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STERNER v. UNITED STATES DRUG ENFORCEMENT AGENCY

December 23, 2005.

DR. ROBERT F. STERNER, JR., INDIVIDUALLY AND ON BEHALF OF OTHER PATIENTS, Plaintiff,
v.
UNITED STATES DRUG ENFORCEMENT AGENCY ("DEA"); ET AL., Defendants.



The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION TO DISMISS [DOC. NO. 25]
INTRODUCTION
Now before the Court is Defendants' Tamelah Carew, David Herrick, Kristin Stafford, the Medical Board of California, Dave Thornton, Patricia Stillwell, Nancy M. Edwards, Mark A. Kalish, M.D., Joseph F. Kennedy, M.D. and Ronald L. Moy, M.D. (collectively "State Defendants") motion to dismiss. Based upon a careful review of the pleadings and all relevant exhibits submitted by the parties, and for the reasons set forth below, this Court DENIES IN PART and GRANTS IN PART State Defendants' motion to dismiss.

BACKGROUND

  I. Factual Background

  Plaintiff Robert Sterner ("Plaintiff") is a licensed physician practicing medicine in the State of California since 1984. Plaintiff maintains two medical offices in El Cajon and San Diego. In 2001, Dr. Sterner began to issue recommendations for medical marijuana to some of his patients. Plaintiff is the former employer of Defendants Carew, Herrick and Stafford. Defendant Stafford left her office manager position in March 2003. Defendants Carew and Herrick were terminated in May 2003.

  On or about May 23, 2003, Defendant Carew approached Defendant DEA Agent Brasich with information regarding Plaintiff's income and the reporting of his finances. Based on this information, Defendant Brasich drafted a report recommending investigation of Plaintiff. Brasich forwarded this report to Defendant State Medical Board on June 16, 2003. Brasich also approached Defendant Toussaint to commence an Internal Revenue Service ("IRS") investigation of Plaintiff.

  On or about August 8, 2003, Defendant Stillwell and three other Medical Board investigators interviewed Plaintiff at his medical office in El Cajon. Plaintiff met with the investigators and answered their questions. Plaintiff also allowed them to examine the office, as well as his drug dispensing records and invoices. According to Plaintiff, the investigators found nothing to raise concerns over his practice, nor had any patient filed a complaint of malpractice, mistreatment or other complaint. On August 26, 2003, Defendant Stillwell served an investigational subpoena ordering him to appear and testify before Defendants Stillwell and Kennedy. Plaintiff, with counsel, met with the Defendants on November 14, 2003.

  On November 20, 2003, the IRS and Defendant IRS Special Agent Darline Toussaint, sought, and received, five separate search warrants to search Plaintiff's medical offices, home, storage facilities and safe deposit box. The IRS and Defendant Toussaint searched these locations on November 24, 2003. The IRS seized, in addition to business and tax records authorized by the warrant, records and treatment histories for each of Plaintiff's patients. On July 28, 2004, the federal grand jury's investigation of Plaintiff ended with no criminal charges filed.

  Approximately one year after Plaintiff met with Defendants Stillwell and Kennedy of the State Medical Board, the Medical Board filed a petition on December 2, 2004, for an order to compel psychiatric examination of Plaintiff, as well as submit to blood and urine tests.

  2. Procedural History Plaintiff individually, and on behalf of his patients (collectively "Plaintiffs"), filed the instant complaint on February 1, 2005. The Honorable Jeffrey T. Miller extended the answer deadline for federal defendants on March 15 and April 5, 2005. See Doc. Nos. 15 and 18. Plaintiffs and State Defendants also stipulated to Plaintiffs not seeking a default judgment within thirty days of service of the complaint. See Doc. No. 19.

  On May 5, 2005, Defendant Toussaint, joined by the DEA, moved to disclose the grand jury material in Plaintiff's investigation. See Doc. Nos. 22 and 24. Plaintiff filed a response on May 23, 2005. Doc. No. 28. Defendant Toussaint filed a reply on June 1, 2005. Plaintiff subsequently filed a motion for protective order, and for leave to file pleadings and documents under seal on June 21, 2005. See Doc. No. 37. Defendants DEA and Toussaint, joined by State Defendants, filed a response on July 12, July 18, and July 26, 2005, respectively. See Doc. Nos. 36, 38 and 41. The motions to disclose grand jury material and for protective order were heard by Magistrate Judge Battaglia on July 29, 2005. See Doc. No. 47. Judge Battaglia granted Defendants' motion for disclosure of grand jury material and Plaintiffs' motion for protective order. Id. Judge Battaglia also granted Defendant DEA's motion for extension of time to respond to the complaint. Id.

  The instant motion was filed by State Defendants on May 12, 2005. Doc. No. 25. Plaintiffs filed an opposition on June 16, 2005. Doc. No. 33. The State Defendants filed a reply on July 11, 2005. Doc. No. 35. This case was transferred to this Court on July 27, 2005. Doc. No. 44. On September 29, 2005, this motion was taken under submission without an oral hearing pursuant to Civ. LR 7.1 (d.1). See Doc. No. 58.

  DISCUSSION

  1. Legal Standard

  A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal of a claim under this Rule is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Navarro, 250 F.3d at 732. Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see also Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law."). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. However, motions to dismiss are generally disfavored and rarely granted. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997).

  In reviewing a motion to dismiss under Rule 12(b)(6), the Court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions cast in the form of factual allegations need not be taken as true. Ileto ...


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