20-1659-cv Mir v. Kirchmeyer
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 1st day of October, two thousand twenty-one. 4 5 PRESENT: 6 DENNIS JACOBS, 7 SUSAN L. CARNEY, 8 RICHARD J. SULLIVAN, 9 Circuit Judges. 10 _____________________________________ 11 12 Jehan Zeb Mir, 13 14 Plaintiff-Appellant, 15 16 v. 20-1659 17 18 Kimberly Kirchmeyer, In Personal and Official 19 Capacity as Executive Director Medical Board of 20 California, Sharon L. Levine, In Personal & 21 Official Capacity as Past President, Medical 22 Board of California, Susan Friedman, In 23 Individual, Personal and Official Capacity, 24 Michelle Anne Bholat M.D. In Individual, 25 Personal; Official Capacity, Katherine Feinstein, 26 In Personal and Official Capacity, Brenda 27 Sutton-Wills, In Individual, Personal; Official 28 Capacity, Jamie Wright, In Individual, Personal 29 and Official Capacity, Asif Mahmood, in 30 Individual, Personal and Official Capacity, David 31 Warmoth, In Personal, Individual and Official 32 Capacity, Eserrick T J Watkins, In Individual, 33 Personal and Official Capacity, Cesar A. 34 Aristeiguita, In Individual, Personal, Official 35 Capacity, Gerrie Schipske, In Individual, 36 Personal and Official Capacity, Estate of Barbara 37 Yaroslavsky, ("deceased") In Individual; 38 Personal and Official Capacity, Steve Alexander, 39 In Individual; Personal and Official Capacity, 40 Stephen Richard Corday, In Individual; Personal 41 and Official Capacity, Shelton Duruisseau, In 42 Individual; Personal and Official Capacity, Mary 43 Lynn Moran, In Individual; Personal and Official 44 Capacity, Gary Gitnick, In Individual; Personal 45 and Official Capacity, Estate of Janet 46 Salomonson, M.D., ("deceased") In Individual; 47 Personal and Official Capacity, Frank Vram 48 Zerunyan, In Individual; Personal and Official 49 Capacity, Hedy L. Chang, In Individual; Personal 50 and Official Capacity, Reginald Low, In 51 Individual; Personal and Official Capacity, Mary 52 Agnes Veronica Matys-Zewski, an individual, 53 Joshua A. Bardin, In Individual, Personal, 54 Capacity, Kenneth B. Deck, In Individual and 55 Personal Capacity, Pomona Valley Hospital, A 56 California Corporation, Vinod Kumar Garg, In 57 Individual, Personal Capacity, Lew Disney, an 58 individual Personal Capacity, Harold Damuth, 59 Jr., MD - In individual, Personal Capacity, San 60 Antonio Community Hospital, A California 61 Corp., Donald M Alpiner, In Individual, Personal 62 Capacity, Nabil Koudsi, An individual Personal 63 Capacity, Michelle Anne Bholat, M.D., In 64 Individual, Personal; Official Capacity, 65 66 Defendants-Appellees, 67 68 George Autz, In Personal and Official Capacity, 69 member N.Y. Medical Board, Martha Grayson, 70 In Personal and individual Capacity, Roseanne C. 71 Berger, In Personal and Official Capacity, 72 Lawrence J. Epstein, In Personal and Official 73 Capacity, Marian Goldstein, In Personal and 74 Official Capacity, Martghmarthakristin Harkin, 75 In Personal and Official Capacity, Sumathi 76 Kasinthan, In Personal and Official Capacity, 77 Robert G. Lerner, In Personal and Official 78 Capacity, Kathleen S. Lill, In Personal and
2 79 Official Capacity, Joann Marino, Public Member 80 - In Personal and Official Capacity, Gladys Lynn 81 Mark, In Personal and Official Capacity, Louis J. 82 Papa, In Personal and Official Capacity, Maria 83 Plummer, In Personal and Official Capacity, 84 Swaminathan Rajan, In Personal and Official 85 Capacity, Ramanthan Raju, In Personal and 86 Individual Capacity, Sumir Sahgal, In Personal 87 and Official Capacity, Arash Salemi, In Personal 88 and Official Capacity, Nancy Sapio, In Personal 89 and Individual Capacity, Alexander 90 Schwartzman, In Personal and Official Capacity, 91 Neeta Minal Shah, In Personal and Individual 92 Capacity, Rahul Sharma, In Personal and 93 Individual Capacity, Mushtaq A. Sheikh, Amit 94 M. Shelat, In Personal and Official Capacity, 95 Greg Shutts, In Personal and Official Capacity, 96 Robert R. Walther, In Personal and Official 97 Capacity, Nirav R. Shah, Past Commissioner 98 Department of Health, In Individual, Personal & 99 Official Capacity, Linda Skidmore Daines, In 100 individual and Personal Capacity, Robert Bogan, 101 In individual, Personal and Official Capacity, 102 Peter D Van Buren, In individual, Personal and 103 Official Capacity, Kendrick A. Sears, In 104 individual, Personal and Official Capacity, Lyon 105 Greenberg, In individual and Personal Capacity, 106 Ralph Liebling, In individual and Personal 107 Capacity, Deborah Whitfield, an individual and 108 Personal Capacity, Howard Zucker, Current 109 Commissioner N.Y. Department of Health - In 110 Individual and Official Capacity, Elizabeth 111 Beson-Guthrie, In Personal and Individual 112 Capacity, Jerry D. Wu, an individual, Ronald H 113 Lewis, In Individual, Personal and Official 114 Capacity, Linda K. Whitney, In Personal 115 Capacity and Official Capacity as Past Executive 116 Director, Medical Board of California, Randy W. 117 Hawkins, In Personal and Official Capacity, 118 Denise Pines, In Personal and Official Capacity, 119 Eric Esrailian, In Individual; Personal and 120 Official Capacity, Dev Gnana Dev, In Individual, 121 Personal and Official Capacity, Ronald Wender, 122 In Individual; Personal and Official Capacity, 123 Felix C Yip, In Individual, Personal and Official 124 Capacity, Howard R Krause, In Official;
3 125 Individual, Personal and Official Capacity, 126 Kristine D Lawson, In Individual, Personal and 127 Official Capacity, Rose Laurie Lubiano, In 128 Individual, Personal and Official Capacity, 129 130 Defendants. 131 _____________________________________ 132 133 134 FOR PLAINTIFF-APPELLANT: Jehan Zeb Mir, pro se, 135 Redondo Beach, CA. 136 137 FOR DEFENDANTS-APPELLEES: No appearance. 138
Appeal from a judgment of the United States District Court for the Southern District of
New York (Stanton, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Jehan Zeb Mir is a physician formerly licensed to practice medicine in
the states of California and New York. The state of California revoked his medical license based
on his gross negligence, and New York then did the same. This is Mir’s third lawsuit in this Circuit
stemming from those revocations. The first two were dismissed, and their dismissals were affirmed
on appeal. Mir v. Bogan, No. 13-cv-9172, 2015 WL 1408891 (S.D.N.Y. Mar. 26, 2015), aff’d, 668
F. App’x 368 (2d Cir. 2016) (summary order) (“Mir II”); Mir v. Shah, No. 11-cv-5211, 2012 WL
3229308 (S.D.N.Y. Aug. 8, 2012), aff’d, 569 F. App’x 48 (2d Cir. 2014) (summary order) (“Mir
I”). In this iteration, Mir asserts claims under 42 U.S.C. § 1983, 18 U.S.C. § 1851, and state law,
alleging that dozens of officials in California (the “California defendants”) and New York (the
“New York defendants”), along with several of his former employers and colleagues (the “Hospital
defendants”), conspired to deprive him of his right to practice medicine and unlawfully
discriminated against him.
4 In the current iteration of the suit, Mir asserts that in 2018—after the decision in Mir II—
he discovered that Dr. Linda K. Whitney and Dr. Kimberly Kirchmeyer (former directors of the
California Medical Board), Dr. Sharon Levine (a former president of the California Medical
Board), and Dr. Joshua Bardin (whom Mir had previously identified as the sole accuser of the
charge of misdiagnosis) each made statements casting doubt on the basis for the California Medical
Board’s revocation. The district court sua sponte dismissed Mir’s amended complaint for failure
to state a claim, finding that it was frivolous and barred by issue preclusion and claim preclusion.
Mir appeals. We assume the parties’ familiarity with the underlying facts, the procedural history,
and the issues on appeal, and refer to them only as needed to explain our decision.
As an initial matter, Mir does not address the district court’s decisions declining to exercise
supplemental jurisdiction over his state law claims and warning him against filing new lawsuits
relating to the same subject matter. He has therefore abandoned any appellate challenges to these
rulings. See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995).
Next: district courts have the inherent power to dismiss a complaint sua sponte as frivolous,
even when, as here, the plaintiff has paid the filing fee. Fitzgerald v. First E. Seventh St. Tenants
Corp., 221 F.3d 362, 363–64 (2d Cir. 2000) (per curiam). We have not determined whether a
district court’s sua sponte dismissal of a complaint as frivolous is properly reviewed de novo or
for abuse of discretion, but we need not decide which standard applies where, as here, the district
court’s determination “passes muster under the more rigorous de novo review.” Id. at 364 n.2. We
review de novo a district court’s rulings regarding issue and claim preclusion. Hoblock v. Albany
Cty. Bd. of Elections, 422 F.3d 77, 93 (2d Cir. 2005).
5 I. Claims Against New York Defendants
The district court held that collateral estoppel barred Mir’s claims against the New York
defendants because the court in Mir II previously determined, and this Court affirmed, that they
were entitled to absolute immunity. “Issue preclusion, also referred to as collateral estoppel, bars
successive litigation of an issue of fact or law actually litigated and resolved in a valid court
determination essential to a prior judgment.” Cayuga Nation v. Tanner, 6 F.4th 361, 374 (2d Cir.
2021) (internal quotation marks and alterations omitted). Issue preclusion bars successive litigation
when “(1) the identical issue was raised in a previous proceeding; (2) the issue was actually
litigated and decided in the previous proceeding; (3) the party raising the issue had a full and fair
opportunity to litigate the issue in the prior proceeding; and (4) the resolution of the issue was
necessary to support a valid and final judgment on the merits.” Id. (internal quotation marks and
alterations omitted). Here, the district court held that issue preclusion barred Mir’s present suit
against the New York defendants, reasoning that the suit turns on the same fully-and-fairly-
litigated, dispositive issue as was decided in Mir II: whether the New York defendants were
immune from suit arising from their involvement in Mir’s New York medical license revocation.
Mir first argues, in effect, that the Mir II court’s determination was not “on the merits”
because that court did not rule on the substance of his claims but dismissed them on immunity
grounds. He is mistaken. Mir II’s dismissal was a full and fair adjudication on the merits of an
issue—an immunity defense—that was essential to its judgment. See New Hampshire v. Maine,
532 U.S. 742, 748–49 (2001) (“Issue preclusion generally refers to the effect of a prior judgment
in foreclosing successive litigation of an issue of fact or law actually litigated and resolved in a
valid court determination essential to the prior judgment, whether or not the issue arises on the
same or a different claim.”); see also Conway v. Vill. of Mt. Kisco, 750 F.2d 205, 213 (2d Cir.
6 1984) (state court’s previous grant of summary judgment to a police detective “on the dubious
ground that” he was entitled to “quasi-judicial immunity” precluded the plaintiff from bringing a
new claim implicating the same immunity).
Mir’s argument that his post-Mir II discovery of the August 2016 depositions rendered
issue preclusion improper fails for similar reasons. Specifically, this allegedly new evidence had
no bearing on whether the New York defendants were immune from suit; it therefore did not bar
application of collateral estoppel. See, e.g., Curry v. City of Syracuse, 316 F.3d 324, 332 n.5 (2d
Cir. 2003) (new evidence that officers lied during parole revocation hearing regarding type of force
used against plaintiff did not prevent application of collateral estoppel to the issue of whether
plaintiff struck one of the officers first); Wilder v. Thomas, 854 F.2d 605, 620 (2d Cir. 1988) (new
evidence did not disturb application of issue preclusion under New York law because, among other
reasons, “[t]here [was] no new evidence germane to the issue”).
Mir further contends that he was deprived of a full and fair opportunity to litigate his claims
against the New York defendants, making the district court’s application of collateral estoppel
erroneous. But the Mir II court extensively analyzed his claims, and we fully affirmed that analysis.
Mir v. Bogan, 668 F. App’x at 368–69. Mir thus had a full and fair opportunity to litigate his
claims.
Mir is correct, however, that collateral estoppel does not preclude his current claims for
injunctive relief against the New York defendants because the court in Mir II decided only that the
New York defendants were immune from suits for damages. As the district court noted, collateral
estoppel generally bars parties from relitigating the same issue regardless of whether they seek
different relief in the successive litigation. See Baker by Thomas v. Gen. Motors Corp., 522 U.S.
222, 234 (1998) (“We see no reason why the preclusive effects of an adjudication on parties and
7 those ‘in privity’ with them, i.e., claim preclusion and issue preclusion (res judicata and collateral
estoppel), should differ depending solely upon the type of relief sought in a civil action.”). The
court erred, however, in applying this general rule to the issue of absolute immunity, which bars
claims for damages but does not preclude claims for prospective injunctive relief. Pulliam v. Allen,
466 U.S. 522, 541 (1984). Thus, whether a claim for damages is barred by judicial immunity and
whether a claim for injunctive relief is barred for the same reason are not “identical issue[s]” to
which issue preclusion may apply, even if the claims arise from the same alleged conduct. Cayuga
Nation, 6 F.4th at 374.
Nevertheless, we may affirm on any ground supported by the record and are not limited to
the district court’s reasoning. Munoz-Gonzalez v. D.L.C. Limousine Serv., Inc., 904 F.3d 208, 212
(2d Cir. 2018). Here, as to the New York defendants whom Mir sued in the previous litigation, the
district court’s dismissal of Mir’s claims is properly affirmed on the basis of claim preclusion, or
res judicata. The doctrine of res judicata provides that “a final judgment on the merits of an action
precludes the parties or their privies from relitigating issues that were or could have been raised in
that action.” Cho v. Blackberry Ltd., 991 F.3d 155, 168 (2d Cir. 2021) (internal quotation marks
omitted). It bars successive litigation if “an earlier decision was (1) a final judgment on the merits,
(2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies,
and (4) involving the same cause of action.” Id.
In Mir II, Mir sued several of the same New York defendants, 1 “seeking money damages
for claims arising out of the revocation of his license to practice medicine in New York.” 2015
WL 1408891, at *1. The Mir II court granted a motion to dismiss the claims against the New York
1 Those defendants include Nirav R. Shah, Linda Skidmore Daines, Robert Bogan, Peter D Van Buren, Kendrick A. Sears, Lyon Greenberg, Ralph Liebling, and Deborah Whitfield.
8 defendants on the ground that absolute immunity barred those claims. Id. at *10–13, 18. This is a
ruling on the merits for purposes of res judicata. See New Hampshire, 532 U.S. at 748–49. Here,
Mir again brings claims against the New York defendants arising out of the revocation of his
medical license in New York. While Mir sought only money damages in Mir II, res judicata applies
here because his otherwise identical claim for injunctive relief “could have been raised in that
action.” Cho, 991 F.3d at 168. 2
The remaining New York defendants—those who were not named in the previous action—
are members of a state medical board other than the one that revoked Mir’s medical license. 3 The
board with the power to conduct professional misconduct and disciplinary proceedings for New
York physicians is the Office of Professional Medical Conduct, part of the New York Department
of Health. See N.Y. Pub. Health Law § 230. The additional members whom Mir names in this suit
serve or served on the State Board for Medicine, which is part of the New York Education
Department and does not have disciplinary authority with respect to physicians. 4 See N.Y. Educ.
2 The claims against New York Department of Health Commissioner Howard Zucker are likewise precluded. Mir seeks the same relief against Zucker, whom Mir alleges “has the authority to reinstate [Mir’s] unrestricted [New York] medical license and to expunge the record of discipline.” App. 163. Although he was not a defendant in Mir II, Zucker stands in privity with the members of the board who were named as defendants in Mir II, and “the interests involved in the prior litigation are virtually identical to those in later litigation.” Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 345 (2d Cir. 1995); see also Cho, 991 F.3d at 169 (“Privity bars relitigation of the same cause of action against a new defendant known by a plaintiff at the time of the first suit where the new defendant has a sufficiently close relationship to the original defendant to justify preclusion.” (internal quotation marks omitted)). To the extent that Mir is suing Zucker in his personal capacity, Mir’s amended complaint does not make any factual allegations against him personally and therefore fails to state a claim. 3 Those defendants include George Autz, Roseanne C. Berger, Lawrence J. Epstein, Marian Goldstein, Martha Grayson, Elizabeth Beson-Guthrie, Kristin Harkin, Sumathi Kasinthan, Robert G. Lerner, Kathleen S. Lill, Joann Marino, Gladys Lynn Mark, Louis J. Papa, Maria Plummer, Swaminathan Rajan, Ramanthan Raju, Sumir Sahgal, Arash Salemi, Nancy Sapio, Alexander Schwartzman, Neeta Minal Shah, Rahul Sharma, Mushtaq A. Sheikh, Amit M. Shelat, Greg Shutts, and Robert R. Walther. 4 The relevant defendants are listed as board members on the Education Department’s website. See Office of the Professions: Statutory Composition & Current Membership, NYSED, http://www.op.nysed.gov/boards/bdcomp#med (last visited Sept. 20, 2021). That website also makes clear that “the New York State Education Department’s Office of the Professions (OP) investigates and prosecutes professional misconduct in all professions except medicine.” Office of the Professions: New York’s Professional Misconduct Enforcement System, NYSED,
9 Law §§ 6520–6529. Mir has therefore failed to state a claim on which relief may be granted against
those defendants.
Accordingly, we affirm the district court’s dismissal of Mir’s claims against the New York
defendants on the grounds of res judicata and failure to state a claim.
II. Claims Against the California Defendants and Hospital Defendants
The district court held that res judicata barred Mir’s claims against the California
defendants because Mir’s claims against those defendants arose from the same medical license
revocation at issue in Mir II and he either raised or could have raised those claims in that
proceeding.
In Mir II, Mir sued several of the same California defendants. The claims he asserted there
arose from those defendants’ “alleged involvement in the revocation of his medical license in New
York.” Mir II, 2015 WL 1408891, at *7. The court dismissed Mir’s claims against the California
defendants for failure to state a claim on the ground that Mir “pled no facts suggesting that the
California Defendants played a role in the New York license revocation proceeding against him.”
Id. at *18. We affirmed. Mir v. Brogan, 668 F. App’x at 368–69. In the present case—as in Mir
II—Mir sues the California defendants “for reporting false bases to revoke to N.Y. resulting in
revocation of [his] N.Y. medical license.” App. 170. Since the new lawsuit effectively asserts the
same cause of action against the same parties, the court correctly held that res judicata barred most
of Mir’s claims: in general, “a dismissal for failure to state a claim operates as a final judgment on
http://www.op.nysed.gov/opd (last visited Sept. 20, 2021) (emphasis added). We take judicial notice of this information on the Education Department’s website, observing that it is “not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.” Fed. R. Evid. 201(b)(2); see Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).
10 the merits and thus has res judicata effects.” Garcia v. Superintendent of Great Meadow Corr.
Facility, 841 F.3d 581, 583 (2d Cir. 2016) (internal quotation marks omitted).
Mir argues that the district court misapplied the res judicata doctrine to bar new allegations
arising from the 2016 depositions given in another matter by Drs. Whitney, Levine, Kirchmeyer,
and Bardin. Generally, res judicata “applies even where new claims are based on newly discovered
evidence, unless the evidence was either fraudulently concealed or it could not have been
discovered with due diligence.” Cho, 991 F.3d at 168 (internal quotation marks omitted). Here,
the district court held that res judicata barred Mir’s claims against these four California defendants
because his complaint “does not allege that the California officials fraudulently concealed the new
information or that he could not have discovered it with due diligence.” App. 327. Mir further
alleged, however, that Drs. Whitney, Levine, Kirchmeyer, and Bardin gave their depositions after
the district court rendered its judgment in Mir II. Thus, Mir could not have discovered the
deposition evidence he now points to before the court issued its judgment in Mir II. The district
court’s application of res judicata to his allegations against these four defendants was error.
Nevertheless, again, “[w]e may affirm on any ground the record supports, and are not
limited to the reasons expressed by the district court.” Munoz-Gonzalez, 904 F.3d at 212 (internal
quotation marks omitted). Although Mir insists that the 2016 depositions offer support for his
previously asserted claims, he again pleads “no facts suggesting that the California Defendants
played a role in the New York license revocation proceeding against him.” Mir II, 2015 WL
1408891, at *18. Thus, the district court properly dismissed Mir’s claims against the relevant
California defendants.
As to the remaining defendants—who were not named in previous suits, were never
members of the California Medical Board, and were not in privity with anyone on the Board—
11 dismissal is likewise appropriate because Mir has failed to state a claim on which relief may be
granted. Mir pleads federal claims under 18 U.S.C. § 1851 and 42 U.S.C. § 1983. Section 1851 is
wholly irrelevant to this case, as it criminalizes coal mining in “lands of, or reserved to[,] the
United States,” so that claim is properly dismissed. Section 1983 provides for damages suits
against state actors who violate a plaintiff’s constitutional rights. The Hospital defendants are
private parties who are not liable under section 1983. The only state actor Mir identifies, May
Agnes Matyszewski, is alleged to be a “prosecutor” for the California Medical Board. App. 222.
State officials who are responsible for deciding to initiate or continue an agency adjudication
proceeding are entitled to absolute immunity against damages claims for their roles in that
decision, Butz v. Economou, 438 U.S. 478, 516 (1978), and Mir seeks only damages against
Matyszewski for her alleged actions in relation to the disciplinary proceedings involving Mir.
Accordingly, Matyszewski is immune from suit under section 1983 for any actions she took in
relation to Mir’s California Medical Board proceedings.
Finally, with respect to Mir’s claims against the California Medical Board for injunctive
relief, which arise out of the revocation of his California medical license and seek the reinstatement
of that license, those claims are barred by res judicata. The same claims raised below were resolved
in the California Medical Board’s favor in the Southern District of California. See Mir v. Med. Bd.
of Cal., No. 12-cv-2340, 2013 WL 1932935 (S.D. Cal. May 8, 2013) (dismissing Mir’s complaint
on the merits); Mir v. Kirchmeyer, No. 12-cv-2340, 2017 WL 4271892 (S.D. Cal. Sept. 26, 2017)
(granting summary judgment to the defendants), aff’d sub nom. Mir v. Levine, 745 F. App’x 726
(9th Cir. 2018). Thus, Mir is precluded from relitigating those claims or claims that could have
been raised in that prior action. See Cho, 991 F.3d at 168.
*****
12 We have considered Mir’s remaining arguments and find in them no basis for reversal.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court