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Dover v. Haley

United States District Court, Ninth Circuit

November 26, 2013

ERIC A. DOVER, Plaintiff,
v.
KATHLEEN HALEY, JD, et al., Defendants.

ERIC A. DOVER, Lake Oswego, OR, Plaintiff, Pro Se.

ELLEN ROSENBLUM, Attorney General, MARC ABRAMS, Assistant Attorney General, Portland, OR, Attorneys for Defendants.

OPINION AND ORDER

ANNA J. BROWN, District Judge.

This matter comes before the Court on Defendants' Motion (#38) to Dismiss or for Summary Judgment. For the reasons that follow, the Court GRANTS Defendants' Motion to Dismiss and DENIES as moot Defendants' Motion for Summary Judgment.

BACKGROUND

The following facts are taken from Plaintiff's Complaint and the document attached to the Declaration of Marc Abrams.[1]

On October 30, 2009, the Oregon Medical Board (OMB) issued a Complaint and Notice of Proposed Disciplinary Action to Plaintiff Eric Dover.

On September 21 and 22, 2010, a hearing was held before an Administrative Law Judge (ALJ). Plaintiff was represented by an attorney. Plaintiff testified, called a witness, and questioned the witnesses called by the OMB.

At some point the ALJ issued Findings and Recommendation in which he found Plaintiff "engaged in unprofessional conduct and repeated negligence, and... violated a[n OMB] order." Abrams Decl., Ex. A at 20. The ALJ proposed a number of sanctions against Plaintiff including revocation of Plaintiff's medical license with the revocation to be held in abeyance, suspension from the practice of medicine for two years, and a civil penalty. Id.

On January 14, 2011, the OMB issued a final order in which it adopted the ALJ's findings. The OMB, however, declined to adopt the ALJ's proposed sanctions on the ground that Plaintiff's "refusal to accept responsibility for his conduct, his refusal to comply with a[n OMB] order, and his continued defiant attitude make [Plaintiff] a poor candidate for rehabilitation." Id. Thus, the OMB, among other things, revoked Plaintiff's license to practice medicine in Oregon. Id. at 20-21. The OMB advised Plaintiff that he could appeal the OMB's final order by filing a petition with the Oregon Court of Appeals within 60 days pursuant to Oregon Revised Statute § 183.480, et seq. Plaintiff did not appeal the OMB's final order.

On August 7, 2013, Plaintiff filed a pro se Complaint in this Court pursuant to 42 U.S.C. § 1983 against 33 named individuals, the OMB, and 50 John and Jane Does. Plaintiff alleges numerous violations of various Articles and Amendments to the United States Constitution and seeks damages as well as an order enjoining Defendants "retroactively from maintaining [the OMB] decision, " reinstatement of Plaintiff's license to practice medicine in the State of Oregon, and a declaration that the Oregon statute under which the OMB may revoke a license to practice medicine is unconstitutional.

On August 26, 2013, Defendants filed a Motion to Dismiss or for Summary Judgment.[2] On October 2, 2013, Plaintiff filed a Response to Defendants' Motion. On October 4, 2013, Defendants filed a Reply. On October 9, 2013, Plaintiff submitted two letters to the Court in further response to Defendants' Motion. The Court permitted Defendants to file a Surreply no later than October 18, 2013. Defendants declined to file a Surreply, and the Court took this matter under advisement on October 18, 2013.

STANDARDS

I. Dismissal for lack of jurisdiction pursuant to Rule 12(b)(1).

Plaintiff has the burden to establish that the court has subject-matter jurisdiction. Robinson v. Geithner, 359 F.App'x 726, 728 (9th Cir. 2009). See also Ass'n of Am. Med. Coll. v. United States, 217 F.3d 770 (9th Cir. 2000).

When deciding a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), the court may consider affidavits and other evidence supporting or attacking the complaint's jurisdictional allegations. Rivas v. Napolitano, 714 F.3d 1108, 1114 n.1 (9th Cir. 2013). The court may permit discovery to determine whether it has jurisdiction. Laub v. United States Dep't of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003). When a defendant's motion to dismiss for lack of jurisdiction "is based on written materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of ...


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