Amgad Hessein v. Union County New Jersey Pros, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: HARDIMAN, NYGAARD and ROTH, Circuit Judges. Total Pages: 6. Motion to file a supplemental reply brief is granted.

Case: 13-4653

Document: 003111650726

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Date Filed: 06/16/2014

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-4653
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AMGAD A. HESSEIN, MD,
Appellant
v.
UNION COUNTY PROSECUTORS OFFICE; UNION COUNTY NEW JERSEY;
OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY; DETECTIVE DAVID
NECHMANKIN, of Union County Prosecutors Office, individually and in his official
capacity; MICHAEL SHEETS, Assistant Union County Prosecutor, individually and in
his official capacity; TANSEY, Assistant Union County Prosecutor, individually and in
his official capacity; GRACE H. PARK, Acting District Attorney of Union County,
individually and in her official capacity; KAY EHRENKRANTZ, Deputy Attorney
General of New Jersey, individually and in her official capacity; JOHN J. HOFFMAN,
Acting Attorney General of New Jersey, individually and in his official capacity; PAULA
T. DOW, Ex-Attorney General, individually and in her official capacity; THEODORE
ROMANKOW, Ex-District Attorney of Union County New Jersey, individually and in
his official capacity; THOMAS HALUSZACZAK, Assistant Union County Prosecutor,
individually and in his official capacity; JOHN DOES, individually and in their official
capacity; JOHN DOE AGENCIES
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. Action No. 2-13-cv-04998)
District Judge: Honorable Faith S. Hochberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 14, 2014
Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges
(Opinion filed: June 16, 2014 )

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___________
OPINION
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PER CURIAM
Pro se appellant Amgad Hessein appeals from the District Court’s order
dismissing his complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291 and
exercise a plenary standard of review. See Allah v. Seiverling, 229 F.3d 220, 223 (3d
Cir. 2000). For the reasons that follow, we will affirm the District Court’s judgment.
Hessein is an anesthesiologist and owner of Advanced Pain Management
Specialists (“APM”). The Union County (New Jersey) Prosecutor’s Office began
investigating Hessein and APM for allegedly overbilling Medicare and private insurance
companies, and in 2010, a criminal complaint was issued charging Hessein with violating
New Jersey’s health-care-claims-fraud law. See N.J. Stat. Ann. § 2C:21-4.3(a). At about
that time, the State of New Jersey initiated criminal forfeiture proceedings, alleging that
various items belonging to Hessein — including real property, banks accounts, and cars
— were evidence in the criminal action or the fruits of his criminal activity. Finally, the
New Jersey Attorney General’s Office instituted an administrative prosecution before the
New Jersey State Board of Medical Examiners seeking to suspend or revoke Hessein’s
medical license. According to Hessein, all three of these actions remain ongoing.
In 2013, Hessein filed a complaint (which he later supplemented) in the District
Court, naming as defendants about a dozen individuals and entities involved in the state
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proceedings. Hessein, relying on 42 U.S.C. § 1983, alleged that his arrest, the seizure of
his property, his criminal prosecution, the forfeiture proceedings, and the medicaldisciplinary action all violated his constitutional rights. He asked the District Court to
enjoin his arrest, suppress the evidence seized by authorities, and dismiss the three
pending actions. He also sought money damages for the “wrongful and illegal criminal
prosecutions.”
The defendants filed motions to dismiss the complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, and the District Court granted the motions and
dismissed Hessein’s complaint. Hessein then filed a timely notice of appeal to this Court.
We discern no error in the District Court’s disposition of this case. Hessein first
argues that the District Court should have granted a default judgment to him because
Union County filed its motion to dismiss a few days after the deadline prescribed by Fed.
R. Civ. P. 12. However, Hessein did not seek an entry of default, which is a prerequisite
to obtaining a default judgment. See Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781,
783 (8th Cir. 1998). Moreover, none of the relevant default-judgment factors militate in
Hessein’s favor — he was not prejudiced by the brief delay, there is no indication that
Union County was culpable, and Union County had litigable defenses. See Chamberlain
v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000). We therefore affirm the District Court’s
order as to this issue.
We also agree with the District Court’s decision to apply the Younger abstention
doctrine. See generally Younger v. Harris, 401 U.S. 37 (1971). This doctrine “reflects a
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strong federal policy against federal-court interference with pending state judicial
proceedings absent extraordinary circumstances.” Gwynedd Props., Inc. v. Lower
Gwynedd Twp., 970 F.2d 1195, 1199 (3d Cir. 1992) (quotation marks omitted). The
Supreme Court has recently emphasized that the doctrine applies to only three specific
categories of cases: (1) “ongoing state criminal prosecutions”; (2) “certain civil
enforcement proceedings”; and (3) “pending civil proceedings involving certain orders
uniquely in furtherance of the state courts’ ability to perform their judicial functions.”
Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013) (quotation marks, alteration
omitted); see also ACRA Turf Club, LLC v. Zanzuccki, --- F.3d ----, 2014 WL 1272859
(3d Cir. 2014). Further, even if a parallel state proceeding falls within one of these
categories, abstention is not appropriate when “extraordinary circumstances exist such
that deference to the state proceeding will present a significant and immediate potential
for irreparable harm to the federal interests asserted.” Zahl v. Harper, 282 F.3d 204, 209
(3d Cir. 2002) (quotation marks, alteration omitted).
The proceedings that Hessein seeks to interrupt fit squarely within the categories
described above. First, Hessein has requested an order enjoining his state criminal action,
which is the paradigmatic situation calling for Younger abstention. See Younger, 401
U.S. at 54. Likewise, it was proper for the District Court to refuse to enter an order
concerning “[t]he propriety of arrests and the admissibility of evidence” in the state
criminal proceedings. See Perez v. Ledesma, 401 U.S. 82, 84 (1971); see also Dubinka v.
Judges of the Superior Court, 23 F.3d 218, 223 (9th Cir. 1994). The same conclusion
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also applies to Hessein’s efforts to enjoin the state criminal forfeiture proceedings. See
Loch v. Watkins, 337 F.3d 574, 579 (6th Cir. 2003). Finally, we agree with the District
Court that the administrative prosecution before the New Jersey State Board of Medical
Examiners represents the type of “civil enforcement proceeding” for which abstention is
appropriate. See Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S.
423, 432 (1982); Zahl, 282 F.3d at 209-10.
Hessein argues that extraordinary circumstance exist here rendering abstention
inappropriate. More specifically, he contends that he is being prosecuted for committing
Medicare fraud, an offense that implicates federal, rather than state, interests. See Zahl,
282 F.3d at 210 (explaining that “exceptional circumstances” may be presented when the
case involves “state proceedings that entrench upon the federal domain”).
We are not persuaded. As an initial matter, in Zahl, we rejected this precise
argument when raised by a party seeking to justify federal injunction of a state medicaldisciplinary proceeding; we held that “New Jersey’s regulation of the licensing and
behavior of its physicians . . . . is a matter of paramount state interest.” Id. at 212. This
holding applies here and forecloses Hessein’s argument with respect to his disciplinary
proceeding. As to his criminal prosecution, the state has charged Hessein under a general
statute criminalizing false medical claims,1 and the documents he attached to his

1

Hessein was charged with “health care claims fraud,” which is defined as “making, or
causing to be made, a false, fictitious, fraudulent, or misleading statement of material fact
in, or omitting a material fact from, or causing a material fact to be omitted from, any
record, bill, claim or other document, in writing, electronically or in any other form, that
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complaint reveal that the criminal prosecution is focused at least in part on his conduct
toward private (non-Medicare) insurers. We have recognized that states have significant
interests in “medical fee regulation,” Pa. Med. Soc’y v. Marconis, 942 F.2d 842, 846 (3d
Cir. 1991), and “the regulation of [their] insurance industry,” Ford Motor Co. v. Ins.
Comm’r of Pa., 874 F.2d 926, 934 (3d Cir. 1989), and Hessein has not identified any
legal authority suggesting that Congress has intended to displace these state functions,
see Zahl, 282 F.3d at 212. Accordingly, we discern no error in the District Court’s
application of the Younger abstention doctrine here.
Finally, Hessein presented a claim for money damages against Union County and
the prosecutor’s office. This claim lacks merit: prosecutors are immune from damages
in a § 1983 action for the initiation of prosecution and presentation of a state’s case, see
Imbler v. Pachtman, 424 U.S. 409, 430 (1976), and Hessein failed to plead that Union
County has any role in his prosecution, see Coleman v. Kaye, 87 F.3d 1491, 1499 (3d
Cir. 1996); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).2
Accordingly, we will affirm the District Court’s judgment. We also grant
Hessein’s motion to file a supplemental reply brief.

a person attempts to submit, submits, causes to be submitted, or attempts to cause to be
submitted for payment or reimbursement for health care services.” N.J. Stat. Ann.
§ 2C:21-4.2.
2

We note that in his appellate briefs, Hessein has raised numerous claims that he did not
present in the District Court. We will not address the merits of these claims for the first
time on appeal. See Smith v. Commissioner of Social Security, 631 F.3d 632, 637 (3d
Cir. 2010).
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