Afzal v. Am. Bd. of Internal Med.
| Decision Date | 03 February 2022 |
| Docket Number | Civil Action 22-86 |
| Parties | FIAZ AFZAL, et al v. AMERICAN BOARD OF INTERNAL MEDICINE |
| Court | U.S. District Court — Eastern District of Pennsylvania |
FIAZ AFZAL, et al
v.
AMERICAN BOARD OF INTERNAL MEDICINE
Civil Action No. 22-86
United States District Court, E.D. Pennsylvania
February 3, 2022
MEMORANDUM
KEARNEY, J.
We dismissed a pro se civil rights claim from Doctors Fiaz Afzal of Canada and his spouse Shahida Shuja against the American Board of Internal Medicine last month as frivolous consistent with Congress's mandate we screen a complaint after granting leave to proceed without paying the filing fees. The doctors sought compensation and an order requiring the Board to allow Dr. Afzal to take a different assessment test for certification. They broadly alleged a civil rights violation without pleading a state actor. We granted them leave to timely file an amended Complaint. Dr. Afzal alone responded with both an amended complaint and a fulsome “supplement” we must characterize as a second amended Complaint filed without leave. He again seeks compensation from the Board and an Order requiring the Board to allow him to take a new certification assessment. But he still fails to allege the Board is a state actor. We dismiss with prejudice as he has failed to plead a state actor after three attempts and further attempts are futile. He also fails to state an equal protection claim based on the Board's purportedly discriminatory policies. We dismiss his third attempt at pleading civil rights claims against the Board as frivolous consistent with Congress's mandate. We dismiss his constitutional claims against the Board filed without paying the filing fees with prejudice.
I. Alleged pro se facts[1]
The American Board of Internal Medicine permits previously Board-certified physicians to take a Longitudinal Knowledge Assessment with more favorable “key features” to test-takers when seeking re-certification.[2] But the Board requires physicians take a different test if, like Dr. Afzal, they are seeking a new Board certification. Dr. Afzal characterizes this different test as the “old way of testing” which does not contain favorable “key features.”[3]
Dr. Afzal concludes this different testing standard discriminates against him.[4] He alleges “[d]iscrimination based on color, religion was evident in Dismissed Medicaid case in Louisiana . . . so [the Board] is also discriminating against [Dr. Afzal] due to color and religion issues as there is no other explanation for [the Board's] refusal to let [him] take the [Longitudinal Knowledge Assessment] assessment [sic] in future for 5 years.”[5]
The Board's “history of discrimination” against Dr. Afzal involves mixing up his results with another candidate's results in 1996 but refusing to acknowledge it, canceling his test in 2016 due to a criminal conviction he purports had already been expunged, and not providing him extra time during a test in 2019 when the fire alarm went off and he lost test-taking time.[6] The Board most recently refused Dr. Afzal's request to sit for examination in 2020 because his Board eligibility ended in 2019.[7]
Dr. Afzal also challenges the Board's function in the medical field, alleging it acts outside of its authority and/or with no authority in imposing certain requirements on its applicants to become Board certified and is acting as a state medical board with its requirements.[8] Dr. Afzal also now apparently challenges the Board's social media presence and influence on social media as well as its discussion of and involvement in the COVID-19 pandemic.[9]
II. Analysis
Dr. Afzal alleges the Board is discriminating and retaliating against him by not allowing him to take the new exam with “favorable features” and by requiring he do additional residency training before he sits for the certifying exam again because his period of eligibility to become Board certified expired.[10] He alleges the Board is “introducing its own regulation to exclude diverse doctors it deems fit to exclude from participation in state Medicaid program, ”[11] and then later alleges he is “being singled out by [the Board] to refuse entry to [Longitudinal Knowledge Assessment] at all. Discrimination based on color and religion was evident in Dismissed Medicaid case in Louisiana . . . so [the Board] is also discriminating against [him] due to color and religion issues as there is no other explanation for [the Board's] refusal to let [him] take the [Longitudinal Knowledge Assessment] in future for 5 years.”[12] He alleges the Board's refusal deprives him of his constitutional rights “to be treated equally and fairly.”[13] Dr. Afzal seeks “$1000, 000 [sic] as compensation” and an order requiring the Board to allow him to take the new exam.[14]
We dismissed these claims last month because Dr. Afzal and his spouse did not plead a state actor potentially responsible for a civil rights violation. Dr. Afzal again fails to state a civil rights claim because he fails to allege the Board is a state actor possibly responsible for depriving civil rights. He also fails to state an equal protection claim challenging the facially neutral policies requiring different tests for physicians who are already certified as opposed to those who are not certified who must also undergo retraining following an expiration of Board eligibility before sitting for the certifying exam.[15]
Having previously granted Dr. Afzal leave to proceed in forma pauperis, Congress directs we dismiss a claim filed without paying fees which we find frivolous or malicious; fails
to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief.[16] When considering whether to dismiss a complaint for failure to state a claim under section 1915(e)(2)(B)(ii), we apply the same standard used under Federal Rule of Civil Procedure 12(b)(6).[17] We accept all factual allegations in the complaint as true and construe those facts in the light most favorable to the plaintiffs to determine whether they state a claim for relief plausible on its face.[18] We must be “mindful of our ‘obligation to liberally construe a pro se litigant's pleadings …'”[19] We “remain flexible” and “apply the relevant legal principle even when the complaint has failed to name it.”[20] But “pro se litigants still must allege sufficient facts in their complaints to support a claim” and “cannot flout procedural rules - they must abide by the same rules that apply to all other litigants.”[21]
Congress provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State …, subjects, or causes to be subjected, any citizen of the United States … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted ….”[22]Congress does not confer rights upon a plaintiff through section 1983. Rather, the civil rights law is the vehicle used to bring federal constitutional claims in federal court. To proceed, Dr. Afzal must plead two elements: (1) a person acting under color of state law committed the complained-of conduct; and (2) the conduct deprived each of rights, privileges, or immunities secured by the Constitution or laws of the United States.[23] Dr. Afzal fails to plead either prong in his amended pleadings.
A. Dr. Afzal fails to plead the Board is a state actor.
We held the Board is a private entity in our first opinion.[24] Dr. Afzal acknowledges the Board is a private organization.[25] But he seemingly fails to understand what this means for his civil rights claim. Dr. Afzal must allege the Board acted under the color of state law and he fails to do so.
Congress allows suits against private parties acting under color of state law where (1) the private party deprived the plaintiff of a constitutional right by exercising “a right or privilege having its source in state authority” and (2) where the private party may be “appropriately characterized as [a] ‘state actor'” where the private party “is a state official, … has acted together with or has obtained significant aid from state officials, or [where his] conduct is otherwise chargeable to the State.”[26] To assist in this inquiry, the Supreme Court has articulated the “‘public function' test, the ‘close nexus' test[, ] and the ‘symbiotic relationship' test.”[27]
Dr. Afzal still does not allege the Board exercised a right or privilege having its source in state authority or the Board is a state official, acted with a state official, or the Board's conduct is chargeable to the state.[28] Dr. Afzal fails to allege facts supporting a finding the Board is acting with state officials or state officials are working with the Board to such a degree to be recognized as a “joint participant” in the Board's conduct. The closest he gets to alleging a fact -- not a legal conclusion -- supporting a finding of state action is alleging the Board is requiring residency retraining, which state licensing boards also require to practice, and the Board seeks to determine physician competency. He alleges (really argues) the Board must then be a state actor because it requires something the state medical licensing boards require.[29] But this is still not enough. We are persuaded by the reasoning of our colleagues who confronted similar issues before us.[30]
In Goussis, Judge Robreno squarely confronted whether the American Board of Internal Medicine is a state actor on a motion for summary judgment.[31] The plaintiff, a foreign born and trained physician, sued the Board for depriving him of due process and equal protection under the Fourteenth Amendment after he failed to pass the Board's qualifying exam for a subspeciality certification four times.[32] The physician argued the Board “is a state actor...
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