UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JEHAN ZEB MIR, MD, Plaintiff, -against- 1:19-CV-6374 (LLS) HOWARD ZUCKER, M.D., Current ORDER OF DISMISSAL Commissioner N.Y. Department of Health-In Individual & Official Capacity, et al., Defendants. LOUIS L. STANTON, United States District Judge: On November 1, 2019, Chief Judge Colleen McMahon dismissed this pro se action, but granted Plaintiff, who has paid the relevant fees, leave to replead his claims in an amended complaint to be filed within 30 days. On December 4, 2019, Chief Judge McMahon granted Plaintiff a 45-day extension of time. Plaintiff filed his amended complaint on January 22, 2020, along with a “Memorandum in Support of Filing First Amended Complaint” (“memorandum”). (ECF 7 & 8.) On February 10, 2020, Plaintiff filed a consent to receive electronic service of Court documents (ECF 9), a motion for permission for electronic case filing (ECF 10), and a letter in which he requests to appear before the Court “before [it] takes any further adverse action” (ECF 11, at 2), which the Court construes as a request for oral argument. On March 31, 2020, this action was reassigned to the undersigned. In his amended complaint, Plaintiff asserts claims under 42 U.S.C. § 1983 that the defendants violated his federal constitutional rights, as well as claims under state law.^[1] He seeks damages and both preliminary and permanent injunctive relief.

1 Plaintiff asserts claims under state law under both the Court’s diversity and supplemental jurisdiction. But because Plaintiff is a citizen of California, and sues other citizens of California, the parties are not diverse. See 28 U.S.C. § 1332(a). The Court therefore In his memorandum, Plaintiff argues (1) “there is no immunity for performing ‘ministerial acts’ and in Section 1983 action for injunctive relief and under the Eleventh Amendment for violation of federal law,” (2) the doctrine of issue preclusion does not apply to this action, and (3) the doctrine of claim preclusion does not apply to this action. (ECF 8, at 2.)

For the reasons discussed below, the Court dismisses this action. STANDARD OF REVIEW The Court has the authority to dismiss a complaint, even when the plaintiff has paid the relevant fees, if it determines that the action is frivolous, see Fitzgerald v. First E. Seventh Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000), or that the Court lacks subject-matter jurisdiction, see Fed. R. Civ. P. 12(h)(3); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). Courts can also dismiss a complaint, or portion thereof, for failure to state a claim on which relief may be granted after giving the plaintiff notice and an opportunity to be heard. Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994). The Court is obliged, however, to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in original). BACKGROUND A. The November 1, 2019 order In her November 1, 2019 order, Chief Judge McMahon recounted Plaintiff’s previous pro se civil actions in this Court in which he challenged California and New York officials’ efforts to

understands Plaintiff’s amended complaint as asserting claims under state law solely under the Court’s supplemental jurisdiction. See 28 U.S.C. § 1367(a). revoke his California and New York medical licenses; those actions are: (1) Mir v. Shah, 1:11- CV-5211 (“Mir I”), in which Plaintiff challenged his then-pending New York administrative medical disciplinary proceeding, and (2) Mir v. Bogan, No. 1:13-CV-9172 (“Mir II”), in which Plaintiff sought monetary relief from those California and New York officials who, by then, had

revoked his California and New York medical licenses. (ECF 3, at 2-4.) Chief Judge McMahon then dismissed, under the doctrine of issue preclusion, Plaintiff’s federal claims in this action against the New York officials who either prosecuted Plaintiff in his New York medical disciplinary proceeding, presided over that proceeding, revoked his New York medical license in or about January 2013, or enforced that revocation. (Id. at 7-10.) She did so because previously, in Mir II, District Judge Paul G. Gardephe of this Court held that the New York officials were immune from suit, and Plaintiff was therefore precluded from suing those same defendants and relitigating the issue of their immunity in this action. (See id.) Chief Judge McMahon also held that even if issue preclusion did not bar Plaintiff’s claims against the New York officials, she would still dismiss Plaintiff’s § 1983 claims against them because, under the

doctrine of absolute judicial immunity, they are immune from suit for damages and injunctive relief in their individual capacities, and under the doctrine of Eleventh Amendment immunity, they are immune from suit for damages in their official capacities. (Id. at 10 n.9.) Chief Judge McMahon further dismissed, under the doctrine of claim preclusion, Plaintiff’s federal claims in this action against those California officials whom Plaintiff sued in Mir II, and their successors, who were either involved in the medical disciplinary proceedings that resulted in the revocation of Plaintiff’s California medical license, enforced the revocation, reported the revocation to New York officials, or have the authority to reinstate Plaintiff’s California medical license. (Id. at 10-13.) She did so because Plaintiff was asserting, in this action, claims that he either did assert or could have asserted against the California officials in Mir II, and because Judge Gardephe adjudicated Plaintiff’s claims against those officials on the merits in Mir II. (See id. 12-13.) In addition, Chief Judge McMahon dismissed, under the doctrine of absolute witness

immunity, Plaintiff’s remaining claims against any individual who testified or otherwise gave evidence in Plaintiff’s California medical disciplinary proceedings. (Id. at 13-14.) She dismissed Plaintiff’s claims under 42 U.S.C. § 1981 against any private entities because he failed to allege any facts suggesting that those entities had discriminated against him because of his race, ancestry, or ethnic characteristics. (Id. at 14.) And she dismissed Plaintiff’s claims of conspiracy under 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3), and his associated claims under 42 U.S.C. § 1986 because Plaintiff failed to allege sufficient facts to state those claims. (See id. at 14-15.) Because Chief Judge McMahon dismissed all of Plaintiff’s federal claims, she declined to exercise supplemental jurisdiction over his claims under state law. (Id. at 15.)2 Chief Judge McMahon dismissed this action in its entirety, but granted Plaintiff leave to

replead his claims in an amended complaint. (See id. at 15-16.) B. The amended complaint and Plaintiff’s legal arguments Plaintiff names as defendants in his amended complaint some of the same individuals that he named in his original complaint (or the successors of those individuals) – the California and New York officials who either presided over or prosecuted Plaintiff’s California or New York medical disciplinary proceedings, revoked Plaintiff’s California and New York medical licenses, enforced either revocation, or reported the California revocation to New York officials and

2 Plaintiff attempted to assert his claims under state law under the Court’s diversity jurisdiction. But because he did not allege that the parties were diverse, the Court could only consider those claims under its supplemental jurisdiction. (See ECF 3, at 1 n.2.) others, as well as individuals who either testified or gave other evidence during Plaintiff’s California medical disciplinary proceedings, and his former employers (hospitals), supervisors, and coworkers. Plaintiff seeks preliminary and permanent injunctive relief. He asks the Court to reinstate

his California and New York medical licenses, and to enjoin the defendants who are California and New York medical officials from enforcing their revocations of those licenses. He also seeks damages. He asserts claims under 42 U.S.C. § 1983 that the defendants violated his federal constitutional rights. Plaintiff additionally purports to assert claims under 18 U.S.C. § 1851 (a statute addressing coal depredations) and states that the defendants have intentionally interfered with interstate commerce. (ECF 7, at 121-22.) He further asserts claims under state law. Plaintiff alleges that the California and New York officials revoked his California and New York medical licenses without providing him notice or a hearing. He also alleges that newly discovered information will exonerate him and warrant the reinstatement of his California and New York medical licenses. He asserts that Chief Judge McMahon did not correctly apply the

law when she dismissed this action. The Court can construe Plaintiff’s amended complaint as asserting claims under 42 U.S.C. §§ 1983, 1985(3), and 1986, and under state law. Plaintiff argues in his memorandum that the California and New York officials are not immune, under the Eleventh Amendment, from suit for his claims under § 1983, including his claims for injunctive relief. He specifically argues that the California officials are not immune from suit for his claims arising from those officials’ acts of “falsely” reporting the revocation of his California medical license to “the National Data Bank” and to New York officials. (ECF 8, at 13-19.) He also specifically argues that the New York officials are not immune from suit for his claims arising from those officials’ acts of “falsely” reporting the revocation of his New York medical license to “the National Data Bank,” and to California and Pennsylvania officials. (Id.) He further argues that the doctrines of issue preclusion and claim preclusion do not bar his claims in this action. (Id. at 19-30.) DISCUSSION In his amended complaint, Plaintiff asserts the same claims that he asserted in his original

complaint. His memorandum is essentially an attempt to seek reconsideration of Chief Judge McMahon’s November 1, 2019 order. For the reasons discussed below, Plaintiff’s legal arguments are without merit, and this action must be dismissed. A. Plaintiff’s claims against the New York officials In Mir II, Judge Gardephe dismissed Plaintiff’s claims for damages against those New York officials who conducted Plaintiff’s New York medical disciplinary proceeding, in their individual capacities, on the grounds that those defendants were protected by the doctrine of absolute judicial immunity. See Mir II, No. 13-CV-9172, 2015 WL 1408891, at[*10] -18 (S.D.N.Y. Mar. 26, 2015), aff’d, 668 F. App’x 369 (2d Cir. 2016) (summary order). In the present action, Chief Judge McMahon dismissed Plaintiff’s claims against the New York

officials as barred under the doctrine of issue preclusion, also known as collateral estoppel, because “Judge Gardephe’s previous adjudication in Mir II that the New York Defendants (or their predecessors) are immune from suit from damages was an adjudication on the merits of that issue for the purpose of applying the doctrine of issue preclusion.” (ECF 3, at 7-10.) In his amended complaint, Plaintiff again names those New York officials (or their successors or predecessors), and in his memorandum, he argues that those defendants are not immune, and that the doctrine of issue preclusion does not bar him from relitigating the issue of their immunity. Specifically, he argues that in this action, the doctrine of issue preclusion does not apply to his claims for injunctive relief against the New York officials because in Mir II, Judge Gardephe held that the New York officials were only immune from suit for damages. (See ECF 8, at 20-21.) He also argues that because Judge Gardephe did not give him a chance in Mir IT to amend his complaint to seek injunctive relief against the New York officials, he was denied a full and fair proceeding in that action, and therefore, issue preclusion should not bar his claims for injunctive relief against the New York officials in this action. (See id. at 22.) He further argues that new information prevents issue preclusion from barring his claims against the New York officials. (See id. at 21-22.) The New York officials are, however, immune from suit. And the doctrine of issue preclusion bars Plaintiff from relitigating the issue of their immunity.

capacities did not bar, under res judicata, the plaintiff's present claims against those officials in their individual capacities because the plaintiff could have asserted those claims in the previous action).

30, 2018). And it is clear that if he did not assert claims arising from their “ministerial acts” in Mir II, he could have done so. See Pike, 266 F.3d at 91. Thus, even if issue preclusion did not bar relitigation of the issue of the New York officials’ immunity from suit, the doctrine of claim preclusion bars Plaintiff from asserting claims in this action against those officials arising from

the revocation of his New York medical license and the enforcement of that revocation, including any claims arising from their “ministerial acts.” See Brown Media Corp., 854 F.3d at 157. Thus, there is no need to discuss those officials’ immunity from suit under the Eleventh Amendment. D. Claims under state law A district court may decline to exercise supplemental jurisdiction over claims under state law when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction . . . .” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (footnote omitted). Having dismissed the claims over which the Court has original jurisdiction – Plaintiff’s claims

under federal law – the Court declines to exercise its supplemental jurisdiction over any claims under state law Plaintiff may be asserting. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts can refuse its exercise.’” (quoting City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997))). E. Warning In the November 1, 2019 order, Chief Judge McMahon recounted Plaintiff’s previous unsuccessful attempts to have this Court (1) intervene in Plaintiff’s then-pending New York medical disciplinary proceeding (Mir I), and later, (2) grant him monetary relief against the California and New York officials who, by then, had revoked his medical licenses (Mir II). (ECF 3, at 2-4.) The present action constitutes Plaintiff’s third attempt to have this Court call into question the California and New York medical disciplinary proceedings and the resultant medical-license revocations.

Plaintiff is, of course, entitled to appeal this order of dismissal. But while it remains in effect, he is not entitled to begin new litigation challenging the immunity of the defendants from the claims he asserts. Accordingly, the Court warns Plaintiff that if he files another civil action in this Court arising from the administrative proceedings that resulted in the revocation of his California or New York medical licenses, the revocation of either of those licenses, or the enforcement of either of those revocations, the Court may issue an order barring him from filing any future civil action in this Court arising from those events without first obtaining from the Court leave to file. See 28 U.S.C. § 1651. CONCLUSION Plaintiff has consented to electronic service of Court documents. (ECF 9.)

The Court grants Plaintiff’s motion for permission for electronic case filing. (ECF 10.) The Court dismisses this action. Because Plaintiff asserts in his amended complaint the same claims that he asserted in his original complaint, the Court dismisses his federal claims for failure to state a claim on which relief may be granted and as frivolous. The Court declines to consider, under its supplemental jurisdiction, any of Plaintiff’s claims brought under state law. 28 U.S.C. § 1367(c)(3). The Court therefore denies all other pending requests as moot. (ECF 11.) SO ORDERED. Dated: April 28, 2020 New York, New York Louis L. Stanton U.S.D.J.