Afzal v. Am. Bd. of Internal Med.

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FIAZ AFZAL, et al v. AMERICAN BOARD OF INTERNAL MEDICINE

Civil Action No. 22-86

United States District Court, E.D. Pennsylvania

January 20, 2022

MEMORANDUM

KEARNEY, J.

Doctors Fiaz Afzal of Canada and his spouse Shahida Shuja of Texas sue the American Board of Internal Medicine seeking $100, 000 in damages and an order directing the Board to allow Dr Afzal to take a new assessment test to become Board certified in internal medicine. The Doctors invoke our limited jurisdiction by arguing the Board violated Dr. Afzal's civil rights by requiring him to take one version of an exam when other physicians who are already Board certified are permitted to take another version.^[1] The Doctors allege the Board's different tests for differently situated doctors based on their present certification status discriminates against Dr. Afzal because he is not presently certified and therefore must take a more difficult exam. They allege the more difficult exam disadvantages “Black Brown” doctors. We must dismiss the Doctors' Complaint for failing to state a claim, but we grant them leave to timely amend if they can state a claim within our limited subject matter jurisdiction.

I. Alleged pro se facts

The Board now permits physicians who are already Board certified to take a new assessment called the Longitudinal Knowledge Assessment with more favorable “key features” to test-takers.^[2] But if a physician like Dr. Afzal is seeking a new Board certification, the physician must take a different test. The Doctors characterize this different test as the “old way of testing” which does not contain these favorable “key features, ” and allegedly disadvantages “Black Brown doctors” who tend to score “significantly lower than their white peers.”^[3]

The Board also has a “history of discrimination” against Dr. Afzal, including mixing up his results with another candidate's results in 1996 but refusing to acknowledge it, ^[4] canceling his test in 2016 due to a criminal conviction he purports had already been expunged, ^[5] 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] The Doctors also challenge 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.^[8]

II. Analysis

The Doctors allege the Board has an “unconstitutional policy of discrimination” and is discriminating and retaliating against Dr. Afzal by not allowing him to take the new exam with “favorable features.”^[9] They allege the Board's “policy of expiration of eligibility of physician Exhibit 4 to take certifying exam violates [Dr. Afzal's] constitutional rights to be treated equally and fairly.”^[10] Dr. Shuja alleges she has been harmed economically because her husband cannot obtain Board certification and thus, not work.^[11] They seek $100, 000 in compensation and an order requiring the Board to allow Dr. Afzal to take the exam offered to Board certified physicians.^[12] We liberally construe the Doctors' Complaint as seeking redress for alleged constitutional violations - including denial of equal protection under the Fourteenth Amendment.^[13] But the Doctors fail to state a claim against the Board because they fail to allege the Board is a state actor possibly responsible for depriving civil rights.

Having granted Drs. Afzal and Shuja 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.^[14] 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).^[15] 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.^[16] We must be “mindful of our ‘obligation to liberally construe a pro se litigant's pleadings …'”^[17] We “remain flexible” and “apply the relevant legal principle even when the complaint has failed to name it.”^[18] 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.”^[19]

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 ….”^[20]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, Drs. Afzal and Shuja 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.^[21] The Doctors fail to plead a person acted under the color of state law. The Board is a private entity.^[22] The Doctors must allege the Board acted under the color of state law. 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.”^[23] To assist in this inquiry, the Supreme Court has articulated the “‘public function' test, the ‘close nexus' test[, ] and the ‘symbiotic relationship' test.”^[24]

The Doctors do 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.^[25] They instead broadly: compare states' medical licensing requirements - generally and without reference to a specific state - to the Board's certification requirements and imply the Board imposed stricter requirements than the states' medical licensing requirements;^[26] allege Board certification is not required to practice medicine in the United States;^[27] suggest the Board is not permitted to “determine competency or readiness for independent practice” or “require retraining in a residency program” under state or federal law;^[28]and, allege the Board's policy requiring a physician to redo a residency program after a certain period of time without certification “overrides” the states' licensing function.^[29] They allege the Board's purportedly discriminatory and retaliatory requirements for certification “short circuited” Dr. Afzal's medical career, in part due to Dr. Afzal's purported inability to “obtain enrollment in Medicaid/Medicare.”^[30] While the Doctors challenge the role of the Board in the medical field and disagree with un-named entities' requirement a physician be Board certified to practice with the entity when the physician has a state-issued license, they fail to plead the Board is a state actor.^[31]

III. Conclusion

We dismiss with leave to timely amend if the Doctors can assert claims consistent with Federal Rule of Civil Procedure 11 and within our limited subject matter jurisdiction.^[32] ---------

Notes:

^[1] See, e.g. ECF Doc. No. 2. The Doctors proceeding pro se do not plead in numbered paragraphs required by Federal Rule of Civil Procedure 10(b). We are unable to cite to specific paragraphs of their pro se Complaint. We instead cite to pages of the Complaint as paginated by CM/ECF. The Doctors describe themselves at various times as “me.” We construe any reference to “me” as a reference to Dr. Afzal.

The Doctors do not adequately plead our subject matter jurisdiction under 28 U.S.C. § 1332 because they fail to plead their citizenship or the citizenship of the Board. ECF Doc. No. 2 at 2. They seemingly try to assert federal question subject matter jurisdiction alleging a violation of their civil rights under 42 U.S.C. § 1983.

^[2] ECF Doc. No. 2 at 3.

^[3] Id.

^[4] Id. at 5. The Doctors attach an article from December 2020 discussing how the Kentucky Office of Bar Admissions notified fifteen law students they passed the bar but actually an error occurred and they did not pass the exam. The relevance Dr. Afzal's medical board certification exam results in 1996 is unclear.

^[5] Id. at 6. The Doctors attach a letter from the Board explaining Dr. Afzal could not take the 2016 Certification examination because he must have a valid, unrestricted, and unchallenged medical license to sit for the exam, but Dr. Afzal's license had been suspended and his DEA registration revoked due to a Medicare fraud conviction.

^[6] Id. at 6-7.

^[7] Id. at 6.

^[8] See, e.g. ECF Doc. No. 2. Drs. Afzal and Shuja allege:

• “[The Board] is a private organization which is not subject to

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