaint to the individual personally; 14 (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion 15 who resides there; or (C) delivering a copy of each to an agent authorized by 16 appointment or by law to receive service of process. 17 Fed. R. Civ. P. 4(e). 18 Rule 4(m) provides an exception for failing to comply with Rule 4 stating: “But if 19 the plaintiff shows good cause for the failure, the court must extend the time for service for an 20 appropriate period.” To demonstrate good cause, the plaintiff must show that “‘(a) the party to be 21 served received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and 22 (c) plaintiff would be severely prejudiced if his complaint were dismissed.’” Oyama v. Sheehan, 23 253 F.3d 507, 512 (9th Cir. 2001) (quoting Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 24 1991)). Additionally, “‘[g]ood cause’ is likely to be found when the failure to complete service in 25 a timely fashion is due to the conduct of a third person, typically the process server.” Aussieker 26 v. M&S Green-Power Energy, Inc., 2019 WL 2183783, at *5 (E.D. Cal. May 21, 2019) (citing 27 Wright & Miller, Federal Practice and Procedure Civil (4th ed.) § 1137). 28 / / / 1 “The court further has discretion to grant an extension of time even absent a 2 showing of good cause.” Moser v. Lifewatch Inc., 2020 WL 1849664, at *3 (S.D. Cal. Apr. 13, 3 2020) (citing Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007) (Rule 4(m), as amended in 4 1993, requires a district court to grant an extension of time when the plaintiff shows good cause 5 for the delay). In exercising its discretion, the Court should consider factors such as “a statute of 6 limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.” Efaw 7 v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). “Rule 4 is a flexible rule that should be 8 liberally construed to uphold service so long as a party receives sufficient notice of the 9 complaint.” Chan v. Soc’y Expeditions, Inc., 39 F.3d 1398, 1404 (9th Cir. 1994) (citing United 10 Food & Commercial Workers Union, Locals 197, et al. v. Alpha Beta Co., 736 F.2d 1371, 1382 11 (9th Cir. 1984)). Further, there is “a duty to ensure that pro se litigants do not lose their right to a 12 hearing on the merits of their claim due to ignorance of technical procedural requirements.” 13 Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Borzeka v. Heckler, 14 739 F.2d 444, 447 n. 2 (9th Cir. 1984) (defective service of complaint by pro se litigant does not 15 warrant dismissal)). 16 In this case, Plaintiff initiated this lawsuit pro se on January 17, 2018. Thus, 17 Plaintiff was required to effectuate service of process within ninety days of that filing date. The 18 Hospital Defendants contend that during that 90-day window Plaintiff attempted on several 19 occasions to effectuate service of process on some of the Hospital Defendants. See ECF No. 14- 20 4, pgs. 2-3; see also ECF No. 35, pgs. 1-3. Specifically, the Hospital Defendants’ counsel states 21 that “[o]n or about January or February 2018, Plaintiff sent procedurally defective requests for 22 waiver of service” to the Hospital Defendants. Id. at 2. On March 21, 2018, and again on March 23 28, 2018, the Hospital Defendants “notified Plaintiff that her requests for waiver of service were 24 procedurally defective and therefore were ineffective.” Id. Plaintiff attempted to serve the 25 hospital through a process server on April 5, 2018. ECF No. 14-1, pg. 6. The process server 26 allegedly left the service packet with someone not an officer, managing agent, or general agent of 27 the hospital. See ECF No. 14-4, pg. 2. The Hospital Defendants’ counsel further states that “[o]n 28 April 10, 2018, Plaintiff, through a process server, improperly attempted to serve [individual 1 Defendants] by delivering copies of the summons and complaint in this matter to my office 2 assistant while I was otherwise occupied at a mediation.” Id. 3 Relative to the Hospital Defendants’ motion to dismiss and request for 4 clarification, the docket reflects that Plaintiff filed proofs of service on Defendants Orchard 5 Hospital, Margaret Brown, Starkes, Storne-Piazza, and Buttacavoli. See ECF Nos. 25-29. With 6 respect to Orchard Hospital, Margaret Brown, Starkes, and Storne-Piazza, Defendants argue that 7 Plaintiff attempted to effectuate service through unauthorized individuals. See id. Defendant 8 Buttacavoli appears to have been properly personally served, as evidenced by the filed proof of 9 service. See ECF No. 26; see also ECF No. 35, pg. 2 (“Perhaps with the exception of the alleged 10 personal service on Buttacavoli, Plaintiff failed to establish proof of service on the Hospital 11 Defendants.”). 12 Regarding service of process, Plaintiff contends: 13 . . .Attorneys Vierra/KuyKenall were aware Plaintiff had significant problems related to her email account hannarhee7@gmail.com. 14 Since opening a new account at Black.Patients.Matter@gmail.com, the problems have been resolved. Attorneys Vierra/KuyKendall and the 15 Plaintiff have been communicating very nicely through the updated email address regarding Plaintiff’s counter-suit against OH in state court as well. 16 In reviewing her office security cameras, it was noted that Attorneys Vierra/KuyKendall always used process servers which never worked on 17 the weekend, the only days open at Plaintiff’s clinic as stated on her website under “Office Hours”. Plaintiff has diligently attempted to work 18 with Attorneys Vierra/KuyKendall. However, it becomes challenging when said Attorneys set a deadline of “by the end of the day” despite 19 Plaintiff being notified of the deadline at 7:00pm that same day as was done when reviewing Attorneys’ draft Joint Pretrial Scheduling 20 Conference Status Report on May 29, 2018. Please note Attorneys’ complaint of not being properly serviced by the servicer Capitol Couriers 21 is untruthful as they were later used by Defendants to serve Plaintiff despite now claiming the servicer are [sic] unreliable. 22 * * * 23 . . .OH employee Heather Evenson is mistaken in her signed 24 Declaration dated April 25, 2018; OH was properly served in accordance with Federal Rules/Statutes by the same Capitol Couriers later hired by 25 Attorneys to serve Plaintiff. OH employee Brittney Bassett is unfortunately mistaken; John Harris is not the only person at OH 26 authorized to receive service as Plaintiff was informed by OH employee Patricia Stahlberg that CEO Steve Stark was the only person authorized to 27 receive. But in the spirit of poor communication at OH, it is also likely no one at the Hospital knows who is authorized to receive service to this date, 28 including Attorneys Vierra/KuyKendall. An attempt was also made via 1 email to all Defendants represented by Attorneys Vierra/KuyKendall as was done to the Plaintiff by Attorneys Vierra/KuyKendall. 2 ECF No. 31, pgs. 3-4. 3 4 Plaintiff has not demonstrated how service was valid. Plaintiff provides 5 unsupported conclusory claims of valid service or valid attempts of service. Plaintiff does not 6 argue that the person who was served was a proper person to be served or that a different person 7 was served. Nor has Plaintiff demonstrated good cause for non-compliance with the service 8 rules. Plaintiff does not expressly allege actual notice by Defendants, though Plaintiff’s response 9 does indicate that Defendants may have been on actual notice of the claim based on the alleged 10 emails between the parties. Plaintiff does not show either how Defendants would not be 11 prejudiced, or alternatively how Plaintiff would be severely prejudiced given the current 12 circumstances. Thus, Plaintiff has not carried her burden demonstrating that service was valid. 13 The Court declines to exercise its discretion to grant Plaintiff an extension of time 14 to effectuate service. As discussed above, Plaintiff does not have any remaining claims against 15 the Hospital Defendants. Plaintiff fails to allege facts in her first three claims to show any of the 16 Hospital Defendants violated her constitutional or statutory rights, and Plaintiff’s fourth claim is 17 time-barred as against the Hospital Defendants. Therefore, the undersigned recommends granting 18 Defendants’ motion to dismiss as to all of the Hospital Defendants, rendering issues related to 19 service of process on them moot. 20 21 IV. CONCLUSION 22 Based on the foregoing, the undersigned recommends that the State Defendants’ 23 motion to dismiss, ECF No. 12, and Hospital Defendants’ motion to dismiss, ECF No. 14, both be 24 finally resolved as follows: 25 1. The State Defendants’ motion to dismiss be denied insofar as they argue 26 the Court should abstain from exercising jurisdiction pursuant to Younger; 27 / / / 28 / / / 1 2. The State Defendants’ motion to dismiss be denied insofar as they argue 2 | they are not “persons” for purposes of § 1983; 3 3. The State Defendants’ motion to dismiss be granted insofar as they argue 4 | Plaintiff fails to state a claim against Defendants Moya, Lavid, and Hilzinger and these defendants 5 | are entitled to qualified immunity; 6 4. Defendants Moya, Lavid, and Hilzinger be dismissed with prejudice; 7 5. The Hospital Defendants’ motion to dismiss be granted; 8 6. Defendants Biggs-Gridley Memorial Hospital, dba Orchard Hospital, Stark, 9 | James Brown, Jr., Storne-Piazza, Starkes, Buttacavolli, Harris, Margaret Isley Brown, Becker, 10 | Redfield, Cunha, Engen, Cota, and Kullar be dismissed with prejudice; 11 7. Plaintiff be directed to file a first amended complaint as to her claims for 12 || injunctive relief against Defendants Alvarez and Becerra; and 13 8. The Clerk of the Court be directed to terminate ECF Nos. 12 and 14 as 14 | pending motions. 15 These supplemental findings and recommendations addressing the State 16 | Defendants’ motion to dismiss and new findings and recommendations addressing the Hospital 17 | Defendants’ motion dismiss are submitted to the United States District Judge assigned to the case, 18 || pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days after being served with these 19 | supplemental findings and recommendations and new findings and recommendations, any party 20 | may file written objections with the Court. Responses to objections shall be filed within 14 days 21 | after service of objections. Failure to file objections within the specified time may waive the right 22 | to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 24 | Dated: January 4, 2022 Sx