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denying motion for a TRO where the "Complaint and Motion . . . provide vague, conclusory allegations, rather than specific facts or evidence" as to a certain claim and fail to provide "sufficient information for the court to evaluate [plaintiff's] remaining theories"
Summary of this case from Taimani v. Residential Mortg. Loan Tr. 2013-Tt2Opinion
No. 2:15-cv-02154-KJM-CKD
11-23-2015
HOLCOMB, Plaintiff, v. CALIFORNIA BOARD OF PSYCHOLOGY, et al., Defendants.
ORDER
This matter is before the court on plaintiff Peggy Holcomb's Motion for Temporary Restraining Order barring the California Board of Psychology from continuing to withhold her license to practice psychology. ECF No. 21. As explained below, the court DENIES plaintiff's motion.
I. BACKGROUND
A. Licensing Background
The following facts are based on a review of the unverified Complaint, ECF No. 1, plaintiff's declaration, Holcomb Decl., ECF No. 21-2, and plaintiff's Motion for a Temporary Restraining Order and Brief in support thereof, ECF Nos. 21 & 21-1, and given the state of the record give plaintiff the benefit of the doubt as to certain facts. Plaintiff earned a Master's of Science in Psychology from California State University Sacramento in January 1999. Compl. ¶ 8, ECF No. 1 ("Compl."); ECF No. 21-1 at 2. She became a Licensed Educational Psychologist (LEP) in California on July 1, 2002, license Number 2586. Compl. ¶¶ 9, 18; ECF No. 21-1 at 2. An LEP is a master's degree license under the authority of the Board of Behavioral Sciences. ECF No. 21-1 at 2. Plaintiff worked as a school psychologist at the San Juan School District from 2000 until June 2012, eventually serving as the lead school psychologist for the autism team in the district. Compl. ¶ 8. Plaintiff then worked at the Twin Rivers School District from October 2013 until November 2014. Id. The complaint alleges that in the time plaintiff worked as an educational psychologist, she conducted approximately 4,500 evaluations and never had any adverse action taken against her. Id. ¶¶ 9, 18. Plaintiff's declaration says she has evaluated more than 2,500 children. Holcomb Decl. ¶ 3, ECF No. 21-2. She also avers she is the "only school psychologist in the nation who participated in the DSM5." Id. Through her work, plaintiff often testified against Alta Regional Center in proceedings that resulted in rulings ordering Alta to provide educational services for a particular student with disabilities. Compl. ¶¶ 11, 16; Holcomb Decl. ¶ 5, ECF No. 21-2.
Given the procedural history of this case so far, and the state of the current filings, it appears to the court that plaintiff's counsel, despite the credentials he holds out, is not familiar with the requirements imposed by the Federal Rules of Civil Procedure, this court's Local Rules, and federal law generally with respect to temporary injunctive relief. He may wish to consult with counsel who has the expected familiarity if he proceeds with litigation of this case.
Plaintiff decided to pursue a doctoral degree and license of psychology, which is under the authority of the California Board of Psychology (BOP). See ECF No. 21-1 at 2. An applicant must fulfill a number of requirements to become eligible for BOP licensure as a psychologist. See Cal. Bus. & Prof. Code § 2914, et seq. Plaintiff completed her pre-doctoral hours in July 2011, and completed her post-doctoral hours in May 2013. Compl. ¶ 28. She earned a doctoral degree in Clinical Psychology from the Fielding Institute of Graduate Studies in June 2013. ECF No. 21-1 at 4. She eventually met the education, experience, fingerprint and pre-licensure coursework requirements for licensure. See Ex. E, ECF No. 1-2; Holcomb Decl. ¶ 9, ECF No. 21-2. On July 1, 2013, plaintiff filed an application for licensure with the BOP. Compl. ¶ 27. Plaintiff passed the Examination for Professional Practice in Psychology (EPPP) on July 27, 2014. Id. ¶ 28; Holcomb Decl. ¶ 9, ECF No. 21-2. She took the California Psychology Law and Ethics Exam (CPLEE) on July 6, 2015, Compl. ¶ 33, and was told she had received a passing score on August 3, 2015, Holcomb Decl. ¶¶ 9-10, ECF No. 21-2; ECF No. 21-1 at 5.
On August 6, 2015, Audrey Watkins, an employee of the BOP, informed plaintiff that her license was ready and that she could pick it up from the BOP office. Compl. ¶ 25. Ms. Watkins told plaintiff she would print the actual license, but then told plaintiff she could not find the passing score on the California exam. Id.; Holcomb Decl. ¶ 10, ECF No. 21-2.
B. Denial of License
In or about July 2015, Cynthia Root, Ph.D., a psychologist employed by Alta Regional Center, obtained two reports prepared by plaintiff on patient John Doe, a minor. See Compl. ¶ 14; see also Ex. A, ECF No. 1-2. Based on the reports, Dr. Root filed a complaint with the California Board of Behavioral Sciences against plaintiff. Compl. ¶¶ 12-13; see Ex. A, ECF No. 1-2. The case before the Board of Behavioral Sciences is currently pending. See ECF No. 21-1 at 7. According to plaintiff, Dr. Root alleged the following:
1) Dr. Holcomb acted outside the scope of her license in conducting an evaluation of patient Doe;Compl. ¶ 12; see Ex. A, ECF No. 1-2. Plaintiff asserts that Licensed Educational Psychologists, such as herself, have the authority to conduct psychometric testing and to use DSM5 diagnoses. Compl. ¶ 43. Plaintiff alleges that Dr. Root maliciously filed the complaint "as part of a conspiracy by Alta Regional Center, Dr. Root and others to silence Dr. Holcomb and her advocacy for educational services for those children suffering from Autism." Id. ¶ 16.
2) The evaluation was inappropriate because Dr. Holcomb used DSM5 coding;
3) The evaluation was somehow not proper because it was somehow not about the educational needs of the patient;
4) Dr. Holcomb inaccurately represented her credentials in the reports; and
5) There is a question why Dr. Holcomb provided two reports in four months to Alta Regional Center.
At some point, Cynthia Root and Alta Regional Center sent the two reports prepared by plaintiff on patient John Doe to the BOP, in violation of HIPAA. Id. ¶¶ 14, 37; ECF No. 21-1 at 6. Without any notice or opportunity to respond, the BOP sent plaintiff's file from its licensing department to its enforcement department and concluded that her application should be denied. Compl. ¶¶ 37, 41. On August 27, 2015, the BOP's Enforcement Program Manager, Sandra Monterrubio, sent plaintiff a letter denying her application for licensure as a psychologist, with reference to California Business and Professions Code "section 489(3)(A)." Id. ¶ 38; ECF No. 21-1 at 6. The letter offered plaintiff a hearing under California Government Code section 11500, et seq. See Compl. ¶ 38; ECF No. 21-1 at 6. Plaintiff asserts that Ms. Monterrubio misinterpreted the law by offering plaintiff the hearing procedures for an applicant, rather than those required for individuals who already have a license. Compl. ¶¶ 38-43.
As noted below, there is no such section of the Business and Professions Code.
Plaintiff further alleges that plaintiff's counsel received a threatening e-mail from a special investigator for the BOP on or around October 9, 2015, which interfered with plaintiff's Sixth Amendment right to counsel. Id. ¶¶ 81-85; ECF No. 21-1 at 7.
C. Irreparable Harm
On November 25, 2014, plaintiff entered into a contract with the state of California to perform services in the Department of Juvenile Justice, which is a part of the California Department of Corrections and Rehabilitation. Holcomb Decl. ¶ 12, ECF No. 21-2. One condition of the contract was that plaintiff would become fully licensed as a psychologist within one year, by November 25, 2015. Id. Plaintiff claims absent a temporary restraining order, she will lose her job and will be unable to find other employment due to her age. See ECF No. 21-1 at 12; Compl. ¶ 93. As a result, she will be unable to pay for the necessities of life, because she is the sole provider for her family; her husband is disabled and she supports her daughter and provides financial support for grandchildren. See Holcomb Decl. ¶ 12; ECF No. 21-1 at 2, 11- 15. The motion briefing also argues she will suffer emotional harm, reputational damages, and injuries to her health, including from the release of Cortisol in the bloodstream. ECF No. 21-1 at 12. Her declaration does not reference Cortisol.
D. Procedural History
On October 14, 2015, plaintiff filed a complaint requesting declaratory relief, the return of the files for John Doe to the parents, a temporary restraining order restraining the BOP from withholding plaintiff's license, an order taking the BOP into federal receivership, damages, costs, and attorneys' fees. ECF No. 1. The complaint asserts seven causes of action: violation of procedural due process based on 42 U.S.C. § 1983; age discrimination based on § 1983; violation of substantive due process based on § 1983; violation of right to association under the First Amendment; conspiracy to violate plaintiff's rights; intentional infliction of emotional distress; and interference with right to counsel under the Sixth Amendment. Id.
On October 16, 2015, plaintiff filed a motion for temporary restraining order and preliminary injunction. ECF No. 4. On October 19, 2015, the court denied plaintiff's motion without prejudice for failure to provide the required documents in compliance with Local Rule 231(c). ECF No. 7. On November 6, 2015, plaintiff moved ex parte for an order that service of process be effected by a United States marshal, ECF No. 9, which the court granted on November 10, 2015, ECF No. 12.
On November 13, 2015, plaintiff again moved ex parte for a temporary restraining order. ECF No. 13. On November 17, 2015, the court again denied plaintiff's motion for failure to provide the required supporting documents. ECF No. 17. The court ordered that any renewed motion for temporary restraining order be filed no later than close of business on November 19, 2015, and include the required supporting documents. Id. On November 19, 2015, plaintiff filed the renewed motion for temporary restraining order that is before the court. ECF No. 21. Plaintiff and plaintiff's counsel each now have submitted a declaration in support of the motion. ECF Nos. 21-2, 21-3. The motion appears to seek an order restraining the BOP from withholding plaintiff's psychology license, which she contends she has effectively obtained.
II. LEGAL STANDARD
Because plaintiff seeks a temporary restraining order against the BOP, the court analyzes her request as such, although it is unclear that a temporary restraining order is actually the relief plaintiff requires - as opposed to a writ or some other form of order -- even if she were to prevail.
A temporary restraining order may be issued upon a showing "that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Fed. R. Civ. P. 65(b)(1)(A). In determining whether to issue a temporary restraining order, a court applies the factors that guide the evaluation of a request for preliminary injunctive relief: whether the moving party "is likely to succeed on the merits, . . . likely to suffer irreparable harm in the absence of preliminary relief, . . . the balance of equities tips in [its] favor, and . . . an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (stating that the analysis for temporary restraining orders and preliminary injunctions is "substantially identical"). The Supreme Court has characterized injunctive relief "as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter, 555 U.S. at 22.
III. DISCUSSION
A. Irreparable Harm
Plaintiff contends she will suffer irreparable harm if the temporary restraining order is not granted because she will lose her job at the California Department of Juvenile Justice if she does not receive her license to practice psychology by November 25, 2015. Holcomb Decl. ¶ 12, ECF No. 21-2; ECF No. 21-1 at 11-15. As noted, plaintiff alleges she is the sole provider for her family, and would not be able to find alternative employment due to her age. See Compl. ¶ 93; ECF No. 21-1 at 2, 14. As a result, if the court does not issue a temporary restraining order, plaintiff's brief argues she would be unable to pay for the necessities of life and may become homeless. ECF No. 21-1 at 12, 14.
Although the economic harm plaintiff alleges is severe, she has not provided factual support showing a likelihood that it will occur. See Winter, 555 U.S. at 22 (irreparable injury must be likely in the absence of an injunction). Plaintiff's complaint alleges she would be unable to find alternative employment because she is fifty years old, Compl. ¶ 93, but she is a Licensed Educational Psychologist with extensive experience and prior to her current job enjoyed employment as a school psychologist at the Twin Rivers School District from October 2013 until November 2014, see id. ¶ 8. Nothing before the court supports the conclusion that plaintiff is being blackballed such that, despite the credentials she presents, she has been rendered unemployable. Additionally, plaintiff's brief describes her expenses but neither it nor her declaration provides specific financial information showing that plaintiff would be unable to pay for the necessities of life before obtaining alternative employment. See ECF No. 21-1 at 14. Without such a showing, the court cannot conclude any harm plaintiff would suffer could not be compensated through monetary damages. Cf. Sampson v. Murray, 415 U.S. 61, 90, 92 n.68 (1974) (holding plaintiff's discharge from governmental job does not constitute irreparable harm, and explaining "the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury"). Plaintiff's brief itself cites case law holding that a plaintiff must demonstrate that the injury is actual and imminent, rather than remote or speculative. ECF No. 21-1 at 15-16. The court finds plaintiff has not shown she likely will suffer actual, imminent irreparable harm as a result of the loss of income.
Plaintiff likewise provides no factual support showing she is likely to suffer irreparable reputational or emotional harm. Cf. Sampson, 415 U.S. at 91 (holding humiliation and reputational damage caused by discharge from job do not constitute irreparable harm). Her declaration makes only a very general statement that she is "utterly devastated" by the recent turn of events. Holcomb Decl. ¶ 12, ECF No. 21-2. Her brief is no more detailed, and despite the court's warning in its previous order, plaintiff's counsel again argues, without citation to authority, that the release of Cortisol into the bloodstream constitutes irreparable harm, ECF No. 21-1 at 12. See also ECF No. 7 at 3 n.1 (quoting Fed. R. Civ. P. 11).
For the foregoing reasons, the court concludes plaintiff has not satisfied the irreparable harm requirement for preliminary relief. See Fed. R. Civ. P. 65(b)(1)(A); Winter, 555 U.S. at 20.
B. Likelihood of Success on the Merits
Plaintiff also has not met her burden of showing likelihood of success on the merits. While plaintiff's legal arguments are not entirely clear, her motion appears to advance five legal theories: (1) her evaluations of John Doe and use of a DSM5 diagnostic code were within the scope of her license as a Licensed Educational Psychologist, see ECF No. 21-1 at 13; (2) Dr. Root and the BOP engaged in a conspiracy to retaliate against plaintiff given her testimony adverse to Alta Regional Center, see id. at 1, 3; Compl. ¶ 16; (3) the BOP did not provide plaintiff notice and an opportunity to be heard before denying her application for licensure, see ECF No. 21-1 at 17-21; (4) the BOP's denial of plaintiff's application under California Business and Professions Code section 489(3)(A) was improper, see id. at 6; and (5) after denying her application, the BOP improperly offered plaintiff the hearing procedures required for an applicant, rather than those required for individuals who already have a license, see id. at 7.
Plaintiff has not demonstrated a likelihood of success on these theories. With respect to her conspiracy theory, the Complaint and Motion for Temporary Restraining Order provide vague, conclusory allegations, rather than specific facts or evidence suggesting the existence of a conspiracy. Plaintiff's own declaration simply states that she "believe[s] in [her] heart that the Board of Psychology is complicit in a bizarre scheme of retaliation against [her] by Alta Regional Center and Dr. Cynthia Root," Holcomb Decl. ¶ 12, ECF No. 21-2.
Plaintiff has not provided sufficient information for the court to evaluate her remaining theories. Plaintiff has not provided the letter from the BOP denying her application for licensure. Nor has she provided evidence regarding the evaluations she conducted on patient John Doe, or evidence regarding the types of evaluations a Licensed Educational Psychologist is permitted to conduct. Plaintiff alleges the BOP's denial letter cited California Business and Professions Code section 489(3)(A) as the basis for denial, but such a subsection does not exist. If plaintiff intended to cite section 480(a)(3)(A), that provision provides that a board may deny a license on the grounds that the applicant has "[d]one any act that if done by a licentiate of the business or profession in question, would be grounds for suspension or revocation of license." Cal. Bus. & Prof. Code § 480(a)(3)(A). Again, plaintiff has not provided specific legal authority and facts showing that any complaint by Dr. Root was baseless. With respect to plaintiff's claim that she should have had the opportunity to challenge the denial of a license utilizing the procedures available for individuals who already have a form of license, the only support plaintiff provides is a conclusory statement by plaintiff's counsel that plaintiff "WAS a licensed psychologist on August 6, 2015." Ebert Decl. ¶ 7, ECF No. 21-3 (emphasis in original).
To the extent plaintiff's complaint seeks return of John Doe's files to his parents, the court has a doubt regarding her standing to present such a request. --------
Because plaintiff has not met her burden of establishing irreparable harm or likelihood of success on the merits, the court does not address the remaining requirements of the balance of equities and public interest. See Winter, 555 U.S. at 20.
IV. CONCLUSION
For the foregoing reasons, plaintiff's Motion for Temporary Restraining Order is DENIED. If plaintiff wishes to seek a preliminary injunction, she may notice a hearing on an available civil law and motion calendar date, in compliance with Local Rule 230.
IT IS SO ORDERED. DATED: November 23, 2015.
/s/_________
UNITED STATES DISTRICT JUDGE