Dang v. Moore et al, No. 3:2021cv05544 - Document 42 (W.D. Wash. 2021)
Court Description: ORDER granting 16 Motion to Dismiss for Failure to State a Claim. Kimberly Moore (M.D.), Ketul Patel (Chief Executive Officer for FHS), Mark Adams (M.D., Former Chief Medical Officer for FHS) and Ann Clark terminated. Signed by Judge Robert J. Bryan. (JL)
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Dang v. Moore et al Doc. 42 Case 3:21-cv-05544-RJB Document 42 Filed 11/02/21 Page 1 of 15 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 12 13 14 HUNG DANG, M.D., CASE NO. 3:21-cv-05544-RJB Plaintiff, v. ORDER GRANTING PRIVATE DEFENDANTS’ MOTION TO DISMISS KIMBERLY MOORE, M.D., et al., Defendants. 15 16 This matter comes before the Court on Defendants Kimberly Moore, M.D., Mark Adams, 17 M.D., Ketul Patel, and Ann Clark’s Motion to Dismiss. Dkt. 16. In addition to the Motion to 18 Dismiss, these defendants (“Private Defendants”) request that the Court take judicial notice of 19 certain documents. Dkt. 18. Plaintiff pro se, Hung Dang, opposes both Private Defendants’ 20 Motion to Dismiss and Request for Judicial Notice (Dkt. 27), and he moves in surreply to strike 21 certain materials from Private Defendants’ reply (Dkt. 32). The Court has considered the 22 pleadings filed in support of and in opposition to the motions and the file herein. 23 24 Plaintiff raises seven causes of action in his Complaint. More specifically, he alleges that Private Defendants: (1) conspired with state officials to deprive him of rights secured by the ORDER GRANTING PRIVATE DEFENDANTS’ MOTION TO DISMISS - 1 Dockets.Justia.com Case 3:21-cv-05544-RJB Document 42 Filed 11/02/21 Page 2 of 15 1 First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution in violation of 2 42 U.S.C. § 1983; (2) racially discriminated against and harassed him in violation of 42 U.S.C. § 3 1981; (3) conspired to deprive him of constitutional rights in violation of 42 U.S.C. § 1985(3); 4 (4) violated the Washington State Constitution; (5) violated the Washington Law Against 5 Discrimination (“WLAD”), RCW 49.60.030; (6) violated the Administrative Procedure Act 6 (“APA”), RCW 34.05; and (7) violated the Consumer Protection Act (“CPA”), RCW 19.86. 7 Dkt. 1 at 38–44. 8 9 10 For the reasons set forth in this order, the Court will take judicial notice of the documents proposed by Private Defendants, Plaintiff’s Motion to Strike should be denied, and Private Defendants’ Motion to Dismiss should be granted as to all claims. 11 12 I. FACTS AND PROCEDURAL HISTORY A. FACTS 13 Plaintiff, Hung Dang, M.D., is a medical doctor who specializes in Otolaryngology (Ear, 14 Nose, and Throat or “ENT”). Dkt. 16. He was born and raised in Vietnam and is of Vietnamese 15 descent. Dkt. 1. Plaintiff’s Complaint is lengthy, but his allegations against Private Defendants 16 are essentially that they, individually and as part of a conspiracy with state actors, discriminated 17 against him during his employment with Group Health Permanente (“GHP”) and as part of a 18 disciplinary action against him. Id. He claims that their discrimination caused his constructive 19 discharge and other injuries. Id. 20 Plaintiff worked for GHP from 2008 until he resigned in on August 1, 2017. Id. GHP 21 provided hospital services to members of Group Health Cooperative and Defendant Franciscan 22 Health Services (“FHS”). Id. As a condition of his employment, GHP required that Plaintiff 23 maintain medical staff privileges at St. Joseph Medical Center (“SJMC”), which is one of several 24 ORDER GRANTING PRIVATE DEFENDANTS’ MOTION TO DISMISS - 2 Case 3:21-cv-05544-RJB Document 42 Filed 11/02/21 Page 3 of 15 1 FHS hospitals. Id. His employment agreement only required that he take emergency ENT calls 2 for patients at the SJMC Emergency Department, not those from other FHS hospitals. Id. 3 Central to Plaintiff’s Complaint is the apparently increasing demand, especially after 4 2011, that he and other GHP doctors respond to patients from FHS hospitals other than those 5 where they maintained staffing privileges. Id. On June 8, 2014, Plaintiff slipped and fell, which 6 aggravated existing injuries and caused him debilitating pain. Id. at 13. As a result, he took one 7 tablet of prescribed pain medication and ibuprofen. Id. That same day, he received a call from a 8 physician assistant at St. Clare Hospital, an FHS hospital, to evaluate a stable patient with a 9 tonsillar abscess. Id. Plaintiff responded that he was not on call at St. Clare, he was not required 10 to be, and he would not evaluate that patient. Id. The physician assistant offered to transfer the 11 patient to SJMC, where he was on call, but Plaintiff declined because he was unable to care for 12 the patient due to his injuries. Id. The physician assistant apparently transferred the patient, 13 “Patient C,” to SJMC nonetheless, and Defendant Kimberly Moore, M.D., a physician at SJMC, 14 accepted Patient C for transfer. Id. at 14. Plaintiff informed Moore that he was unable to care 15 for Patient C but that she, a board-certified physician, could drain the abscess herself. Id. Moore 16 transferred Patient C to a different hospital, where Patient C was successfully treated. Id. 17 After the incident on June 8, Defendant Ann Clark, the Risk Manager for SJMC, and Dr. 18 Moore reported Plaintiff’s refusal to treat Patient C as a potential violation of the Emergency 19 Medical Treatment & Labor Act (“EMTLA”) to the Centers for Medicare & Medicaid Services 20 (“CMS”). Id. at 15; Dkt. 16. CMS investigated and found that SJMC, not Plaintiff, potentially 21 violated the EMTLA. Dkt. 1 at 16. The report against Plaintiff was then forwarded to the 22 Washington State Medical Quality Assurance Commission (“MQAC”). MQAC investigated and 23 24 ORDER GRANTING PRIVATE DEFENDANTS’ MOTION TO DISMISS - 3 Case 3:21-cv-05544-RJB Document 42 Filed 11/02/21 Page 4 of 15 1 found four additional incidents in which Plaintiff apparently declined to treat patients from FHS 2 hospitals other than SJMC. Id. at 22. 3 In 2017, MQAC conducted an administrative hearing and found that Plaintiff’s refusal to 4 treat certain patients, including Patient C, likely violated state and federal law. Id. at 31–32. On 5 September 29, 2017, the MQAC ordered that Plaintiff’s medical license be subject to two years 6 of oversight and that he “be monitored for good behavior, pay a $5,000 fine, appear before the 7 Commission, take an ethics course, write a research paper, and satisfy other conditions.” Id. 8 Plaintiff received notice of that order on October 2, 2017, and he appealed it to the King County 9 Superior Court on October 30, 2017. Id. at 35. The state court found that MQAC made an error 10 in calculating the dates at which Plaintiff’s oversight should begin and end. Id. 35–36. Plaintiff 11 then petitioned for review before the Washington State Court of Appeals and raised various 12 statutory and constitutional claims. Id. at 36–37; Dkts. 18-1 and 18-2. 13 14 15 16 17 18 On May 31, 2016, Plaintiff filed a claim with the Equal Employment Opportunity Commission (“EEOC”), and he resigned from GHP on August 1, 2017. Dkt. 1 at 19. B. PENDING MOTIONS AND ORGANIZATION OF OPINION The Court will first discuss Private Defendants’ Request for Judicial Notice, then Plaintiff’s Motion to Strike, and finally Private Defendants’ Motion to Dismiss. The discussion on the Motion to Dismiss will first consider the relevant statutes of 19 limitation, which bar Plaintiff’s claims pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3) 20 and his Washington State Constitutional and WLAD claims. Next, it will discuss collateral 21 estoppel (issue preclusion), which bars his APA claim, followed by immunity, which bars his 22 CPA claim. Finally, it will consider his 42 U.S.C. § 1981 claim, which fails to state a claim for 23 which relief can be granted. 24 ORDER GRANTING PRIVATE DEFENDANTS’ MOTION TO DISMISS - 4 Case 3:21-cv-05544-RJB Document 42 Filed 11/02/21 Page 5 of 15 1 II. DISCUSSION 2 A. REQUEST FOR JUDICIAL NOTICE 3 Private Defendants request that the Court take judicial notice of the following documents: 4 1. Dang v. Jud. Rev. Agency Action of Wash. State Dep’t of Health, Med. Quality 5 Assurance Comm'n, Petition for Judicial Review, Case No. 17-2-28129-8 KNT (filed October 6 30, 2017). 7 8 2. Dang v. Jud. Rev. Agency Action of Wash. State Dep’t of Health, Med. Quality Assurance Comm'n, 9 Wash. App. 2d 1101 (Wash. Ct. App. Aug. 19, 2019). 9 10 3. Dang v. Wash. State Dep’t of Health, Med. Quality Assurance Comm'n, 195 Wash. 2d 1004 (S. Ct. Wash. 2020) (denying review). 11 12 4. Dang v. Wash. State Dep’t Health, Med. Quality Assurance Comm’n, Case No. 789104-I, Supreme Court Mandate (issued March 20, 2020). 13 “The court may judicially notice a fact that is not subject to reasonable dispute because it 14 . . . can be accurately and readily determined from sources whose accuracy cannot reasonable be 15 questioned.” Fed. R. Evid. 201(b). 16 Plaintiff concedes that these documents may be judicially noticed, with the caveat that 17 “just because the document itself is susceptible to judicial notice does not mean that every 18 assertion of fact within that document is judicially noticeable for its truth.” Dkts. 27 and 28 at 5 19 (quoting Khoja v. Orexigen Therapudics, Inc., 899 F.3d 988, 999 (9th Cir. 2018)). The Court 20 agrees and takes judicial notice of these documents, which are matters of public record and are 21 from sources whose accuracy is not in dispute.1 22 23 24 1 In surreply, Plaintiff also contests judicial notice of five documents filed by a defendant that is not party to this motion and that are not relevant to this motion. The Court notes that judicial notice of those documents will be decided along with consideration of that party’s motion to dismiss. ORDER GRANTING PRIVATE DEFENDANTS’ MOTION TO DISMISS - 5 Case 3:21-cv-05544-RJB Document 42 Filed 11/02/21 Page 6 of 15 1 B. PLAINTIFF’S MOTION TO STRIKE 2 In surreply, Plaintiff argues that Private Defendants violated Local Civil Rule 10(e)(1), 3 which requires that text be in 12-point font and double spaced except for quotations and 4 footnotes, and that they erred by citing an unpublished decision. Dkt. 32 at 2. Plaintiff moves to 5 strike these materials and associated legal arguments. Id. 6 At issue appears to be sections from Private Defendants’ reply brief in which they single- 7 spaced a section reciting the issues presented in the motion, a timeline of key facts, and headings 8 more than one-line long. See Dkt. 30. 9 Plaintiff’s motion to strike should be denied because technical adherence to LCR 10(e)(1) 10 would impede rather than enhance the search for justice. Furthermore, Plaintiff should be 11 advised that, even though he is proceeding pro se, he is still bound by the same rules that govern 12 other litigants, including the Rules of Professionalism, and that he should avoid bringing 13 unnecessary motions. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995); LCR 11; LCR 14 83.1(d)(2). 15 C. STANDARD FOR MOTION TO DISMISS 16 Fed. R. Civ. P. 12(b) motions to dismiss may be based on either the lack of a cognizable 17 legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri 18 v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as 19 admitted, and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 20 1295 (9th Cir. 1983). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does 21 not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his 22 entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the 23 elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554– 24 ORDER GRANTING PRIVATE DEFENDANTS’ MOTION TO DISMISS - 6 Case 3:21-cv-05544-RJB Document 42 Filed 11/02/21 Page 7 of 15 1 55 (2007) (internal citations omitted). “Factual allegations must be enough to raise a right to 2 relief above the speculative level, on the assumption that all the allegations in the complaint are 3 true (even if doubtful in fact).” Id. at 555. The complaint must allege “enough facts to state a 4 claim to relief that is plausible on its face.” Id. at 547. “[A] complaint should not be dismissed for failure to state a claim unless it appears 5 6 beyond doubt that the plaintiff can prove no set of facts in support of his claim which would 7 entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46 (1957). This rule is especially true 8 for dismissal of a claim brought by a pro se plaintiff, and “[a] district court should not dismiss a 9 pro se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of the 10 complaint could not be cured by amendment.’” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 11 2012) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203–04 (9th Cir. 1988) (per curiam)). 12 D. STATUTES OF LIMITATION 13 Private Defendants move to dismiss Plaintiff’s claims based on their statutes of 14 limitation. Their motion should be granted as to his § 1983, § 1985(3), Washington State 15 constitutional, and WLAD claims because they each a three-year statute of limitation but not as 16 to his § 1981 or CPA claims because they both carry a four-year statute of limitation. 17 Plaintiff brings a mix of state and federal claims, but both the state and federal standards 18 consider the same basic three questions to determine whether a claim is timely: (1) the length of 19 the applicable limitation period; (2) the accrual date of the claim; and (3) whether other factors 20 tolled the limitations period. See Wilson v. Hays, 228 F. Supp. 3d 1100, 1107 (S.D. Cal. 2017) 21 (citing Wallace v. Kato, 549 U.S. 384, 387–88 (2007); Lucchesi v. Bar-O Boys Ranch, 353 F.3d 22 691, 694 (9th Cir. 2003)); see also Douchette v. Bethel Sch. Dist., 117 Wn.2d 805, 809–10 23 (1991). 24 ORDER GRANTING PRIVATE DEFENDANTS’ MOTION TO DISMISS - 7 Case 3:21-cv-05544-RJB Document 42 Filed 11/02/21 Page 8 of 15 1 The accrual date is the date at which the claim period begins to run. See Lukovsky v. City 2 & Cnty. of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008). Under both federal and state 3 law, a claim accrues when the plaintiff knew or had reason to know “of the injury which is the 4 basis of the action.” Id. (internal citation omitted). On accrual, the statute of limitation clock 5 starts ticking, and the plaintiff must file a claim before it expires or the plaintiff loses the right to 6 sue. See id. The only exception is if the limitation period has been tolled. Tolling, which is a 7 question of state law, permits a court to allow a claim to proceed despite expiration of the statute 8 of limitation period for various statutory or common law reasons. Price v. Gonzalez, 4 Wn. App. 9 2d 67, 75 (2018). 10 1. Statutes of Limitation bar 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), Washington State Constitutional, and WLAD Claims 11 Plaintiff’s federal claims brought pursuant to § 1983 and § 1985(3) each carry a three12 year statute of limitation, see Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1198 13 (9th Cir. 2014); McDougal v. Cnty. of Imperial, 942 F.2d 668, 673–74 (9th Cir. 1991); Wash. 14 Rev. Code § 4.16.080(2), as do his Washington State constitutional and WLAD claims, Antonius 15 v. King Cnty., 153 Wn. 2d 256, 261–62 (2004). 16 These claims arise out of the same basic allegations: that Private Defendants 17 discriminated against Plaintiff at work and through their participation in his MQAC 18 administrative action. Dkt. 1 at 38–44. At the absolute latest, Plaintiff’s claims accrued when he 19 received his MQAC Final Order on October 2, 2017. At that point he had left his job due to the 20 alleged harassment and knew of the MQAC findings against him. The limitation periods expired 21 three years later, on October 2, 2020, but Plaintiff did not commence this lawsuit until July 29, 22 2021. These claims, therefore, are time-barred. 23 24 ORDER GRANTING PRIVATE DEFENDANTS’ MOTION TO DISMISS - 8 Case 3:21-cv-05544-RJB Document 42 Filed 11/02/21 Page 9 of 15 1 Plaintiff argues that the doctrine of equitable tolling applies and permits his claims to 2 proceed even if they are time-barred. Dkt. 27 at 15–16. Equitable tolling is a narrow doctrine 3 that permits a claim to proceed “only where justice requires and certain predicates are met.” In 4 re Carter, 172 Wn.2d 917, 928– 29 (2011) (en banc). These predicates include a showing of 5 “bad faith, deception, or false assurances” that reasonably justified the delay and diligence by the 6 plaintiff. Id. 7 It is clear from the Complaint that Plaintiff has been raising these issues for some time, 8 including in meetings with hospital administration, with the EEOC, during the MQAC process, 9 and in state court. See Dkts. 18-1 and 18-2; Dang v. Jud. Rev. Agency Action of Wash. State 10 Dep’t of Health, Med. Quality Assurance Comm'n, 9 Wn. App. 2d 1101 (2019). To advocate for 11 equitable tolling, Plaintiff argues that Private Defendants participated in a “malicious perversion” 12 of justice and “abuse of process,” but he does not explain why he could not have filed suit at an 13 earlier date. Despite his knowledge of the issues and of potential avenues for recovery under the 14 law, he did not file this lawsuit until after expiration of the limitation period and does not offer 15 an explanation to excuse his delay. Equitable tolling does not apply under these circumstances. 16 Therefore, Plaintiff’s § 1983, § 1985(3), Washington State constitutional, and WLAD 17 claims are each barred by a three-year statute of limitation. Because amendment cannot cure this 18 deficiency, these claims should be dismissed with prejudice. 19 2. 42 U.S.C. § 1981 and CPA Claims Are Not Time-Barred 20 Plaintiff’s CPA claim carries a statutory four-year limitation period. RCW 19.86.120. 21 The statute of limitation for his § 1981 claim, which protects the right “to make and enforce 22 contracts,” does not have such a simple answer. Instead, it depends on whether the claim derives 23 from harassment that occurs during and impedes the formation of a contract or whether the claim 24 derives from later harassment that interferes with the enforcement of that contract. See Jones v. ORDER GRANTING PRIVATE DEFENDANTS’ MOTION TO DISMISS - 9 Case 3:21-cv-05544-RJB Document 42 Filed 11/02/21 Page 10 of 15 1 R.R. Donnelley & Sons, Co., 541 U.S. 369, 373 (2004). Harassment that impedes the formation 2 of a contract carries a three-year limitation period, while later harassment carries a four-year 3 limitation period. Id. Because Plaintiff alleges Private Defendants interfered with his 4 employment contract after its formation, his § 1981 claim carries the four-year statute of 5 limitation established by 28 U.S.C. § 1658. See id. 6 The factual basis for Plaintiff’s CPA claim is vague, but it appears to derive from Private 7 Defendants’ participation in the MQAC proceeding against him. See Dkts. 1 and 27. Therefore, 8 his CPA claim accrued October 2, 2017, which is the date he received the MQAC Final Order 9 and learned of the central injury at issue. Plaintiff filed his Complaint on July 29, 2021, before 10 expiration of the four-year statute of limitation on October 2, 2021. 11 Plaintiff discusses his § 1981 claim with more specificity. He claims that Private 12 Defendants created a hostile work environment, in part through their participation in the MQAC 13 process, and caused his constructive discharge. As Plaintiff correctly recognizes, a claim based 14 on constructive discharge accrues when the employee resigns, which for him was August 1, 15 2017. Green v. Brennan, 578 U.S. 547, 561–62 (2016). Therefore, the statute of limitation for 16 his § 1981 claim did not expire until August 1, 2021, and it had not expired when Plaintiff filed 17 his Complaint. Therefore, the statutes of limitation do not bar either Plaintiff’s CPA claim or his § 1981 18 19 claim. 20 E. COLLATERAL ESTOPPEL BARS PLAINTIFF’S APA CLAIM 21 Private Defendants argue that collateral estoppel bars all of Plaintiff’s claims. Dkt. 16 at 22 13. Of Plaintiff’s three remaining claims, collateral estoppel only bars his APA claim, brought 23 pursuant to RCW 34.05, because he completely litigated that issue in a previous state court 24 ORDER GRANTING PRIVATE DEFENDANTS’ MOTION TO DISMISS - 10 Case 3:21-cv-05544-RJB Document 42 Filed 11/02/21 Page 11 of 15 1 2 action. Collateral estoppel, also known as issue preclusion, bars re-litigation of an issue of fact or 3 law previously settled by a prior adjudication. Resolution Trust Corp. v. Keating, 786 F.3d at 4 1110, 1114 (9th Cir. 1999). It applies when: (1) the issue is the same; (2) the issue was actually 5 litigated and determined by a valid and final judgment; and (3) the determination is essential to 6 that judgment. Amadeo v. Principal Mut. Life Ins. Co., 290 F.3d 1152, 1159 (9th Cir. 2002). It 7 is not necessary that the party raising collateral estoppel was a party in the prior litigation, known 8 as “nonmutual” collateral estoppel, or that the cause of action be identical. United States v. 9 Mendoza, 464 U.S. 154, 158 (1984). It is, however, essential that the party against whom 10 collateral estoppel is asserted, the party allegedly precluded from re-litigating an issue, has had 11 “‘a full and fair opportunity’ to litigate that issue.” Amadeo, 290 F.3d at 1159. 12 In Plaintiff’s petition for judicial review before the Washington State Court of Appeals, 13 he argued that his MQAC adjudication violated the APA, RCW 34.05. Dkts. 18-1 and 18-2. 14 Though the defendants were not identical, Plaintiff made substantively the same arguments 15 before the state court as he raises here, meaning that he sought to overturn the MQAC Final 16 Order on the grounds that it violated the APA. Dkt. 18-2; Dang, 9 Wn. App. 2d 1101. The state 17 court specifically considered and specifically rejected his argument on the merits. Collateral 18 estoppel, therefore, bars Plaintiff from re-litigating his APA claim. 19 Unlike Plaintiff’s APA claim, he did not raise either a CPA claim or a § 1981 claim 20 before the state court. While he appears to have raised similar grievances before the state court, 21 for example, the Private Defendants’ allegedly unfair treatment of him, the state court did not 22 reach a determination on the merits of those issues. Dkts. 18-1 and 18-2. Instead, the state court 23 24 ORDER GRANTING PRIVATE DEFENDANTS’ MOTION TO DISMISS - 11 Case 3:21-cv-05544-RJB Document 42 Filed 11/02/21 Page 12 of 15 1 found that MQAC did not violate the APA or his procedural due process rights. Neither finding 2 precludes his CPA or § 1981 claims. Therefore, collateral estoppel bars Plaintiff’s APA claim, which should be dismissed with 3 4 prejudice, but it does not bar either his CPA or his § 1981 claims. 5 F. IMMUNITY BARS CPA BUT NOT § 1981 CLAIM 6 As for Plaintiff’s two remaining claims, Private Defendants argue both should be 7 dismissed because they are immune. While Private Defendants are immune from Plaintiff’s 8 CPA claim, they are not immune from his § 1981 claim. Private Defendants argue that 42 U.S.C. § 11111(a)(1)(D), RCW 18.130.070(3) and 9 10 RCW 4.24.250 provide them blanket immunity. Section 11111(a)(1)(D) gives immunity from 11 liability for damages from any federal or state law “to any person who participates with or assists 12 [a professional review body] with respect to the action.” It does not, however, apply to actions 13 “relating to the civil rights of any person or persons . . . including 42 U.S.C. 1981, et seq.” 14 Therefore, it can immunize Private Defendants from Plaintiff’s CPA claim but not his § 1981 15 claim. 16 Similarly, RCW 18.130.070(3) provides immunity “from civil liability, whether direct or 17 derivative, for providing information to the disciplinary authority,” and RCW 4.24.250 provides 18 immunity for any health care provider who, “in good faith, files charges or presents evidence 19 against another member of their profession based on the claimed incompetency or gross 20 misconduct of such person . . . .” These statutes can also provide immunity from Plaintiff’s 21 CPA claim, but not his § 1981 claim because that claim arises out of federal, not state law. 22 Wallis v. Spencer, 202 F.3d 1126, 1144 (9th Cir. 2000). 23 24 Plaintiff’s CPA claim is vague. He only references it in conjunction with other causes of action and does not specifically address why it should not be dismissed in his opposition to ORDER GRANTING PRIVATE DEFENDANTS’ MOTION TO DISMISS - 12 Case 3:21-cv-05544-RJB Document 42 Filed 11/02/21 Page 13 of 15 1 Private Defendants’ motion to dismiss. Nevertheless, Plaintiff makes clear in his opposition 2 motion that he believes Private Defendants “weaponized MQAC and its complaint process to 3 once again retaliate against and chill my speech and expression.” Dkt. 27 at 8. Section 4 11111(a)(1)(D), however, gives Private Defendants immunity for claims arising out of their 5 participation in that action because it derives from their participation in his professional review 6 action. The closest Plaintiff comes to responding to Private Defendants’ immunity argument as 7 applied to his CPA claim is to argue that RCW 4.24.250 only provides protection for reports 8 made “in good faith.” Dkt. 27 at 19–20. Section 11111(a)(1)(D), however, does not include that 9 qualification and does not depend on finding good faith on behalf of the Defendants. 10 11 Therefore, Plaintiff’s CPA claim should be dismissed because Private Defendants are immune under 42 U.S.C. § 11111(a)(1)(D). 12 G. PLAINTIFF FAILS TO STATE A CLAIM UNDER 42 U.S.C. § 1981 13 As established above, none of Private Defendants’ arguments for complete protection 14 from suit apply to Plaintiff’s claim under 42 U.S.C. § 1981. Plaintiff’s § 1981 claim should 15 nonetheless be dismissed because he fails to state a plausible claim for relief. 16 To state a hostile work environment claim under § 1981, a plaintiff must plausibly allege 17 that defendants (1) subjected the plaintiff to verbal or physical conduct because of race, (2) “the 18 conduct was unwelcome,” and (3) “the conduct was sufficiently severe or pervasive to alter the 19 [plaintiff’s] conditions of employment and create an abusive work environment.” Manatt v. 20 Bank of Am., NA, 339 F.3d 792, 298 (9th Cir. 2003). Examples of discriminatory conduct could 21 include race-based comments or discriminatory conduct directed at an individual other than the 22 plaintiff, and, while allegations need not be accepted as true, they must give a defendant “fair 23 notice of [the] claim and the grounds upon which it rests.” Johnson v. Riverside Healthcare Sys., 24 LP, 534 F.2d 1116, 1123 (9th Cir. 2008). ORDER GRANTING PRIVATE DEFENDANTS’ MOTION TO DISMISS - 13 Case 3:21-cv-05544-RJB Document 42 Filed 11/02/21 Page 14 of 15 1 As a reminder, “Private Defendants” are Kimberly Moore, M.D., Mark Adams, M.D., 2 Ann Clark, and Ketul Patel. The specific allegations against them are that Defendant Moore 3 accepted transfer of Patient C despite informing her that he would not be able to treat Patient C, 4 and that she and Defendant Adams participated in the MQAC action against him. Similarly, he 5 claims that Defendants Clark and Moore reported him for “a potential EMTALA violation.” 6 Dkt. 1 at 15. Plaintiff does not include any specific allegations against Defendant Patel. Plaintiff 7 more generally alleges that Private Defendants failed to heed his warnings about abuse of GHS’ 8 staffing privileges requirement and conspired to discriminated against him because of his race. 9 Plaintiff’s allegations do not give Private Defendants notice of how their conduct was 10 plausibly based on race. He does not claim that Private Defendants treated other non-minority 11 doctors differently under similar circumstances or that they used racially charged language that 12 could suggest race-based motivation. Plaintiff’s conclusory allegation that race motivated 13 Private Defendants’ conduct does not give them a meaningful opportunity to respond or raise 14 Plaintiff’s right to relief above the speculative level. 15 Therefore, Plaintiff’s § 1981 claim should be dismissed. It is not, however, absolutely 16 clear that these deficiencies could not be cured by amendment, so dismissal should be without 17 prejudice. 18 19 III. ORDER Therefore, it is hereby ORDERED that: 20 Private Defendants’ Motion to Dismiss IS GRANTED; 21 Plaintiff’s claim against the Private Defendants pursuant to 42 U.S.C. § 1981 is 22 23 dismissed without prejudice; All other claims against the Private Defendants are dismissed with prejudice. 24 ORDER GRANTING PRIVATE DEFENDANTS’ MOTION TO DISMISS - 14 Case 3:21-cv-05544-RJB Document 42 Filed 11/02/21 Page 15 of 15 1 2 3 4 5 6 The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party’s last known address. Dated this 2nd day of November, 2021. A ROBERT J. BRYAN United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER GRANTING PRIVATE DEFENDANTS’ MOTION TO DISMISS - 15
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