NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 1619

___________ JOSEPH O. BOGGI, D.O. ,

Appellant

v. MEDICAL REVIEW AND ACCREDITING COUNCIL; LARRY DOWNS, Esq.; JOE SOKOLOWSKI, M.D.; INSTITUTE FOR PHYSICI AN EDUCATION; ANDREA CICCONE, Director; SCOTT MANNEKER, M.D.; NATL BD MED EXAMINER; RICHARD HAWKINS, M.D.; DONALD MELNICK, M.D.; UMDNJ, and the Unnamed Consultant

____________________________________ On Appeal from the United States District Court fo r the Eastern District of Pennsylvania (D.C. Civil No. 08

- 4941 ) District Judge: Honorable Berle M. Schiller

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

January 18, 2011
Before: FUENTES, GREENAWAY, JR. and ROT H , Circuit Judges

(Opinion filed : February 23, 2011 )

_________ OPINION

_________ PER CURIAM Joseph Boggi, D.O. , appeals from order s of the District Cou rt dismissing hiscomplaint for failure to state claims against the Medical Review and Accrediting Council

(MRAC), Larry Downs, Andrea Ciccone, the National Board of Medical Examiners ( NBME), the University of Medicine and Dentistry of New Jersey (UMDNJ), an unnamed UMDNJ consultant, and Drs. Sokolowski, Melnick, Manaker and Hawkins

. W e will affirm.
I. In September 1999, the Maryland State Board of Physician Quality Assurance (the Board) issued a final suspension of Boggi‟s license to practice medicine following a determination that Boggi is “incompetent to practice medicine . . ., has committed
unpro fessional conduct in the practice of medicine . . ., and has failed to cooperate with the Board‟s investigation

. ” The decisi on stated that Boggi‟s license c ould be reinstated after one year if several conditions were met, including that Boggi “obtains cur rent neuropsychological testing and completes a personality inventory,” and “provides evidence satisfactory to the Board that he has become comp etent to practice medicine
safel y.” Boggi appealed the Board‟s decision without success

. See Boggi v. B d. of Physicians , No. 1213/00 (Md. Ct. Spec. App., Dec. 13, 2001), cert. denied Boggi v. State
Bd. , 796 A.2d 695 (Md. 2002) (table)

. In November 2005, Boggi contacted MRAC for testing and retraining in order to prove his fitness to reenter the practice of me dicine in Maryland. Boggi was given a competency evaluation in Philadelphia over the course of two days in May 2006; testing on the first day was directly administered by MRAC and involved a series of multiplechoice questions, while the second day‟s test wa s administered by the Institute for

Physician Education (the IPE) 1 and involved computer case simulations and an in

- person interview

. The interview included a Transaction Stimulated Recall (TSR) portion that required Boggi to discuss his responses to t he computer case simulations

. In July 2006, Boggi received unfavo rable test results based on the in

- person interview , and the TSR in particular

. Boggi contacted MRAC, requesting that it develop a remedial program so that he
could correct the deficienci es identifie d in the test results. I n October 2006, Boggi was advised by letter from Larry Downs that MRAC was denying his request

. Downs stated
that , while Boggi “performed well on some of the standardized testing . . . [ , t he ] results of
the TSR indicat e disordered thinking which is consistent with some of the findings reported in [the Board‟s decision]. The underlying dual problems of adult variant ADD and narcissistic personality disorder present real problems for any remediation plan MRAC could provi de.” In October 2008, Boggi filed this complaint asserting violations of 42 U.S.C. § 1983 and the Americans with Disabilities Act (the ADA). Specifically, Boggi claimed that MRAC‟s refusal to develop a remedial plan for medical retraining re sulted in an
unconstitutional deprivation of his property, as wel l as unlawful disability

- based
discrimination

. For re lief, Boggi requested a new competency test and “retraining i n

1 The IPE is a di scontinued program of the NBME, which the District Court substituted in for IPE as the real party in interest to Boggi‟s suit. Andrea Ciccone, Dr. Melnick, Dr. Hawkins, and D r. Manaker are or were affiliated with NMBE in a professional capacity.medicine,” in addition to an indeterminate damages award.

In July 2009, M RAC and D owns filed a motion to dismiss Boggi‟s complaint under Federal Rule of Civil Procedure 12(b) (6). So did NBME, Andrea Ciccone, and Drs. Melnick, Hawkins , and Manaker (collectively, the NBME defendants). Dr. Sokolowski filed his Rule 12(b)(6) moti on in August 2009. The District Court granted all three motions by order entered September 15, 2009

. 2 The District Court concluded that Boggi‟s “complaint is short on factual allegations that would render any of the moving
Defendants state actors” for pu rposes of § 1983 liability. The District Court also concluded that, “[a]lthough NBME and MRAC must comply with the ADA, Dr. Boggi‟s claim remains legally deficient because it lacks any allegations that Defendants discriminated against him because of his d isability.” Finally, the District Court concluded that Boggi‟s “ADA claims against individual Defendants must also be dismissed” because “the overwhelming authority on the issue has concluded that no such individual liability exists.” T he District Court denied Boggi‟s motion for reconsideration. UMDNJ was not served with Boggi‟s complaint until October 2009. After being granted a n extension of time to file its answer , UMDNJ filed a Rule 12(b)(6) motion in January 2010. The District Court granted the m otion by order entered January 27, 2010

. Boggi timely appealed and, in addition to his opening and reply briefs, has filed with this Court motions for counsel, for appointment of a special master, and for permission to file

2 The District Court also granted Boggi‟s first motion to amend his complaint, and in ruling on the motions to dismiss “considered [it] along with his original Complaint so assupplemental reply briefs.
II.

We have appellate jurisdiction under 28 U.S.C. § 1291 , and our review is plenary. Dique v. N.J. State Police , 603 F.3d 181, 188 (3d Cir. 2010). To withstand a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accep ted as true, to „state a claim to relief that is plausible on its face.‟” Ashcroft v. Iqbal , --- U.S.

--- , 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl . v. Twombly , 550 U.S. 544, 570 (2007)) . In addition to being accepted as true, the allegations of th e complaint must be interpreted in the light most favorable to the complainant, with all reasonable inferences
drawn in his favor. See Eurofins Pharma U.S. Holdings v. BioAlliance Pharma SA , 623 F.3d 147, 158 ( 3d Cir. 2010).
III. For substantially the r easons given in its September 15, 2009 decision, the District Court did not err in concluding that Boggi failed to state a claim under § 1983 against the NBME defendants, Dr. Sokolowski, MRAC , and Downs

. T he allegations in Boggi‟s pleadings do not show th at t hose defendants engage d in any conduct that could be considered state action for purposes of § 1983 liability : they did not “act[] with the help of or in concert with state officials”; none was “delegated . . . a power traditionally exclusively reserv ed to the State”; and it cannot be said that “there is a sufficiently close nexus between the state and the challenged action of the [private] entity so that the action

to b roadly construe his factual allegations and claims.”of the latter may fairly be treated as that of the State itself

. ” McKeesport Hosp. v.

Accreditation Council for Graduate Med. Educ. , 24 F.3d 519, 524 (3d Cir. 1994). 3 And

w hile UMDNJ might be considered a “person” under § 1983, s ee Mauriello v. UMDNJ , 781 F.2d 46, 47 (3d Cir. 1986); Fuchilla v. Layman , 537 A.2d 652, 653 (N.J. 1988), we
ag ree with the District Court that Boggi‟s pleadings are devoid of any factual matter implicating UMDNJ or its unnamed consultant in a deprivation of Boggi‟s constitutional rights

. 4 We further agree with the District Court that Boggi failed to state an AD A claim again st any of the non

- entity defendants sued in their individual capacities

. See Koslow v. Pennsylvania , 302 F.3d 161, 178 (3d Cir. 2002); Emerson v. Thiel College , 296 F.3d 184, 189 (3d Cir. 2002). Concerning Boggi‟s ADA claims against two of t he entity
defendants

– MRAC and NBME

– our analysis differs slightly from that of the District
Court , though we ultimately reach the same conclusion. See Grayson v. Mayview State Hosp. , 293 F.3d 103, 109 (3d Cir. 2002) (“we can affirm on any ground suppor ted by the
record ”). We first note that , given Boggi‟s pro se status, the District Court properly

3 Boggi suggests on appeal that, because he has stated a plausible breach of contract claim against MRAC, it follows that he has made out a viable due process claim. Boggi is incorrect; a b reach of co ntract theory of liability is distinct from a theory of liability under § 1983. See City of Monterey v. Del Monte Dunes at Monterey, Ltd. , 526 U.S. 687, 709 (1999) (“[w]e have repeatedly noted that 42 U.S.C. § 1983 creates a species of tort liability, and have interpreted the statute in light of the background of tort liability.”) (citations omitted).

4 For that same reason, Boggi has failed to state an ADA claim against either UMDNJ or its unnamed consultant.assessed his ADA claims under section 309 of Title III, 42 U.S.C. § 12189. See Doe v.

Nat‟l Bd. of Med. Exam‟rs , 199 F.3d 146, 155 (3d Cir. 1999). We also note that Boggi‟s complaint provides uncontroverted allegations that Boggi suffers from Attention Deficit Hyperactivity Disorder ( ADHD ) , and that he received adverse test results from MRAC because it perceived Boggi to suffer from certain psychiatric impai rments. Moreover, in Boggi‟s complaint he asserts that he is entitled to at least one reasonable accomm odation from MRAC: retesting.
We will assume , arguendo, that ADHD is a mental impairment within t he meaning
of the ADA

. See Love v. Law School Admis sion Council, Inc. , 513 F. Supp. 2d 206, 224 (E.D. Pa. 2007). 5 Nevertheless, Boggi‟s complaint fails to contain any allegations suggesting that his ADHD substantially limit s his ability to work, read, write, or engage in any other major life activity. S e e 42 U.S.C. § 12102(2)

. Indeed, Boggi disavows such
a notion in his complaint

. I V. Accordingly, for the reasons given in this opinion , we will affirm the judgment of
the District Court. Boggi ‟s motion s for appointment of counsel, for appointment of a
sp ecial master, and to file suppl emental reply briefs are denied

5 Boggi denies that he suffers from narci ssist ic personality disorder, a psychiatric impairment attributed to Boggi in the Board‟s decision and in the Downs letter. As a result, Boggi cannot assert an ADA claim based on that impairment . We recognize the potential, sad irony that , if Boggi does suffer fr om narcissistic personality disorder, it could prevent h im from admitting so.