ORDER
EVANS, District Judge.
This pro se civil § 1983 civil action, alleging violations of due process and equal protection rights under the Fifth and Fourteenth Amendments to the United States Constitution, is currently before the court on Defendant National Commission on Certification of Physician Assistants, Ine.’s (“NCCPA” or “Defendant”) opposed motion to dismiss, Plaintiff Elena V. Sam-mons, M.D.’s (“Plaintiff’) motions for class certification, for the appointment of counsel, and to proceed in forma pauperis (“IFP”), and Defendant’s opposed motion for an enlargement of time to respond to Plaintiffs above motions and to order Plaintiff to serve papers.
The following facts are undisputed unless otherwise noted. Plaintiff is a foreign physician who graduated from a Russian medical school in 1986. She completed her residency in pediatrics, practiced as a pediatrician for three years, and completed a residency in anesthesiology. Plaintiff successfully passed the United States Medical Licensing Examination in 1997 and is currently certified from the Educational Commission for Foreign Medical Graduates, qualifying Plaintiff to begin residency training in the United States in any medical specialty.
While waiting for an open residency position, Plaintiff, who currently resides in Texas, allegedly contacted Defendant NCCPA in order to determine the steps necessary for her to obtain certification as a Physician’s Assistant (“PA”), so as to be able to work as a PA in the interim. Defendant NCCPA is a private not-for-profit corporation headquartered in Norcross, Georgia. The NCCPA, in conjunction with the National Board of Medical Examiners and a number of governmental and medicinerelated organizations which formed the NCCPA in the early 1970s, administers a nationwide testing and certification program for physician assistants. In order to obtain NCCPA certification as a physician’s assistant, the applicant must meet a threshold eligibility requirement, graduation from an accredited PA training program, and then pass a standardized certification examination administered by the defendant corporation. When a certificate is issued, it remains valid for six years, but must then be renewed by taking and passing a renewal examination. In addition, during the six-year life of a certificate, the holder is required to re-register it every two years by furnishing proof that he or she has completed at least the requisite hours of continuing medical education.
Plaintiff alleges that the NCCPA informed Plaintiff that it would not consider her for certification as a PA and that she was not eligible to take Defendant’s examination. It is undisputed that Plaintiff never applied for certification or to take Defendant’s examination. Defendant states that Plaintiff is correct that she is not eligible to take Defendant’s examination or participate in its certification program because she did not graduate from a PA training program accredited by the nation[1381]*1381al organization which evaluates and accredits training programs for PA’s.
Plaintiff contends that Defendant’s refusal to consider a foreign physician for certification as a PA is unreasonable, arbitrary and capricious and violates her Fifth Amendment rights. Plaintiff seeks damages and an order from this court directing Defendant to consider Plaintiffs qualifications and experience in deciding whether to test or certify her as a PA.
Defendant seeks to dismiss the instant action for failure to state a claim upon which relief can be granted. Defendant argues that, as it is a private corporation and not a state actor, Plaintiff cannot maintain a § 1983 action against it and therefore the case must be dismissed. Plaintiff responds that Defendant is a state actor under the public function and nexus/joint action tests.
Though not raised by Defendant, in light of the fact that Plaintiff never actually applied for certification or to take the examination, this court must first consider whether this action is ripe for adjudication. “Article III of the United States Constitution limits the jurisdiction of the federal courts to cases and controversies of sufficient concreteness to evidence a ripeness for review.” Digital Properties, Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir.1997). Courts must resolve “whether there is sufficient injury to meet Article Ill’s requirement of a case or controversy and, if so, whether the claim is sufficiently mature, and the issues sufficiently defined and concrete, to permit effective decision-making by the court.” Id. (internal quotations and citations omitted).
As ripeness goes to this court’s subject matter jurisdiction, the court must consider the question sua sponte. Villas of Lake Jackson, Ltd. v. Leon County, 906 F.Supp. 1509, 1513 (N.D.Fla.1995) (citing, Reahard v. Lee County, 30 F.3d 1412, 1418 (11th Cir.1994)); See also Employers Mut. Cas. Co. v. Evans, 76 F.Supp.2d 1257, 1259 (N.D.Ala.1999) (“[A] federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking”); Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1574 n. 7 (11th Cir.1989).
When determining ripeness, a court asks whether this is the correct time for the complainant to bring the action. See Wilderness Soc’y v. Alcock, 83 F.3d 386, 390 (11th Cir.1996). “A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” Texas v. U.S., 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (internal citation omitted).
The court finds that this court does not have subject matter jurisdiction over the instant action because, as Plaintiff never applied to take Defendant’s examination or for certification, she has not suffered an injury in fact, and this claim is not ripe for adjudication. Plaintiffs mere assertion that she contacted Defendant to obtain certification and was “advised” by the “NCCA” that it would not test or consider a foreign doctor for certification is insufficient to constitute a controversy. [Plaintiffs complaint at ¶ 4], See Digital, 121 F.3d at 590 (“At a minimum, the plaintiff had the obligation to obtain a conclusive response from someone with the knowledge and authority to speak for the City regarding the application of the zoning scheme to Plaintiffs proposal to establish an adult bookstore.” The Assistant Zoning Technician’s alleged statement to Plaintiffs representatives that “the City of Plantation does not allow such use” of property as an adult book store was not sufficient to create a concrete controversy).1
Moreover, the court notes for purposes of.judicial economy and in defer[1382]*1382ence to Plaintiffs pro se status, that even if this claim were ripe, as Defendant is not a state actor and does not act under color of state law, Plaintiff cannot state a claim under the CM Rights Act upon which relief may be granted.
Free access — add to your briefcase to read the full text and ask questions with AI
ORDER
EVANS, District Judge.
This pro se civil § 1983 civil action, alleging violations of due process and equal protection rights under the Fifth and Fourteenth Amendments to the United States Constitution, is currently before the court on Defendant National Commission on Certification of Physician Assistants, Ine.’s (“NCCPA” or “Defendant”) opposed motion to dismiss, Plaintiff Elena V. Sam-mons, M.D.’s (“Plaintiff’) motions for class certification, for the appointment of counsel, and to proceed in forma pauperis (“IFP”), and Defendant’s opposed motion for an enlargement of time to respond to Plaintiffs above motions and to order Plaintiff to serve papers.
The following facts are undisputed unless otherwise noted. Plaintiff is a foreign physician who graduated from a Russian medical school in 1986. She completed her residency in pediatrics, practiced as a pediatrician for three years, and completed a residency in anesthesiology. Plaintiff successfully passed the United States Medical Licensing Examination in 1997 and is currently certified from the Educational Commission for Foreign Medical Graduates, qualifying Plaintiff to begin residency training in the United States in any medical specialty.
While waiting for an open residency position, Plaintiff, who currently resides in Texas, allegedly contacted Defendant NCCPA in order to determine the steps necessary for her to obtain certification as a Physician’s Assistant (“PA”), so as to be able to work as a PA in the interim. Defendant NCCPA is a private not-for-profit corporation headquartered in Norcross, Georgia. The NCCPA, in conjunction with the National Board of Medical Examiners and a number of governmental and medicinerelated organizations which formed the NCCPA in the early 1970s, administers a nationwide testing and certification program for physician assistants. In order to obtain NCCPA certification as a physician’s assistant, the applicant must meet a threshold eligibility requirement, graduation from an accredited PA training program, and then pass a standardized certification examination administered by the defendant corporation. When a certificate is issued, it remains valid for six years, but must then be renewed by taking and passing a renewal examination. In addition, during the six-year life of a certificate, the holder is required to re-register it every two years by furnishing proof that he or she has completed at least the requisite hours of continuing medical education.
Plaintiff alleges that the NCCPA informed Plaintiff that it would not consider her for certification as a PA and that she was not eligible to take Defendant’s examination. It is undisputed that Plaintiff never applied for certification or to take Defendant’s examination. Defendant states that Plaintiff is correct that she is not eligible to take Defendant’s examination or participate in its certification program because she did not graduate from a PA training program accredited by the nation[1381]*1381al organization which evaluates and accredits training programs for PA’s.
Plaintiff contends that Defendant’s refusal to consider a foreign physician for certification as a PA is unreasonable, arbitrary and capricious and violates her Fifth Amendment rights. Plaintiff seeks damages and an order from this court directing Defendant to consider Plaintiffs qualifications and experience in deciding whether to test or certify her as a PA.
Defendant seeks to dismiss the instant action for failure to state a claim upon which relief can be granted. Defendant argues that, as it is a private corporation and not a state actor, Plaintiff cannot maintain a § 1983 action against it and therefore the case must be dismissed. Plaintiff responds that Defendant is a state actor under the public function and nexus/joint action tests.
Though not raised by Defendant, in light of the fact that Plaintiff never actually applied for certification or to take the examination, this court must first consider whether this action is ripe for adjudication. “Article III of the United States Constitution limits the jurisdiction of the federal courts to cases and controversies of sufficient concreteness to evidence a ripeness for review.” Digital Properties, Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir.1997). Courts must resolve “whether there is sufficient injury to meet Article Ill’s requirement of a case or controversy and, if so, whether the claim is sufficiently mature, and the issues sufficiently defined and concrete, to permit effective decision-making by the court.” Id. (internal quotations and citations omitted).
As ripeness goes to this court’s subject matter jurisdiction, the court must consider the question sua sponte. Villas of Lake Jackson, Ltd. v. Leon County, 906 F.Supp. 1509, 1513 (N.D.Fla.1995) (citing, Reahard v. Lee County, 30 F.3d 1412, 1418 (11th Cir.1994)); See also Employers Mut. Cas. Co. v. Evans, 76 F.Supp.2d 1257, 1259 (N.D.Ala.1999) (“[A] federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking”); Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1574 n. 7 (11th Cir.1989).
When determining ripeness, a court asks whether this is the correct time for the complainant to bring the action. See Wilderness Soc’y v. Alcock, 83 F.3d 386, 390 (11th Cir.1996). “A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” Texas v. U.S., 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (internal citation omitted).
The court finds that this court does not have subject matter jurisdiction over the instant action because, as Plaintiff never applied to take Defendant’s examination or for certification, she has not suffered an injury in fact, and this claim is not ripe for adjudication. Plaintiffs mere assertion that she contacted Defendant to obtain certification and was “advised” by the “NCCA” that it would not test or consider a foreign doctor for certification is insufficient to constitute a controversy. [Plaintiffs complaint at ¶ 4], See Digital, 121 F.3d at 590 (“At a minimum, the plaintiff had the obligation to obtain a conclusive response from someone with the knowledge and authority to speak for the City regarding the application of the zoning scheme to Plaintiffs proposal to establish an adult bookstore.” The Assistant Zoning Technician’s alleged statement to Plaintiffs representatives that “the City of Plantation does not allow such use” of property as an adult book store was not sufficient to create a concrete controversy).1
Moreover, the court notes for purposes of.judicial economy and in defer[1382]*1382ence to Plaintiffs pro se status, that even if this claim were ripe, as Defendant is not a state actor and does not act under color of state law, Plaintiff cannot state a claim under the CM Rights Act upon which relief may be granted. To succeed on her constitutional claims, Plaintiff must show that Defendant is a state actor and that its conduct was state action, because the Fifth and Fourteenth Amendments “erect[ ] no shield against merely private conduct, however discriminatory or wrongful.” Johnson v. Educational Testing Service, 754 F.2d 20, 23 (1st Cir.1985).
The court agrees with Defendant that the instant case is on all fours with Gilliam v. National Com’n for Certification of Physician Assistants, Inc., 727 F.Supp. 1512 (E.D.Pa.1989), aff'd, 898 F.2d 140 (3rd Cir.1990), cert. denied, 495 U.S. 920, 110 S.Ct. 1950, 109 L.Ed.2d 312 (1990). In Gilliam, plaintiff was employed as a PA for many years. Plaintiff graduated from an accredited educational institution and took and passed the NCCPA examination. He allowed his certificate to lapse at the end of its six-year life, because he was entering military service, and could work as a physician assistant in the army without current certification. When plaintiff left military service in 1986, he sought to revive his NCCPA certificate; however, he was informed that he would be required to take and pass the same examination as a new applicant, rather than the renewal examination. Plaintiff was re-tested in 1987, and although he had been continuously employed as a physician assistant for more than 12 years, he failed the test. As a result, he was unable to obtain a renewal of his Pennsylvania license. After denial of certification, plaintiff sued the NCCPA, among others, for violations of his due process and equal protection rights seeking injunctive relief and damages. The court in Gilliam determined that:
Plaintiffs claims against NCCPA under the Civil Rights statutes are easily resolved: although its certifications are relied upon by many states in their licensing decisions, NCCPA is a private organization. It receives no financial support from any government, and it operates in all respects on a completely independent basis. In short, it is not a state actor, and does not act under color of state law within the meaning of the Civil Rights Act. Even if plaintiff were able to allege that his constitutional rights have been violated by the NCCPA, he would have no claim cognizable in this court for such constitutional violation.
Id. 727 F.Supp. at 1514.2 Defendant is a private organization which does not qualify [1383]*1383as a state actor and does not act under color of state law within the meaning of the Civil Rights Act. Defendant receives no funding, fees, revenue or financial benefit from any state or federal government and it operates in all respects on a completely independent basis. Therefore, Plaintiff cannot state a claim upon which relief may be granted.3 See Johnson, 754 F.2d at 24 (1st Cir.1985) (finding that ETS, which administers a national test for law school applicants for admissions decisions and tests teachers for state licensing decisions is not a state actor).
Accordingly, this action is hereby DISMISSED for want of subject matter jurisdiction. Defendant’s motions to dismiss [# 4], for an enlargement of time to respond to Plaintiffs motions [# 8-1], and to order Plaintiff to serve papers [# 8-2] are hereby DISMISSED AS MOOT. Plaintiffs motions for class certification [# 6-1], for appointment of counsel [# 6-2], and to proceed in forma pauperis [# 7] are also hereby DISMISSED AS MOOT.