United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
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.
SUMMARY OF COMPLAINT
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.
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pharmacist license was revoked based on her race, national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
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
APPLICABLE STANDARDS OF REVIEW
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).
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 also Ashcroft
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.”).
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).
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).
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
alsoNeb. 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
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 ...