Karkalas v. Marks
| Decision Date | 31 July 2019 |
| Docket Number | CIVIL ACTION NO. 19-948 |
| Parties | ELIAS KARKALAS, M.D. v. LINDA MARKS, ESQUIRE, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
We entrust our federal investigators and prosecutors with substantial power to interrupt lives to challenge conduct they believe violates the law. They must balance their enforcement vigor with seasoned discretion. As presented today, being indicted, arrested, incarcerated and tried is undoubtedly a traumatic series of events for a Pennsylvania medical doctor who believes approving internet prescriptions for Fioricet did not violate the Controlled Substances Act. After spending time in a Philadelphia jail before trial, the United States tried the doctor and co-defendants in the District of Minnesota but then voluntarily dismissed the Controlled Substances Act charges during the trial. The Minnesota federal jury found the United States did not prove its case and acquitted the doctor and his co-defendants of all remaining charges. Rather than seek remedies provided by Congress like one of his co-defendants, the doctor now sues the United States, its Washington D.C. prosecutor, and the Drug Enforcement Agency's investigator from Minnesota alleging they deprived him of civil rights under the Fourth Amendment. Unlike civil rights claims against state officials, claims against federal officials and the United States are allowed only in strictly limited instances and, as directed by Supreme Court, we may not extend these remedies against federal officials beyond those already recognized.
The United States did not prove the doctor's guilt at trial and the doctor is not incarcerated. He seeks redress. But we lack personal jurisdiction over the Washington D.C. prosecutor and Minnesota investigator in Pennsylvania. Even if we could exercise personal jurisdiction over the Washington prosecutor and Minnesota investigator, the doctor cannot plead the prosecutor and investigator deprived him of his constitutional rights in pursuing charges relating to prescribing Fioricet which some (but not all) courts have recognized. Our elected representatives in Congress defined the remedies and we may not expand those remedies. They are also entitled to immunity. The doctor also fails to plead claims against the United States under the Federal Tort Claims Act or a malicious prosecution theory. We grant the United States' and its officials' Motions to dismiss in the accompanying Order.
Dr. Elias Karkalas served as medical director at Independence Blue Cross of Pennsylvania while managing a private practice in King of Prussia, Pennsylvania.1 Before 2013, Dr. Karkalas began working with Rx Limited, an online pharmacy company, approving requests on the internet for prescription medications.2 He insisted Rx Limited did not sell controlled substances.3
Dr. Karkalas approved requests for the drug Fioricet.4 Fioricet contains butalbital, a Schedule III controlled substance under the Controlled Substances Act, along with caffeine and acetaminophen.5 Dr. Karkalas did not believe Fioricet is a controlled substance, nor had the Food and Drug Administration designated Fioricet a controlled substance.6 Dr. Karkalas used the Physician's Desk Reference, an authoritative source for doctors, to determine Fioricet is a non-controlled medication.7
The Drug Enforcement Agency investigated the diversion of prescription drugs into illegal markets.8 Diversion Investigator Kimberly Brill, a Minnesota citizen, believed Rx Limited prescribed controlled substances without a doctor-patient relationship in violation of the Controlled Substances Act.9 Although Investigator Brill believed Fioricet is a controlled substance, she discovered during her investigations the Food and Drug Administration had not designated Fioricet a controlled substance.10
Investigator Brill brought her investigation concerning Rx Limited to the United States Attorney's Office in Minneapolis, but the Office declined to prosecute.11 Investigator Brill then brought the case to Attorney Linda Marks, a citizen of Washington, D.C., in the Department of Justice's Consumer Protection Branch.12 Attorney Marks agreed to prosecute.13 Investigator Brill and Attorney Marks alleged Rx Limited constituted an "international conspiracy" to illegally sell controlled substances online.14
On November 13, 2013, a grand jury in the United States District Court of Minnesota indicted Dr. Karkalas and ten other defendants involved with Rx Limited on thirty-eight counts of violating the Controlled Substances Act, mail and wire fraud, and conspiring to launder money.15 The grand jury indicted Dr. Karkalas under several provisions of the Controlled Substances Act: Section 841(a) prohibiting distribution of a controlled substance, Section 841(h) prohibiting distribution of controlled substances on the internet, and Section 831 requiring an online pharmacy display certain licensure information on its homepage.16 Attorney Marks and Investigator Brill allegedly told the grand jury: (1) Fioricet is a "controlled medication"; (2) Dr. Karkalas "was aware that Fioricet was a controlled medication"; and, (3) Dr. Karkalas "would continue to prescribe [Fioricet] in the same manner that he had."17
Upon issuance of a warrant following the indictment, unnamed officials arrested Dr. Karkalas at his King of Prussia office.18 The United States held him in the Federal Detention Center in Philadelphia for two months.19 He then spent two weeks in an Oklahoma facility and two months in a federally-contracted jail in Minnesota.20 He spent the six weeks before trial in a halfway house.21
The United States did not apprehend three of the indicted defendants. Three of the eleven defendants plead guilty and five defendants—including Dr. Karkalas—went to trial.22
In meetings and interviews before trial, Dr. Karkalas unsuccessfully tried to persuade Attorney Marks and Investigator Brill Fioricet is not a controlled substance.23 Attorney Marks "sought to intimidate witnesses" like Dr. Karkalas's nurse and office manager to testify against him.24
Attorney Marks tried the five defendants together in the District of Minnesota for conspiracy to distribute Fioricet online without valid prescriptions under the Controlled Substances Act, mail and wire fraud, and money laundering.25 Attorney Marks dropped the Controlled Substances Act charges midway through trial.26 On March 17, 2017, a jury acquitted Dr. Karkalas and the other four defendants on all remaining counts.27 Following acquittal, one of Dr. Karkalas's co-defendants moved for an award of attorney's fees under the Hyde Amendment arguing bad-faith prosecution.28 The trial court held, while the prosecution made mistakes during trial, Dr. Karkalas's co-defendant failed to show "frivolous, vexatious, or bad faith conduct."29 Dr. Karkalas decided not to move for attorneys' fees.
He instead decided to sue Attorney Marks, Investigator Brill, and the United States for prosecuting him and detaining him before trial. He alleges Attorney Marks and Investigator Brill presented "false and misleading evidence and testimony to the Grand Jury" to secure an indictment.30 He alleges Fioricet is not a controlled substance under the Act, and Attorney Marks and Investigator Brill knew Fioricet is not a controlled substance but still prosecuted him. Dr. Karkalas also alleges Attorney Marks and Investigator Brill had no evidence Dr. Karkalas knew Fioricet is a controlled substance. He alleges Attorney Marks's dismissal of the Controlled Substance Act charges during trial signaled "the case was a sham from the beginning and should have never been initiated."31
Dr. Karkalas sues Attorney Marks and Investigator Brill for unlawful prosecution and pretrial detention under the Fourth Amendment alleging "malicious prosecution and knowing presentation of false and misleading testimony, and evidence to the Grand Jury."32 He sues the United States under the Federal Tort Claims Act alleging "malicious prosecution committed by investigative or law enforcement officers of the United States, acting within the scope of their employment."33
Attorney Marks and Investigator Brill move to dismiss Dr. Karkalas's First Amended Complaint arguing (1) we lack personal jurisdiction over them, (2) venue is improper in the Eastern District of Pennsylvania, (3) we should not imply a constitutional remedy against federal officials under these circumstances, and (4) absolute and qualified immunity bars Dr. Karkalas's claims.35
The United States separately move to dismiss the First Amended Complaint arguing (1) Attorney Marks and Investigator Brill are not "investigative or law enforcement officers" under the Federal Tort Claims Act, (2) the discretionary function exception bars Dr. Karkalas's claims, and (3) Dr. Karkalas fails to state a claim for malicious prosecution.36
We lack personal jurisdiction over Attorney Marks and Investigator Brill. Venue over them and the United States is proper. But we still dismiss the case as Dr. Karkalas cannot state claims against Attorney Marks, Investigator Brill or the United States.
Attorney Marks and Investigator Brill argue we lack personal jurisdiction over them because they are nonresident defendants lacking minimum contacts with Pennsylvania. We analyze personal jurisdiction based on Pennsylvania law.37 The Pennsylvania General Assembly allows personal jurisdiction "to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States."38 Under the Due Process Clause, we have personal jurisdiction provided Attorney Marks and Investigator Brill have "certain...
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