Tulp v. Educ. Comm'n for Foreign Med. Graduates

• Decision Date: 26 March 2019
• Docket Number: CIVIL ACTION NO. 18-5540
• Citation: 376 F.Supp.3d 531
• Parties: Dr. Orien L. TULP, Plaintiff, v. EDUCATIONAL COMMISSION FOR FOREIGN MEDICAL GRADUATES and Dr. William W. Pinsky, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

376 F.Supp.3d 531

Dr. Orien L. TULP, Plaintiff,

v.EDUCATIONAL COMMISSION FOR FOREIGN MEDICAL GRADUATES and Dr. William W. Pinsky, Defendants.

CIVIL ACTION NO. 18-5540

United States District Court, E.D. Pennsylvania.

Filed March 26, 2019

Signed March 26, 2019

Tommy Swate, Houston, TX, William C. Reil, Philadelphia, PA, for Plaintiff.

Elisa P. McEnroe, Matthew Daniel Klayman, Morgan Lewis Bockius LLP, Philadelphia, PA, for Defendants.

OPINION

WENDY BEETLESTONE, Distrct JudgePlaintiff Dr. Orien Tulp brings this suit against Defendants Education Commission for Foreign Medical Graduates ("ECFMG") and Dr. William Pinsky (collectively "Defendants"), alleging Defendants committed various constitutional and common law torts in the course of investigating and then sanctioning Plaintiff for his role in administering an overseas medical school. Defendants now move to dismiss Plaintiff's Complaint for failing to state a claim upon which relief can be granted. For the reasons that follow, Defendants' motion will be granted in part and denied in part.

I. Background¹

Plaintiff is President of the University of Science, Arts, and Technology ("USAT"), a medical school located on the British Overseas Territory of Montserrat. ECFMG is a private, non-profit organization based in Philadelphia that certifies foreign medical school graduates so that those students can pursue post-graduate medical training in the United States. Without a certification from ECFMG, graduates of foreign medical schools, like USAT, cannot apply to medical residency programs in the United States. Pinsky is the President of ECFMG.

Plaintiff's suit is, in effect, a response to disciplinary action taken by ECFMG against Plaintiff and USAT. In August of 2018,² ECFMG launched an investigation into whether USAT was operating unauthorized medical school campuses in the United States in violation of ECFMG's Policies and Procedures. ECFMG also inquired into whether Plaintiff had engaged in "irregular behavior" by providing false information to ECFMG about USAT's activities. As part of the investigation, ECFMG sent current and former USAT students affidavits forms, requesting information about their attendance at USAT. The affidavit form stated that students were required to provide such information and informed students that ECFMG reserved the right to bring allegations of irregular behavior, if students failed to do so.

On November 28, 2018, ECFMG held a hearing on Plaintiff's alleged misconduct in Philadelphia, Pennsylvania. ECFMG allotted twenty minutes for the hearing, but "[a]fter a few minutes," the hearing was cut short by ECFMG's counsel. Plaintiff was not permitted to present testimony or evidence concerning the alleged misconduct.

On December 14, 2018, ECFMG informed Plaintiff that it had completed its investigation. ECFMG concluded that USAT was operating unauthorized branch campuses within the United States, in violation of ECFMG's Policies and Procedures. In addition, ECFMG concluded that Plaintiff had provided false information to ECFMG regarding USAT's students' attendance at the Montserrat campus, also in violation of its Policies and Procedures. As a result, ECFMG informed Plaintiff that it was taking the following disciplinary action: (1) refusing, for a minimum of five years, to accept any documents signed and/or certified by Plaintiff for ECFMG on behalf of USAT; (2) adding to ECFMG's Sponsor Note for USAT in the World Directory of Medical Schools a notice that USAT students and graduates would be subject to enhanced vetting procedures; and, (3) deciding that USAT students with a graduation year of 2019 and later would no longer be eligible to apply for ECFMG certification. Because students are no longer able to pursue ECFMG certification, the sanctions effectively closed USAT.

In his suit, Plaintiff alleges that Defendants' conduct constituted constitutional and common law torts. Although the Complaint is not entirely clear, read broadly it alleges: (1) common law tortious interference with contract against ECFMG; (2) a claim pursuant to 42 U.S.C. § 1983 against ECFMG for violating Plaintiff's procedural due process rights as protected by the Fourteenth Amendment; (3) violation of common law due process against ECFMG; (4) common law fraud against ECFMG; (5) common law abuse of process against ECFMG; (6) common law negligent misrepresentation against ECFMG; and, (7) a claim pursuant to 42 U.S.C. § 1983 against both Defendants for violating Plaintiff's procedural and substantive due process rights as protected by the Fourteenth Amendment.

II. Legal Standard

"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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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. "Threadbare" recitations of the elements of a claim supported only by "conclusory statements" will not suffice. Id. at 683, 129 S.Ct. 1937. Rather, a plaintiff must allege some facts to raise the allegation above the level of mere speculation. Great W. Mining & Mineral Co. v. Fox Rothschild LLP , 615 F.3d 159, 176 (3d Cir. 2010) (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). When analyzing a motion to dismiss, the Court must "construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009). Legal conclusions are disregarded, well-pleaded factual allegations are taken as true, and a determination is made as to whether those facts state a "plausible claim for relief." Id. at 211.

Where, as here, a federal court is interpreting Pennsylvania law, the federal court must follow the Pennsylvania Supreme Court. In re Energy Future Holdings Corp. , 842 F.3d 247, 253-54 (3d Cir. 2016). If the law is unclear and there is no controlling precedent issued by Pennsylvania's highest court, a federal court must "predict" how it would rule, giving "due regard, but not conclusive effect, to the decisional law of lower state courts."

Nationwide Mut. Ins. Co. v. Buffetta , 230 F.3d 634, 637 (3d Cir. 2000).

III. Discussion

A. Constitutional Claims

Plaintiff alleges that Defendants' investigation and disciplinary action violated both his substantive and procedural due process rights as protected by the Fourteenth Amendment to the United States Constitution.³

To maintain a Section 1983 claim, Plaintiff must allege a violation of a right secured by the Constitution or laws of the United States committed by a person acting under color of state law. West v. Atkins , 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). "The color of state law element is a threshold issue; there is no liability under Section 1983 for those not acting under color of law." Groman v. Township of Manalapan , 47 F.3d 628, 638 (3d Cir. 1995).⁴ Plaintiff's constitutional claims fail because the Complaint does not contain sufficient factual allegations from which the Court can conclude that Defendants' conduct constituted state action.

Plaintiff's state action argument is two-fold. First, Plaintiff argues that ECFMG, despite its private character, is actually a governmental organization such that any action ECFMG takes constitutes state action. Second, Plaintiff argues that, even if ECFMG really is a private entity, ECFMG's investigation and disciplinary proceedings constituted state action that deprived Plaintiff of his constitutional rights.⁵ Neither argument is availing.

First, Plaintiff has failed to establish that, despite its private character, ECFMG is in actuality a state actor. "The nominally private character" of an entity may be "overborne by the pervasive entwinement of public institutions and public officials in its composition and workings" such that "there is no substantial reason to claim unfairness in applying constitutional standards to it."

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n , 531 U.S. 288, 298, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001). Other courts to address the issue—including the Third Circuit, albeit in a non-precedential decision—have consistently held that ECFMG is not a state actor. Opoku v. Educ. Comm'n for Foreign Med. Graduates , 574 F. App'x 197, 201 (3d Cir. 2014) (per curiam) (finding that as a "private not-for-profit organization," ECFMG is a "private part[y] and not [a] state actor[ ]"); Thomas v. NBME-Nat'l Bd. of Med. Examiners , 2015 WL 667077, at *4 (E.D. Pa. Feb. 13, 2015) ("Because ... ECFMG is [not] a state actor, Plaintiff cannot prevail on this [constitutional claim]"); Staudinger v. Educ. Comm'n for Foreign Med. Graduates , 1993 WL 138954, at *2 (S.D.N.Y. Apr. 28, 1993) (concluding ECFMG is not a state actor).

While state medical boards rely on ECFMG's certification of foreign medical graduates in determining whether to permit such graduates to begin the medical certification process in the United States, it does not follow that these state entities are so entwined in the "composition and workings" of ECFMG to transform ECFMG into a state actor. Brentwood Acad. , 531 U.S. at 298, 121 S.Ct. 924. Plaintiff does not allege, for example, that ECFMG is managed by public institutions or officials; nor does he allege that ECFMG is publicly financed; nor does he allege that ECFMG's standards are set by public institutions or officials. McKeesport Hosp. v. Accreditation Council for Graduate Med. Educ. , 24 F.3d 519, 525 (3d Cir. 1994) (finding the Accreditation Council for Graduate Medical Education was not a state actor because the organization was "self-governed and financed, and its standards...