United States District Court, E.D. Pennsylvania
Thomas Rufus Nock, acting pro se, brings this civil
action against the Commonwealth of Pennsylvania and the
Pennsylvania State Board of Pharmacy (Board). He claims that
he was discriminated against based on his race when the Board
failed to reinstate his pharmacist license in the wake of his
conviction for federal drug crimes. For the following
reasons, we will grant Mr. Nock leave to proceed in forma
pauperis and dismiss the complaint with prejudice.
1993, Mr. Nock, who once worked as a pharmacist, pled guilty
in this court to conspiracy to possess controlled substances
with the intent to distribute, and two counts of distribution
of controlled substances outside the course of accepted
professional pharmacy practice. See United States v.
Nock, E.D. Pa. Crim. A. No. 92-00666-1. He was sentenced
to a term of four years of imprisonment, four years of
supervised release, and fines. As a result of his
convictions, his pharmacist's license was automatically
suspended on January 6, 1994, for a period of ten years in
accordance with state law.
1999, six years into his suspension, Mr. Nock filed a
"Petition for Relief from Automatic Suspension of
Pharmacy License." (Compl. ECF No. 2 at
The Board held a hearing on Mr. Nock's petition on May 1,
2000. On November 28, 2000, the Board of Pharmacy denied Mr.
Nock, who is African-American, claims that he was
discriminated against when the Board of Pharmacy subjected
him to the automatic ten-year suspension period because he
was treated less favorably than a white pharmacist, Neil
Liebergall. According to the Complaint, in 1994, Mr.
Liebergall pled guilty to conspiracy to distribute controlled
substances in an unrelated criminal case and was sentenced to
eighteen months in prison. Id. Mr. Nock alleges that
Mr. Liebergall's license was not automatically suspended
for ten years, but was "placed on inactive status by the
State Board of Pharmacy." Id. In Mr.
Liebergall's case, the Board "applied a
discretionary statute" such that "Mr.
Liebergall's pharmacy license was under active suspension
for only 2 ½ years." Id. at 7-8.
Nock explains that "[g]iven the Board's
discretionary decision regarding Mr. Liebergall's
reactivated pharmacy license, [he] requested a hearing with
the Board for consideration to reactivate his pharmacy
license prior to the ten year waiting period."
Id. at 8. However, his petition was unsuccessful.
Indeed, the Board specifically rejected Mr. Nock's
argument that he is entitled to relief based on its treatment
of Mr. Liebergall. Id. at 43. In 2004, after a
hearing, the Board decided to reinstate Mr. Nock's
license provided that he "retake[s] and pass[es] the
NAPLEX exam over again as well as the State law exam
regarding Pharmacy." Id. at 8-9. In his
complaint, Mr. Nock does not allege any facts about what
occurred after 2004.
April 12, 2018, Mr. Nock filed this action claiming race
discrimination. The Complaint indicates that Mr. Nock seeks
to bring claims under Title VII, which prohibits
discrimination in employment, and for violation of his Equal
Protection rights, presumably pursuant to 42 U.S.C. §
1983. Mr. Nock states that "[t]he question presented to
this court is whether [he], an African American pharmacist,
who had a federal drug conviction, should have had his
automatically-suspended pharmacy license reinstated by the
State Board of Pharmacy prior to the ten year statutory
waiting period, when another pharmacist, white, convicted on
an unrelated felony federal drug charge, who was not required
to lose his pharmacy license for the same statutory ten-year
waiting period." Compl. at 7. He seeks to "make the
State Board of Pharmacy compensate [him] for damages their
decision to discriminate against [him] has caused, . . . and
restore [his] ability to earn a living as a licensed
pharmacist in the state of Pennsylvania like Mr.
Liebergall." Id. at 9.
it appears that he is not capable of prepaying the fees to
commence this civil action, we grant him leave to proceed
in forma pauperis. Accordingly, 28 U.S.C. §
1915(e)(2)(B)(ii) applies, which requires a court to dismiss
a complaint if it fails to state a claim.
a complaint fails to state a claim under §
1915(e)(2)(B)(ii) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6), see Tourscher v. McCullough, 184 F.3d 236,
240 (3d Cir. 1999). Consequently, we must determine whether
the complaint contains "sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Conclusory
allegations do not suffice to state a claim. Id.
Additionally, we may dismiss claims based on an affirmative
defense if the affirmative defense is obvious from the face
of the pleading. See Fogle v. Pierson, 435 F.3d
1252, 1258 (10th Cir. 2006); cf. Ball v. Famiglio,
726 F.3d 448, 459 (3d Cir. 2013), abrogated on other
grounds by, Coleman v. Tollefson, 135 S.Ct. 1759, 1763
(2015). Because Mr. Nock is proceeding pro se, we
must construe his allegations liberally. Higgs v.
Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
Nock raises race discrimination claims under Title VII and
the Equal Protection Clause of the Constitution. Title VII
prohibits an employer from discriminating against an employee
based on, among other things, the employee's race.
See 42 U.S.C. § 2OOOe-2(a). The statute has no
application to this case, which does not raise any
allegations of race discrimination in the context of an
Nock's constitutional claim fails. "To state a claim
under § 1983, a plaintiff must allege the violation of a
right secured by the Constitution and laws of the United
States, and must show that the alleged deprivation was
committed by a person acting under color of state law."
West v. Atkins,487 U.S. 42, 48 (1988). The
Commonwealth and its agencies, including the Board of
Pharmacy, which is part of the Pennsylvania Department of
State, are entitled to Eleventh Amendment immunity from
§ 1983 claims. Furthermore, they are not considered
"persons" for purposes of the statute. See Will
v. Mich. Dep't of State Police,491 ...