Hessein v. Rubin

• Decision Date: 19 September 2022
• Docket Number: Civil Action 19-14165 (JXN)(AME)
• Parties: AMGAD A. HESSEIN, M.D., Plaintiff, v. ANN RUBIN, Individually and in her official capacity as Assistant Prosecutor of Union County Prosecutor's Office, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

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AMGAD A. HESSEIN, M.D., Plaintiff, v. ANN RUBIN, Individually and in her official capacity as Assistant Prosecutor of Union County Prosecutor's Office, et al., Defendants.

Civil Action No. 19-14165 (JXN)(AME)

United States District Court, D. New Jersey

September 19, 2022

OPINION

JULIEN XAVIER NEALS, UNITED STATES DISTRICT JUDGE

This matter comes before this Court upon Defendant Kay Ehrenkrantz's (“Ehrenkrantz”) Motion to Dismiss pro se Plaintiff's Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), (ECF No. 22) in which Defendant Susan Brown-Peitz (“Brown-Peitz”) joins (ECF No. 25) Plaintiff's opposition^[1] (ECF No. 26); Defendants reply (ECF No 27); and Plaintiff's surreply (ECF No. 28). This matter is decided without oral argument pursuant to Fed.R.Civ.P 78(b). For the reasons stated herein, and for good cause shown, Defendants' Motion is GRANTED.

I. BACKGROUND AND PROCEDURAL HISTORY^[2]

The Court exercises jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343, and supplemental subject matter jurisdiction over Plaintiff's related state claims pursuant to 28 U.S.C. § 1367(a). Venue is proper in this district pursuant to 28 U.S.C. § 1391(b).

Plaintiff, Amgad A. Hessein, M.D. (“Hessein” or “Plaintiff”), was the subject of a joint investigation for medical billing fraud by the Union County Prosecutor's Office (“UCPO”) and the Office of the Inspector General of the United States Department of Health and Human Services. See ECF No. 17, ¶ 17. Defendants Ehrenkrantz and Brown-Peitz each served as a Deputy Attorney General for the State of New Jersey Division of Consumer Affairs located in Essex County, New Jersey. Id. ¶¶ 13, 14. In connection with the investigation, the Honorable Joseph P. Donohue, J.S.C., issued two search warrants for Hessein's office for billing and records pertaining to the performance of medical services. See State v. Hessein, No. A-1693-16T1, 2018 N.J.Super. Unpub. LEXIS 2166, at *1-2 ( N.J.Super.Ct.App.Div. Oct. 1, 2018), cert. denied, 204 A.3d 893 (N.J. 2019). Pursuant to the search warrants, the UCPO seized a safe with contents of jewelry, watches, cash, medical records, bank records, accounting records, a 2008 BMW X5 automobile, bank and/or investment accounts, real property located in South Orange and Belmar, New Jersey, patients' charts, Hessein's citizenship certificates, and Hessein's medical school certificates. See ECF No. 17, ¶ 19.

Plaintiff alleges that a UCPO investigator, Defendant David Nechmankin (“Nechmankin”), kept the seized assets in his personal office, not the UCPO “Evidence Department” or Asset Forfeiture Unit. See id. ¶¶ 20-21. Plaintiff states that Nechmankin testified regarding the forfeited assets in a related State of New Jersey Medical Board administrative hearing that “he did not number or count papers[...]left files and items in his office without supervision, admitted to discrepancy in counting the money resulting in the disappearance of cash money owned by Plaintiff,[.] and placed all of the [.]records in his personal office. Id. ¶ 21.

Plaintiff ultimately pleaded guilty to second-degree theft by deception, in violation of N.J.S.A. § 2C:20-4a, and second-degree conspiracy to commit health care fraud, in violation of N.J.S.A.. § 2C:5-2a(1). See id. ¶ 18. After an unsuccessful motion to withdraw his guilty plea, Plaintiff was sentenced to eight years of incarceration and ordered to pay restitution in the amount of $235,093.75 and forfeit $2,000,000.00. Id.

In addition to the criminal prosecution, the New Jersey Board of Medical Examiners revoked Plaintiff's license to practice medicine for, inter alia, the illegal billing. See generally In re Suspension or Revocation of the License of Hessein, No. A-3308-15T3, 2018 N.J.Super. Unpub. LEXIS 2298 (N.J.Super.Ct.App.Div. Oct. 18, 2018), cert. denied, Matter of Hessein, 207 A.3d 771 (N.J. 2019). Ehrenkrantz and Brown-Seitz prosecuted the matter. See id. ¶ 25.

According to Plaintiff, Defendants UCPO Assistant Prosecutors Robert Rosenthal, Ann Rubin, James Tansy, and Michael Sheets, with Nechmankin's assistance, “covered up amounts of damages,” which impeded Plaintiff's ability to defend himself, and misrepresented facts to the Court as well as in the administrative board hearing. Id. ¶ 24. Plaintiff claims that Ehrenkrantz and Brown-Seitz acquired his patients' files and medical records from the UCPO “to use as evidence . . . in the administrative board hearing,” but did so without “obtain[ing] any prior court orders, agreements, evidence agreements, or any other authoritative permission, accountability, or supervision.” See id. ¶¶25. Plaintiff further alleges that Brown-Seitz and Ehrenkrantz “used, exposed and obtained these documents from UCPO and Nechmankin without [a] court order in administrative hearing.” Id. ¶ 28. Plaintiff states that as a result he “was unable to testify, unable to learn the nature of the accusations against him, and unable to review of these documents, records and patient's [sic] files.” See id. ¶ 25. Hessein declined to testify on his own behalf in the proceeding. See In re Suspension or Revocation of the License of Hessein, 2018 N.J.Super. Unpub. LEXIS 2298, at *25-26.

In 2013, Hessein sued Ehrenkrantz for alleged conduct in connection with the same administrative court proceeding that he references in this matter. See Hessein v. Union Cty. Prosecutor's Office, No. 13-4998, 2013 U.S. Dist. LEXIS 167628, at *17 (D.N.J. Nov. 25, 2018) (finding that Ehrenkrantz was entitled to absolute prosecutorial immunity because her “actions were either investigative activities necessary to secure the information needed for [her] decision to initiate a criminal prosecution or prosecutorial functions”), aff'd, 569 Fed.Appx. 99 (3d Cir. 2014); see also Hessein v. Am. Bd. of Anesthesiology, Inc., 628 Fed.Appx. 116, 118 (3d Cir. 2015) (dismissing Hessein's claims against the American Board of Anesthesiologists for revoking his certifications in anesthesiology and pain management). See Def. Brf. Supp., at 12.

Hessein filed an unsigned complaint in the instant action on June 20, 2019. See ECF No. 1. A signed complaint was filed on July 26, 2019, and summonses were issued on October 28, 2019. See ECF Nos. 4-5.

On July 17, 2019, the Honorable John M. Deitch, J.S.C., entered an Order Vacating Restraints and Lis Pendens, which among other relief, ordered the return of certain of Plaintiff's seized assets, including the automobile, bank and/or investment accounts and the real property. ECF No. 15-1 at 2,3.

On January 17, 2020, Hessein filed a motion for injunctive relief. See ECF No. 6. On January 29, 2020, the motion was denied without prejudice, and he was afforded 30 days to clarify the requested relief and basis for relief. See ECF No. 7. On February 26, 2020, Hessein filed a second motion for injunctive relief. See ECF No. 8. On September 22, 2020, a status conference was held before this Court. See ECF Nos. 9-10. On September 29, 2020, the Court denied the second motion for injunctive relief and dismissed the complaint without prejudice and gave Hessein 30 days to file an amended pleading. See ECF No. 11.

On October 2, 2020, Hessein filed a motion for default judgment, which was denied. See ECF Nos. 12, 13. On October 27, 2020, Hessein filed an amended complaint, which is the operative pleading. See ECF Nos. 15, 17.^[3] In the Amended Complaint, Hessein alleges that “Defendants implemented an unconstitutional policy and custom to keep evidence of the accused awaiting trial in the personal office of a county employee with no accountability, supervision, recordkeeping, and no required court orders or supervisory authorization for use in an administrative board hearing.” See ECF No. 17, ¶ 34. Hessein further alleges that he

was kept in the dark regarding any and all evidence regarding the allegations against him in his criminal indictment, and Defendants were allowed to continue to use the seized assets against [him] at any time in any regard the Defendants chose under their “policy” and “custom” of evidence keeping and evidence sharing with others agencies and departments. ...

See id. ¶ 38.

Plaintiff alleges a violation of his 4^th, 5^th, 6^th and 14^th amendment rights, constitutional rights and seeks monetary, injunctive, and declaratory relief under 42 U.S.C. § 1983; state law claims for emotional distress and for refusal to comply with a state court order authorizing release of forfeited property. See id. ¶¶ 3, 41. Ehrenkrantz and Brown-Peitz are sued in their official and individual capacities. See id. p. 2. In the prayer for relief, Plaintiff demands that Defendants Ehrenkrantz and Brown-Seitz be enjoined from “further implementation of this unconstitutional policy,” id. at 12, and compensatory and punitive damages, to release possessions and properties as ordered by Judge Deitch, among other relief. Id. at 12,15.

Ehrenkrantz and Brown-Peitz now move to dismiss with prejudice the Amended Complaint pursuant to Fed. R. of Civ. P. 12(b)(1) and 12(b)(6).

II. LEGAL STANDARD

A. Rule 12(b)(1)

Under Rule 12(b)(1), the plaintiff bears the burden of persuading the Court that subject matter jurisdiction exists. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). In resolving a Rule 12(b)(1) motion, the Court first determines whether the motion presents a “facial” or “factual” attack “because that distinction determines how the pleading must be reviewed.” Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014).

A facial attack argues that a claim on its face “is insufficient to invoke the subject matter jurisdiction of the court,” id. at 358, and “does not dispute the facts alleged in the complaint,” Davis v. Wells...