27. Motion for Injuction Reexamination

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Motion for Injunction - Reexamination – Rehan Sheikh v. Kelly [DMV] – CA9 No.14-16858P a g e | 1

Rehan Sheikh1219 W. El Monte StreetStockton, California 95207

Telephone: (209) [email protected]

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REHAN SHEIKH

Appellant (and plaintiff),

v.

Brian Kelly

Secretary, California StateTransportation Agency

Appellee

and

Mark Tweety

Manager, Department of Motor

Vehicles

Appellee

Case NO: 14 – 1 6 8 5 8

Motion for Preliminary Injunction

DMV’s arbitrary Demand for Medical,

Psychological, Neurological Exams,

Chemical and Blood tests, driving

tests (‘Reexamination)’ and indefinite

Driving License Suspension, do NOT

conform with the Fourth, Fifth and

Fourteenth Amendment(s)

42. U.S.C. § 1983

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

Case: 14-16858, 09/28/2015, ID: 9697564, DktEntry: 27-1, Page 1 of 12


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Plaintiff respectfully asks for a preliminary injunction barring the DMV’s

arbitrary demand for intrusive and expensive Medical examination.

THIS MOTION

Plaintiff respectfully asks for a preliminary injunction invalidating the DMV’s

Order of suspension (dated March 27, 2012) that indefinitely suspended his

Driving License without stating any cause, without Notice and without hearing.

A.

March 26, 2012 Driver Medical Exam - Any and All Conditions

LIST OF EXHIBITS

B.

March 27, 2012 Order indefinitely Suspending Plaintiff’s Driving License

C.

Sep 16, 2014 Driver Medical Exam



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I. JURISDICTION

1. This Court has authority to grant declaratory relief under 28 U.S.C §§ 2201 and

2202. The district court had subject matter jurisdiction over Plaintiffs’ claims

pursuant to 28 U.S.C. §§ 1331 and 1343. The Ninth Circuit Court of Appeals has

jurisdiction pursuant to 28 U.S.C. § 1291.

II.

PROCEDURAL BACKGROUND

2.

On or around February 29, 2012, the DMV denied renewal

3.

Plaintiff called the DMV Sacramento office and spoke with Mr. Mark Tweety

who identified himself as a Manager at DMV. Plaintiff explained DMV manager

about adverse impact on life because of non-renewal of his driving license. Mr.

Tweety did not care at all about impact on plaintiff’s life and stated, this is not

important for you to drive.

of Plaintiff’s Driving

License without a written Notice and without hearing. The DMV Stockton office

stated that the driving license was ‘blocked’ by the DMV Sacramento office. After

plaintiff’s request the DMV office Supervisor gave a phone number.

4. Plaintiff reminded Mr. Tweety of his Right to Due Process and requested a good

cause for denial. Mr. Tweety stated that license is a ‘Contractual Agreement’

(without any explanation). Mr. Tweety also said, there is no Due Process

available for denial of driving license.



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5. On or around March 23, 2012 Mr. Tweety called plaintiff. Mr. Tweety mentioned

that he was out to another facility that morning. Mr .Tweety stated that some of

the information relevant to non-renewal of plaintiff’s license does not seem to

align. Mr. Tweety asked plaintiff to come to DMV office in Sacramento.

A. DMV’s Demand for Reexamination - Medical, Neurological,

Psychological, Drug, Alcohol, Blood, Chemical Tests - Mar 26, 2012

6.

On or around March 26, 2012, Plaintiff went to the DMV office in Sacramento,

California and was asked to meet a senior DMV officer Darryl Mickens. The

DMV demanded written test, Driving test and that plaintiff provide complete

information on a five page pre typed Driver Medical Evaluation Form (Exhibit).

Title of that Medical Form is “All Medical Conditions”. On that form DMV

demanded Medical, Psychological, Neurological, Drug addition, alcohol

addiction, chemical and blood tests.

7. The DMV’s Medical Form mandates authorization (P1) that stated;

I hereby authorize my medical professional or hospital to answer any questions

from the Department of Motor Vehicles, or its employees, relating to my physical,

or mental conditions, and/or drug and/or alcohol use, and to release any related

information

and

or records to the Departmental of Motor Vehicles or its employees.

Any expenses involved is to be charged to me and not to the Department of Motor

Vehicles.



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I hereby authorize the Department of Motor Vehicles to receive any information

relating to my physical or mental condition, and/or drug and/or alcohol use or

abuse, and to use the same in determining whether I have the ability to operate

motor vehicles safely.

8. On the Medical form (P2), the DMV stated ‘misleading and suggestive

instructions’ to the Medical Professionals that stated;

The Department of Motor Vehicles’ record indicate your patient may have a

condition that could affect the safe operation of a motor vehicle.

9. Not only the instructions, but also the questions on the Medical Evaluation

Form are also misleading; e.g. Question 8 “ Levels of Functional Impairment”

has only three checkboxes, i) Mild, ii) Moderate and iii) Severe.

…. With your

assistance, the department hopes to resolve the matter with a minimum of

inconvenience to all concerned… Your experience and knowledge of the patient’s

condition, result of medical examinations and treatment plans, will be of great

value in assisting the department to determine a proper licensing decision.

There is no check

box labeled “None” where a doctor could indicate that a patient does not

10. Plaintiff requested hearing to determine if there is a good cause for

Reexamination. The DMV denied the request. Further,

have

any functional impairment.

the DMV officer stated

that even if you successfully complete Reexamination, the DMV is not required

to issue driving license.



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11. Further, The DMV demands Reexamination at plaintiff’s expense that could cost

tens of thousand dollars or more. The DMV’s demand for ‘Reexamination at

plaintiff’s expense places an additional unbearable burden

B. The DMV’s Arbitrary Order to Suspend Driving License - Mar 27, 2012

on plaintiff.

12. On March 28, 2012 plaintiff received an Order dated March 27, 2012 suspending

his Driving License. In that order, the DMV checked two check boxes;

No Action is warranted at this time.

The suspension of your driving privileges effective February 25, 2012 shall

remain in affect until successful completion of reexamination process.

13. In its order, the DMV did not state any reason at all for Driving License

Suspension and indefinitely suspended plaintiff’s Driving License.

14. The DMV officers are ‘untrained’ on availability of procedural or substantive

Due process in California, and availability of Rights of American people such as

right to travel or right to interstate travel, right to work, pursuit of happiness.

C. The DMV’s Verbal Demand for “Medical Examination” – Sep 06, 2014

15.

Plaintiff applied for renewal of California Identification Card. The DMV office

again asked that plaintiff complete a five page form (exhibit). On that day, the

DMV denied renewal of plaintiff’s identity card.



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III. ARGUMENTS

a.

Order to Suspend Driving License without any Cause, without

Notice and without Hearing infringes on Substantial Right(s)

16.

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

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.

. The status of a driver's license as a

right deserving of constitutional protections was first most clearly stated in

Wall v. King, 206 F.2d 878 (1st Cir., 1953):

17. "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) .

b. The Arbitrary Demand for Medical, Psychological, Neurological,

Chemical and Blood Tests Constitutes Unreasonable Searches in

violation of Fourth and Fifth Amendment(s)

18. The DMV’s arbitrary demand for plaintiff’s Medical, Psychological, Neurological,

Drug, Alcohol related records, chemical and blood tests is intrusive, invades



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plaintiff’s privacy, and invades body integrity. The DMV’s demand for

Reexamination constitutes unreasonable searches in violation of Fourth, and

Fifth Amendment. The DMV’s Order to Suspend Driving License without stating

any cause, without any accusations and without any hearing shocks the

conscious of any United States judge. The Due Process mandates a hearing to

establish justification for Reexamination.

19. Implicit in the Fourth Amendment's protection from unreasonable searches and

seizures is its recognition of individual freedom. That safeguard has been

declared to be "as of the very essence of constitutional liberty" the guaranty of

which "is as important and as imperative as are the guaranties of the other

fundamental rights of the individual citizen ... Ker v. California, 374 US 23 -

Supreme Court (1963).

20. Likewise the Fourth Amendment recognizes that right when it guarantees the

right of the people to be secure "in their persons."

That Amendment expressly provides that "[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated . . . ." (Emphasis added.) It could not reasonably be

argued, and indeed respondent does not argue, that the administration of the

blood test in this case was free of the constraints of the Fourth Amendment. Such

testing procedures plainly constitute searches of "persons," and depend

antecedently upon seizures of "persons," within the meaning of that Amendment.

Schmerber v California, 384 US 757 (1966)

21.

The values protected by the Fourth Amendment thus substantially overlap those

the Fifth Amendment helps to protect.



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Thus, the Fifth Amendment marks " a zone of privacy" which the Government

may not force a person to surrender

Schmerber v California, 384 US 757 (1966)

. Likewise the Fourth Amendment recognizes

that right when it guarantees the right of the people to be secure "in their

persons." Ibid. No clearer invasion of this right of privacy can be imagined than

forcible bloodletting of the kind involved here.

22. The courts have held that the Fifth Amendment bars psychological testing.

"To compel a person to submit to testing [by lie detectors for example] in which

an effort will be made to determine his guilt or innocence on the basis of physiological responses

c. Driving License Suspension without Reason, without Notice and

without Hearing Grossly Violates Due Process Clause(s)

, whether willed or not, is to evoke the spirit and

history of the Fifth Amendment. Such situations call to mind the principle

that the protection of the privilege `is as broad as the mischief against which it

seeks to guard.' Counselman v. Hitchchock, 142 U.S. 547 (1892)

23. In the Order of Suspension dated March 27, 2012, The DMV did not state any

reason at all for Driving License Suspension. The DMV did not issue any Notice

of accusations prior or after that order and denied all requests for hearing before

and after suspension of driving license. In that order, the DMV indefinitely

suspended plaintiff’s Driving License effective March 25, 2012.

24. The bare minimum requirement

Many controversies have raged about the cryptic and abstract words of the

of the Due Process clause mandates that the

DMV issue a written Notice and a hearing on Driving License Suspension.



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Due Process Clause but there can be no doubt that at a minimum they require

that deprivation of life, liberty or property by adjudication be preceded by

notice

25. Plaintiff is improperly deprived of his Driving License in violation of the Due

Process Clause(s). "

and opportunity for hearing appropriate to the nature of the case.

Mullane, Special Guardian, v. Central Hanover Bank & Trust Co., Trustee, et

al. 339 U.S. 306 (1950)

[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. (citations omitted) Collins v. City of Harker Heights,

503 U.S. 115 (1992). Protection of individuals against arbitrary government

action is the great purpose of this clause

26.

The DMV’s order to suspend Driving license is arbitrary, capricious, vague

atrocious and shocks the conscious. In Bixby v. Pierno, 481 P. 2d 242, 4 Cal.3d

130, 151 (Supreme Court of California 1971) the Court characterized as

arbitrary and capricious any administrative decision which has “

. Wilwording v. Swenson, 502 F.2d 844,

(8th Cir. 1974).

no

reasonable basis in law or no substantial basis in fact

d.

Plaintiff suffers Irreparable Harm

.”

27. Plaintiff’s Constitutional Right to liberty, interstate travel, and Right to pursuit

of happiness depend on his Driving License. Deprivation of plaintiff’s Driving

License is not accompanied by constitutionally mandated procedural protection.



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Defendants’ violation of Plaintiffs’ constitutional rights, alone, constitutes an

irreparable injury

28. Courts have long recognized that the

.

ability to work

29.

Plaintiff risks harm from potential prosecution for Driving without a Driving

License. It is well settled that

often depends on the ability

to drive. Bell v. Burson, 402 U.S. 535, 539 (1971) (noting that “possession [of a

driver’s license] may become essential in the pursuit of a livelihood”). Plaintiff is

an engineer in the fields of software and internet engineering and worked in the

San Francisco bay area. Now Plaintiff cannot even attempt to find work for lack

of Driving License.

risk of prosecution

e. The Balance of Equities and overwhelming Public Interest

Strongly Favor an Injunction

is sufficient to establish

irreparable injury. See Wooley v. Maynard, 430 U.S. 705, 712 (1977) (holding

that plaintiffs had demonstrated harms sufficient to justify injunctive relief to

redress threat of prosecution for use of automobile). Plaintiff risks prosecution

merely for driving to a grocery store. In 2012 California police ‘took’ plaintiff’s

car and never returned. California police arrested plaintiff and deprived him of

food and insulin. Plaintiff risks prosecution merely for driving to a doctor’s office

for a medical examination or risks his health for not doing so.

30. The balance of equities and public interest considerations tip sharply in favor of

Plaintiff. A preliminary injunction would serve the public interest by permitting



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plaintiff to participate in society and contribute to California.

31.

An injunction will protect Public and will benefit all California drivers. Indeed,

“it is always in the public interest to prevent the violation of a party’s

Constitutional rights.” Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 974

(9th Cir. 2002) (citations omitted).

IV. PRAYER

32. Plaintiff prays before the United States Court to grant the preliminary

injunction.

Respectfully Submitted;

/s/ Rehan Sheikh ----------------------------------

Date: September 28, 2015 Rehan Sheikh

Plaintiff



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March 26, 2012

DRIVER MEDICAL EVALUATION

ANY AND ALL MEDICAL CONDITIONS

EXHIBIT



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March 27, 2012

DMV’s Arbitrary Order of Suspension

EXHIBIT



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September 6, 2014

DRIVER MEDICAL EVALUATION

EXHIBIT



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27. Motion for Injuction Reexamination

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