Lasher v. Neb. State Bd. of Pharmacy

• Decision Date: 25 April 2018
• Docket Number: 4:17CV3125
• Parties: LENA LASHER, Plaintiff, v. NEBRASKA STATE BOARD OF PHARMACY (NE BOP), State of Nebraska, Lincoln, Nebraska 68508; and THOMAS L. WILLIAMS, MD, Chief Medical Officer Director, Division of Public Health State of Nebraska Department of Health and Human Services Lincoln, Nebraska 68508; Defendants.
• Court: United States District Courts. 8th Circuit. United States District Court of Nebraska

LENA LASHER, Plaintiff, v. NEBRASKA STATE BOARD OF PHARMACY (NE BOP),

State of Nebraska, Lincoln, Nebraska 68508;

and THOMAS L. WILLIAMS, MD, Chief Medical Officer Director,

Division of Public Health State of Nebraska Department of Health

and Human Services Lincoln, Nebraska 68508; Defendants.

4:17CV3125

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

April 25, 2018

MEMORANDUM AND ORDER

Plaintiff filed a Complaint on September 29, 2017. (Filing No. 1.) She has been given leave to proceed in forma pauperis. (Filing No. 12.) The court now conducts an initial review of Plaintiff's Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.

I. SUMMARY OF COMPLAINT

Plaintiff is a prisoner confined at the Federal Correctional Institution in Danbury, Connecticut. She brings this action against the Nebraska State Board of Pharmacy ("Board") and Thomas L. Williams ("Williams"), MD, Chief Medical Officer and Director of the Division of Public Health ("Director") of the Nebraska Department of Health and Human Services ("NDHHS"), challenging an adverse decision of the Board rendered on September 15, 2017, which revoked Plaintiff's pharmacist license.

Plaintiff alleges that the Pennsylvania State Board of Pharmacy revoked her pharmacist license due to a wrongful criminal conviction and the Board relied on this same conviction to revoke Plaintiff's Nebraska pharmacist license. (Filing No. 1 at CM/ECF p.1.) In addition, Plaintiff claims that her pharmacist license was revoked based on her race, national origin, and sex because other white male pharmacists and technicians who testified at Plaintiff's criminal trial and admitted their guilt to the "'crime,' including prostitution and theft of narcotics and other miscellaneous items from various pharmacies, were not punished by any state Board of Pharmacy while the plaintiff, an Asian female of Vietnamese descent," was punished. (Id. at CM/ECF pp.1-2.) Plaintiff asserts that the Board refused to consider Plaintiff's evidence demonstrating her innocence at a hearing on April 19, 2017, and erred as a matter of law in revoking her pharmacist license.

Plaintiff asks for a hearing in this court at which she may present evidence that she did not commit the crime for which she was convicted. For relief, Plaintiff seeks review and reversal of the Board's decision, as well as compensatory and punitive damages.

II. APPLICABLE STANDARDS OF REVIEW

The court is required to review prisoner and in forma pauperis complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A. The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).

Pro se plaintiffs must set forth enough factual allegations to "nudge[] their claims across the line from conceivable to plausible," or "their complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see alsoAshcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("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.").

"The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party 'fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'" Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, "[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties." Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

Liberally construed, Plaintiff here alleges federal constitutional claims. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by the United States Constitution or created by federal statute and also must show that the alleged deprivation was caused by conduct of a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).

III. DISCUSSION

Nebraska's Uniform Credentialing Act ("UCA"), Neb. Rev. Stat. §§ 38-101 to 38-1,142 (Reissue 2016 & Supp. 2017), regulates persons providing health and health-related services, including pharmacists. The Board of Pharmacy is a statutorily-established board designated by the Division of Public Health of the NDHHS to provide, among other things, "recommendations related to the issuance or denial of credentials [and] disciplinary action." Neb. Rev. Stat. § 38-161(1); see also Neb. Rev. Stat. §§ 38-158 and 38-167(u) (designating Board of Pharmacy as one of the boards appointed by the State Department of Health). Williams, as the Director of the NDHHS Division of Public Health, has "jurisdiction of proceedings. . . to discipline a credential holder" and ultimately determines if and what type of sanctions should be imposed. Neb. Rev. Stat. § 38-176; see also Neb. Rev. Stat. § 38-116 (defining Director); Neb. Rev. Stat. § 38-192 ("The director shall have the authority through entry of an order to exercise in his or her discretion any or all of the sanctions authorized under section 38-196.").

The UCA provides that

a credential to practice a profession may be denied, refused renewal, or have other disciplinary measures taken against it in accordance with section 38-185 or 38-186 on any of the following grounds:

(5) Conviction of (a) a misdemeanor or felony under Nebraska law or federal law, or (b) a crime in any jurisdiction which, if committed within this state, would have constituted a misdemeanor or felony under Nebraska law and which has a rational connection with the fitness or capacity of the applicant or credential holder to practice the profession;

. . . .

(11) Having had his or her credential denied, refused renewal, limited, suspended, revoked, or disciplined in any manner similar to section 38-196 by another state or jurisdiction based upon acts by the applicant or credential holder similar to acts described in this section . . . .

Neb. Rev. Stat. § 38-178. Where the grounds for discipline are based on another state's discipline of the pharmacy license holder, "a certified copy of the record of denial, refusal of renewal, limitation, suspension, or revocation of a license, certificate, registration, or other similar credential or the taking of other disciplinary measures against it by another state or jurisdiction shall be conclusive evidence of a violation." Neb. Rev. Stat. § 38-180.

Disciplinary proceedings against a pharmacy license holder are initiated by the Attorney General filing a petition with the Director. Neb. Rev. Stat. § 38-186; see also Neb. Admin. R. & Regs. Tit. 184, Ch. 1, § 006.01. Upon filing of apetition, a hearing is set and notice of the hearing, along with a copy of the petition, is served on the license holder. Neb. Rev. Stat. §§ 38-188 and 38-189; see also Neb. Admin. R. & Regs. Tit. 184, Ch. 1, § 006.01. The Director or a hearing officer designated by the Director presides over the hearing, which is "summary in its nature and triable as an equity action." Neb. Rev. Stat. § 38-186. The Director or hearing officer may receive affidavits in evidence, and "[t]he department shall have the power to administer oaths, to subpoena witnesses and compel their attendance, and to issue subpoenas duces tecum and require the production of books, accounts, and documents in the same manner and to the same extent as the district courts of the state." Id. "Upon the completion of any hearing held regarding discipline of a credential, the director may dismiss the action or impose . . . sanctions," including revocation. Neb. Rev. Stat. § 38-196. Any person aggrieved by a final decision in a disciplinary proceeding under the UCA is entitled to judicial review in accordance with the Administrative Procedure Act ("APA"). Neb. Rev. Stat. § 38-1,102; see also Neb. Rev. Stat. § 84-917 (setting forth APA appeal procedure).

A. Sovereign Immunity

Here, Plaintiff sues the Board and Williams in their official capacities only. See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) ("This court has held that, in order to sue a public official in his or her individual capacity, a plaintiff must expressly and unambiguously state so in the pleadings, otherwise, it will be assumed that the defendant is sued only in his or her official capacity."). Liberally construed, Plaintiff alleges the Board's decision to revoke her pharmacy license violated her equal protection and due process rights.

Plaintiff's claims for monetary relief against the Board and Williams in their official capacities are barred by Eleventh Amendment sovereign immunity. Further, Plaintiff cannot sue the state or state officials in their official capacities for money damages under § 1983 because such suits are really suits against the state, and the state is not a "person" who can be sued under § 1983. Kruger v. Nebraska,820 F.3d 295, 301 (8th Cir. 2016); Zajrael v. Harmon, 677 F.3d 353, 355 (8th Cir. 2012) (per curiam) (section 1983 provides no cause of action against agents of the state acting in their official capacities; sovereign immunity bars claim against state-agency employees for monetary damages under federal act); Monroe v. Arkansas State Univ., 495 F.3d 591, 594 (8th Cir. 2007) (Eleventh Amendment bars claims against state and its agencies for any kind of relief; Eleventh Amendment bars claims for money against state officials in their official capacities).

While Defendants...