NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

FEB 16 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

SEYED MOHSEN SHARIFI TAKIEH, an No. 21-15326 individual, D.C. No. 2:19-cv-05878-MTL Plaintiff-Appellant,

v. MEMORANDUM*

BANNER HEALTH, an Arizona not-for- profit corporation; MICHAEL O’MEARA, M.D. and Husband; JANICE COHEN DINNER, Wife; STEVEN MAXFIELD, M.D. and Husband; MICHAEL O’CONNOR, M.D. and Husband; PETER

S. FINE, Husband; CHRISTOPHER

VOLK, Husband

Defendants-Appellees,

and

O’MEARA, Jane Doe O’Meara and Wife; DEAN M. DINNER, Husband; STEPHEN HU, M.D. and Husband; HU, Jane Doe Hu and Wife; MAXFIELD, Jane Doe Maxfield and Wife; JAMES LYONS, M.D. and Husband; LYONS, Jane Doe Lyons and Wife; O’CONNOR, Jane Doe O’Connor and Wife; REBECCA AILES-

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. FINE, Wife; VOLK, Wife,

Defendants.

Appeal from the United States District Court for the District of Arizona Michael T. Liburdi, District Judge, Presiding

Argued and Submitted December 7, 2021 Pasadena, California

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and BENCIVENGO,** District Judge. Dissent by Judge BENCIVENGO.

Seyed Mohsen Sharifi Takieh (Dr. Sharifi) appeals the district court order

granting a motion to dismiss his claims brought pursuant to 42 U.S.C. § 1981. Dr.

Sharifi contends that the district court impermissibly took judicial notice of the

Arizona Superior Court’s decision that substantial evidence supported Appellee-

Banner’s stated reasons for terminating his Physician Services Agreement (PSA),

and erred when it gave preclusive effect to the ruling to conclude that Dr. Sharifi

failed to state a plausible claim.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and review de novo an

order granting a motion to dismiss for failure to state a claim. See Palm v. Los

Angeles Dep’t of Water & Power, 889 F.3d 1081, 1085 (9th Cir. 2018). We review

** The Honorable Cathy Ann Bencivengo, United States District Judge for the Southern District of California, sitting by designation. 2 the district court’s decision to take judicial notice of the Arizona Superior Court’s

ruling for an abuse of discretion. See Ritter v. Hughes Aircraft Co., 58

F.3d 454, 458 (9th Cir. 1995).

Because the district court’s decision adhered to the United States Supreme

Court’s ruling in Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140

S. Ct. 1009, 1019 (2020), we AFFIRM.

1. Dr. Sharifi brought his claim under § 1981, which requires a showing of

intentional discrimination based on race. See Evans v. McKay, 869 F.2d 1341,

1344 (9th Cir. 1989). Under Comcast, race must be a but-for cause of a § 1981

plaintiff’s injury. See 140 S. Ct. at 1013, 1019 (vacating the Ninth Circuit’s ruling

that a § 1981 plaintiff need only “plead facts plausibly showing that race played

‘some role’ in the defendant’s decisionmaking process”) (citation omitted).

2. The district court did not abuse its discretion by taking judicial notice of

the Arizona Superior Court’s decision upholding the termination of Dr. Sharifi’s

PSA. The decision is a public record whose accuracy cannot be reasonably

questioned. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6

(9th Cir. 2006) (“We may take judicial notice of court filings . . . ”).

3. We apply state law in determining the preclusive effect of a prior court

decision. See Pike v. Hester, 891 F.3d 1131, 1138 (9th Cir. 2018). Under Arizona

3 law, the Arizona Superior Court’s ruling was not entitled to preclusive effect

because it resolved a different issue: whether substantial evidence supported

Appellee-Banner’s termination of Dr. Sharifi’s PSA. See Kulas v. Flores, 255 F.3d

780, 783–84 (9th Cir. 2001) (concluding that an Arizona trial court’s ruling on a

witness tampering charge in a criminal case did not have preclusive effect in a §

1983 lawsuit alleging perjury by a police officer during his grand jury testimony

because “[t]he issues in the two proceedings were entirely different”).

Nevertheless, because Dr. Sharifi incorporated the Arizona Superior Court’s

decision into his First Amended Complaint (FAC), the decision is relevant to our

determination of whether Dr. Sharifi’s claims are plausible, and any error by the

district court regarding the ruling’s preclusive effect was “of no consequence.”

Azami v. Apfel, 24 F. Supp. 2d 1007, 1010 (C.D. Cal. 1998).

4. Dr. Sharifi failed to state a plausible § 1981 claim under Comcast. As

stated above, the FAC incorporated the Arizona Superior Court’s decision. In turn,

the court’s decision articulated three non-discriminatory grounds for the

termination of Dr. Sharifi’s PSA: patient care issues, alteration of medical records,

and disruptive behavior. These non-discriminatory reasons render the allegation

that race was the but-for cause of the termination of Dr. Sharifi’s PSA implausible.

See Orellana v. Mayorkas, 6 F.4th 1034, 1043 (9th Cir. 2021) (observing that “the

4 complaint itself undermines [plaintiff’s] theory of the case and renders it

implausible”).

5. The allegations regarding disparate treatment of Dr. Sharifi as compared

to non-Arab physicians fail to establish that race was a but-for cause of the

revocation of Dr. Sharifi’s PSA because the non-Arab physicians were not

“similarly situated” to Dr. Sharifi. Specifically, none of these physicians generated

patient care issues, altered medical records, and exhibited disruptive behavior. See

Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641–42 (9th Cir. 2004), as

amended (concluding that the plaintiff’s colleagues were not similarly situated to

him because one was not “involved in the same type of offense” and the other did

not “engage in problematic conduct of comparable seriousness”).1

AFFIRMED.

1 Our colleague in dissent takes issue with the “similarly situated” requirement of our precedent. However, she cites no authority that calls into question that requirement as articulated in Vasquez, 349 F.3d at 641-42.

5

FILED

Seyed Takieh v. Banner Health, et al, No. 21-15326

FEB 16 2022

BENCIVENGO, District Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

In conducting an analysis under Rule 12(b)(6), the district court must accept

the facts alleged in the complaint as true and determine whether those allegations

“plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). The district court erred by failing to accept Dr. Sharifi’s factual allegations

as true and instead finding Defendants’ competing explanation “so convincing” as

to render Dr. Sharifi’s allegations of racial discrimination implausible.

A plaintiff asserting a claim under 42 U.S.C. § 1981 must identify an impaired

contractual relationship under which he has rights and allege that the defendant

impaired that relationship on account of intentional discrimination. See Gen. Bldg.

Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 389 (1982). The plaintiff must

also show that race was a but-for cause of his injury, meaning that but for his race,

he “would not have suffered the loss of a legally protected right.” Comcast Corp. v.

Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020).

Dr. Sharifi’s allegations plausibly establish that Defendants’ actions arose

from intentional racial discrimination. Dr. Sharifi alleges that Defendants

O’Connor, O’Meara, Maxfield, and Dinner made disparaging remarks motivated by

racial animus toward him, some of which related to an alleged scheme to terminate

Dr. Sharifi’s clinical privileges at Banner. Dr. Sharifi also alleges that five other

1 non-Arab physicians at Banner committed similar patient care errors but were not

reported to any medical boards or disciplined to the same degree. These allegations

establish intentional discrimination based on disparate treatment, as Dr. Sharifi

plausibly claims that other similarly situated physicians not of Arab descent were

treated more favorably. See Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir.

2008). The district court’s holding that the non-Arab physicians needed to have

committed the same three transgressions as Dr. Sharifi improperly required that the

physicians be identically situated, rather than similarly situated. 1 This is an overly

burdensome standard to impose at the pleading stage. See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007) (holding that a plaintiff need only plead “enough

facts to raise a reasonable expectation that discovery will reveal evidence” of the

alleged wrongdoing). Moreover, Defendants’ claim at oral argument that the non-

Arab doctors engaged in different or less culpable conduct than Dr. Sharifi is an

assertion of fact outside the complaint and cannot be considered at this stage.

1 The majority cites Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641-42 (9th Cir. 2004) for the proposition that those treated more favorably had to have been “involved in the same type of offense” or have “engage[d] in problematic conduct of comparable seriousness” to be “similarly situated” to the plaintiff. However, the Vasquez court was considering the evidence before it at the summary judgment stage, rather than accepting the plaintiff’s allegations as true as required on a Rule 12(b)(6) motion. Vasquez therefore is inapplicable to analysis of a motion to dismiss, which is governed by the Iqbal/Twombly standard. 2 Dr. Sharifi has alleged sufficient factual matters to plausibly claim his

termination would not have occurred but for his race. Dr. Sharifi alleges that he was

injured by Defendants’ termination of his contractual relationship, that he was

terminated when similarly situated physicians were not, and that Defendants would

not have revoked his clinical privileges but for his race. At the pleading stage, his

factual allegations are to be accepted as true. See Iqbal, 556 U.S. at 678.

Accordingly, Dr. Sharifi’s allegations are sufficient to state a claim under 42 U.S.C.

§ 1981. The district court should be reversed.

3