HESSEIN, M.D. V. UNION COUNTY NEW JERSEY PROSECUTOR'S OFFICE et al
Filing
15
OPINION AND ORDER granting deft's 6 Motion to Dismiss ***CIVIL CASE TERMINATED; granting deft's 7 Motion to Dismiss and closing case ***CIVIL CASE TERMINATED. Signed by Judge Faith S. Hochberg on 11/25/2013. (nr, )
NOT FOR PUBLICATION
CLOSED
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
:
AMGAD A. HESSEIN, M.D.,
:
:
Hon. Faith S. Hochberg
Plaintiff,
:
:
Civil Action No. 13-4998 (FSH)
v.
:
:
UNION COUNTY PROSECUTOR’S OFFICE,
:
OPINION & ORDER
et al.,
:
:
Defendants, :
Dated: November 25, 2013
_________________________________________ :
HOCHBERG, District Judge:
This matter comes before the Court upon Defendants’ 1 motions to dismiss Plaintiff’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff is appearing pro se. 2
1
Defendants to this matter include: the Union County New Jersey Prosecutor’s Office, Union
County, the Office of the Attorney General of New Jersey, Detective David Nechmankin of the
Union County Prosecutor’s 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 of New Jersey, individually and in her official capacity), Theodore
Romankow (ex-district attorney of Union County New Jersey, individually and in his official
capacity), and Thomas Haluszczak (assistant Union County prosecutor, individually and in his
official capacity).
2
When considering a pro se complaint, the Court is mindful that it must construe the complaint
liberally in favor of the plaintiff. See Erikson v. Pardus, 551 U.S. 89, 93-94 (2007); Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). The Court must “accept as true all of the allegations in the
complaint and all reasonable inferences that can be drawn therefrom, and view them in a light
most favorable to the plaintiff.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.
1997). Liberal construction does not, however, require the Court to credit a pro se plaintiff’s
“bald assertions” or “legal conclusions.” Id.
1
The Court has reviewed the submissions of the parties and considers the motions pursuant to
Federal Rule of Civil Procedure 78.
I.
BACKGROUND
Plaintiff Amgad A. Hessein, M.D. (hereinafter “Plaintiff”) was a physician who operated
his own practice, Advanced Pain Management (“APM”). In response to alleged illegal medical
billing practices performed by Plaintiff’s practice, an investigation and a criminal prosecution
involving healthcare claims fraud was initiated by the Union County Prosecutor’s Office
(“UCPO”) against Plaintiff. Plaintiff was also administratively prosecuted before the Board of
Medical Examiners concerning his license to practice medicine.
Plaintiff alleges that he
conducted an internal investigation into the matter and uncovered an illegal medical billing
scheme conducted by several of his employees and patients.
Plaintiff claims that after
uncovering the illegal scheme, he reported it to the UCPO. Plaintiff and Ashraf Sami, Plaintiff’s
brother and office manager, were charged with healthcare claims fraud, theft, and conspiracy.
Plaintiff is a defendant in an ongoing criminal case before the Union County Superior Court,
docket number UNN-L-0420-11.
On August 19, 2013, Plaintiff filed this action alleging that the criminal investigation was
conducted in bad faith, based upon vague state statutes, and harassing towards his person, which
resulted in Constitutional violations and irreparable harm to his person, property, character,
business, and practice. Plaintiff seeks injunctive relief from the criminal action, a dismissal of all
UPCO proceedings, suppression of evidence, damages, and a stay of any State and Federal court
actions. Defendants argue that Plaintiff is attempting to thwart the State prosecutions by filing
this suit.
2
II.
STANDARD OF REVIEW
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (“[S]tating . . . a claim requires
a complaint with enough factual matter (taken as true) to suggest the required element. This
does not impose a probability requirement at the pleading stage, but instead simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of the
necessary element.”) (internal quotations omitted).
When considering a motion to dismiss under Iqbal, the Court must conduct a two-part
analysis. “First, the factual and legal elements of a claim should be separated. The District Court
must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal
conclusions. Second, a District Court must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a plausible claim for relief.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (internal citations and quotations
omitted). “A pleading that offers labels and conclusions or a formulaic recitation of the elements
of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.” Iqbal, 129 S. Ct. at 1949 (internal quotations and
alterations omitted).
III.
DISCUSSION
All Defendants move to dismiss Plaintiff’s complaint. Union County moves to dismiss
arguing that the county is not vicariously liable under the Torts Claim Act when county
prosecutors and their subordinates act in their law enforcement and investigatory capacity. The
3
remaining Defendants move to dismiss under Younger abstention, prosecutorial immunity, the
doctrine of qualified immunity, sovereign immunity, 3 and for failure to state a claim upon which
relief can be granted.
a. Union County’s Motion to Dismiss
i. Union County’s Liability Pursuant to N.J.S.A. 59:2-2 and Wright v.
State
Union County argues that the county is not vicariously liable under the Torts Claim Act
when county prosecutors and their subordinates act in their law enforcement and investigatory
capacity. The Union County defendants allege that they act as “agents” and “officers” of the
State, qualifying them as State employees, under N.J.S.A. 59:1-3, 4 for purposes of determining
3
Although not addressed below, sovereign immunity would bar money damages against the
State defendants in their official capacities. “[T]he Constitution does not provide for federal
jurisdiction over suits against nonconsenting States.” Kimel v. Florida Bd. of Regents, 528 U.S.
62, 73 (2000). Absent waiver, neither a State, nor agencies under its control may be subjected to
lawsuits in federal court. See Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139, 144 (1993). There are only three exceptions to Eleventh Amendment immunity:
“(1) abrogation by an Act of Congress, (2) waiver by state consent to suit; and (3) suits against
individual state officials for prospective relief to remedy an ongoing violation of federal law.”
M.A. ex rel. E.S. v. State-Operated Sch. Dist., 344 F.3d 335, 345 (3d Cir. 2003). Congress has
not abrogated immunity for actions brought pursuant to 42 U.S.C. § 1983. See Quern v. Jordan,
440 U.S. 332, 340 (1979). Therefore, Plaintiff may not recover money damages against these
defendants. See Beightler v. Office of Essex County Prosecutor, 342 F. App’x. 829 (3d Cir.
2009) (defendant entitled to sovereign immunity for action stemming out of decision to
prosecute plaintiff for unlawful possession of a firearm); Hyatt v. County of Passaic, 340 F.
App’x 833, 838 (3d Cir. 2009) (county prosecutor’s office entitled to sovereign immunity on
charges of malicious prosecution, false arrest, and false imprisonment claims because
procedures, policy, and training implicated in incident were related to the prosecutorial function).
To the extent Plaintiff seeks damages for malicious prosecution under § 1983, such a cause of
action is premature. Nicholas v. Heffner, 228 F. App’x 139, 141 (3d Cir. 2007) (“To the extent
Nicholas seeks damages for malicious prosecution, he has no cause of action under 42 U.S.C. §
1983 absent a showing that his conviction has been reversed, expunged, declared invalid, or
called into question by a federal court’s issuance of a writ of habeas corpus.” (citing Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994)).
4
An employee “includes an officer, employee, or servant, whether or not compensated or parttime, who is authorized to perform any act or service; provided, however, that the term does not
include an independent contractor.” N.J.S.A. § 59:1-3.
4
vicarious liability under the Torts Claim Act. Union County contends that for the county to be
vicariously liable, the acts performed by the prosecutor must have been within his administrative
or personal capacity and unrelated to his duty to investigate or prosecute.
Plaintiff claims that the UCPO investigators and their subordinates did not have
jurisdiction and, therefore, were Union County employees not State employees. Plaintiff fails to
provide any legal authority or support for this argument. In addition, Plaintiff claims that Union
County admits to being liable in their motion to dismiss pursuant to N.J.S.A. § 59:2-2. 5
The Supreme Court of New Jersey has held “that when county prosecutors and their
subordinates act in their law enforcement/investigatory capacity, they act as ‘agents’ and
‘officers’ of the State, qualifying as State employees under N.J.S.A. 59:1-3 for the purpose of
determining vicarious liability under the [Torts Claim Act].” Wright v. State, 169 N.J. 422, 452
(2001). The Supreme Court of New Jersey has recognized “that a county cannot be held
vicariously liable for the actions of prosecutorial defendants related to the investigation and
enforcement of the criminal laws of the State.” Id. The Third Circuit has held that “it is well
established that when county prosecutors execute their sworn duties to enforce the law by
making use of all the tools lawfully available to them to combat crime, they act as agents of the
State.” Coleman v. Kaye, 87 F.3d 1491, 1499 (3d Cir. 1996) (abrogated on other grounds).
Plaintiff’s complaint against Union County must be dismissed because the county is not
vicariously liable for that acts of the UCPO, the prosecutors, and their subordinates while acting
within their investigative and law enforcement capacity. Here, the UCPO was investigating
5
“A public entity is liable for injury proximately caused by an act or omission of a public
employee within the scope of his employment in the same manner and to the same extent as a
private individual under like circumstances.” N.J.S.A. § 59:2-2. But “[a] public entity is not
liable for an injury resulting from an act or omission of a public employee where the public
employee is not liable.” Id.
5
Plaintiff’s allegedly fraudulent billing activity that related to healthcare claims fraud, theft, and
conspiracy.
Since this action involves the Defendants’ acts while conducting a criminal
investigation against Plaintiff, the Defendants were acting within their law enforcement and
investigative capacity. Therefore, Union County cannot be held vicariously liable for the alleged
acts.
ii. The Timing of Union County’s Legal Defense
Plaintiff argues that Union County failed to provide a timely legal defense in this matter.
Plaintiff argues that Union County submitted its motion after the time allowed for a responsive
pleading under the Federal Rules of Civil Procedure and without the Court’s permission. In
response, Union County argues that Plaintiff failed to file a request for default, and even if
Plaintiff had sought to enter default judgment, the Court could set aside an entry of default for
good cause. Union County contends that their failure to file a timely responsive pleading should
be forgiven for good cause because their untimeliness was excusable, and they have a
meritorious defense.
Under Rule 12, “a defendant must serve an answer within 21 days after being served with
the summons and complaint.” FED. R. CIV. P. 12. Rule 55 allows the Court to enter default
judgment against a party who has failed to plead or otherwise defend. FED. R. CIV. P. 55. Unless
the plaintiff’s claim is for a sum certain or a sum that can be made certain by computation, the
party must apply to the court for a default judgment. Id. Additionally, “[t]he court may set aside
an entry of default for good cause . . . .” Id. “In this court, it is well established that a district
court ruling on a motion to set aside a default under Rule 55(c) or a default judgment under Rule
60(b)(1), must consider the following three factors: (1) whether the plaintiff will be prejudiced;
(2) whether the defendant has a meritorious defense; and (3) whether the default was the result of
the defendant’s culpable conduct.” Gold Kist, Inc. v. Laurinburg Oil Co., Inc., 756 F.2d 14, 19
6
(3d Cir. 1985).
The Court has broad discretion whether to set aside an entry of default.
Trachtman v. T. M. S. Realty & Fin. Servs., 393 F. Supp. 1342, 1346 (E.D. Pa. 1975).
The Court finds that entering default against Union County is not merited. Plaintiff failed
to seek default judgment. In addition, even if Plaintiff applied to the Court for an entry of default
judgment against Union County, good cause exists to set aside any hypothetical default. As
discussed above, Union County has a meritorious defense to Plaintiff’s complaint. Furthermore,
Union County explains that their response was untimely because they believed the extension
received by their co-defendants applied to all parties. Nor has Plaintiff been prejudiced by Union
County’s brief delay in response, since Plaintiff was able to timely respond to the County’s
motion. Union County’s motion to dismiss is granted.
b. The Remaining Defendants
The remaining Defendants move to dismiss under Younger abstention, prosecutorial
immunity, the doctrine of qualified immunity, sovereign immunity, and for failure to state a
claim upon which relief can be granted.
The Court addresses the Defendants’ first two
arguments below.
i. Younger Abstention
Defendants argue that Younger abstention applies because there is an on-going state court
proceeding involving Plaintiff and Defendants.
Defendants also argue that the State has
jurisdiction over the Medicare claims against Plaintiff.
In response, Plaintiff argues that
abstention does not apply because there is a strong Federal interest in Medicare fraud claims.
Younger abstention requires the Federal Courts to abstain from “stay[ing] or enjoin[ing]
pending state court proceedings except under special circumstances.” Younger v. Harris, 401
U.S. 37, 41 (1971). Abstention is appropriate under the Younger doctrine “when: (1) there is a
pending state judicial proceeding; (2) the proceeding implicates important state interests; and (3)
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the state proceeding affords an adequate opportunity to raise constitutional challenges.” Zahl v.
Harper, 282 F.3d 204, 209 (3d Cir. 2002); see also Middlesex County Ethics Comm. v. Garden
State Bar Ass’n, 457 U.S. 423, 432 (1982). After sufficiently meeting all three parts of the test,
abstention still may not be “appropriate if the plaintiff establishes that ‘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, 282 F.3d at 209
(quoting Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989)).
This matter falls squarely within the Younger framework. See, e.g., Perez v. Ledesma,
401 U.S. 82, 84-85 (1971) (holding abstention was required when the federal court was
presented with a challenge to the constitutionality of an arrest and search and seizure in an
ongoing state criminal case); Lui v. Comm’n, Adult Entm’t, De, 369 F.3d 319, 325 (3d Cir.
2004); Boyce v. Croce, Civ. No. 13-773, 2013 WL 3958202 (D.N.J. July 31, 2013).
Plaintiff argues that the State proceedings for Medicare fraud are preempted under
Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001). But this argument was
already rejected by the Third Circuit in Zahl. “[T]he proceedings against [Plaintiff] are based
upon the historic primacy of state regulation of matters of health and safety and only indirectly
and tangentially affect federal interests.” Zahl, 282 F.3d at 212 (rejecting a doctor’s request for a
federal injunction restraining adjudication before the New Jersey State Board of Medical
Examiners based on preemption of the Medicare fraud allegations). The Third Circuit found that
since “[t]his is a matter of paramount state interest; Buckman is therefore not on point.” Id.
Plaintiff fails to successfully distinguish Zahl from this case.
Plaintiff’s complaint is dismissed under Younger abstention because there are on-going
state judicial proceedings against Plaintiff, the State has a strong interest in regulating and
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policing the practice of medicine within New Jersey, and Plaintiff’s constitutional challenges
could be raised and adequately addressed in the State proceedings.
ii. Prosecutorial Immunity
Defendants also argue that Plaintiff’s complaint should be dismissed because they are
protected by absolute prosecutorial immunity when acting in their role as prosecutors.
A
prosecutor is absolutely immune from a civil suit when initiating a prosecution and presenting
the State’s case. Prosecutorial immunity applies when the activities are “intimately associated
with the judicial process.” Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). A prosecutor’s
investigative activities are also protected under prosecutorial immunity “to the extent that the
securing of information is necessary to a prosecutor’s decision to initiate a criminal prosecution.”
Forsyth v. Kleindienst, 599 F.2d 1203, 1215 (3d Cir. 1979); Hyatt v. County of Passaic, 340 F.
App’x 833, 838 (3d Cir. 2009).
Also, absolute prosecutorial immunity extends to agency
officials when “performing certain functions analogous to those of the prosecutor.” Butz v.
Economou, 438 U.S. 478, 515 (1978). “The decision to initiate administrative proceedings
against an individual or corporation is very much like the prosecutor’s decision to initiate or
move forward with a criminal prosecution.” Id.
Under these circumstances, Defendants are protected because of absolute prosecutorial
immunity, and Plaintiff’s complaint must be dismissed.
Plaintiff’s claims arise out of his
criminal prosecution in New Jersey state court and his administrative prosecution before the
Board of Medical Examiners. Defendants’ actions were either investigative activities necessary
to secure the information needed for their decision to initiate a criminal prosecution or
prosecutorial functions.
IV.
CONCLUSION & ORDER
For the reasons stated above,
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IT IS on this 25th day of November, 2013,
ORDERED that Defendants’ motions to dismiss (Dkt. Nos. 6 & 7) are GRANTED; and
it is further
ORDERED that Plaintiff’s complaint is DISMISSED with prejudice; and it is further
ORDERED that the Clerk of the Court is to CLOSE this case.
/s/ Faith S. Hochberg__________
Hon. Faith S. Hochberg, U.S.D.J.
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