Lasher v. Nebraska State Board of Pharmacy (NE BOP) et al

Filing 21

MEMORANDUM AND ORDER - Plaintiff's Complaint (filing no. 1 ) is dismissed without prejudice. The court will enter judgment by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LENA LASHER,
Plaintiff,

4:17CV3125

vs.
NEBRASKA STATE BOARD OF
PHARMACY (NE BOP), State of
Nebraska, Lincoln, Nebraska 68508; and
THOMAS L. WILLIAMS, MD, Chief
Medical Officer Director, Division of
Public Health State of Nebraska
Department of Health and Human
Services Lincoln, Nebraska 68508;

MEMORANDUM
AND ORDER

Defendants.
Plaintiff 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.
I. SUMMARY OF COMPLAINT
Plaintiff 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.

Plaintiff 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 In addition, Plaintiff claims that her pharmacist license was
revoked based on her race, national origin, and sex because other white male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 license.
Plaintiff 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
punitive damages.
II. APPLICABLE STANDARDS OF REVIEW
The 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).
Pro se 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
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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.”).
“The 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).
Liberally 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).

III. DISCUSSION
Nebraska’s 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
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. . . to discipline a credential holder” and ultimately determines if and what type of
sanctions should be imposed. Neb. Rev. Stat. § 38-176; see also Neb. 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 section 38-196.”).
The UCA provides that
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 38-186 on any of the following grounds:
(5) Conviction of (a) a misdemeanor or felony under Nebraska
law or federal law, or (b) a crime in any jurisdiction which, if
committed within this state, would have constituted a
misdemeanor or felony under Nebraska law and which has a
rational connection with the fitness or capacity of the applicant
or credential holder to practice the profession;
....
(11) Having had his or her credential denied, refused renewal,
limited, suspended, revoked, or disciplined in any manner
similar to section 38-196 by another state or jurisdiction based
upon acts by the applicant or credential holder similar to acts
described in this section . . . .
Neb. Rev. Stat. § 38-178. Where the grounds for discipline are based on another
state’s discipline of the pharmacy license holder, “a certified copy of the record of
denial, refusal of renewal, limitation, suspension, or revocation of a license,
certificate, registration, or other similar credential or the taking of other
disciplinary measures against it by another state or jurisdiction shall be conclusive
evidence of a violation.” Neb. Rev. Stat. § 38-180.
Disciplinary proceedings against a pharmacy license holder are initiated by
the Attorney General filing a petition with the Director. Neb. Rev. Stat. § 38-186;
see also Neb. Admin. R. & Regs. Tit. 184, Ch. 1, § 006.01. Upon filing of a
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petition, a hearing is set and notice of the hearing, along with a copy of the
petition, is served on the license holder. Neb. Rev. Stat. §§ 38-188 and 38-189; see
also Neb. Admin. R. & Regs. Tit. 184, Ch. 1, § 006.01. The Director or a hearing
officer designated by the Director presides over the hearing, which is “summary in
its nature and triable as an equity action.” Neb. Rev. Stat. § 38-186. The Director
or hearing officer may receive affidavits in evidence, and “[t]he department shall
have the power to administer oaths, to subpoena witnesses and compel their
attendance, and to issue subpoenas duces tecum and require the production of
books, accounts, and documents in the same manner and to the same extent as the
district courts of the state.” Id. “Upon the completion of any hearing held
regarding discipline of a credential, the director may dismiss the action or impose .
. . sanctions,” including revocation. Neb. Rev. Stat. § 38-196. Any person
aggrieved by a final decision in a disciplinary proceeding under the UCA is
entitled to judicial review in accordance with the Administrative Procedure Act
(“APA”). Neb. Rev. Stat. § 38-1,102; see also Neb. Rev. Stat. § 84-917 (setting
forth APA appeal procedure).
A. Sovereign Immunity
Here, Plaintiff sues the Board and Williams in their official capacities only.
See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“This
court has held that, in order to sue a public official in his or her individual capacity,
a plaintiff must expressly and unambiguously state so in the pleadings, otherwise,
it will be assumed that the defendant is sued only in his or her official capacity.”).
Liberally construed, Plaintiff alleges the Board’s decision to revoke her pharmacy
license violated her equal protection and due process rights.
Plaintiff’s claims for monetary relief against the Board and Williams in their
official capacities are barred by Eleventh Amendment sovereign immunity.
Further, Plaintiff cannot sue the state or state officials in their official capacities for
money damages under § 1983 because such suits are really suits against the state,
and the state is not a “person” who can be sued under § 1983. Kruger v. Nebraska,
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820 F.3d 295, 301 (8th Cir. 2016); Zajrael v. Harmon, 677 F.3d 353, 355 (8th Cir.
2012) (per curiam) (section 1983 provides no cause of action against agents of the
state acting in their official capacities; sovereign immunity bars claim against stateagency employees for monetary damages under federal act); Monroe v. Arkansas
State Univ., 495 F.3d 591, 594 (8th Cir. 2007) (Eleventh Amendment bars claims
against state and its agencies for any kind of relief; Eleventh Amendment bars
claims for money against state officials in their official capacities).
While Defendants are immune from suit for damages in their official
capacities, they may be sued on federal constitutional claims for prospective
declaratory or injunctive relief under the exception to immunity recognized by the
Supreme Court in Ex Parte Young, 209 U.S. 123 (1908). See, e.g., Klingler v.
Director, Dept. of Revenue, 281 F.3d 776 (8th Cir.2002) (allowing claim under
Title II of ADA for declaratory and injunctive relief against state official). The
court assumes for the purpose of review that this exception applies to the extent
Plaintiff seeks reinstatement of her pharmacy license and relief from what she
alleges is an unconstitutional denial of her ability to practice pharmacy in
Nebraska. However, as set forth below, the Complaint’s allegations fail to state a
plausible due process or equal protection claim.
B. Substantive Due Process
Plaintiff claims that revoking her pharmacy license due to a “wrongful”
conviction violates her substantive due process right to pursue her occupation.
(Filing No. 1 at CM/ECF p.3.) “To establish a violation of substantive due process
rights by an executive official, a plaintiff must show (1) that the official violated
one or more fundamental constitutional rights, and (2) that the conduct of the
executive official was shocking to the contemporary conscience.” Truong v.
Hassan, 829 F.3d 627, 631 (8th Cir. 2016) (internal quotations and citations
omitted). “To be conscience shocking, the government action must be ‘truly
irrational, that is, something more than . . . arbitrary, capricious, or in violation of

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state law.’” Draper v. City of Festus, 782 F.3d 948, 953 (8th Cir. 2015) (quoting
Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir.1998) (en banc)).
Here, Plaintiff’s allegations do not rise to the “conscience shocking” level.
It is well established that states may regulate and discipline professionals,
including suspending the privilege to practice, without running afoul of substantive
due process. See N. Carolina State Bd. of Dental Examiners v. F.T.C., 135 S. Ct.
1101, 1119 (2015) (J. Alito, dissenting) (recognizing that states’ establishment of
medical boards with authority to confer and revoke licenses “was quintessential
police power legislation, and although state laws were often challenged . . . under
the doctrine of substantive due process, the licensing of medical professionals
easily survived such assaults”); see also Sedivy v. State ex rel. Stenberg, 567
N.W.2d 784, 792 (Neb. App. 1997) (finding “no authority for . . . proposition that
the state may not, as a matter of substantive due process, regulate the professions
by determining who may practice, or continue to practice, a profession”).
C. Procedural Due Process
“The Supreme Court mandates a two-step analysis for procedural dueprocess claims: ‘We first ask whether there exists a liberty or property interest of
which a person has been deprived, and if so we ask whether the procedures
followed by the State were constitutionally sufficient.’” Jenner v. Nikolas, 828
F.3d 713, 716 (8th Cir. 2016) (quoting Swarthout v. Cooke, 562 U.S. 216, 219
(2011)).“Protected liberty interests may arise from the Due Process Clause itself or
from an expectation or interest created by state law or policies.” Id. (citing
Wilkinson v. Austin, 545 U.S. 209, 221 (2005)). “Generally, ‘due process requires
that a hearing before an impartial decisionmaker be provided at a meaningful time,
and in a meaningful manner.’” Booker v. City of Saint Paul, 762 F.3d 730, 734 (8th
Cir. 2014) (quoting Coleman v. Watt, 40 F.3d 255, 260 (8th Cir. 1994)).1 “The
1

“Within this general framework different situations may require different specific
procedures.” Riggins v. Bd. of Regents of Univ. of Neb., 790 F.2d 707, 712 (8th Cir. 1986). “To
determine what kind of process is due, courts balance three factors: ‘(1) the nature and weight of

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most important mechanisms for ensuring that due process has been provided are
‘notice of the factual basis’ leading to a deprivation and ‘a fair opportunity for
rebuttal.’” Senty-Haugen v. Goodno, 462 F.3d 876, 888 (8th Cir. 2006) (quoting
Wilkinson v. Austin, 545 U.S. 209, 226 (2005)); see also Memphis Light, Gas &
Water Div. v. Craft, 436 U.S. 1, 14 (1978) (“The purpose of notice under the Due
Process Clause is to apprise the affected individual of, and permit adequate
preparation for, an impending ‘hearing.’”). A plaintiff is entitled to due process
only when a protected property or liberty interest is at stake. See Hopkins v.
Saunders, 199 F.3d 968, 975 (8th Cir.1999).
For purposes of initial review, the court assumes that Plaintiff has a
protected property interest in her Nebraska pharmacy license. See Kloch v. Kohl,
545 F.3d 603, 607 (8th Cir. 2008) (recognizing that a protected property interest
“may exist where a state has established a licensing system for regulation of
professionals”); VanHorn v. Nebraska State Racing Com’n, 304 F.Supp.2d 1151,
1166 (D. Neb. 2004) (finding veterinarian had due process-protected property
interest in special license from state racing commission to treat racehorses under
statute requiring commission to license every eligible applicant and regulations
which did not impose special eligibility requirements for issuing license to
practicing veterinarian).
Liberally construing the Complaint, Plaintiff claims she was denied
procedural due process because the hearing she received was inadequate. That is,
Plaintiff complains that she was not permitted to present evidence challenging her
conviction. The question presented is whether Defendants, in failing to allow
Plaintiff to present her evidence, thereby deprived Plaintiff of a meaningful remedy
for the alleged deprivation of her protected property interest. Plaintiff does not

the private interest affected by the challenged official action; (2) the risk of an erroneous
deprivation of such interest as a result of the summary procedures used; and (3) the
governmental function involved and state interests served by such procedures, as well as the
administrative and fiscal burdens, if any, that would result from the substitute procedures
sought.’” Booker, 762 F.3d at 734 (quoting Coleman, 40 F.3d at 260).

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allege that she filed an appeal in accordance with the APA as provided by Neb.
Rev. Stat. § 38-1,102.
Generally, a plaintiff is not required to exhaust state remedies as a
prerequisite to bringing an action pursuant to § 1983. See Patsy v. Bd. of Regents of
Fla., 457 U.S. 496, 516 (1982). The Eighth Circuit, however, has “recognized an
exception to Patsy’s general rule that exhaustion of state remedies prior to bringing
a section 1983 claim is not required.” Keating v. Neb. Pub. Power Dist., 562 F.3d
923, 929 (8th Cir. 2009). It is the rule in this circuit that “a litigant asserting a
deprivation of procedural due process must exhaust state remedies before such an
allegation states a claim under § 1983.”” Hopkins v. City of Bloomington, 774 F.3d
490, 492 (8th Cir. 2014) (quoting Wax ’n Works v. City of St. Paul, 213 F.3d 1016,
1019 (8th Cir. 2000)); see also Christiansen v. W. Branch Cmty. Sch. Dist., 674
F.3d 927, 935-36 (8th Cir. 2012) (affirming the dismissal of a complaint alleging
post-deprivation procedural due process because the plaintiff failed to pursue
available post-termination administrative remedies); Crooks v. Lynch, 557 F.3d
846, 848 (8th Cir. 2009) (“[T]his requirement is distinct from exhaustion
requirements in other contexts. Rather, this requirement is necessary for a
procedural due process claim to be ripe for adjudication.”).2 “However, it is not
necessary for a litigant to have exhausted available postdeprivation remedies when
the litigant contends that he was entitled to predeprivation process.” Keating, 562
F.3d at 929 (emphasis in original).

2

This exhaustion requirement is “a nuanced exception to Patsy that applies to certain
procedural due process claims.” Christiansen, 674 F.3d at 935. The exception has only been
applied to procedural due process claims involving alleged deprivations of property interests. See
Crooks, 557 F.3d at 848–49 (“[A] litigant asserting a deprivation of [a property right in violation
of] procedural due process must exhaust state remedies before such an allegation states a claim
under § 1983.”) (quoting, with bracketed modifications, Wax ‘N Works, 213 F.3d at 1019);
Oglala Sioux Tribe v. Van Hunnik, 993 F. Supp. 2d 1017, 1028 (D.S.D. 2014) (likewise
recognizing that “[t]he Eighth Circuit [in Crooks] limited the holding in Wax ’n Works to suits
seeking redress for loss of a property interest”). Here, Plaintiff is claiming she was deprived of a
protected property interest–her continued ability to practice pharmacy in Nebraska.

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Because Plaintiff has not alleged that she pursued available postdeprivation
process by filing an appeal pursuant to the APA,3 her procedural due process
claims are dismissed to the extent they allege the denial of postdeprivation due
process. Plaintiff’s Complaint alleges the denial of predeprivation process, and
such claims are not subject to the exhaustion requirement discussed above.
However, the Complaint fails to state a plausible claim of denial of predeprivation
process and her remaining due process claims will be dismissed on that basis.
Plaintiff does not claim that she was denied notice or a hearing before her
pharmacy license was revoked. Rather, Plaintiff challenges the sufficiency of the
predeprivation process she received on the grounds that she was not permitted to
provide, nor would Defendants consider, evidence “which proves her innocence.”
(Filing No. 1 at CM/ECF p.1.) However, to the extent Plaintiff seeks an
opportunity to avoid the revocation of her pharmacy license by demonstrating that
she was wrongfully convicted, such relief necessarily undermines her criminal
conviction and is barred by the doctrine of Heck v. Humphrey, 512 U.S. 477
(1994). In Heck v. Humphrey, the Supreme Court held a prisoner may not recover
damages in a § 1983 suit where the judgment would necessarily imply the
invalidity of his conviction, continued imprisonment, or sentence unless the
conviction or sentence is reversed, expunged, or called into question by issuance of
a writ of habeas corpus. Id. at 486–87; Schafer v. Moore, 46 F.3d 43, 45 (8th Cir.
1995). See Sheldon v. Hundley, 83 F.3d 231, 233 (8th Cir. 1996) (indicating that,
under Heck, court disregards form of relief sought and instead looks to essence of
plaintiff’s claims); Harvey v. Horan, 278 F.3d 370, 375 (4th Cir. 2002) abrogated
on other grounds by Skinner v. Switzer, 562 U.S. 521 (2011) (Heck applies to
claims for damages, as well as to claims for injunctive relief that necessarily would
imply the invalidity of plaintiff’s conviction); Lawson v. Engleman, 67 Fed. Appx.
524, 526 n.2 (10th Cir. 2003) (Heck applied to plaintiff’s claims for monetary,
declaratory, and injunctive relief; Heck should apply when the concerns underlying
3

It does not appear that Plaintiff has filed any appeal of the decision revoking her
pharmacy license. The court has online access to the records of the Nebraska state courts and a
search of those records does not disclose any pending state cases to which Plaintiff is a party.

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Heck exist). Plaintiff has not alleged that her conviction has been overturned,
expunged, or called into question, and she is, therefore, barred from obtaining
relief for a due process violation predicated on demonstrating her conviction’s
invalidity.4
C. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment requires that
States treat similarly situated persons alike. Creason v. City of Washington, 435
F.3d 820, 823 (8th Cir. 2006). To prevail on an equal-protection claim, a plaintiff
must show that the challenged government action both had a discriminatory effect
and was motivated by a discriminatory purpose. See United States v. Armstrong,
517 U.S. 456, 465 (1996). Plaintiff alleges that her license was revoked based on
her race, national origin, and sex because other white male pharmacists and
technicians who testified at Plaintiff’s trial and admitted their guilt to the “‘crime’ .
. . 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 has failed to allege sufficient facts to state a plausible equal
protection claim. The Complaint contains no facts indicating that Defendants were
motivated by a discriminatory purpose or that Plaintiff was treated differently than
any other Nebraska pharmacy license holder with a criminal conviction. Rather,
Plaintiff alleges that Defendants relied on her conviction to revoke her Nebraska
pharmacy license and Nebraska’s UCA clearly provides that conviction for a crime
may be grounds for revocation. See Neb. Rev. Stat. § 38-178. The Complaint does
not allege that the other white male pharmacists and technicians were convicted of
a crime or that any of them hold a Nebraska pharmacy license. Thus, Plaintiff has
4

It is worth noting that the Nebraska Supreme Court has explicitly held that “[t]he conviction of
a felony cannot be collaterally attacked in a proceeding before the Director of Health for
revocation of a license to practice a profession.” State ex rel. Meyer v. Eyen, 184 Neb. 848, 850,
172 N.W.2d 617, 618–19 (1969). Thus, under Nebraska law, Defendants’ alleged failure to allow
Plaintiff to present evidence challenging her conviction appears to have been entirely proper.

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not alleged facts suggesting she was discriminated against or treated differently
from similarly situated persons.
D. State Law Claims
Plaintiff raises a state law claim in that she seeks review of the Board’s
decision revoking her pharmacy license. The court declines to exercise
supplemental jurisdiction over Plaintiff’s state law claim because it will dismiss all
claims over which it has original jurisdiction. See 28 U.S.C. § 1367(c)(3).
IV. CONCLUSION
Plaintiff’s Complaint fails to state a claim upon which relief can be granted
for alleged deprivations of Plaintiff’s rights under the Due Process and the Equal
Protection Clauses of the Fourteenth Amendment. The court will, therefore,
dismiss Plaintiff’s Complaint without prejudice. The court will not give Plaintiff an
opportunity to amend her complaint in this matter because the court has
determined that amendment would be futile.
IT IS THEREFORE ORDERED:
1.

Plaintiff’s Complaint (filing no. 1) is dismissed without prejudice.

2.

The court will enter judgment by separate document.

Dated this 25th day of April, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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