ESTHER SALAS, District Judge.
Before the Court are the motions to dismiss of defendants Anthony Rubinaccio, Thomas F.X. Bender, and the New Jersey State Board of Pharmacy (collectively, "Defendants"). (D.E. Nos. 23 & 34).
The Court will "set out facts as they appear" in the amended complaint, see Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir. 2012), but at times pro se plaintiff Lena Lasher's ("Plaintiff's") allegations are difficult to follow. (See, e.g., Compl. at 2-3 ("[T]he Plaintiff did NOT freely or voluntarily waive her right to a her and thus avoiding doing the actual work that goes along with being a Board of Pharmacy President, Thomas F.X. Bender, did disservice to all Pharmacists in New Jersey and cheated the Plaintiff out of her right to due process [sic].").
In general, Plaintiff alleges that Defendants violated her procedural and substantive due process and equal protection rights under the Fourteenth Amendment. (See, e.g., id. at 1 & 19). Those claims stem from the termination of her pharmacist's license. (See id. at 1-3).
Plaintiff was initially indicted on November 29, 2012, for an offense related to her practice as a pharmacist. (Id. at 1). Plaintiff asserts that that indictment was dropped on or around January 2015. (Id.).
In the time between the initial, 2012 indictment and the September 30, 2015 consent order, Plaintiff was indicted in an apparently separate criminal matter and convicted in federal court in New York for multiple crimes relating to the improper handling of prescription drugs. See generally United States v. Riccio, 43 F.Supp.3d 301 (S.D.N.Y. 2014); (see also Compl. at 4-16).
Plaintiff asserts that, after the conviction, she has twice attempted to appeal the termination of her license and request a hearing but was denied both times—on September 25, 2017, and January 22, 2018. (Id. at 2). Plaintiff characterizes Defendants' "refus[al of] Plaintiff's request to appeal her consent order and [have] a hearing to defend her license" as "BOP simply ignor[ing] the Plaintiff's request for due process because she is a Vietnamese female." (See id. at 2). Plaintiff also contests the surrender of her license because, she claims, "other white male pharmacists" were "not punished by the New Jersey Board of Pharmacy." (Id. at 16).
Plaintiff filed the instant suit on February 23, 2018 (see D.E. No. 1), and the amended complaint on June 12, 2018 (see generally Compl.). On the above facts, drawn from the amended complaint, the Court construes six claims. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document filed pro se is to be liberally construed. . . .") (internal quotation marks omitted).
Firstly, Plaintiff alleges her substantive due process rights were violated because the "coerced" surrender of her license on September 30, 2015, was based on "fraudulent consent" and was tantamount to "extortion, a federal crime, in that it violates her substantive due process right to pursue her occupation" ("Claim One"). (See id. at 1& 3 (emphasis added)).
Further, Plaintiff alleges her procedural due process rights were violated at least twice: when Defendants denied her "right to a hearing to pursue her occupation" on September 25, 2015 ("Claim Two"); and (2) when defendant "Rubinaccio . . . on 9/25/2017 and 1/22/2018 refused . . . Plaintiff's request to appeal her consent order and for a hearing to defend her license" ("Claim Three"). (See id. at 2-3 (emphasis added)). Within the context of her procedural due process claims, Plaintiff also claims that BOP "libeled her by posting the consent order on the internet" ("Claim Four"). (See id. at 3 & 15 (emphasis added)).
Finally, Plaintiff alleges that her equal protection rights were violated because (1) on September 30, 2015, her "license was revoked based on her race, national origin, and sex" ("Claim Five") (see id. at 16 (emphasis added)); and (2) "on 9/25/2017 and 1/22/2018" BOP "ignored . . . Plaintiff's request for due process because she is a Vietnamese female" ("Claim Six") (see id. at 2 (emphasis added)).
Plaintiff seeks damages and various kinds of injunctive relief as a result of these violations, including that "the consent order [be] declared null and void" and that "her pharmacist license [be] reactivated." (See id. at 19-20). In response, Defendants argue that Plaintiff's claims are barred by immunity and the statute of limitations and that Plaintiff has failed to state a claim. (See, e.g., Def. Br. at 1-2; Bender Br. at 1).
Federal Rule of Civil Procedure 8(a)(2) requires a complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." But, to survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). A complaint cannot suffice "if it tenders [only] `naked assertion[s]' devoid of `further factual enhancement,'" because while Rule 8 "does not require `detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (quoting Twombly, 550 U.S. at 555, 557).
Pursuant to the pleading regime established by Twombly and Iqbal, the Court of Appeals for this Circuit has promulgated a three-pronged test of the sufficiency of a complaint. See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the Court considers "the elements a Plaintiff must plead to state a claim." Id. Second, the Court distinguishes the facts from the legal conclusions contained in the complaint, as the latter "are not entitled to an assumption of truth." Id. (quoting Iqbal, 556 U.S. at 680). That is, a complaint's "[t]hreadbare recitals of a cause of action, supported by mere conclusory statements," Iqbal, 556 U.S. at 678, cannot "nudge[] [a plaintiff's] claims across the line from conceivable to plausible," Twombly, 550 U.S. at 570. Finally, the Court considers the complaint's remaining well-pleaded factual allegations and "determine[s] whether they plausibly give rise to an entitlement for relief." Santiago, 629 F.3d at 130 (quoting Iqbal, 556 U.S. at 679).
Throughout this process, the Court is "required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the nonmovant." See, e.g., McDermott v. Clondalkin Grp., Inc., 649 F. App'x 263, 266 (3d Cir. 2016). And, further, "[i]n considering the defendants' motion to dismiss, the . . . Court [i]s required to interpret the pro se complaint liberally. . . ." See, e.g., Sause v. Bauer, 138 S.Ct. 2561, 2563 (2018).
The statute of limitations is an affirmative defense and, in general, must be stated in a responsive pleading. See Fed. R. Civ. P. 8(c)(1); Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). In this Circuit, however, the Court may adjudicate a statute of limitations defense in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), so long as "`the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.'" See Schmidt, 770 F.3d at 249. In other words, if the Court considers only the face of the complaint in determining if its claims are time-barred, a Rule 12(b)(6) motion to dismiss is an appropriate framework for adjudication of a statute of limitations defense. See, e.g., id.
The Court rules that Claims One, Two, and Five are time-barred by the two-year statute of limitations in New Jersey for § 1983 claims.
"Section 1983 provides a federal cause of action, but in several respects relevant here federal law looks to the law of the State in which the cause of action arose. This is so for the length of the statute of limitations: It is that which the State provides for personal-injury torts." Wallace v. Kato, 549 U.S. 384, 387 (2007). In New Jersey, where Plaintiffs claims arose, "personal injury claims are governed by a two-year state of limitations." Estate of Lagano v. Bergen Cty. Prosecutor's Office, 769 F.3d 850, 859-60 (3d Cir. 2014) (citing N.J. Stat. Ann. § 2A:14-2); Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010); (see generally Compl.).
On the other hand, federal law determines when a claim accrues. See Dique, 603 F.3d at 185-86 (quoting Wallace, 549 U.S. at 391). In the context of § 1983 claims, "`the tort cause of action accrues, and the statute of limitations commences to run, when the wrongful act or omission results in damages.'" Id.; see also Pedersen v. Nat'l Collegiate Athletics Ass'n, No. 14-2544, 2015 WL 7573200, at *3 n.5 (D.N.J. Nov. 24, 2015)) (stating that "the date of accrual is when the [p]laintiffs know[] or should know that the injury occurred, not when they realize it gives rise to a legally cognizable claim").
Here, Plaintiff has failed to bring Claims One, Two, and Five in the requisite two-year limitations period. More specifically, each of these claims arises from the surrender of her license on or before September 30, 2015:
Accordingly, the statute of limitations began to run on Claims One, Two, and Five on September 30, 2015, at latest, when Plaintiff's license was surrendered (see id. at 1-3 & 16); and the latest date on which each of these three claims could have been filed was September 30, 2017. See, e.g., Estate of Lagano, 769 F.3d at 861; Pedersen, 2015 WL 7573200, at *3 n.5. Plaintiff, however, did not file the initial complaint until February 23, 2018—nearly five months after the end of the limitations period. (See generally Compl.). Hence Claims One, Two, and Five are time-barred and must be dismissed with prejudice. See, e.g., Estate of Lagano, 769 F.3d at 861; Pedersen, 2015 WL 7573200, at *3.
"To prevail on a claim under § 1983 for deprivation of procedural due process rights, a plaintiff must allege that (1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of `life, liberty, or property,' and (2) the procedures available to him did not provide due process of law." Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 194 (3d Cir. 2009). A professional license may constitute a property interest. See, e.g., Barry v. Barchi, 443 U.S. 55, 64 (1979); Casella v. Pa. Interest on Lawyers Tr. Account Bd., 47 F. App'x 193, 195 (3d Cir. 2002); Herz v. Degnan, 648 F.2d 201, 208 (3d Cir. 1981).
Claim Three arises from Defendants' denial of Plaintiff's request for an opportunity to "appeal her consent order and for a hearing to defend her license" on September 25, 2017, and January 22, 2018. (See Compl. at 2). Plaintiff characterizes the denial as "BOP simply ignor[ing] the Plaintiff's request for due process." (Id.).
Plaintiff, therefore, fails to state a procedural due process claim regarding the 2017 and 2018 hearing denials. See, e.g., Woodend v. Lenape Reg'l High Sch. Dist., 535 F. App'x 164, 167 (3d Cir. 2013) (recognizing that after a plaintiff "relinquishes his or her property interest" he or she "cannot [subsequently] claim a deprivation of [due process] rights"); Torrey v. New Jersey, No. 13-1192, 2014 U.S. Dist. LEXIS 31147, at *39 (D.N.J. March 11, 2014) (granting 12(b)(6) motion to dismiss claim of procedural due process violation where plaintiff had no "legitimate property interest in his former employment"); (see also Compl. at 2).
Claim Four, apparently sounding in libel, arises from the allegation that BOP "libeled [Plaintiff] by posting the fraudulent consent order on the internet to defame, embarrass, harm, shame and humiliate her." (See Compl. at 3). To state a libel claim based on the posting of the consent order, however, Plaintiff was required to allege that the order contains a false statement. See Waters, 511 U.S. at 669 (recognizing that a "libel plaintiff must bear burden of proving that speech is false"). Here, Plaintiff alleges merely that the consent was posted online and that she objects to its posting. (See Compl. at 3, 15 & 17). Accordingly, she has failed to state a claim on which relief may be granted. See, e.g., Botts v. New York Times Co., 106 F. Appx 109, 110 (3d Cir. 2004).
Plaintiff alleges that "BOP simply ignored the Plaintiff's request for due process because she is a Vietnamese female." (Compl. at 2). Yet the Complaint does not contain factual allegations that plausibly support the conclusion that Plaintiff's national origin or sex motivated the denial of a "request for due process." (See generally Compl.). Claim Six, then, rests entirely on a "mere conclusory statement[]," an "unadorned, the-defendant-unlawfully-harmed-me accusation" which has been repeatedly ruled insufficient to state a claim upon which relief can be granted. See, e.g., Iqbal, 556 U.S. at 678. Defendants' motion to dismiss as to Claim Five is therefore granted. See, e.g., Young, 160 F. App'x at 266 (ruling that a plaintiff's "conclusory allegation that . . . conduct deprived him of his rights under the Equal Protection Clause was insufficient even under the liberal notice pleading standard of Rule 8(a)").
In addition to the statute of limitations and failure to state a claim, Defendants argue that Plaintiff's claims "should be dismissed with prejudice" on the basis that Defendants are entitled to sovereign immunity or quasi-judicial immunity and because "Defendants are not `persons' under § 1983." (See Def. Br. at 1-2; Bender Br. at 2). In part, the Court agrees.
First, the Court concurs that Defendants are entitled to sovereign immunity and are not persons under § 1983. These two conclusions are related. "[N]either a State nor its officials acting in their official capacities are `persons' under § 1983." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). "[A]n entity that is an arm of the state" is also "not a `person' under . . . § 1983." Patterson v. Pa. Liquor Control Bd., 915 F.3d 945, 956 n.2 (3d Cir. 2019) (citing Will, 491 U.S. at 64, 70-71). Further, an entity that is an "arm of the state," and its officials, are entitled to sovereign immunity. See Patterson, 915 F.3d at 956; Karns v. Shanahan, 879 F.3d 504, 519 n.5 (3d Cir. 2018).
Here, Defendant BOP is an "arm of the state" and Defendants Bender and Rubinaccio are state officials being sued in their official capacities. See id.; (see generally Compl).
Plaintiff, however, seeks prospective injunctive relief in addition to damages—for instance, Plaintiff seeks that "the consent order [be] declared null and void" and that "her pharmacist license [be] reactivated." (See Compl. at 19-20; see also Compl. at 2 (recognizing that sovereign immunity does not apply "to the extent the Plaintiff seeks reinstatement of her pharmacy license and relief from an unconstitutional denial of her ability to practice pharmacy")).
As noted above, Defendants also contend that Defendants Bender and Rubinaccio are entitled to quasi-judicial immunity. (See Def. Br. at 1-2; Bender Br. at 2). "As its name suggests, `quasi-judicial' immunity is a doctrine under which government actors whose acts are relevantly similar to judging are immune from suit." Dotzel v. Ashbridge, 438 F.3d 320, 325 (3d Cir. 2006). BOP officials execute judicial functions under New Jersey law. See, e.g., In re Sorr, No. A-5087-06T5, 2008 WL 216090, at *1 (N.J. Super. Ct. App. Div. Jan. 28, 2008) (recognizing the BOP's power to adjudge "violat[ion of] certain statutes and regulations applicable to . . . practice as a pharmacist" and to "impose[] a civil penalty"); Supermarkets Gen. Corp. v. Sills, 225 A.2d 728, 741-42 (N.J. Super. Ch. Div. 1966) (recognizing that BOP members have "discretionary power of determining . . . whether particular behavior violates [a] statute" and are "equipped to adjudge"). Moreover, the Court of Appeals has ruled that members of a relevantly similar state board "enjoyed immunity from suit concerning the grant or denial of licenses." See Arneault v. O'Toole, 513 F. App'x 195, 199 (3d Cir. 2013). Defendants Bender and Rubinaccio, therefore, also enjoy quasi-judicial immunity concerning their revocation of Plaintiff's license—the only basis for her claims against them. See id.; (see, e.g., Compl. at 1 & 2 (alleging that Defendants Bender and Rubinaccio "forced the Plaintiff to surrender her pharmacist license")).
For the foregoing reasons, the Court GRANTS Defendants' motions to dismiss:
An appropriate order will accompany this Opinion.
The exact date of Plaintiff's conviction, however, will not affect the calculation of the statute of limitations: As discussed below, the latest of the possible dates is more than two years prior to the filing of the complaint.
Under the New Jersey Tort Claims Act, the "State" is defined in relevant part as "any . . . board. . . of the State," N.J.S.A. 59:1-3; "the Board of Pharmacy of the State of New Jersey" (the BOP) is a "board . . . of the State," see N.J.S.A. § 52:17B-29; and the New Jersey "State Treasurer . . . pay[s] . . . claims against the State," N.J.S.A. § 59:12-1. Additionally, as just suggested, state law essentially defines the BOP as an arm of the state, see N.J.S.A. § 52:17B-29, and it is a "principal department" within the "the executive branch of the State Government,' see N.J.S.A §§ 52:17B-1 & § 52:17B-29. Finally, New Jersey law "imposes sufficient constraints on [the BOP]'s autonomy to favor immunity," see Maliandi v. Montclair State Univ., 845 F.3d 77, 96 (3d Cir. 2016), including that all members of the BOP are appointed and removable by the Governor, N.J.S.A. § 45:14-43(b) & (d), and the BOP must operate in accordance with New Jersey's Administrative Procedure Act, see N.J. Stat. Ann. § 45:14-47. Hence, as stated on pages 11 to 12 of the Court's Opinion, the BOP is an "arm of the state," and neither it nor its officials acting in their official capacities are persons under § 1983. See Patterson, 915 F.3d at 956 n.2; Karns, 879 F.3d at 519 n.5.
