California Continues To Suspend Drivng License Without Due Process - Brief Filed in The The Ninth Circuit Court of Appeals

Case: 14-16858, 01/02/2015, ID: 9367955, DktEntry: 2, Page 1 of 35
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Rehan Sheikh, Pro Se

1219 W. El Monte Street
Stockton, California 95207
Telephone: (209) 475.1263
rehansheikh@yahoo.com
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IN THE UNITED STATES COURT OF APPEALS
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FOR THE NINTH CIRCUIT
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REHAN SHEIKH
Appellant (and plaintiff),
v.
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Brian Kelly
Secretary, California State
Transportation Agency
Appellee
and
Mark Tweety
Manager, Department of Motor
Vehicles
Appellee
Case NO: 14 1 6 8 5 8
PLAINTIFFS BRIEF
42. U.S.C. 1983
The DMV continues to Suspend
Plaintiffs Driving License without
Hearing since 2011
Judge : Hon. Garland E. Burrell
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Magistrate Judge Hon. Allison Claire
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District Court: 2: 14 CV- 7 5 1 GEB AC
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I. QUESTIONS PRESENTED
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A. The Department of Motor Vehicles (DMV) suspended plaintiffs driving license

without any pre-deprivation hearing and the DMV denied all requests for post
deprivation hearing.
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Does the DMV has a mandatory duty, in order to satisfy the Due Process
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Clause, to provide a hearing on suspension of plaintiffs driving license?
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B. The DMV arbitrarily and intermittently demands that plaintiff take written
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test, driving tests and submit to medical tests. The DMV doesnt demand such
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reexamination for renewal of license or even when individuals are involved in
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auto accidents. The DMV denied requests for any hearing that would establish
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justification for its demand.
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Is the DMVs arbitrary demand for plaintiffs driving and medical tests
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consistent with Equal Protection and Due Process Clauses?
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Plaintiffs Brief Rehan Sheikh v. [DMV]
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Table of Contents
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I.
QUESTIONS PRESENTED................................................................................................. i
II.
STATEMENT OF CASES.................................................................................................. vii
III.
STATEMENTS ....................................................................................................................... 1
IV.
PROCEDURAL BACKGROUND....................................................................................... 8
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A.
The DMV Suspended Plaintiffs Driving License without Hearing ....................... 8
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B.
Traffic Citation for allegedly Not Completely stopping at a Stop Sign ................. 8
C.
Defendants Notices of Denial remain inconsistent .................................................. 10
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V.
ARGUMENTS ...................................................................................................................... 13
a.
The Rights involved in this Litigation are Significant ............................................... 13
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b.
Plaintiff Continues to suffer irreparable harm............................................................. 16
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c.
The District Court Erred by dismissing Plaintiffs Complaint ................................ 17
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d.
The DMVs Arbitrarily Demand for Plaintiffs Driving, Written & Medical tests
constitutes violation of Equal Protection Clause .................................................................... 21

e.
Suspension of Plaintiffs Driving License without Hearing constituted Violation
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of the Due Process Clause............................................................................................................. 24
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VI.
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CONCLUSION ..................................................................................................................... 26
VII. PRAYER ................................................................................................................................ 27

P a g e | ii
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Table of Authorities
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CASES
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Aptheker v. Secretary of State,

378 US 500 (1964) ................................................................................................................... 13
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Armstrong v. Manzo,
380 US 545 (1965) ................................................................................................................... 24
Bell v Burson,
402 U.S. 535 (1971) ................................................................................................................. 24
Cleveland Board of Education v. Loudermill,
470 U.S. 532, (1985) ................................................................................................................ 25
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Collins v. City of Harker Heights,

503 U.S. 115 (1992) ................................................................................................................. 25
Conley v Gibson,
355 US 41 (1957) ...................................................................................................................... 18
Conley v. Gibson,
355 U.S. 41, (1957) .................................................................................................................. 18
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Edwards v. California,
314 U.S. 160 (1941) ................................................................................................................. 13
Garrett v. City of San Francisco,
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P a g e | iii
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818 F.2d 1515 (9th Cir. 1987) ............................................................................................... 20

Goldberg v. Kelly,
397 U.S. 254 (1970) ................................................................................................................. 16
Hughes v. Rowe,
449 U.S. 5 (1980) ...................................................................................................................... 18
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In re Yochum,
89 F. 3d 661 (9th Cir. 1996)................................................................................................... 25
Kent v. Dulles,
357 U.S. 116 (1958) ................................................................................................................. 13
Louis v. Supreme Court of Nevada,
490 F.Supp. 1174, (D.C. Nevada, 1980) .............................................................................. 20
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Orr v. Superior Court,

77 Cal. Rptr. 816, 454 P.2d 712 (1969) ............................................................................... 16
Perkins v. City of West Covina,
113 F.3d 1004 (9th Cir. 1997) ............................................................................................... 25
Rehan Sheikh v Cisco Systems,
No: C-07-00262 RMW. (N.D. Cal. Aug. 10, 2007) ............................................................. 18
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Reno v Flores,
507 U.S. 292 (1993) ................................................................................................................. 24
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Schechter v. Killingsworth,
93 Ariz. 273, 380 P.2d 136 (1963) ........................................................................................ 15
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Schware v. Board of Bar Examiners,

353 U.S. 232 (1957) ................................................................................................................ 22
Shapiro v. Thompson,
394 U.S. 618 (1969) ................................................................................................................. 14
Sniadach v. Family Finance Corp.,
395 U.S. 337 (1969) ................................................................................................................. 16
Stanely v Illinois,
405 US 645 (1972) ................................................................................................................... 24
United States v. Guest,
383 U.S. 745 (1966) ........................................................................................................... 14, 15
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STATUTES
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28 U.S.C. 1291 ............................................................................................................................... 1
28 U.S.C. 1367 ............................................................................................................................. 19
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42. U.S.C. 1983 .............................................................................................................................. 7
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RULES
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FRCP (56) .............................................................................................................................. 6, 19, 20
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FRCP 12(b)(6) ............................................................................................................................. 6, 19
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CONSTITUTIONAL PROVISIONS
Due Process Clause ........................................................................................................... 13, 24, 25
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Equal Protection Clause........................................................................................................... 6, 24
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Fifth Amendment ...................................................................................................................... 9, 13
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Fourteenth Amendment ................................................................................................... 13, 14, 25
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II. STATEMENT OF CASES

Ninth Circuit Court of Appeals
Plaintiff and plaintiffs spouse are parties in the following cases;
1) Farzana Sheikh MD v Medical Board of California
Case Number: 10 17098
2) Rehan Sheikh v Cisco Systems Inc.
3) Rehan Sheikh v Brian Kelly (California Department of Motor Vehicles)
4) San Joaquin (County) General Hospital v Farzana Sheikh, MD
Eastern District of California
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Plaintiff and plaintiffs spouse are parties in the following cases;
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1) Farzana Sheikh MD v Medical Board of California
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Case Number: 2:10 CV 213 FCD - GGH

2) Rehan Sheikh v Brian Kelly (DMV)
Case Number: 2: 14 CV 751 GEB AC
3) San Joaquin (County) General Hospital v Farzana Sheikh, MD
Case Number: 2:14 CV 1509 MCE AC
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Plaintiff submits this appeal on final dismissal of his complaint by Eastern
District of California. The Ninth Circuit Court of Appeals has jurisdiction pursuant to
28 U.S.C. 1291. The Case involves plaintiffs driving license. The applicable Standard
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of Review is de novo.
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III.
STATEMENTS
1. The Department of Motor Vehicles (DMV) issued an unsigned & anonymous
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order dated December 5, 2011, and suspended plaintiffs driving license
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effectively January 4, 2012 without any pre deprivation hearing. The DMV
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assumed that plaintiff did not attend a court hearing to respond to an alleged
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stop sign violation. The DMV assumed (or alleged) a Failure to Appear (FTA)
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and Failure to Pay fine (FTP). The DMV did not inform plaintiff of his Right to
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request any administrative hearing to challenge the suspension.
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2. On or before January 4, 2012, Plaintiff timely appeared before the Court and
before the DMV. Plaintiff requested them to NOTE his attendance and restore
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his driving license. Defendants did not remove their allegations of failure to
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appear and did not restore plaintiffs driving license.
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3. During January, February and March 2012 plaintiff requested defendants to
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renew his driving license. On each occasion, defendants denied renewal of his
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driving license without a written Notice of Denial. Further, defendants denied
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plaintiffs requests for post deprivation hearing.
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4. In March 2014, Plaintiff submitted a complaint with the district Court alleging
five counts of violation of Due Process. Plaintiff also submitted a First Amended
Complaint adding a sixth cause of violation of Due Process.
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5. After plaintiff filed the complaint, the parties consented to discovery. Defendants
issued multiple Notices of denial. In those notices of denial,
a. Defendants arbitrarily and intermittently demand that plaintiff take
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written test, driving test and submit to unspecified medical tests.
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Defendants stated that even if plaintiff passes those unspecified medical
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tests, defendants are not obligated to restore his driving license.

b. The DMV alleges an unspecified or untested Failure to Appear (FTA)
presumably before San Joaquin County Court.
6. The DMV intermittently alleges that plaintiff did not appear at the County
Court to respond to his traffic citation;
a. In the Court proceedings, Defendants stated, [Plaintiff] never
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appeared [Defendants Reply in support of Motion to Dismiss, Page 3,
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Line 12]. Defendants invited plaintiff to submit proof. [Defendants Reply
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in support of Motion to Dismiss, Page 6, Line 2]
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7. Plaintiff submitted his affidavit (Docket#41) with specific dates that he

attended hearings at San Joaquin County Court from January - May 2012.
8. Plaintiff submitted a Request for admission (Docket#31) that stated
Plaintiff requests that Defendant(s) admit or deny the following statements
With reference to traffic citation, Plaintiff did not miss any hearing
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scheduled before the County of San Joaquin Superior Court.
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a.
Plaintiff invited defendants to specify a court date that plaintiff missed.
9. In response to plaintiffs discovery letter and Request for Admission, the

defendants were NOT able to specify any Court hearing that plaintiff missed.
a. Nonetheless, defendants produced plaintiffs Bench warrants from San
Joaquin County Court dated April 2012.
b. Plaintiff submitted a proof of his attendance signed and stamped by the
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County Court dated March 2012. Plaintiff had already taken care of that
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traffic citation in March 2012.
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c. Later, in their Notices of denial dated May6, 2014, defendants admitted,

Since then, The DMV records show that you have cleared this FTA.
d. Nonetheless, the DMV did not remove its accusations of FTA and did not
restore plaintiffs driving license.
10. The DMV does not have any process to challenge suspension of driving
license. The DMV denied all of plaintiffs requests for any hearing. In the
hearing the district Court inquired (Transcript P12) ;
The Court: If Mr. Sheikh want to challenge the suspension itself, saying
you were, you know, wrong to do it, you cant make me go clear up these
things because I should never have been suspended. Where, and when,
and how did the department notify him how to do that?
Defendants were unable to answer that question since the DMV does not have
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any process to challenge suspension of driving license. Whether California
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should have a process to challenge suspension of driving license, in order to meet

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the Due Process Clause, is a point of fundamental importance. The district Court
did not rule on this important matter and now it is before the Ninth Circuit
Court of Appeals for its ruling.
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11. In order to resolve defendants unspecified allegations of Failure to Appear,
Plaintiff submitted a Motion to Compel Admission. Defendants were not able
to present any specific opposition.
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a. At the hearing (Transcript P4), defendants generally thought that

plaintiffs Request for admission was untimely.
THE COURT: Mr. Besmer, did -- were you served with requests for
admissions?
MR. BESMER: Just through the ECF service, Your Honor, and we did
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submit a letter to Mr. Sheikh --
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THE COURT: Okay.
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MR. BESMER: -- addressing his, what we believe to be an untimely
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request for admission -- or a premature request for admission rather.
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THE COURT: Okay. All right. So the requests for admission were
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propounded, although in an atypical sort of way, and you did respond to
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them?
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MR. BESMER: Just in the letter format, Your Honor. We explained to Mr.
Sheikh that discovery has not yet opened in this case.
b. The Court conceive that discovery did not begin (Transcript at P4);
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THE COURT: theres been no discovery and scheduling order.
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c. The Court issued an order to dismiss plaintiffs Motion to Compel.
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However, in the Recommendations, the court noted.
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As there does not appear to be a dispute concerning defendants responses
at this time, plaintiffs request to compel admissions will be denied
(Recommendations of Magistrate Judge Docket#44, P3)
d. On a few other occasions the Court conceived that discovery had begun. The
Court invited plaintiff to submit discovery requests with the Court when there is
a dispute between the parties (Transcript at Page 3). The Court noted to take
notice of exhibits (Recommendations, Docket#44 at P4). The Court engaged in
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extensive discussion relevant to defendants accusations of alleged FTA, amount,

validity of fine and questioned the basis for Reexamination (Transcript P 17-20).
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12. Plaintiff submitted a Motion for Declaratory Relief that defendants denied
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plaintiffs Right to Due Process (by suspending his driving license without pre
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deprivation and without post deprivation hearing).
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a. Defendants did not present any opposition and stated (Docket#35, P2)
[A Court may] issue other appropriate relief when nonmovant
cannot present facts essential to justify its opposition.
b. Plaintiff requested the Court to grant his Motion for Declaratory Relief.
(Transcript P7)
Plaintiff: So in this case, defendants do not dispute, sorry -- and
defendants do not dispute that they did not issue me timely notices of
denial, they do not dispute that over a period of last two years they denied
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me pre-deprivation and post-deprivation --
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The Court conceived potential disputes (Transcript P7);
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THE COURT: Well there are disputes about this early in the litigation,
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when were not even clear on the final form that your complaint will take,
it is too soon for anyone to tell me that things are undisputed.
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13. Plaintiff submitted a Motion for Injunctive Relief to restore his driving
license.
a. In the hearing, the Court emphasized the importance of Driving License
in the hearing and stated (Transcript, P 12)
The court: I understand how important it is to you to have your drivers
license back. I understand how important it is for people to have drivers
licenses.
b. In its written ruling, the district court dismissed Plaintiffs Motion
without any guidance and stated that Motion is denied as premature.
14. Plaintiff is without his driving license for years now. During that time, plaintiff
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was threatened, imprisoned, interrogated, and was exposed to life threatening
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circumstances by the individuals working under color of state law.
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15. Defendants artfully pleaded their FRCP 56 Motion for Summary Judgment
and disguised their Motion as FRCP 12(b)(6) Motion to Dismiss. In granting
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defendants FRCP 12(b)(6) Motion to dismiss plaintiffs complaint, the Court
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discussed matter outside pleading.
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16. Plaintiff submitted written arguments that defendants arbitrary demand for
plaintiffs driving tests and medical tests is inconsistent with the Equal
Protection Clause of the United States Constitution. The district Court did not
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rule on this important matter and now it is before the Ninth Circuit Court of
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Appeals for its ruling.

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17. Plaintiff filed a complaint with the District Court alleging following five Counts
of violation of Due Process (42. U.S.C. 1983 ).
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Count I. January 2012

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Defendants denied renewal of plaintiff driving license without a written
Notice of Denial.
Count 2 - January 2012
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Count 3 - February 2012
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i.
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Count 4 - March 2012

i.

Notice of Denial.
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Notice of Denial.
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Defendants denied plaintiffs request for pre-deprivation hearing
Count 5 - March 2012

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Defendants denied plaintiffs request for post-deprivation hearing
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Plaintiff submitted a First Amended Complaint (Docket #32) adding Sixth cause
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of Due Process Violation that stated;
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Count 6 December 2011

i.
Defendants suspended plaintiffs driving license without predeprivation hearing.
The Court mistakenly noted (Recommendations #44 at P6, line 24),
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Plaintiff first asserts that his due process rights were violated because he
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did not receive notice of the license suspension.
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18. The district Court applied a legal standard that stated (Docket#44 -P4),
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Thus, a defendants Rule 12(b)(6) motion challenges the courts ability to grant
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any relief on the plaintiffs claims even if the plaintiffs allegations are true.
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IV. PROCEDURAL BACKGROUND
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A. The DMV Suspended Plaintiffs Driving License without Hearing
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19. The DMV sent an anonymous ORDER OF SUSPENSION to plaintiff that was
generated by a computer program. That Order dated Dec 05, 2011, stated;
YOUR DRIVING PRIVILEGE IS SUSPENDED AS OF JAN 04, 2012. &
The suspension will remain in effect until all Failures to Appear (FTA) and
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Failures to Pay a fine pursuant to section 42003(A) have been removed from
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your record.
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The Order of Suspension did not state name of a judge or any other person who
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was authorized to issue such an order.
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B. Traffic Citation for allegedly Not Completely stopping at a Stop Sign
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20. On August 11, 2011, Plaintiff was stopped a few yards from his home and was
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given a citation for allegedly not completely stopping at a Stop sign and
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(allegedly) for lack of Proof of Insurance. The ticket was given by a police officer
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who was parked on the perpendicular street facing the opposite direction. The
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police officer had no possibility of viewing the stop line. The police officer worked
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for a private university in Stockton adjacent to plaintiffs residence.
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21. Later plaintiff was stopped by Stockton Police on Feb 16, 2014 1. Police officers
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Traffic Citation dated February 16, 2012

Police officer stopped Plaintiff. Police officer informed plaintiff that he was stopped (allegedly)
for crossing a red light.
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continued to add traffic citations (6-7) until after plaintiff was booked.
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ii.
One officer searched plaintiffs car without plaintiffs permission. The other officer took
plaintiffs driving license, car keys, called for a towing truck and possessed plaintiffs car. A
third Police person arrived who introduced himself as Sergeant. The plaintiff was taken to a
City police facility, then he was taken to the County Jail.
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As plaintiff was being booked in the County Jail, police officer (who issued the citation) asked
Jail officer to give him back a paper where police officer added multiple traffic citations. The
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booking police officer had a conversation with the Jail police officer.
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iv.
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Amendment. Then several police officers surrounded plaintiff; inquiring officer became very
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loud saying, I will ask you one more time [or else]; Plaintiff said, Sir, I take the fifth.
v.
Plaintiff was moved with force to a special place merely for exercising his Constitutional
Right to Fifth Amendment. Plaintiff remained deprived of critical medicine (including insulin)
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and remained subconscious. Late night /early morning Plaintiffs vitals were unstable; he was
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The Jail Police officer started interrogation. Plaintiff said sir, I exercise my right to Fifth
taken to the County Hospital Emergency and was brought back to the Jail.
vi.
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On or around Feb 17, 2012 (Friday noon time), plaintiff was released from Jail. In the lobby
area, outside the Jail, plaintiff called his wife who came to bring him home. As plaintiff and his
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wife were about to leave from the parking lot, a High ranking individual from Sheriffs office
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accompanied by a Sergeant and an officer asked the Officer to book plaintiff one more time.
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The High Ranking Sherriff told plaintiff, Im going to spend the weekend at home and you will
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spend the weekend in Jail.
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vii.
Plaintiff was again made to spend two more days in the County Jail before he was released on
late Sunday afternoon. During that time, Plaintiff often remained subconscious and his requests
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for medical attention were denied.
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That was not the first or the last time when City Police and/or County Sheriff department
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undertook unprofessional and adverse actions against plaintiffs family. San Joaquin County
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undersheriff sent an email to plaintiff April 5, 2013 that stated in Bold letters;
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I DONT WANT TO EVER HEAR FROM YOU AGAIN!

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22. On May 23, 2012 there was a trial at the San Joaquin County Superior Court
before Judge Hon. Erik Lundeberg to respond to all of those traffic citations. The
Court addressed only alleged Failure to completely stop at the STOP sign dated
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August 11, 2011. All other allegations in the traffic citations dated August 11,
2011 and February 16, 2012 were previously resolved or withdrawn.
23. The police officer who issued the citation was present. In the Court proceedings,
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the police officer was not able to identify the location where he was parked at the
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time he issued the ticket; and stated, I do not have good recollection of the event
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on that day. Additionally, the police officer did not work for city of Stockton.
Jurisdiction of the police officer was challenged.
24. The Judge announced to issue his opinion later (still pending). The Judge also
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explained an appellate procedure before a three judge panel if any party
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disagreed with his opinion. The Judge commented, We can issue the license if
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[then there was no guidance]. Plaintiff and his wife thanked the court.
C. Defendants Notices of Denial remain inconsistent
25. After plaintiff filed this complaint with the district court, the DMV issued
multiple Notice(s) of denial;
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a. May 6, 2014 by Ms. Jennifer Berry - DMV
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b. April 25, 2014 Thomas Laughter - DMV
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c. July 14, 2014 Sharon Robinson - DMV
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d. July 14, 2014 Matthew Besmer, DAG

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DMVs Notices of Denial remain inconsistent.

26. The DMV is confused on Reexamination
a. Declaration of Sharon Robinson (Department of Motor Vehicles) dated
July 14, 2014 (Docket#40) shows one unpaid fine and one Failure to
Appear. In that Declaration, the DMV did not demand a Re-examination
b. Yet DMVs attorney submitted legal arguments on the same date and
demanded Reexamination (Docket#38).
c. The DMVs attorney stated on reexamination (Transcript P20);, Plaintiff
didnt do it within the five days and his license was suspended without
clarifying when the DMV restored plaintiffs driving license.
27. The DMV is confused on Amount of Fine
a. The Deputy Attorney General (DAG) Matthew Thomas Besmer wrote (Docket
#39, P.2/26); The court clerk told me that Mr. Sheikh has not yet paid his fine
of $390 for his August 2011 citation. There was no court document showing
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such fine. Another court document (Docket #39, P.10/26) shows a different
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amount of fine.
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28. The DMV is confused on Failure To Appear (FTA);
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a. In the Court proceedings, Defendants stated, [Plaintiff] never appeared
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[Defendants Reply in support of Motion to Dismiss, Page 3, Line 12 ].

b. In the letter dated July 14, 2014, the defendants wrote (Docket #39 P2);
The clerk also told me that Mr. Sheikh has never appeared on citation No.
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A156283 (the February 2012 citation), and that a bench warrant was
issued in the amount of$20,000.
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c. At the court hearing dated Aug 13, 2014, defendants stated (Transcript
P13); Mr. Sheikh eventually appeared on that traffic citation and that
suspension was removed when he showed up in court.
d. The letter from DMV dated May 6, 2014 (Docket #) stated,
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Since then, the DMV records show that you have cleared this FTA,
However, the DMV records show that you have failed to pay (FTP) the
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fine for your August 8, 2011, Vehicle Code Violations.

e. The letter from DMV dated April 25, 2014 (Docket #), stated;
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Once the FTA and FTP are cleared with Stockton Superior Court, you will
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need to contact Stockton Driver Safety Office at (209) 948-7715 to schedule
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an interview to discuss the priority reexamination referral of 02/16/2012.
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Part of that interview will involve a written law test, vision test and drive
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test; However, these tests cant be administered if FTA suspension remains
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in effect.
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29. Plaintiff sought clarification from defendants in his letter dated July 9, 2014
and inquired (Docket # 31-1; P4),
Did the defendants remove the alleged FTA or not?
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V. ARGUMENTS
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a. The Rights involved in this Litigation are Significant
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30. The driver's license is significant parts of the liberty and property protected by
the due process clause of the Fourteenth Amendment and may be abridged only
by constitutionally appropriate procedures. The status of a driver's license as a
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right deserving of constitutional protections was first most clearly stated in

Wall v. King, 206 F.2d 878 (1st Cir., 1953):
We have no doubt that the freedom to make use of one's own property, here
a motor vehicle, as a means of getting about from place to place, whether in
pursuit of business or pleasure, is a liberty which under the Fourteenth
Amendment cannot be denied or curtailed by a state without due process of
law. 206 F.2d at 882
31. "The right to travel is a part of the `liberty' of which the citizen cannot be
deprived without due process of law under the Fifth Amendment," Kent v.
Dulles, 357 U.S. 116 (1958) . In Aptheker v. Secretary of State, 378 US 500
21
(1964), the Supreme Court struck down a federal statute forbidding members of
22
Communist organizations to obtain passports. Both the majority and dissenting
23
opinions affirmed the principle that the right to travel is an aspect of the liberty
24
guaranteed by the Due Process Clause. In Edwards v. California, 314 U.S. 160
25
26
(1941) invalidating a California law which impeded the free interstate passage of
27
the indigent, the Court based its reaffirmation of the federal right of interstate
28
travel upon the Commerce Clause.

P a g e | 13
1
2
It is also well settled in our decisions that the federal commerce power
authorizes Congress to legislate for the protection of individuals from
violations of civil rights that impinge on their free movement in interstate
commerce.
United States v. Guest, 383 U.S. 745 (1966).
3
4
5
6
7
32. The concept of liberty has been buttressed by the delineation of a separate and
independent constitutional right of interstate travel and free movement.
9
10
United States v. Guest, 383 U.S. 745 (1966): Shapiro v. Thompson, 394 U.S. 618
11
(1969). Unmentioned explicitly in the language of the Constitution, this right of
12
interstate travel and free movement is nevertheless fundamental and basic to
13
the Constitution. It is a separate and individual right, not simply an aspect of
14
the liberty guaranteed by the due process clause of the Fourteenth
15
16
17
Amendment.
33. In Shapiro, supra, the right of interstate travel was held so crucial that any
18
infringement upon it must be judged by the stricter standard of whether it
19
promotes a compelling state interest, A complete prohibition on interstate
20
travel is not necessary to the application of the stricter standard mentioned in
21
22
Shapiro. In his concurring opinion, Mr. Justice Stewart compared the right to
23
interstate travel to that of association, terming it a virtually unconditional
24
right.
25
34. Suspending plaintiffs driving license merely for a perceived failure to appear
26
before a third party county court does not make our roads safer. Suspension of
27
28
driving license would only make it cumbersome and expensive for the plaintiff to
P a g e | 14
1
2
3
travel to the court. DMV was unable to produce any court order that mandated
suspension of plaintiffs driving license. The courts have adequate procedures
available to compel attendance of individuals in the court. Whether Californias
6
7
8
9
claim to collect money or fine from plaintiff is valid or not, it does not outweigh
plaintiffs rights to property, liberty and interstate travel.
35. California has begun to issue driving licenses to illegal immigrants so that
10
they could legally drive. California determined that their interest in driving
11
licenses outweighed the States perceived interest in enforcing laws such as
12
13
Failure to Appear (before authorities) and Failure to Pay (fees and fines).
14
California legislated to issue driving licenses to illegal immigrants (or yet to be
15
United States Citizens) because todays social and economic circumstances have
16
made driver's license a necessity.
17
In the public interest the State may make and enforce regulations reasonably
18
19
20
21
22
calculated to promote care on the part of all, residents and non-residents alike,
who use its highways. Hess v. Pawloski, 274 US 352 (1927); also Bell v Burson
36. "[T]he right of the States in this mode to impede or embarrass the constitutional
23
operations of that government, or the rights which its citizens hold under it, has
24
been uniformly denied." United States v. Guest, 383 U.S. 745 (1966). The
25
Arizona Supreme Court interpreted its act to require pre-suspension hearings to
26
determine reasonable possibility of a damage judgment in Schechter v.
27
28
Killingsworth, 93 Ariz. 273, 380 P.2d 136 (1963). Thus, since 1963 the Arizona
P a g e | 15
1
2
3
Highway Department has been granting hearings before suspension to those
persons so requesting. California Supreme Court found it necessary to review its
act in order to make explicit the requirement that fault and potential liability
6
7
must be the basis of the department's decision to suspend a driver's license. Orr
v. Superior Court, 77 Cal. Rptr. 816, 454 P.2d 712 (1969). The administrative
action, based on a finding of potential culpability, would then be subject to later
10
11
12
13
court review. Petitioner seeks no more than this in the present case.
37. In Sniadach v. Family Finance Corp., 395 U.S. 337 (1969) and in Goldberg v.
Kelly, 397 U.S. 254 (1970) the Supreme Court found improper the withholding of
14
wages and welfare benefits pending subsequent due process review. Whether or
15
not Georgia's protection of a potential creditor's possible future claim is valid, it
16
does not outweigh the individual rights to property, liberty and interstate travel.
17
18
Sniadach v. Family Finance Corp., supra,
19
38. The lack of due process in plaintiffs case is more flagrant; Plaintiff has
20
no opportunity for any hearing either before or after suspension of his driving
21
license. Plaintiff now asks that his right to drive a car, necessary to his essential
22
life activities, receive the same due process protections.
23
24
25
26
b. Plaintiff Continues to suffer irreparable harm

39. What possible good can result from depriving a man of use of his car, the means
27
28
P a g e | 16
1
2
3
of his survival, when he has in no way shown as unfit driver 2.
Due to suspension of driving license, plaintiff has suffered tremendous hardship.
Plaintiff is unable to perform fundamental functions of life. Not only Plaintiff
but his family is strained for lack of plaintiffs driving license. Plaintiff is unable
7
8
to drive to a grocery store or a restaurant to buy food & supplies. Plaintiff is
unable to take his child to school or for any recreation. Plaintiff is unable to keep
10
up medical appointments and has encountered tremendous difficulty in this
11
regard. All of this constitutes irreparable harm. Under such circumstances, the
12
United States Judges are authorized to restore plaintiffs driving license. This
13
14
Court is humbly requested to restore plaintiffs driving license (Preliminary
15
Injunction) so that he can undertake basic necessities of life.
16
17
c. The District Court Erred by dismissing Plaintiffs Complaint
18
For all the following reasons, this court is requested to reverse the dismissal of
19
this complaint and remand the matter for further proceedings.
20
21
22
40. Plaintiff has stated sufficient facts in his complaint. A motion to dismiss for
1.
People from broad spectrum of life have driving license.
23
a. 16 years old,
24
b. 80 years old,
25
c. healthy people,
26
d. not so healthy people,
27
e. disabled people,
28
All have driving license to perform their daily functions of life.

P a g e | 17
1
2
3
failure to state a claim will be denied unless it appears that the plaintiff can
prove no set of facts which would entitle it to relief. Federal Rules of Civil
Procedure do not require a claimant to set out in detail the facts upon which he
6
7
bases his claim. To the contrary, all the Rules require is "a short and plain
statement of the claim" that will give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it rests. Conley v Gibson, 355
10
US 41 (1957). All material allegations in the complaint will be taken as true and
11
construed in the light most favorable to the plaintiff. See NL Indus., Inc. v.
12
13
14
15
Kaplan, 792 F.2d 896, 898 (9th Cir.1986). Embury v. King, 191 F.Supp.2d 1071,
(N.D.Cal.2001) affirmed 361 F.3d 562 (9th Cir. 2004).
41. The district court erred by striking First amended complaint as plaintiff added
16
sixth cause of violation of due process. The Supreme Court has directed federal
17
trial courts to read pro se papers liberally. Hughes v. Rowe, 449 U.S. 5 (1980)
18
19
(per curiam). It would be a good use of discretion to grant leave to file the
20
complaint. Previously in a separate litigation involving plaintiff, the District
21
Court granted plaintiff leave to file Amended complaint without the need of
22
filing a Motion for leave of the Court. See Rehan Sheikh v Cisco Systems, No: C-
23
07-00262 RMW. (N.D. Cal. Aug. 10, 2007).
24
25
42. Defendants state law claims to collect money or fees, enforce any such state law
26
are NOT civil actions within original Jurisdiction of the district court. Neither
27
the district Court had supplementary Jurisdiction, nor it exercised
28
P a g e | 18
1
2
3
supplementary jurisdiction over state law claims within the scope of 28
U.S.C. 1367. The Court did a reversible error to rule on such matters without
exercising jurisdiction.
6
7
43. Defendants submitted a disguised Motion for Summary Judgment before the
District Court. Defendants artfully labeled the Motion for Summary Judgment
FRCP (56) as Motion to Dismiss FRCP 12(b)(6). Defendants motivation for their
10
11
12
13
14
Motion to Dismiss is to avoid Courts review on Plaintiffs Complaint.

44. The Court discussed controversial issues outside the scope of pleadings without
regard to federal rules; only for this reason, the dismissal must be reversed.
a. Defendants pleaded several statues outside the scope of plaintiffs
15
complaint. In its rulings, the Court engaged in a discussion on validity of
16
California Codes without giving any opportunity to plaintiff to argue his
17
Constitutional Rights.
18
19
20
21
b. The Court engaged in discussion dismissing the action against named

defendants without offering any opportunity to plaintiff.
c. Defendants submitted records and court took notice of record. The Court
22
engaged in discussion relevant to the record, outside the scope of
23
pleadings. Plaintiff did not have an opportunity to present his arguments.
24
25
26
45. One important purpose of the federal rules is to ensure predictable court
proceedings and preserve fairness. Compliance with the Federal Rules is a
27
28
P a g e | 19
1
2
3
matter of paramount importance. In the hearing the Court offered its guidance
on the fundamental importance of the Federal Rules (Transcript P5).
5
6
46. [Defendants Motion for Dismissal] although not formally denominated as a
request under FRCP (56), under Ninth Circuit precedent plaintiffs discovery
Motion was sufficient to raise the issue of whether he should be permitted
9
10
additional discovery. Hancock v. Montgomery Ward Long Term Disability Trust,
11
787 F.2d 1302 (9th Cir.1986). Garrett v. City of San Francisco, 818 F.2d 1515
12
(9th Cir. 1987).
13
14
15
16
47. Where waivers of a rule are not granted with consistency and no explanation is
given for the disparity of treatment, a finding of denial of equal protection may
be appropriate. This rule alone would suffice to keep the plaintiff in court at this
17
time as against the defendants' FRCP 12(b)(6) motion to dismiss for failure to
18
state a claim upon which relief can be granted. Where, as in this case, the
19
plaintiff contends that the defendants' actions promoted no legitimate state
20
interest and were without a rational basis, the plaintiff is entitled to an
21
22
23
24
opportunity to present specific facts in support thereof.. Louis v. Supreme Court

of Nevada, 490 F.Supp. 1174, (D.C. Nevada, 1980).
48. If the decision of the court below is allowed to stand, petitioner will lose his
25
driver's license and the use of his car. Justice demands and the Due Process
26
mandates that dismissal of this case be reversed.
27
28
P a g e | 20
1
2
3
d. The DMVs Arbitrarily Demand for Plaintiffs Driving, Written &
Medical tests constitutes violation of Equal Protection Clause
49. Defendants arbitrarily demand plaintiffs driving tests, written tests and
unspecified Medical tests. Defendants label all of those tests as
Reexamination.
8
9
50. Defendants demand that before taking Reexamination, plaintiff remove the
10
alleged Failure to Appear. Then defendants refuse to provide any hearing that
11
would remove that alleged Failure to Appear.
12
13
51. Defendants claim their ability to deny an individuals driving license even after
14
completing such a reexamination. Defendants stated in their brief (P 8);
15
If after completing the reexamination the DMV does not remove the
16
suspension form plaintiffs license, he may seek a judicial review.
17
52. Defendants excuses for arbitrarily demanding plaintiffs written, driving and
18
medical tests remain unsettled. Police issued traffic citation to plaintiff and
19
somehow police requested 3 the DMV for plaintiffs reexamination. Only
20
justification for reexamination is that because police said so. Police issues
21
22
millions of citations every year to California drivers, the defendants do not
23
demand all drivers to take driving and medical tests. Here police issued a traffic
24
25
26
reexamination. In their legal brief, defendants stated;
The defendants mention traffic citation issued by police as justification for polices request for
27
This police report is in reference to the notice of priority reexamination that
28
plaintiff received because of numerous traffic violations.[February 16, 2012]

P a g e | 21
1
2
3
citation to plaintiff and defendants arbitrarily demands plaintiffs driving and
medical tests. Police does not refer all drivers for such a reexamination when
police issues traffic citations. Police does not refer drivers for reexamination
6
7
even when drivers are involved in traffic accidents.
53. The defendants have refused a hearing that would determine polices interest for
requesting plaintiffs reexamination. Defendants have not demonstrated how
10
plaintiffs reexamination would make highways safer while it does not demand
11
such reexamination from individuals who are actually involved in auto
12
13
accidents. The city police that issued a request for plaintiffs reexamination, do
14
not respond to traffic accidents. If by chance, police officers are present at the
15
scene of an accident, they do not even issue a report.
16
17
18
19
54. Requiring driving and medical tests as a condition of issuing driving licensing is
at one end of the scale of the safety schemes. Requiring driving and medical tests
only from arbitrarily identified individuals as a precondition of license renewal,
20
is at the other end of the scale. The federal courts are concerned when such
21
requirements are not applied to all applicants.
22
A state cannot exclude a person from [driving license] in a manner or for
23
reasons that contravene the due process or equal protection clauses.
24
Schware v. Board of Bar Examiners, 353 U.S. 232 (1957).
25
55. In the oral arguments, the Court stressed the need of a hearing that would
26
establish the justification for such a Reexamination.
27
The Court: As to the reexamination what opportunity, if any, does a driver have
28
P a g e | 22
1
2
3
to contest the need for the reexamination?
Office of Attorney General: Theres -- from the statutory framework that Ive
reviewed, Your Honor, none. The
The Court: But when it comes to the reexaminations, you know, if I am issued
7
8
this notice for a reexamination -- and Im making this up, right? But in a
hypothetical case, if Im issued it because, you know, someone doesnt like the
way Im dressed, right, I shouldnt have to take that reexamination. It seems to
me that I should be able to get to a hearing officer, even if its just one of those
10
telephone things the DMV does in some contexts, to say hey, this was given to
11
me not because of anything I was doing as a driver that indicates my driving
12
skills need to be tested, but because this person didnt like the way I was
13
dressed, didnt like the political slogan on my t-shirt. Doesnt due process require
14
that I have an opportunity to make that argument and try to convince someone
15
that I shouldnt have to retake the test?
16
17
18
19
Office of Attorney General: Potentially under the facts that you just -- without
conceding anything, Your Honor -- under the facts that you presented.
56. Plaintiff contested defendants arbitrary demand for re-examination before DMV
on or around March 26, 2012 and requested an administrative hearing. The
20
DMV denied an administrative hearing and demanded that plaintiff submit to
21
re-examination as a pre-condition for his request for administrative hearing.
22
57. Defendants demand for plaintiffs reexamination is based on their supposition
23
that somehow plaintiff cannot drive a car. Rather than proving their claim, for
24
25
their convenience, defendants rely on their supposition that plaintiff cannot
26
drive a car.
27
a. Due Process Clause of the Constitution mandates a similar result here.
28
P a g e | 23
1
2
3
4
5
6
7
8
9
[The defendants] insists on presuming rather than proving [Plaintiffs]

unfitness solely because it is more convenient to presume than to prove.
Reno v Flores, 507 U.S. 292 (1993).
b. The Supreme Court has unambiguously clarified such issue in cases; Bell
v Burson, 402 U.S. 535 (1971) and Stanely v Illinois, 405 US 645 (1972).
The State could not, while purporting to be concerned with fault in
suspending a driver's license, deprive a citizen of his license without a
10
hearing that would assess fault. Absent fault, the State's declared interest
11
was so attenuated that administrative convenience was insufficient to excuse
12
a hearing where evidence of fault could be considered.
13
58. Plaintiff requests this Court for a Declaratory Relief that the DMVs arbitrary
14
demand for plaintiffs written, driving and medical tests constituted violation of
15
Due Process Clause and constituted violation of Equal Protection Clause.
16
17
18
19
20
21
e. Suspension of Plaintiffs Driving License without Hearing

constituted Violation of the Due Process Clause
59. The DMV sent an Order of Suspension and deprived plaintiff of his driving
22
license without any pre deprivation hearing and it continues to deny all request
23
for any post deprivation hearing. At the time DMV suspended plaintiffs driving
24
license, there was no court order that mandated such suspension.
25
26
27
28
60. The fundamental requirement of due process is the opportunity to be heard and
it is an "opportunity which must be granted at a meaningful time and in a
meaningful manner." Armstrong v. Manzo, 380 US 545 (1965). At the time
P a g e | 24
1
2
3
defendants suspended plaintiffs driving license, there was no emergency that
mandated suspension of plaintiffs driving license. Plaintiff never had an
opportunity to appear before any hearing officer to restore his driving license.
6
7
"[T]he Due Process Clause of the Fourteenth Amendment was intended to
prevent government `from abusing [its] power, or employing it as an
instrument of oppression."
10
11
12
13
14
15
16
17
18
19
Collins v. City of Harker Heights, 503 U.S. 115 (1992).

61. Such a suspension immediately deprived plaintiff of his driving license in
violation of Due Process clause of the Fourteenth Amendment. The Ninth Circuit
Court of Appeals has previously held that;
Temporary, non final deprivation of property is nonetheless deprivation
subject to due process requirements of Fourteenth Amendment.
Perkins v. City of West Covina, 113 F.3d 1004 (9th Cir. 1997)
62. In order to avoid erroneous deprivation, the Ninth Circuit Court of Appeals
issued strict guidelines and stated;
20
to satisfy procedural due process, a deprivation of life, liberty, or property
21
must be "preceded by notice and opportunity for hearing appropriate to
22
the nature of the case." Cleveland Board of Education v. Loudermill, 470
23
U.S. 532, (1985) ; In re Yochum, 89 F. 3d 661 (9th Cir. 1996).
24
63. Plaintiff requests this Court for a Declaratory Relief that suspension of
25
plaintiffs driving license without pre deprivation and without post deprivation
26
hearing constituted violation of the Due Process Clause.
27
28
P a g e | 25
1
2
3
VI.CONCLUSION
64. The DMV sent a 30 day notice to suspend plaintiff driving license for an alleged
5
6
7
Failure to Appear (FTA). Plaintiff timely attended the County Court but DMV
continued to suspend plaintiffs driving license. Despite plaintiff submitted a
proof of his attendance at the county court, the DMV continued to allege an FTA.
The DMV never offered any process to challenge suspension of driving license.
10
11
12
13
14
15
65. Plaintiff filed a complaint with the District Court. The Court dismissed
plaintiffs complaint. In the district court proceedings, the court recognized the
importance of driving license but the court did not analyze if the DMV has an
obligation to provide a hearing on suspension of plaintiffs driving license.
66. A short and plain statement of plaintiffs claim is chilling:
16
The Department of Motor Vehicles (DMV) suspended plaintiffs driving license
17
without any court order and without assessing plaintiffs fault, the DMV
18
19
continues to deny any hearing that would assess plaintiffs fault, and despite
20
plaintiffs enormous efforts, DMV continues to suspend plaintiff driving license
21
for years. Plaintiff has no opportunity to restore his driving license.
22
23
67. The United States Courts have recognized peoples fundamental Rights in their
driving license and have mandated Constitutional Due Process for deprivation of
24
25
driving license. Respectfully, Plaintiff asks the Ninth Circuit Court of Appeals to
26
grant such protection to plaintiffs driving license.
27
28
P a g e | 26
1
2
3
VII.
68. Plaintiff respectfully Prays before the Ninth Circuit Court of Appeals that;
5
6
7
8
9
10
PRAYER
a. The Court mandate the DMV to offer a hearing on suspension of plaintiffs

driving license
b. The Court issue a Preliminary Injunction to restore plaintiffs driving
license
c. The Court remand this matter to the district court for further proceedings.
11
12
Respectfully Submitted;
13
14
15
/s/ Rehan Sheikh
16
17
18
Date: January 2, 2015
---------------------------------Rehan Sheikh
Plaintiff
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20
21
22
23
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25
26
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P a g e | 27

California Continues To Suspend Drivng License Without Due Process - Brief Filed in The The Ninth Circuit Court of Appeals

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Case: 14-16858, 01/02/2015, ID: 9367955, DktEntry: 2, Page 1 of 35

Rehan Sheikh, Pro Se

FOR THE NINTH CIRCUIT

Magistrate Judge Hon. Allison Claire

District Court: 2: 14 CV- 7 5 1 GEB AC

Case: 14-16858, 01/02/2015, ID: 9367955, DktEntry: 2, Page 2 of 35

A. The Department of Motor Vehicles (DMV) suspended plaintiffs driving license

Clause, to provide a hearing on suspension of plaintiffs driving license?

reexamination for renewal of license or even when individuals are involved in

justification for its demand.

consistent with Equal Protection and Due Process Clauses?

Case: 14-16858, 01/02/2015, ID: 9367955, DktEntry: 2, Page 3 of 35

STATEMENT OF CASES.................................................................................................. vii

The DMV Suspended Plaintiffs Driving License without Hearing ....................... 8

Defendants Notices of Denial remain inconsistent .................................................. 10

The Rights involved in this Litigation are Significant ............................................... 13

Plaintiff Continues to suffer irreparable harm............................................................. 16

The District Court Erred by dismissing Plaintiffs Complaint ................................ 17

constitutes violation of Equal Protection Clause .................................................................... 21

Suspension of Plaintiffs Driving License without Hearing constituted Violation

of the Due Process Clause............................................................................................................. 24

VII. PRAYER ................................................................................................................................ 27

Case: 14-16858, 01/02/2015, ID: 9367955, DktEntry: 2, Page 4 of 35

Aptheker v. Secretary of State,

Collins v. City of Harker Heights,

Case: 14-16858, 01/02/2015, ID: 9367955, DktEntry: 2, Page 5 of 35

818 F.2d 1515 (9th Cir. 1987) ............................................................................................... 20

Orr v. Superior Court,

Case: 14-16858, 01/02/2015, ID: 9367955, DktEntry: 2, Page 6 of 35

Schware v. Board of Bar Examiners,

Case: 14-16858, 01/02/2015, ID: 9367955, DktEntry: 2, Page 7 of 35

28 U.S.C. 1291 ............................................................................................................................... 1

28 U.S.C. 1367 ............................................................................................................................. 19

42. U.S.C. 1983 .............................................................................................................................. 7

FRCP (56) .............................................................................................................................. 6, 19, 20

FRCP 12(b)(6) ............................................................................................................................. 6, 19

Equal Protection Clause........................................................................................................... 6, 24

Fifth Amendment ...................................................................................................................... 9, 13

Fourteenth Amendment ................................................................................................... 13, 14, 25

Case: 14-16858, 01/02/2015, ID: 9367955, DktEntry: 2, Page 8 of 35

II. STATEMENT OF CASES

Plaintiff and plaintiffs spouse are parties in the following cases;

1) Farzana Sheikh MD v Medical Board of California

Case Number: 2:10 CV 213 FCD - GGH

Case: 14-16858, 01/02/2015, ID: 9367955, DktEntry: 2, Page 9 of 35

Plaintiff submits this appeal on final dismissal of his complaint by Eastern

1. The Department of Motor Vehicles (DMV) issued an unsigned & anonymous

order dated December 5, 2011, and suspended plaintiffs driving license

request any administrative hearing to challenge the suspension.

appear and did not restore plaintiffs driving license.

3. During January, February and March 2012 plaintiff requested defendants to

driving license without a written Notice of Denial. Further, defendants denied

plaintiffs requests for post deprivation hearing.

Case: 14-16858, 01/02/2015, ID: 9367955, DktEntry: 2, Page 10 of 35

Complaint adding a sixth cause of violation of Due Process.

a. Defendants arbitrarily and intermittently demand that plaintiff take

written test, driving test and submit to unspecified medical tests.

Defendants stated that even if plaintiff passes those unspecified medical

tests, defendants are not obligated to restore his driving license.

appeared [Defendants Reply in support of Motion to Dismiss, Page 3,

Line 12]. Defendants invited plaintiff to submit proof. [Defendants Reply

in support of Motion to Dismiss, Page 6, Line 2]

7. Plaintiff submitted his affidavit (Docket#41) with specific dates that he