AFZAL v. AMERICAN BOARD OF INTERNAL MEDICINE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FIAZ AFZAL, et al : CIVIL ACTION

:

v. : NO. 22-86

:

AMERICAN BOARD OF INTERNAL :

MEDICINE :

MEMORANDUM

KEARNEY, J. February 3, 2022

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 facts1

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 because

[the Board’s] subspecialty certification examination is a prerequisite to ‘hospital staff privileges’

and ‘professorship appointments at state medical schools.’ Therefore, by allegedly controlling

who passes or fails the subspecialty certification examination, [the Board] performs a regulatory

function that is ‘traditionally the exclusive prerogative of the state.’”33 Judge Robreno, in

applying all three tests, found “[u]nder none of the tests, or combinations thereof, can it be said

that [the Board] is a state actor and that its conduct constituted state action . . . Because [the

Board] is a private, non-profit unregulated entity which receives no state funds and which has not

been delegated by the state any role in the licensing or regulation of professional conduct, and

whose role only involves the preparation, administration, and grading of a test, which, inter alia,

is used by peers to determine recognition of high professional achievement (board certification),

it is not a state actor and its conduct does not constitute state action for purposes of imposing

liability under Section 1983.”34

Our Court of Appeals, citing Judge Robreno’s decision in Goussis, affirmed Chief Judge

Sanchez’s dismissal of a complaint alleging the Board’s re-certification tests have racial bias

because the plaintiff made “no allegation from which we can infer that the defendants, individual

or as agents of the Board, acted under the color of state law.”35 And former Chief Judge Joyner,

also relying on Judge Robreno’s reasoning in Goussis, found the physician in Von Muller failed

to state a counterclaim against the Board when she alleged the Board deprived her of due process

in violation of the Fourteenth Amendment by suspending her Board certification without

notice.36 Judge Joyner found the physician alleged “no facts . . . that would indicate that [the

Board] was fulfilling a state function, standing in the state’s shoes or in a symbiotic relationship

with a state when it revoked [the physician’s] board certification.”37 Judge Joyner also reasoned

our Court of Appeals “and a number of fellow district court judges in this circuit have observed

that ‘the evaluation and accreditation of medical education in this country is neither a traditional

nor exclusive state function.’”38 Judge Joyner found the case not “substantively

distinguish[able]” from Goussis and thus found Judge Robreno’s analysis “highly persuasive” in

reaching the conclusion the Board is not a state actor.39

We are equally persuaded by Judge Robreno’s opinion in Goussis and find Dr. Afzal fails

to adequately plead the Board is a state actor. But even if he did, he also fails to plead an equal

protection claim.

B. Dr. Afzal fails to plead an equal protection claim.

The Equal Protection Clause of the Fourteenth Amendment demands, “[n]o state shall . . .

deny to any person within its jurisdiction the equal protection of the laws.”40

1. Dr. Afzal does not show the Equal Protection Clause applies to him.

As a threshold matter it is unclear whether Dr. Afzal is afforded protection under the

Fourteenth Amendment Equal Protection Clause as an individual residing in Canada with no

plead connection to the United States, including whether he is a United States citizen or he

resided in the United States at the time the Board required retraining before sitting for an

additional exam and denying him access to the new Longitudinal Knowledge Assessment. The

Fourteenth Amendment prohibits states from discriminating against any person within its

jurisdiction.

This area of the law is unclear as it relates to non-resident aliens claiming protection

under the Fourteenth Amendment. The Supreme Court directs the “[u]se of the phrase ‘within its

jurisdiction’ thus does not detract from, but rather confirms, the understanding that the protection

of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws

of a State, and reaches into every corner of a State's territory. That a person's initial entry into a

State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot

negate the simple fact of his presence within the State's territorial perimeter. Given such

presence, he is subject to the full range of obligations imposed by the State's civil and criminal

laws. And until he leaves the jurisdiction—either voluntarily, or involuntarily in accordance with

the Constitution and laws of the United States—he is entitled to the equal protection of the laws

that a State may choose to establish.” 41

We have no basis to conclude Dr. Afzal is within a state’s jurisdiction to be afforded

equal protection of the laws. We do not dismiss on this ground today other than recognizing Dr.

Afzal files this suit from Canada challenging the equal protection of a state’s laws.

2. Dr. Afzal does not plead an equal protection claim.

Even if he could plead a state actor, we must dismiss after three attempts because Dr.

Afzal also fails to plead an equal protection claim. He fails to plead intentional discrimination or

similarly situated individuals.

Dr. Afzal seemingly posits two theories of discrimination: (1) the Board requiring him to

take the traditional exam, instead of the new exam, to obtain certification; and (2) the Board

requiring he do additional residency training before retaking the certification exam because his

period of eligibility to be Board certified expired. He explicitly pleads the Board discriminates

against him based on his race and religion by not allowing him to take the new assessment.42 He

does not, however, allege the Board’s requirement he be retrained through a residency because

his eligibility expired is at all tied to his race or religion—i.e. he does not allege the Board’s

decision on this basis is tied to a protected class.43 We apply different standards to each claim.

We begin with his allegations regarding the new as opposed to the old testing requirement.

Dr. Afzal claims the Board is discriminating against him based on his race and religion

by requiring he take the old exam while physicians who are already Board certified can take a

more favorable exam. He pleads the new exam is available to physicians “who are already

certified by” the Board while new certification “still requires the old way of testing [by taking

the] Traditional 10 year MOC exam.”44 He continues: “New examination option should be

available to all fully licensed physicians irrespective whether first time new certification or

recertification issues or expired/lapsed certification. To allow Longitudinal evaluation LKA to

one set of licensed physicians and denying to another set of licensed physicians should be

declared discriminatory policy that violates the rights of licensed physicians under the

constitution and laws of US.”45 He also pleads the old exam he must take “was designed to

exclude diverse doctors who complain about any [Board] exam issues.”46

To state an equal protection claim, Dr. Afzal “must allege (and ultimately prove)

‘intentional discrimination.’”47 Intentional discrimination can be shown when “(1) a law or

policy explicitly classifies citizens on the basis of race [or religion]. . . (2) a facially neutral law

or policy is applied differently on the basis of race [or religion]. . . (3) a facially neutral law or

policy that is applied evenhandedly is motivated by discriminatory intent and has a racially [or

religious] discriminatory impact.”48 The Board’s policy is not facially discriminatory based on

race or religion. Dr. Afzal pleads the law is facially neutral requiring all physicians seeking a

new Board certification take the old test and all physicians seeking re-certification may take the

new one. Dr. Afzal also fails to plead facts supporting the Board is applying the facially neutral

policy differently based on race or religion. He merely pleads a single legal conclusion the

Board is discriminating against him based on his race and religion by making him take the old

exam but undercuts his own theory by pleading the Board is making all physicians, including

him, seeking a new certification take the old exam, not just him or those similarly situated as him

based on race and religion. Dr. Afzal finally fails to plead facts supporting the Board is

motivated by discriminatory intent and the facially neutral policy is causing a discriminatory

impact based on race or religion. The closest he gets to pleading a fact supporting this theory is

pleading the old exam excludes diverse doctors. This conclusory pleading is alone insufficient.

He pleads no facts the Board has discriminatory intent by requiring physicians seeking a new

certification take the old exam. He fails to state an equal protection claim under his first

theory.49

Dr. Afzal also pleads the Board is discriminating against him by requiring he complete

another residency before sitting for the certification exam because his period of eligibility

expired. This claim must be based on a “class-of-one theory” because Dr. Afzal does not allege

the Board is discriminating against him based on his status as a member of a protected class.50

Dr. Afzal must allege: “(1) the [Board] treated him differently from others similarly situated, (2)

the [Board] did so intentionally, and (3) there was no rational basis for the difference in

treatment.”51 Dr. Afzal pleads no facts about similarly situated individuals nor does he plead the

Board treated him differently than those similarly situated. He fails to plead the Board

discriminated against him intentionally. He again pleads the Board has a policy requiring a

physician to be retrained after his or her eligibility to be Board certified expires, his eligibility

expired, and the Board is requiring he be retrained before sitting for another certification exam.

He pleads the Board should not be allowed to have this requirement because state medical boards

do not impose it. He concludes this requirement violates his “constitutional rights to be treated

equally and fairly” as a matter of legal conclusion. He offers no fact basis for his legal

conclusion. He does not state a claim.

Dr. Afzal fails to state an equal protection claim against the Board.

III. Conclusion

Dr. Afzal’s second amended complaint filed without leave fails to state a claim. He fails

to plead the Board is a state actor. He instead pro se complains about the Board’s social media

“regulation” of medical content, the SATs, requirements for lawyers, and physician shortages

with no conceivable relevance to his claims here. He discusses the Board’s “history of

discrimination” and “retaliation” against him but in his claim for relief only seeks redress for the

Board’s policies requiring he take the old certifying exam and be retrained before taking it again.

Dr. Afzal challenges the Board’s existence and its impact on his ability to practice medicine. But

he pleads other non-parties’ requirements he be Board certified are his true impediment to

practice. Rather than challenging the non-party’s requirements about Board certification when

he purportedly holds valid state licenses, he continues to sue the Board alleging its facially

neutral policies requiring non-certified physicians take a different exam than previously certified

ones and imposing a retraining requirement on all candidates who are not certified within a

specific period discriminate against him. He pleads the Board requiring he take the old test

discriminates against him based on race and religion. He does not allege the Board’s retraining

requirement is tied to a protected class. He merely concludes this requirement is discriminatory

and deprives him of his “constitutional right to be treated equally and fairly.”

Dr. Afzal fails to plead a state actor in his third attempt. He fails to show he is entitled to

the protections of the Fourteenth Amendment’s Equal Protection Clause and otherwise fails to

plead an equal protection claim. We dismiss Dr. Afzal’s second amended Complaint with

prejudice.

1 Dr. Afzal fails to provide a redline of his Complaint and amended Complaint or the amended

Complaint and supplement thereto consistent with our Policies and Procedures. Dr. Afzal is also

not permitted to file a supplement to his amended Complaint, which appears to largely recite the

same allegations in the amended Complaint, without leave which he does not request. Fed. R.

Civ. P. 15(a)(2). Because Dr. Afzal is pro se, we accept and review the last-filed supplement to

his amended Complaint as the operative pleading. We construe it as a second amended

Complaint. But we note Dr. Afzal’s failure to follow the operative rules is problematic. For

example, Dr. Afzal attaches exhibits to his amended Complaint, beginning at Exhibit 15. See,

e.g., ECF Doc. Nos. 8-1–8-2. He fails to attach the earlier exhibits he references in his amended

Complaint. See, e.g., ECF Doc. Nos. 8–8-2. He attaches no exhibits to his supplement to his

amended Complaint despite several references to exhibits. We dismissed his Complaint and

cannot consider the exhibits attached to it in assessing his later pleadings. But the exhibits do not

change our analysis in any event.

2 ECF Doc. No. 9 ¶ 3.

3 Id. Dr. Afzal labels it the “Traditional 10 year MOC exam.” Id.

4 Id. ¶ 4.

5 Id. ¶ 5.

6 Id. ¶ 5.

7 Id.

8 See, e.g., ECF Doc. No. 9. Dr. Afzal alleges:

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

organization. [The Board] is acting as de facto absolute power to control the right to

practice Medicine in United States and Canada.” Id. ¶ 1.

• “Canada [O]ntario requires Board Certification as requirement for Licensure . . . State

Medical Boards in United States require licensing of practicing physicians in USA.

[Board] certification is NOT required for licensing in any US states but [the Board] is

introducing its own regulation to exclude diverse doctors it deems fit to exclude from

participation in state Medicaid program.” Id. ¶ 2.

• “[The Board] has self made an expiration of eligibility rule wherein it creates an

ineligibility determination which requires RETRAINING in the specialty for one year

and only then can the physician take any kind of assessment whatsoever. Expiration of

Eligibility to take any assessment is a new concept of discrimination which is NOT a

feature of any State Medical Boards that license physicians in USA. State Medical

Boards accept United States Medical Licensing examination USMLE 3 as meeting

requirements for licensure. Once a physician is licensed after completing minimum of

one year of postgraduate residency training there is no feature of Expiration of Eligibility

as done by [the Board] which is NOT a state licensing Board but is certainly acting as a

state actor. Each State Medical Board require renewal of license but there is no such thing

as Expiration of Eligibility to take any exam. If state medical Board require physician can

take Special Purpose Exam SPEX administered by USMLE Federation of State Medical

Board FSMB.” Id. ¶ 4 (emphasis and grammatical errors in original).

• “[The Board] is acting under color of state law to deprive [Dr. Afzal] right, privileges or

immunities secured by the constitution or laws of US. The private [Board] is exercising

its authority that have its source in state Medical Board. New York and California

determine competency or readiness for independent practice by requiring one year post

graduate training in same postgraduate program that is required by State medical boards.

[The Board] is requiring retraining which is State Medical Boards requirement so [the

Board] is acting under color of state law to deprive [Dr. Afzal] of ability to participate in

New Jersey Medicaid program. [The Board] is private entity trying to act as a state actor

by its conduct requiring postgraduate residency training which is otherwise chargeable to

State Medical Boards New York, California for example.” Id. ¶ 4 (emphasis and

grammatical errors in original).

• “[The Board’s] retaliatory discriminative policies mimic state Medical Boards action

requiring retraining after Dr. Afzal has been licensed by New Jersey Board since 1996

with no Board actions at all.” Id. ¶ 5.

• “[The Board] is not authorized under any state or Federal law to determine competency

and readiness for independent practice at the current standards of training . . . This is the

job of State Medical Boards to determine competency to practice if any deficiencies then

State Medical Board require SPEX exam by USMLE/FSMB . . . What gives [the Board]

authority to ask for retraining in postgraduate training after Dr. Afzal has been licensed in

New Jersey for more than 26 years now with a clear record in Florida . . . If [the Board] is

requiring retraining then it is definitely acting as a state actor, e.g. New Jersey Board of

Medical Examiners.” Id. ¶ 6.

• “[The Board] is retaliating against me for the mistakes that [the Board] does not admit

Changing scores, mixing up results of two candidates and refusing to follow its own

regulation by not allowing re examination option as explained. There is clear

discrimination between those who opt to take 10 year MOC exam and Longitudinal LKA

assessment . . . The 10 year MOC exam was designed to exclude diverse doctors who

complain about any [Board] exam issues.” Id. ¶ 7.

• “[The Board] has no authority to order retraining in a residency program . . . [The Board]

has sidelined by career as even New Jersey Medicaid provider enrollment require Board

certification status in spite of me being licensed in several US states . . . [The Board] is

not used by peers to determine recognition of high professional achievement but [Board]

certification or eligibility letter is requirement of State Medicaid and Medicare provider

enrollment. Inspite [sic] of being licensed by several US states with NO disciplinary

action at all by New Jersey Board . . . [Dr. Afzal] is being deprived of participation in

New Jersey Medicaid program and denied Medicare enrollment in New Jersey.” Id. ¶ 8.

(grammatical errors and emphasis in original).

• “[The Board’s] policy of expiration of Eligibility of physician to take certifying exam

violates my constitutional rights to be treated equally and fairly. This policy overrides the

State Board of Medical Examiners of each state policy to determine competence to

practice medicine independently according to prevailing standards. [The Board] has not

been authorized to administer such a discriminatorily policy by any state laws

whatsoever. Licensing is jurisdiction of each State Medical Boards NOT [the Board].

Florida Health or New Jersey Board has not required [Dr. Afzal] to undergo any

retraining issue at all. [The Board’s] continued actions have prevented me from obtaining

enrollment in New Jersey Medicaid/Medicare whatsoever short circuiting my medical

career in spite of being licensed by State Medical Boards in New Jersey, Florida, Nevada,

North Carolina and Illinois to name a few valid licenses.” Id. at 14 (Relief Requested).

9 Id. ¶ 4 (“[The Board] community engagement is trying to regulate the medical content on social

media as shown by survey sent to Dr[.] Afzal . . . [The Board] is not only acting as state actor it

is trying to regulate medical content on social media also. [the Board] certainly doesnot [sic]

have any authority to regulate medical content on social media but it is planning to do so . . .

How can [the Board] regulate such research issues when it has no research regulatory authority

at all. Only State Board of Medical Examiners are authorized to investigate physician conduct

relating to COVID 19 unproven treatments or conduct of sharing unverified medical information

about covid vaccines or physician conduct of false exemptions for mask wearing or exemption

from receiving covid 19 vaccines . . . [The Board] is trying to assume this state actor role by

regulatory measures to control media content.”).

10 Id.

11 Id. ¶ 2.

12 Id. ¶ 5.

13 Id. at 14 (Relief Requested); see also id. at 2 (Basis for Jurisdiction) (alleging “[t]his complaint

seeks redress for constitutional violation including denial of equal protection under Fourteenth

Amendment.”).

14 Id. at 15 (continuing “[n]ew examination option should be available to all fully licensed

physicians irrespective whether first time new certification or recertification issues or

expired/lapsed certification.”).

15 Dr. Afzal again pleads we have subject matter jurisdiction under 28 U.S.C. § 1332. But Dr.

Afzal still fails to plead his or the Board’s citizenship. See ECF Doc. No. 9 at 2 (merely pleading

Dr. Afzal is in Canada, but not his citizenship or residence, and merely pleading the American

Board of Internal Medicine is “in Philadelphia” but not its citizenship within the meaning of

determining subject matter jurisdiction under 28 U.S.C. § 1332). But we may exercise subject

matter jurisdiction under 28 U.S.C. § 1331 because he attempts to plead a federal question under

42 U.S.C. § 1983.

16 28 U.S.C. § 1915(e)(2)(B).

17 Elansari v. Univ. of Pa., 779 F. App’x 1006, 1008 (3d Cir. 2019) (citing Allah v. Seiverling,

229 F.3d 220, 223 (3d Cir. 2000)).

18 Id. (quoting Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012)).

19 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (quoting Higgs v. Att’y Gen., 655 F.3d

333, 339 (3d Cir. 2011)).

20 Yogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (quoting Mala v. Crown Bay Marina, Inc., 704

F.3d 239, 244 (3d Cir. 2013)).

21 Id. (quoting Mala, 704 F.3d at 245).

22 42 U.S.C. § 1983.

23 Schneyder v. Smith, 653 F.3d 313, 319 (3d Cir. 2011).

24 See American Board of Internal Medicine, https://www.abim.org/about/ (last visited Jan. 18,

2022) (“ABIM is a physician-led, non-profit, independent evaluation organization driven by

doctors who want to achieve higher standards for better care in a rapidly changing world.”);

Goussis v. Kimball, 813 F. Supp. 352, 358 (E.D. Pa. 1993) (“Because ABIM is a private, non-

profit unregulated entity which receives no state funds and which has not been delegated by the

state any role in the licensing or regulation of professional conduct, and whose role only involves

the preparation, administration, and grading of a test which, inter alia, is used by peers to

determine recognition of high professional achievement (board certification), it is not a state

actor and its conduct does not constitute state action for purposes of imposing liability under

section 1983”); see also Munsif v. Cassel, 331 F. App'x 954, 959 (3d Cir. 2009) (citing to

Goussis for proposition the Board is not a state actor under Section 1983 and finding plaintiff

failed to allege the Board acted under the color of state law for claim the Board’s tests have

racial bias); Alston v. Nat'l Conf. of Bar Examiners, 314 F. Supp. 3d 620, 625 (E.D. Pa. 2018)

(dismissing constitutional claims for lack of state actor against the National Conference of Bar

Examiners and comparing the same to the American Board of Internal Medicine, citing Judge

Robreno’s opinion in Goussis approvingly); Am. Bd. of Internal Med. v. Von Muller, No. 10-

2680, 2011 WL 857337, at *2–5 (E.D. Pa. Mar. 10, 2011), aff'd (3d Cir. Sept. 12, 2013) (relying

on Goussis, finding Goussis indistinguishable, and dismissing counterclaim against the Board for

constitutional violations).

25 ECF Doc. No. 9 ¶ 1.

26 Diamond v. Pa. State Educ. Assoc., 972 F.3d 262, 270–71, n.2 (3d Cir. 2020) (quoting Lugar

v. Edmondson Oil Co., 457 U.S. 922, 939 (1982)).

27 Von Muller, 2011 WL 857337, at *3 (citing Brown v. Philip Morris, Inc., 250 F.3d 789, 801

(3d Cir. 2001)); see also Jenkins v. Ne. Treatment Centers, Inc., No. 21-1421, 2021 WL

5227186, at *5 (E.D. Pa. Nov. 10, 2021) (citing Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009))

(“To further clarify the line between state and private actors, the Third Circuit recognizes three

broad tests to determine when state action exists: (1) whether the private actor has exercised

‘powers that are traditionally the exclusive prerogative of the state’ (the ‘public function test’);

(2) whether the private actor has acted ‘in concert with state officials’ (the ‘close nexus test’);

and (3) whether the State has ‘so far insinuated itself into a position of interdependence with the

acting party that it must be recognized as a joint participant in the challenged activity’ (the

‘symbiotic relationship test’).”).

28 See supra note 24.

29 ECF Doc. No. 9 ¶¶ 4, 6.

30 See supra note 26.

31 Goussis, 813 F. Supp. at 356–58.

32 Id. at 353–54.

33 Id. at 356.

34 Id. at 357–58.

35 Munsif, 331 F. App'x at 959. There, the plaintiff sued officers of the Board rather than the

Board itself.

36 Von Muller, 2011 WL 857337, at *2–5.

37 Id. at *4.

38 Id.

39 Id. at *5.

40 U.S. Const. amend. XIV, § 1.

41 Plyler v. Doe, 457 U.S. 202, 215 (1982) (emphasis added); see also United States v. Verdugo-

Urquidez, 494 U.S. 259, 270–71 (1990) (addressing whether defendant may invoke the Fourth

Amendment as a Mexican citizen when the search occurred in Mexico but defendant had been

arrested and taken to the United States a few days before the search, and the Court noting

“Verdugo–Urquidez also relies on a series of cases in which we have held that aliens enjoy

certain constitutional rights . . . These cases, however, establish only that aliens receive

constitutional protections when they have come within the territory of the United States and

developed substantial connections with this country.”)); Veiga v. World Meteorological Org.,

568 F. Supp. 2d 367, 373 (S.D.N.Y. 2008), aff'd sub nom. Veiga v. World Meteorological Org.,

368 F. App'x 189 (2d Cir. 2010) (applying Verdugo to case in which plaintiff invoked Fifth and

Fourteenth Amendment protections as “a citizen of Portugal and Italy” but rejecting plaintiff

could bring claims because plaintiff proffered “no evidence of any connection to the United

States,” employer outside of United States, and conduct occurred outside of the United States);

Estate of Kim Ha Ram v. Ride the Ducks of Seattle, LLC, No. 15-1929, 2016 WL 6071363, at *3

n.6 (W.D. Wash. Oct. 17, 2016) (noting plaintiffs failed to identify any cases where a court

extended protections of Fourteenth Amendment to non-resident aliens); United States v. Koch,

2011 WL 284485 (W.D. Pa. Jan. 25, 2011) (finding German national residing in Germany

awaiting criminal trial is not entitled to Sixth Amendment speedy trial protection or any other

constitutional protection while outside of the United States).

42 ECF Doc. No. 9 ¶ 5 (“Why is the plaintiff being singled out by [the Board] to refuse entry to

LKA assessment at all. Discrimination based on color, religion was evident in Dismissed

Medicaid case in Louisiana . . . so [the Board] is also discriminating against plaintiff due to color

and religion issues as there is no other explanation for [the Board’s] refusal to let plaintiff take

LKA assessment in future for 5 years”); ¶ 7 (“There is clear discrimination between those who

opt to take 10 year MOC exam and Longitudinal LKA assessment . . . The 10 year MOC exam

was designed to exclude diverse doctors who complain about any [Board] exam issues.”).

43 See, e.g., ECF Doc. No. 9 ¶ 4 (“Expiration of Eligibility to take any assessment is a new

concept of discrimination which is NOT a feature of any State Medical Boards that license

physicians in USA.”).

44 Id. ¶ 3.

45 Id. at 15 (Relief Requested).

46 Id. ¶ 7.

47 Hassan v. City of New York, 804 F.3d 277, 294 (3d Cir. 2015), as amended (Feb. 2, 2016)

(citing Washington v. Davis, 426 U.S. 229, 241 (1976) (further citation omitted)).

48 Doe v. Lower Merion School Dist., 665 F.3d 524, 543 (3d Cir. 2011) (further citation and

quotation omitted); see also Hassan, 804 F.3d at 294 (reciting three theories to prove intentional

discrimination).

49 See, e.g., Robinson v. Superintendent Houtzdale SCI, 693 F. App'x 111, 118 (3d Cir. 2017)

(upholding dismissal when plaintiff alleged he is African American and the prison had different

policies relating to the purchase of guitars versus keyboard but failing to allege any facts

supporting a finding race a substantial factor in the different treatment alleged.”).

50 See Greco v. Senchak, 627 F. App'x 146, 149 (3d Cir. 2015) (“Greco has not claimed to be a

member of a protected class. Therefore, his claim must be premised on a ‘class-of-one’ theory.”).

Even if Dr. Afzal plead the Board’s policy discriminated against him based on his race and

religion, his claim would fail for the same reasons his claim under his first theory fails as he

alleges no facts supporting a finding of intentional discrimination based on race or religion under

any of the three theories.

51 Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006); see also Phillips v. Cty. of

Allegheny, 515 F.3d 224, 243 (3d Cir. 2008). “Pleading a plausible allegation of intentional

discrimination is vital because such action is required for any violation of the Equal Protection

Clause.” Greco, 627 F. App’x at 149 (citing Washington, 426 U.S. at 239–40)).