Dale v. Bartels

• Decision Date: 05 April 1984
• Docket Number: No. 617,D,617
• Citation: 732 F.2d 278
• Parties: Robert T. DALE, Plaintiff-Appellant, v. John BARTELS, et al., Defendants-Appellees. ocket 83-6012.
• Court: U.S. Court of Appeals — Second Circuit

Page 278

732 F.2d 278

Robert T. DALE, Plaintiff-Appellant, v. John BARTELS, et al., Defendants-Appellees.

No. 617, Docket 83-6012.

United States Court of Appeals, Second Circuit.

Argued Jan. 27, 1983.

Decided April 5, 1984.

Robert T. Dale, pro se.

Jane E. Bloom, Asst. U.S. Atty., S.D.N.Y., New York City (Rudolph W. Giuliani, U.S. Atty., and Peter Salerno, Asst. U.S. Atty., S.D.N.Y.), New York City, for defendants-appellees.

Before FRIENDLY, MESKILL and PRATT, Circuit Judges.

FRIENDLY, Circuit Judge:

This appeal is from an order of Judge Brieant in the District Court for the Southern District of New York, 552 F.Supp. 1253 (1982), granting defendants' motion for summary judgment in an action for violation of plaintiff's civil rights by federal officials. The action has recently celebrated its tenth anniversary.

Plaintiff, Robert T. Dale, a licensed physician, operated a methadone maintenance clinic in New York City. He opened the clinic in early 1971 after obtaining the necessary approval from the Food and Drug Administration. Dale's wife, Lily Farley Ross Dale, was employed as his assistant. On about June 9, 1972, James Steinberg, an agent of the Bureau of Narcotics and Dangerous Drugs ("BNDD") and other BNDD agents under his direction began an extensive investigation and audit of Dale's program. For about six weeks until July 13, 1972, they inspected Dale's records and methadone inventory and observed the operations of the clinic. Upon completing the audit, the agents concluded that a substantial amount of methadone, estimated variously at one to five pounds, could not be accounted for through patient records required to be maintained under 21 U.S.C. Secs. 827, 843 and applicable regulations. Steinberg presented the conclusions of the audit to Dale on July 13, 1972. Dale immediately closed the clinic, and he and his wife went quickly to Europe.

On July 17, 1972, warrants were issued for Dale's arrest and for a search of the clinic. Agents then entered the clinic and seized numerous records and methadone tablets as well as cash from a drawer, a photograph from Dale's desk, and two certificates from Dale's office wall. On July 18 or 19, agents visited Dale's residence, questioned his parents who were then staying in the apartment, and, without a search warrant, allegedly seized "a sum of money and certain other items".

While in Europe, the Dales contacted an American lawyer who advised them of the pending arrest warrants. After having been detained by the authorities in Denmark, they agreed to come back to the United States. Their lawyer so informed the United States Attorney and promised to produce the Dales immediately upon their return to New York. The Dales arrived at Kennedy International Airport on January 31, 1973, where they were met by Steinberg and other BNDD agents, arrested, handcuffed, and photographed by the press. Meanwhile, in the Winter 1972-73 issue of the BNDD Bulletin, Dale and his wife were featured in the "Wanted by BNDD" section with mug shots, vital statistics, and descriptions as "the largest supplier[s] of illicit amphetamines on the East Coast." In the Fall 1973 issue, identical entries appeared in the magazine's "No Longer Wanted" section, with "IN CUSTODY" superimposed in large letters.

On February 7, 1973, Steinberg testified before a federal grand jury that Dale had, among other things killed a patient named James Richardson with a methadone overdose, stating that "[w]e know for a fact that Dale did kill him with methadone because we have the coroner's report stating that Mr. Richardson died of a methadone overdose." The medical examiner's report, however, gave as the cause of death "chronic subcutaneous and intravenous narcotism with acute and chronic ulcerations and cellulitis of left foot." It is undisputed that the methadone dispensed at Dale's clinic was taken orally, not by injection.

On February 16, 1973, Dale was indicted on one count of failing to maintain, on a current basis, complete and accurate records of all methadone received or dispensed by the clinic, as required by 21 U.S.C. Secs. 827, 843 and the regulations thereunder; one count of making a false statement to the BNDD regarding the number of patients the clinic had, see 18 U.S.C. Sec. 1001; and one count of making a false statement to the BNDD regarding whether James Richardson was a patient of the clinic during the period that was the subject of the audit, 18 U.S.C. Sec. 1001. Dale's wife was indicted at about the same time on similar charges. In November 1973, the Dales were indicted on charges of income tax evasion; this indictment was superseded in January 1974 by another indictment for tax evasion. ¹ In March 1974, the February 1973 indictment was dismissed On March 27, 1974, Dale filed the instant action, ² naming as defendants Steinberg; John Bartels, then Director of the BNDD; Robert Brown, John Atlee, Dennis Borst and Douglas Driver, BNDD agents; "certain unknown agents and officers" of the BNDD; and "certain unknown Assistant United States Attorneys". Cornelius J. Daugherty, editor of the BNDD Bulletin at the time of publication of the Winter 1972-73 issue, was subsequently added as a defendant. The complaint alleged thirteen causes of action, eight for violations of Dale's rights under the fourth amendment, two for violations of his fifth amendment rights, one for violation of his rights under both the fourth and fifth amendments, and two pendent state claims, one for an arrest unlawful under New York law and the other for defamation.

on the Government's motion. The record does not disclose the Government's reasons for seeking the dismissal.

The first two claims arose from the inspection and audit of the clinic: the search was allegedly conducted (1) "without probable cause and knowing that probable cause was lacking, in bad faith and for the purpose of harassing plaintiffs", and (2) "in an unreasonable and unconstitutional manner, and in bad faith, in that it was overlong and unnecessarily disruptive of plaintiffs' legitimate and authorized operations, and intrusive into their privacy." The next three claims addressed the search warrant obtained July 17, 1972, and the search of the clinic conducted pursuant to it, alleging that: (3) Steinberg obtained the warrant without probable cause, and either knew that probable cause was lacking or "recklessly and in bad faith ignor[ed] facts which should have informed him that probable cause was lacking"; (4) defendant agents "seized several objects not authorized to be seized by the warrant"; and (5) defendants seized and turned over to a Dr. Alan Kaye records that they knew belonged to Dale. The sixth claim alleged that a warrantless search of Dale's office was conducted in September 1972 by IRS agents, who made a further seizure of records. The seventh claim alleged that Dale's arrest at Kennedy International Airport was pursuant to a warrant obtained and executed by defendants "in bad faith and without probable cause, for the purpose of obtaining publicity and for other improper and illegal purposes," and that the authorization of the arrest by an unknown Assistant United States Attorney was similarly illegal and beyond the scope of his or her authority. The eighth claim alleged that Steinberg and other defendant agents entered the Dales' apartment, "harassed and abused the parents of plaintiff Dr. Dale, ... and seized, stole and converted to their personal use, without warrant or probable cause, and in bad faith, a sum of money and certain other items."

The ninth and tenth claims alleged that Steinberg made false and malicious statements to obtain arrest warrants for the Dales and to obtain the February 1973 indictment from the grand jury, thus depriving Dale of his right to due process of law under the fifth amendment. As an eleventh claim, the complaint alleged that "[a]ll of the above actions constitute, taken together, a pattern of harassment and intentional violations of plaintiff's constitutional rights which in itself is a violation of the Fourth and Fifth Amendments." The twelfth and thirteenth claims alleged causes of action under state law in false arrest, for the arrest at Kennedy airport, and in defamation, for the publication of false allegations about Dale in the BNDD Bulletin.

Following more than seven years of intermittent discovery, defendants moved for dismissal of the complaint or summary judgment. After ordering production of the transcript of Steinberg's grand jury testimony, 532 F.Supp. 973 (S.D.N.Y.1982), and examining the transcript, the district court granted summary judgment for defendants, 552 F.Supp. 1253 (S.D.N.Y.1982). The court dismissed defendant Bartels at Most of the district court's opinion was devoted to the tenth claim, which alleged that Steinberg caused an indictment to issue against Dale by lying to the grand jury. ³ The court rested its grant of summary judgment for defendants on three independent grounds. First, apparently treating Steinberg's statements regarding the death of James Richardson as the only controverted testimony, the court ruled that Dale had not been harmed by the statements because "there was more than sufficient relevant hearsay evidence before the grand jury so that it must indict in accordance with its oath...." Id. at 1263. Next, the court held that the misstatement regarding Richardson's death was a mistake made in objective good faith, and was therefore covered by the qualified immunity of public officials announced in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Id. at 1263, 1266. Finally, the court held that Steinberg, as a grand jury witness, was entitled to absolute immunity from civil liability for any false testimony he might have given. Id. at 1273. ⁴

                the outset, holding that it "lack[ed] the power to cause bureaucrats to issue public apologies for the allegedly excessive zeal or incompetence of their subordinates ... [or] to

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