DAVID ANH QUAN DO v. COUNTY OF SANTA CLARA (2026)

ORDER GRANTING MOTION TO DISMISS

This employment action arises out of Plaintiff David Anh Quan Do, M.D.'s previous employment as a senior staff physician II at methadone clinics in Santa Clara County. Plaintiff, who is self-represented, asserts claims pertaining to the conditions of his employment and termination against Defendant County of Santa Clara (“County”) and certain County employees under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.; 42 U.S.C. § 1983; the Age Discrimination in Employment Act, 29 U.S.C. § 623; and various federal regulations and state laws. See First Am. Compl., ECF No. 44-1 (“FAC”).

Before the Court is Defendants' motion to dismiss the first amended complaint. ECF No. 49 (“Mot.”); see also ECF No. 53 (“Opp.”); ECF No. 55 (“Reply”).¹ In its discretion, the Court finds this matter suitable for resolution without oral argument. Civil L.R. 7-1(b). For the following reasons, the Court GRANTS Defendants' motion.

I. BACKGROUND 2

A. Dr. Do's Employment with the County

Dr. Do was employed by the County for nearly twelve years from June 24, 2013, to April 4, 2025, in the position of senior staff physician II, position code P28. FAC at 1, 17;³ see also Ex. 1.01, ECF No. 41-2. The Charter of the County of Santa Clara divides employment with the County into two categories: positions within the “classified” civil service and “unclassified” positions. See Charter of the County of Santa Clara § 701 (“County Charter”). The Charter specifies that certain types of positions are unclassified, including “[p]ositions which are required to be filled by physicians, surgeons, or dentists.” Id. § 701(a)(7). All other positions not specifically identified in the Charter are classified. Id. § 701(b). While the Charter establishes several procedural protections for members of the classified civil service, it does not do so for unclassified employees. See e.g., id. §§ 703, 708.

Consistent with the County Charter, Dr. Do's employment records reflect that his position was unclassified and exempt. FAC at 1, 17, 39; Ex. 1.01 (stating that Plaintiff's pay group was “100-Co-Regular Exempt” and his appointment status was “Uncls Benf,” i.e., unclassified benefits). Dr. Do was also represented by the Union of American Physicians and Dentists (“UAPD”), which is the “exclusive bargaining representative” for certain “unclassified coded classifications,” including the role of senior staff physician II. Ex. 1.07, art. 1, ECF No. 41-8. The County and UAPD entered into, and periodically negotiate revisions to, a memorandum of understanding (“MOU”) that governs union members' employment with the County. Ex. 1.06, ECF No. 41-7; Ex. 1.07. The MOU states that “[e]mployees in th[e] bargaining unit are professional employees and as such are paid a pre-determined salary each biweekly period irrespective of the number of hours worked in a workweek.” Ex. 1.06 § 6.1; Ex. 1.07 § 6.1. The version of the MOU in effect from October 19, 2020, to October 29, 2023, permitted travel on County time to temporary work locations, i.e., “[w]hen an employee is assigned to work at a location different from her/his regularly assigned work location.” Ex. 1.06 § 6.8. The version of the MOU in effect from October 30, 2023, to October 25, 2026, limited the duration of temporary work assignments, i.e., “[w]hen an employee is assigned to work at a location different from their regularly assigned work locations.” Ex. 1.07 § 6.8.

As a senior staff physician II, Dr. Do was responsible for treating patients in the County's methadone clinics. FAC at 34, 43. The County operates three methadone clinics: Alexian Health Center (“Alexian” or “AHC”), South County Clinic (“South County” or “SCC”), and Central Valley Clinic (“Central Valley” or “CVC”). Ex. 2.05 at 2, ECF No. 41-16. Plaintiff alleges that “the County failed to designate any single clinic as [his] regularly assigned work location.” FAC at 3, 14. Instead, he was often assigned to work three days per week at South County and two days per week at Central Valley, whereas other physicians were assigned to a single clinic. Exs. 5.01-5.07, ECF Nos. 41-42 to 41-48. Plaintiff alleges that when he accepted the job in 2013, “the County ․ represent[ed]” that the need to work at Central Valley two days per week was “temporary and limited.” FAC at 3.

In addition, Dr. Do was periodically required to be “on call” on weekends and holidays when no other physicians were working. Exs. 2.05 at 1, 5.01-5.07. The on-call physician was required to answer calls from nurses at each of the three clinics regarding patients, evaluate the appropriate course of treatment, and verbally authorize nurses to administer treatment. Ex. 2.05 at 1. Nurses could not administer treatment, including life-saving narcotic medications, to patients without authorization from a physician. Id. at 2, 4. Prior to December 23, 2024, Dr. Do complied with these requirements when he was scheduled to be on duty. See id. at 1.

B. Grievances Regarding Employment

During the course of his employment, Dr. Do came to the belief that working at multiple clinics – namely, at any clinic other than South County, his preferred clinic – was unlawful. In his view, the County was required to, but did not, maintain a job description with a list of principal duties or a defined base location, and that the requirement to work at clinics other than South County was additional de facto unpaid work that must be compensated under the Fair Labor Standards Act and Due Process Clause.⁴ FAC at 14, 51. Dr. Do frequently expressed these opinions to colleagues, as well as a union representative, in emails. See Ex. 1.09, ECF No. 41-10; Ex. 1.10, ECF No. 41-11; Ex. 3.09, ECF No. 41-29; Ex. 8.01, ECF No. 41-54.

On December 1, 2021, Plaintiff filed a grievance with the California Department of Labor Relations regarding his work at Central Valley. Ex. 3.02, ECF No. 41-22. The Department of Labor issued a decision finding that Plaintiff's grievance was procedurally improper and meritless because the County had not negotiated away its inherent right to assign work to employees. Id. at 3-4. Subsequently, on May 2, 2022, Plaintiff sued the County in state court for breach of contract and fraud. Ex. 12.01, ECF No. 41-69. The state court dismissed the complaint and an amended complaint. Ex. 12.03, ECF No. 41-71; Ex. 12.06, ECF No. 41-74. Regarding the breach of contract claim, the state court held that the MOU acted as a contract between the County and Dr. Do, but found that Dr. Do had not alleged that the MOU was breached. Ex. 12.06 at 5-8. The state court also rejected Dr. Do's claim for fraud because the claim was added in the amended complaint in violation of the court's order requiring Dr. Do to seek leave of court to add new claims. Id. at 8-9. Dr. Do appealed the dismissal to the California Court of Appeal, which sustained the lower court's decision and held that there was no fraud in the inducement because the MOU contemplated working at different work locations. Ex. 12.09, ECF No. 41-77.

C. Dr. Do's Termination

Dr. Do was terminated on April 4, 2025, after repeatedly refusing to authorize treatment for patients at Central Valley or Alexian when he was the on-call physician. The first time this occurred was on December 23 and 24, 2024. Ex. 2.05 at 2. Nurses at Alexian contacted Dr. Do, the on-call physician, to request verbal orders for consideration for management of two patients who had missed their medication dosing. Id. Dr. Do refused to authorize treatment and told the nurses that any orders he gave would be illegal because he was not primarily assigned to work at Alexian. Id. As a result, the nurses had to contact another physician who was not on call. Id.

Later that day, Dr. Cheryl Ho, the Medical Director of the County of Santa Clara Behavioral Health Services Department, directed Dr. Do to “take the consideration for management calls when [he was] on-call” and to “assess the nature of the call, make medical decisions, and provide verbal orders when medically necessary.” Id. Dr. Ho also told Dr. Do that “verbal orders for patients seen in another clinic are neither illegal nor invalid.” Id. Despite these instructions, Dr. Do refused to authorize nurses to treat patients when he was on duty on December 26, 2024, through December 29, 2024, January 18 and 19, 2025, February 18, 2025, through February 20, 2025, and February 24, 2025, through February 27, 2025. Id. at 2-3.

At some point during these events, Dr. Do also began to leave “explanatory notes in patient EHRs” (electronic health records) stating that “[a]ny signature on ‘orders’ for patients at CVC or AHC ․ would be illegal and invalid.” FAC at 4, 38, 54-55. Dr. Do also contacted the County of Santa Clara Board of Supervisors, U.S. Substance Abuse and Mental Health Services Administration, and U.S. Department of Justice to blow the whistle on the alleged misconduct. See Ex. 2.02, ECF No. 41-13; Ex. 2.03, ECF No. 41-14; Ex. 2.04, ECF No. 41-15.

On January 24, 2025, Dr. Ho directed Dr. Do to report for an administrative investigative interview on February 27, 2025, and informed him that he could bring a representative to the interview. Ex. 3.10, ECF No. 41-30. Dr. Do refused to attend. Ex. 3.11, ECF No. 41-31. On February 26, 2025, Dr. Ho again ordered Dr. Do to provide care when he was on duty. Ex. 2.05 at 3. On February 27, 2025, Dr. Ho directed Dr. Do to attend a rescheduled investigatory interview and stated he could bring a representative. Ex. 3.12, ECF No. 41-32. Again, Dr. Do refused to attend, claiming the meeting was a form of entrapment. Id.

Dr. Do's final assignment as the on-call physician occurred on March 29, 2025, through March 31, 2025. See Ex. 2.05 at 3. Yet again, he refused to authorize care for patients at Central Valley or Alexian. Id. On April 4, 2025, the County sent a letter, written and signed by Dr. Ho, to Dr. Do terminating his “at-will employment as a Senior Staff Physician II.” Id. at 1. The letter specified that “[a]lthough no cause is required to terminate your at-will employment, this action is based on the following charges, facts, and circumstances.” Id. (emphasis omitted). Namely, the letter stated that, based on the course of events between December 23, 2024, and March 31, 2025, Dr. Do's conduct violated two provisions in Article 11 of the County's Merit System Rules: (1) “Violation of the County Charter, Merit System Rules and regulations, and written and published departmental rules and policies which do not conflict with this article”; and (2) “[r]efusal to accept a reasonable and proper assignment from an authorized supervisor; insubordination.” Id. at 1-4 (citing County of Santa Clara Ordinance Code §§ A25-301(a)(1), (5)). The letter concluded that:

[B]y refusing to provide on-call services for CVC and AHC clinics and refusing to provide orders to their nursing staff, [Plaintiff] ․ caused confusion and disruption to [his] AMT staff colleagues and adversely delayed patient care. Patients had to wait a significant amount of time before being given their medication or having a medical determination made to withhold, could not receive their dose adjustments, and/or could not receive their orders for medications that were due. These disruptions to patient care caused increased wait times that affected not only the patient whose care was under consideration, but also other patients coming to the clinic that day who were waiting for their medications.

Id. at 4. Finally, the letter informed Dr. Do that pursuant to Section 5.1(b) of the MOU, he had the right to request an administrative review of his termination. Id. at 5.

Dr. Do requested administrative review but refused to attend a hearing on the matter, instead requesting that the review be decided based on his written submission. Ex. 2.06, ECF No. 41-17; Ex. 2.07 at 1, ECF No. 41-18. The administrative review sustained the termination, finding that Dr. Do's “deliberate actions disrupted clinic operations and placed an undue burden on [his] colleagues” and that he was “insubordinate.” Ex. 2.07 at 1-2.

Subsequently, Plaintiff filed suit in this Court, bringing federal claims for violations of Section 207 of the Fair Labor Standards Act and related regulations, 29 C.F.R. §§ 553.101(c), 552.102(a), 790.8(a); 42 U.S.C. § 1983; the Age Discrimination in Employment Act; and state claims for breach of contract, whistleblower retaliation, fraud, lost income, and wrongful termination.

II. REQUESTS FOR JUDICIAL NOTICE

In attachments to his complaint and opposition brief, Plaintiff requests judicial notice of forty-four documents. See ECF Nos. 42-43, 54. Defendants likewise request judicial notice of six documents in support of their motion to dismiss. ECF No. 50. Courts generally do not consider material outside the pleadings when ruling on a motion to dismiss. See United States v. Corinthian Colls., 655 F.3d 984, 998 (9th Cir. 2011). However, courts may consider “documents incorporated into the complaint by reference.” Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007). “[A] defendant may seek to incorporate a document into the complaint ‘if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim.’ ” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018) (citation omitted). Additionally, courts may take judicial notice of facts that are “not subject to reasonable dispute” because they “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Courts may not, however, take notice of disputed facts contained in a judicially-noticed document. See Khoja, 899 F.3d at 1002-03. For the following reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiff's requests and GRANTS Defendants' requests.

A. Plaintiff's Requests

Plaintiff seeks judicial notice of thirty-two exhibits in connection with the complaint. ECF Nos. 42-43. The Court GRANTS these requests because each document is attached to the complaint and therefore incorporated by reference. See Fed. R. Civ. P. 10(c).

Plaintiff also requests judicial notice of twelve documents in support of his opposition brief. ECF No. 54. Defendants oppose these requests on the grounds that Plaintiff may not supplement the operative complaint to defeat a motion to dismiss. Reply at 2. Nine of these documents are regulations, a California Public Employment Relations Board (“PERB”) decision, and “[m]unicipal ordinances [which] are proper subjects for judicial notice.” Tollis, Inc. v. County of San Diego, 505 F.3d 935, 938 n.1 (9th Cir. 2007); see also Barke v. Banks, No. 20-cv-00358-JLS, 2020 WL 7223271, at *3 n.5 (C.D. Cal. Aug. 25, 2020). ECF Nos. 54-1 to 54-9. Exhibit 12 is a document that is attached to the complaint and is therefore incorporated by reference. ECF No. 44-12. Finally, Exhibits 10 and 11 are documents showing the County's organization chart and an image of a Santa Clara Valley Medical Center webpage. ECF Nos. 54-10, 54-11. These exhibits may not be judicially noticed because the Court “may not look beyond the complaint” when deciding a motion to dismiss and these documents introduce new factual material not contained within, or attached to, the operative complaint. Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). Accordingly, the Court GRANTS IN PART and DENIES IN PART Plaintiff's requests.

B. Defendants' Requests

Defendants seek judicial notice of six exhibits, which Plaintiff does not oppose. Exhibits 1 and 3 are attached to the complaint. ECF Nos. 50-1, 50-3. Exhibit 2 is the order dismissing Plaintiff's state court lawsuit. ECF No. 50-2. The first amended complaint references the state court's decision but attaches the tentative of that order, rather than the final decision. See FAC at 70; Ex. 12.06. Exhibit 6 is the letter terminating Dr. Do. ECF No. 50-6. The complaint references and attaches the letter but does not include the original attachments to the letter, which Exhibit 6 adds. See FAC at 17; Ex. 2.05. Thus, each of these exhibits are incorporated by reference in the complaint. See Fed. R. Civ. P. 20(c).

Additionally, the Court may take judicial notice of Exhibits 4-5. Exhibit 4 is the decision of the California Supreme Court denying Plaintiff's petition for review, which the Court may judicially notice as a public court record. ECF No. 50-4; see also United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007). Exhibit 5 is the output from a California Department of Consumer Affairs search on December 22, 2025, showing that Plaintiff held an active medical license with the Medical Board of California. ECF No. 50-5. Because this constitutes “official information posted on [a] government website[ ],” the Court may take judicial notice of the exhibit. Gomes v. Santa Clara County, No. 18-CV-04191-EJD, 2020 WL 4747901, at *5 n.4 (N.D. Cal. Aug. 17, 2020) (citing Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010)). Accordingly, the Court GRANTS Defendants' requests.

III. LEGAL STANDARD

A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Dismissal is appropriate “where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).

IV. DISCUSSION

Defendants move to dismiss the first amended complaint under Federal Rules of Civil Procedure 8 and 12(b)(6) for failure to state a claim under any federal statute or regulation. See Mot. at 3-15. The Court begins by addressing whether Plaintiff has satisfied Rule 8, before determining whether Plaintiff has stated a federal claim under the Fair Labor Standards Act, Section 1983, the Age Discrimination in Employment Act, or any other law. Because the Court finds that the complaint does not state a federal claim, the Court lacks subject matter jurisdiction and cannot consider Plaintiff's state law claims.

A. Federal Rule of Civil Procedure 8

Defendants argue that the complaint violates the pleading standard under Federal Rule of Civil Procedure 8. Mot. at 3-6. Rule 8 requires that the complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To comply with Rule 8, the complaint must give “fair notice” and state the elements of the claim “plainly and succinctly.” Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (citation omitted); see also Gibson v. City of Portland, 165 F.4th 1265, 1290 (9th Cir. 2026) (A fundamental purpose of Rule 8 “is to provide defendants with adequate notice of the plaintiff's claims, including the facts and the legal basis for relief.”). A complaint that is “needlessly long, ․ highly repetitious, or confused” does not comply with Rule 8. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011). Although the Court construes pro se complaints liberally, pro se plaintiffs “must follow the same rules of procedure that govern other litigants,” including the requirements of Rule 8. Rupert v. Bond, 68 F. Supp. 3d 1142, 1153 (N.D. Cal. 2014) (citation omitted).

The complaint, which is 75 pages long and attaches 832 pages of exhibits, does not provide a short and plain statement of the claim. See ECF Nos. 41 to 41-77. The complaint is both repetitious and confusing due to its length and the fact that it does not adhere to the requirements of Federal Rule of Civil Procedure 10(b). See Gibson, 165 F.4th at 1290 (“[D]istrict courts should not be forced to wade through a morass of allegations ․ to determine how the facts might relate to the causes of action”). For example, the complaint includes satirized renditions of the state court proceedings and attaches exhibits like an insurance subrogation letter that Dr. Do received regarding a car crash, yet does not identify what contractual provision was purportedly breached. See FAC at 26-27, 65-66; Ex. 3.13, ECF No. 41-33; see also Opp. at 14 (arguing for the first time that Plaintiff had an oral contract that was breached). Accordingly, dismissal for failure to comply with Rule 8 is warranted. See McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) (“The propriety of dismissal for failure to comply with Rule 8 does not depend on whether the complaint is wholly without merit.”).

As discussed below, Plaintiff will be provided leave to amend certain claims. If Plaintiff chooses to amend his complaint, he must comply with Rule 8 by providing a short and plain statement of each claim and identifying “what action each Defendant took that caused Plaintiff's harm, without resort to generalized allegations against Defendants as a whole.” Sorenson v. County of Lake, No. 21-cv-09681-TLT, 2023 WL 1934506, at *4 (N.D. Cal. Jan. 13, 2023) (citation modified). To the extent Plaintiff believes exhibits are necessary to support the factual allegations in his complaint, he should cite the relevant exhibits in the complaint and identify what information is relevant in the exhibit. Finally, Plaintiff must also comply with the procedural requirements set out in Federal Rule of Civil Procedure 10(b) regarding organization and numbering of paragraphs, which will assist in organizing an amended complaint.

B. Fair Labor Standards Act

Plaintiff brings claims for violations of the overtime pay provision in the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207, and regulations interpreting the FLSA. FAC at 5. The Court addresses each claim in turn.

1. Bona Fide Professional Exemption

The FLSA regulates minimum wage and overtime pay for certain employees in the United States. See 29 U.S.C. §§ 206, 207. However, the FLSA does not apply to all workers. Instead, the FLSA provides that “[t]he provisions of section 206 [minimum hourly wage] ․ and 207 [overtime pay] ․ shall not apply with respect to ․ any employee employed in a bona fide executive, administrative, or professional capacity.” Id. § 213(a)(1). “The term ‘employee employed in a bona fide professional capacity’ ․ mean[s] ․ [a]ny employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and is actually engaged in the practice thereof.” 29 C.F.R. § 541.304(a)(1); see also id. § 541.304(b) (“In the case of medicine, the exemption applies to physicians and other practitioners licensed and practicing in the field of medical science and healing or any of the medical specialties practiced by physicians or practitioners. The term ‘physicians’ includes medical doctors including general practitioners and specialists[.]”). Accordingly, practicing medical doctors are exempt from the FLSA.

Plaintiff's allegations and exhibits show that he was employed as a physician and is therefore exempt from the FLSA. Plaintiff held a medical license and worked as a senior staff physician II at methadone clinics where he treated patients. See FAC at 1, 4, 37; Ex. 1.01; Ex. 5.06 (“AMT Physician Schedule”); Ex. 7.03, ECF No. 41-53 (“Dr. Do will ․ develop a joint treatment plan to taper client off Methadone.”); Ex. 5, ECF No. 50-5. Plaintiff's employment documents also expressly state that he was exempt as a bona fide professional under the FLSA. See Ex. 1.01 (reflecting that Dr. Do was “Co-Regular Exempt”). Additionally, Plaintiff alleges that he is a member of the Union of American Physicians and Dentists and covered by the MOU with the County, which recognizes that “[e]mployees in this bargaining unit are professional employees and as such are paid a pre-determined salary each biweekly period irrespective of the number of hours worked in a workweek.” Ex. 1.07 § 6.1 (emphasis added). Thus, Plaintiff was employed as a medical doctor and was therefore exempt from the FLSA because he was a bona fide professional.

Plaintiff disagrees with this conclusion for two main reasons. First, Plaintiff contends that “[w]ithout a job description for the P28 position ․ [his] position must be treated as non-exempt by default.” FAC at 44; see also Opp. at 6. However, the allegations here indisputably show that Dr. Do was employed as a medical doctor and is therefore exempt under the FLSA as a matter of law.⁵ Second, Plaintiff argues that his work at clinics other than his preferred clinic could not be exempt from overtime pay because that work was not a “principal activity.” FAC at 45. But the bona fide professional exemption applies categorically to anyone practicing medicine and, in any event, Plaintiff's work at the other clinics was still medical in nature.'

Thus, because the complaint establishes that Plaintiff was employed as a medical doctor and was therefore a bona fide professional, Plaintiff is exempt from the FLSA. Accordingly, Plaintiff cannot state a claim for violations of the FLSA's overtime provision as a matter of law.

2. Regulations Interpreting the FLSA

Plaintiff also alleges violations of three regulations that interpret the FLSA. See 29 C.F.R. §§ 553.101(c), 553.102(a), 790.8(a). However, because Plaintiff is exempt from the FLSA, none of these regulations are applicable. For example, Section 790.8(a) is part of a regulation that interprets how the Portal-to-Portal Act of 1947 interacts with the FLSA. Section 790.8 makes clear that the two laws connect with respect to punishing the nonpayment of wages owed under the FLSA. See id. § 790.2. Because Plaintiff is exempt from the FLSA's wage provisions, this regulation has no bearing on his legal rights.

In any event, each argument fails on its own terms. First, Plaintiff argues that he was forced to do volunteer work in violation of 29 C.F.R. §§ 553.101(c), 553.102(a) because he was required to work at all three County methadone clinics, rather than only at his preferred clinic. FAC at 5, 22, 24, 45-46, 55-56; Opp. at 11, 14. However, the same regulations that Plaintiff cites provide that “[a]n individual shall not be considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer.” 29 C.F.R. § 553.101(d). Plaintiff was therefore not a volunteer because he was employed by the County to work at the methadone clinics and paid a salary. See Ex. 1.01; Ex. 1.07 § 6.1. And although Plaintiff asserts that he should have only been required to work at a single clinic, the MOU expressly contemplated that Dr. Do could be “assigned to work at a location different from [ ]his regularly assigned work location” or have multiple “regularly assigned work locations.” Ex. 1.06 § 6.8; Ex. 1.07 § 6.8. Receiving a salary in exchange for work, in accordance with an employment agreement, are hallmarks of a job, not volunteerism.

Second, Plaintiff argues that 29 C.F.R. § 790.8(a) creates a de facto requirement that the County must provide a job description stating the principal duties assigned to P28 employees, which allegedly did not exist. FAC at 3-5, 15, 20. Yet, Plaintiff concedes that Section 790.8 “does not explicitly mandate” a particular job description because it is merely a definition of a term used in the FLSA. FAC at 35; see also 29 C.F.R. § 790.8(a).

C. Constitutional Claims

Plaintiff next asserts Section 1983 claims for alleged due process violations. See FAC at 17, 26, 31, 38. “To state a claim under the Due Process Clause, a plaintiff must first establish that he possessed a ‘property interest’ that is deserving of constitutional protection.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998); see also Dyack v. Northern Mariana Islands, 317 F.3d 1030, 1033 (9th Cir. 2003) (“[T]o determine whether [plaintiff's] termination violated his due process rights, we must first determine whether [plaintiff] had a constitutionally protected property interest in continued employment.”). “A property interest arises only where there is a legitimate claim of entitlement” stemming from “an independent source such as state law.” Roybal v. Toppenish Sch. Dist., 871 F.3d 927, 931 (9th Cir. 2017) (citation omitted). Here, Plaintiff argues that he has cognizable property interests in (1) his job, such that he could not be terminated without process consistent with Skelly v. State Personnel Board., 15 Cal. 3d 194 (1975); and (2) overtime wages. See FAC at 17, 26, 31, 38. The Court addresses each argument in turn, before separately addressing Plaintiff's Monell claim against the County. See FAC at 38-39.

1. Property Right to Employment

Plaintiff argues that he has a property right to his employment with the County because he is a “classified civil servant” rather than an “unclassified” at-will employee.⁶ If “a state employee serves at will, he ․ has no reasonable expectation of continued employment, and thus no property right.” Dyack, 317 F.3d at 1033. At-will employment is the default in California because “[a]n employment, having no specified term, may be terminated at the will of either party on notice to the other.” Cal. Lab. Code § 2922.

As established by the County Charter, all medical doctors employed by the County are unclassified. County Charter § 701(a)(7). Thus, Dr. Do's job as a senior staff physician II was unclassified, as reflected in his employment records and the MOU. See Exs. 1.01, 1.06, 1.07. Nor does Dr. Do allege that he ever took a qualifying examination or served a probationary period, as required to become a member of the “classified civil service.” See County of Santa Clara Ordinance Code §§ A25-65, A25-148; Ex. 9, ECF No. 54-9. Accordingly, the allegations in the complaint indicate that Dr. Do was unclassified and therefore an at-will employee who lacked any cognizable property interest in his position with the County.

Plaintiff's arguments for why he was actually a member of the classified civil service are unavailing. First, Plaintiff asserts that “he was a P28 permanent civil service employee, not an unclassified employee subject to termination at-will, two mutually exclusive classes.” FAC at 22 (emphasis added); see also Opp. at 20 (same). This argument reflects a misunderstanding of what “unclassified” means. “Unclassified” is a legal term defined in the County Charter to specify which positions are not part of the classified civil service. See County Charter § 701(a). Meanwhile, “P28” is simply a code assigned to Plaintiff's former job, which has no bearing on whether the job is part of the classified civil service. See Ex. 1.07, art. 1 (reflecting that the MOU refers to the “P28” position as being “unclassified”). Thus, Plaintiff was both employed in the P28 position and unclassified, which was neither mutually exclusive nor unlawful.

Second, Plaintiff argues that the County invoked Section 5.1 of the MOU on April 4, 2025, in the letter terminating his employment “to re-label Plaintiff – a long-serving P28 union employee and civil service servant – as a mere ‘unclassified’ at-will employee.” FAC at 32 (emphasis added); see also Opp. at 1, 9 (arguing that the MOU is a “legal nullity because it bypassed PERB Decision 2321-M (2013) which put the County on official notice that it could not unilaterally alter employment rights” (emphasis added)). This argument again reflects a fundamental misunderstanding. All medical doctors are unclassified under the County Charter, and the termination letter simply reflects that fact. The County did not re-label Plaintiff's position or alter his employment status in any way.

Third, Plaintiff argues that his “11-year tenure, pension, UAPD membership, and 10-year certificate of recognition created a Property Interest.” Opp. at 16; see also FAC at 40. However, the duration of Plaintiff's employment and certificate of recognition did not transform his job into a classified position because an unclassified employee may only enter the classified service by taking a qualified examination and then serving a probationary period. See County of Santa Clara Ordinance Code §§ A25-65, A25-148. Plaintiff does not allege that he met either of these requirements. Meanwhile, Plaintiff's UAPD membership actually confirms that his position was unclassified, as the MOU negotiated by UAPD expressly states that “the Union [is the] exclusive bargaining representative for ․ unclassified coded classifications” including “Senior Staff Physician II.” Ex. 1.07, art. 1.

Accordingly, the complaint does not plausibly allege that Plaintiff was a classified employee and instead indicates that he was unclassified, without a protectable property interest in his job. Thus, Plaintiff was not owed due process protections under Skelly when his employment was terminated, and he cannot state a claim under Section 1983 on this basis.

2. Property Right to Overtime Pay Under the FLSA

Plaintiff also alleges that Defendants violated his due process rights by refusing to pay him overtime for work completed at multiple clinics. FAC at 31, 38-40. However, Plaintiff is exempt from the FLSA, as discussed above. Accordingly, the FLSA did not vest Plaintiff with a protectable property interest in overtime wages that could support a Section 1983 claim.

3. Monell Liability

Plaintiff's Section 1983 claims against the County fail for an additional threshold reason. To state a claim under Section 1983 against the County, Plaintiff must satisfy the requirements of Monell v. Department of Social Services, 436 U.S. 658 (1978) by alleging that the County had a policy, custom, or practice that violated his constitutional rights. “There is not a standalone ‘Monell claim’ because Monell requires an underlying constitutional violation.” Museum of Handcar Tech. LLC v. Transp. Agency of Monterey Cnty., --- F. Supp. 3d ----, 2025 WL 4481082, at *3 n.4 (N.D. Cal. Apr. 14, 2025). For the foregoing reasons, Plaintiff has not alleged an underlying constitutional violation and therefore has not stated a claim under Monell either. In any event, Plaintiff has also failed to allege a policy, custom, or practice that satisfies Monell. The complaint alleges that the County had:

[A] policy, custom, or practice of: Intentional misclassification of P28 permanent union employees as “unclassified” to circumvent Skelly-line due process protections[;] [s]ubstitution of codified MOU/CBA procedures with unwritten “past practices” to deprive employees of their vested property interest[;] [and] [m]aintenance of a disciplinary system that lacks the Skelly-line due process protections and “neutrality” required by the Haas standard.

FAC at 38-39 (emphasis omitted). But as explained above, P28 employees are unclassified, so Plaintiff has not sufficiently alleged that the County intentionally misclassified employees or that P28 employees have a vested property interest in that position.

* * *

Accordingly, Plaintiff has failed to state a claim under 42 U.S.C. § 1983 for violations of his due process rights under any theory alleged in the complaint.⁷

D. Age Discrimination in Employment Act

Plaintiff alleges that Defendants violated the Age Discrimination in Employment Act (“ADEA”) by replacing him with a younger physician. FAC at 42. To state a prima facie case for disparate treatment under the ADEA, an employee must demonstrate that he is (1) a member of “the protected class (at least age 40)”; (2) performing his job satisfactorily; (3) discharged; and (4) replaced by a “substantially younger” employee “with equal or inferior qualifications.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). Here, Defendants challenge the second element: that Plaintiff was performing his job satisfactorily. See Mot at 10.

The complaint does not allege that Plaintiff was performing his job satisfactorily. Instead, the complaint and exhibits – including emails that Dr. Do wrote – show that he refused to authorize nurses to treat patients on numerous occasions when he was the on-call physician, even after being ordered to make medically-appropriate decisions and authorize treatment. See Ex. 2.05; Ex. 2.06, ECF No. 41-17. Additionally, Plaintiff alleges that he “left explanatory notes in patient [electronic health records]” telling patients that physicians' orders were illegal. FAC at 4, 54-55; see also Ex. 2.06. Finally, when Plaintiff was twice ordered to meet with supervisors about this conduct, he refused to do so despite being told that he could bring representation. Exs. 3.11-3.12. Plaintiff seeks to justify this conduct by arguing that he was not refusing to provide “critical care” because “methadone clinics [are] not emergency rooms,” but there is no ADEA exception for refusing to perform job duties provided that doing so would not cause a life-threatening emergency. FAC at 17. Accordingly, Plaintiff has failed to state an ADEA claim because he has not alleged facts showing that he performed his job satisfactorily.

E. False Claims Act

The complaint states that “Plaintiff, as pro se, could not and did not file for qui tam action under the False Claims Act.” FAC at 59. However, the complaint then confusingly includes an entire section on the False Claims Act (“FCA”), alleging that “[t]he commingling of P28 employee delegates from independent methadone clinics to justify forced volunteer work constituted a probable violation of the False Claims Act” because “the use of unpaid labor may constitute a misrepresentation of staffing and labor costs.” Id. at 60.

To avoid any confusion and guide Plaintiff when amending his complaint, the Court addresses the reference to the FCA as if it purports to state a claim. As Plaintiff recognized, a pro se plaintiff cannot bring a qui tam action under the FCA. See Stoner v. Santa Clara Cnty. Off. of Educ., 502 F.3d 1116, 1127 (9th Cir. 2007). Thus, to proceed with an FCA claim in any amended complaint, Plaintiff must retain counsel. Additionally, Plaintiff has not filed the complaint under seal or provided any indication that he served the United States before serving Defendants, which is required under the FCA. See Chao v. County of Santa Clara, No. 26-cv-00339-BLF, 2026 WL 1395940, at *5 (N.D. Cal. May 18, 2026). If Plaintiff intends to bring an FCA claim, he must satisfy each of these requirements. If he does not, then he cannot state an FCA claim.

F. State Law Claims

Because the parties are not diverse, the Court only has subject matter jurisdiction over Plaintiff's case if he states a claim under federal law. See FAC at 5 (citing 28 U.S.C. § 1331 and 28 U.S.C. § 1367 as bases for jurisdiction). The Court has dismissed all of Plaintiff's federal claims under Rule 8 and Rule 12(b)(6), so it lacks subject matter jurisdiction over the claims for breach of contract, fraud, whistleblower retaliation under California Health and Safety Code § 1278.5, lost income, and wrongful termination. See FAC at 2, 5-6, 52, 59, 63. Additionally, the Court observes that Plaintiff may have abandoned his breach of contract claim in his opposition brief and that the claims for breach of contract and fraud as to his 2013 agreement to work for the County may be barred by res judicata with respect to at least certain Defendants. See Opp. at 2, 19.

V. LEAVE TO AMEND THE COMPLAINT

When deciding whether to grant leave to amend, the Court considers factors such as “undue delay, bad faith or dilatory motive on the part of the [plaintiff], repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). Here, the Court finds that dismissal without leave to amend is appropriate as to Plaintiff's claims for violations of the FLSA and associated regulations, and any due process claims based on the FLSA, because Plaintiff is exempt from the FLSA and amendment would therefore be futile. See supra Parts IV.B & IV.C.2.

Because this is the Court's first ruling on the legal sufficiency of Plaintiff's claims, and because he is self-represented, the Court GRANTS leave to amend the remaining claims for violations of 42 U.S.C. § 1983, the ADEA, and state law. Plaintiff may also amend his FCA claim if he retains counsel. Plaintiff is advised that if he fails to comply with Rule 8 or to plausibly allege a claim over which the Court has subject matter jurisdiction in his second amended complaint, the Court may dismiss the complaint without granting further leave to amend. Plaintiff is also advised that any amended complaint must be filed as one document that contains all relevant allegations and clearly identifies each claim asserted against each Defendant, the relevant legal theory, and the relief sought. See McHenry, 84 F.3d at 1177-80. Plaintiff may not add claims through supplemental documents after the second amended complaint is filed, without seeking leave of court.⁸

The District Court has a guide for pro se litigants called Representing Yourself in Federal Court: A Handbook for Pro Se Litigants (https://cand.uscourts.gov/pro-se-handbook/), which provides instructions on how to proceed with a civil case. Plaintiff can access the guide, and additional resources for pro se litigants, on the Northern District Court's website (https://cand.uscourts.gov/pro-se-litigants/).

VI. CONCLUSION

For the foregoing reasons, Defendants' motion to dismiss is GRANTED. ECF No. 49. The claims for violations of the FLSA and associated regulations, 29 C.F.R. §§ 553.101(c), 553.102(a), 790.8(a), and Section 1983 claims predicated upon the FLSA, are dismissed without leave to amend. All other claims are dismissed with leave to amend. Plaintiff may file an amended complaint within 28 days of this Order.

IT IS SO ORDERED.

FOOTNOTES

1.   After Plaintiff filed his opposition, ECF No. 53, and Defendants' filed their reply, ECF No. 55, Plaintiff proceeded to file the following documents: Motion for Leave to File Sur-Reply, ECF No. 56; Notice of Supplemental Authority Regarding the Constitutional and Statutory Implications of the Party-Opponent Admissions, ECF Nos. 57-58; Motion for Leave to File Pre-Hearing Brief by Plaintiff, ECF Nos. 59, 59-1; Request for Judicial Notice of the Workplace Know Your Rights Act, ECF Nos. 60, 60-1, 60-2; Request for Judicial Notice of the A78639 MBC License Verification to Confirm Absence of 805 Report, ECF Nos. 64, 64-1; Notice of Lodging of Plaintiff's Oral Argument at Hearing on Motion to Dismiss, ECF No. 65; and Request for Judicial Notice of the License A78639 Public Record, ECF No. 66. “Once a reply is filed, no additional memoranda, papers or letters may be filed without prior Court approval.” Civil L.R. 7-3(d). Accordingly, the Court GRANTS Plaintiff's motion for leave to file a sur-reply insofar as the sur-reply responds to Defendants' argument that Plaintiff abandoned his claims. See ECF No. 56 at 1-2. The Court STRIKES the remaining portion of the sur-reply, which improperly introduces new arguments. See id. at 3-6. The Court DENIES Plaintiff's Motion for Leave to File Pre-Hearing Brief. See ECF Nos. 59, 59-1. The Court STRIKES Plaintiff's other above-referenced filings, see ECF Nos. 57-58, 60, 64-66, because they were filed without seeking leave of Court, and because they introduce new claims and legal arguments that are not part of the operative complaint or Plaintiff's opposition brief. See Whitley v. Javate, No. 20-cv-00680-BLF, 2021 WL 5906048, at *2 (N.D. Cal. Dec. 13, 2021).

3.   Citations to the complaint are to page numbers rather than paragraphs.

4.   Plaintiff acknowledges that such a job description is not expressly required by any statute or regulation but argues that it is a de facto requirement under 29 C.F.R. § 790.8(a); Cal. Health & Safety Code § 1278.5; Cal. Gov. Code §§ 825 et seq., 995 et seq., 31108; 5 U.S.C. § 5102; and Article VII of the MOU. FAC at 3, 20, 22.

5.   Because the existence or non-existence of a particular job description is irrelevant to the FLSA analysis, the Court need not reach Plaintiff's many arguments for why various statutes, regulations, and county ordinances purportedly create this de facto requirement.

6.   It is undisputed that unclassified employees, who do not receive the same protections given to members of the classified civil service, are at-will employees. See FAC at 22 (referring to “unclassified employee[s]” as being “subject to termination at-will”); Opp. at 20 (same); see also County Charter §§ 701, 703, 708.

7.   “Federal courts are required sua sponte to examine jurisdictional issues such as standing.” Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir. 2002) (citation modified). Standing requires, among other things, that the plaintiff suffer an injury in fact that is concrete and particularized and actual or imminent, rather than hypothetical or speculative. See id. at 868-69. Plaintiff alleges additional due process violations because (1) Defendants did not provide liability coverage and (2) patients were deprived of their “liberty interest[ ] in bodily autonomy” because they were not informed that Dr. Do was not primarily assigned to their clinic. FAC at 4, 27, 38; see also id. at 53 (alleging that Defendants violated patients' informed consent rights under 42 C.F.R. § 2.31(a)(2)). However, there is no allegation that Plaintiff was ever denied liability coverage and Plaintiff cannot seek relief for injuries allegedly suffered by patients. Thus, Plaintiff lacks standing to pursue either theory.

8.   The Court notes that Plaintiff has improperly added new claims in his briefs and subsequent filings that were not included in the first amended complaint, including claims under the Meyers-Milias-Brown Act, Cal. Lab. Code § 432.4, Cal. Gov. Code. § 7920 et seq., various county ordinances and PERB decisions, and 29 U.S.C. § 211(c). See Opp. at 4, 7-8, 15. Plaintiff also alleges that certain fraudulent conduct was discovered on January 18, 2026, after the first amended complaint was filed. See Opp. at 12. And Plaintiff alleges that Defendants violated the California Workplace Know Your Rights Act. See ECF Nos. 59-1, 60. Because these claims are not included in the first amended complaint, the Court does not reach them. Additionally, the Court is skeptical that Plaintiff can state a claim under the Workplace Know Your Rights Act because it required employers to provide certain notice to employees by February 1, 2026, long after Plaintiff was fired by the County, and does not appear to apply retroactively.

Eumi K. Lee United States District Judge