United States v. Al-Amin, Case No. 1:13-CV-13

• Decision Date: 23 February 2016
• Docket Number: Case No. 1:13-CV-13
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. IHSAAN AL-AMIN, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

UNITED STATES OF AMERICA, Plaintiff, v. IHSAAN AL-AMIN, Defendant.

Case No. 1:13-CV-13

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA

February 23, 2016

Judge Curtis L. Collier

MEMORANDUM & ORDER

Before the Court is a renewed motion for partial summary judgment by Plaintiff United States of America.¹ (Doc. 42.) Pro se Defendant Ihsaan Al-Amin did not file a response. The United States has, however, previously filed a letter it received from Defendant, written after the original motion for summary judgment was filed, which indicates Defendant does not contest the relief sought against him in this action.² (Doc. 39-1.)

The United States's motion seeks a ruling on Defendant's liability for civil penalties under 21 U.S.C. § 842(a)(5) and asks the Court to set a hearing on the appropriate amount of penalties to be assessed. The motion is now ripe. For the reasons set out below, the motion is GRANTED IN PART.

I. BACKGROUND

The United States Drug Enforcement Agency (the "DEA") tracks the distribution of certain controlled substances. (Doc. 42-1 ¶ 4.) A person authorized to handle such substances receives a registration number and a specific three-part order form, entitled "U.S. Official Order Forms - Schedules I & II" (a "DEA Form 222"). (Id. ¶¶ 3, 5.) Each DEA Form 222 bears a unique nine-digit identifying number and pre-printed information identifying the registered purchaser by name, address, and DEA registration number. (Id. ¶ 5.) When an order is placed, Copy 1 of the form goes to the supplier, Copy 2 goes to the DEA, and Copy 3 remains with the purchaser. (Id.)

Defendant, a medical doctor formerly licensed in the state of Tennessee, owned and operated the O'Neil Medical Clinic at 4719 Brainerd Road, Suite C, Chattanooga, Tennessee. (Id. ¶ 3.) Until May 4, 2015, Defendant held DEA registration number BA2390095. (Id.)

As relevant to this lawsuit, Defendant ordered controlled substances on ten occasions between January 2008 and February 2010, using DEA Forms 222 numbered 074247675, 074264393, 074264389, 074264380, 083126976, 084347730, 084347735, 084347734, 084347737, and 084347739 (the "Order Forms").³ (Doc. 36-1; Doc. 42-1 ¶¶ 6-11.) Each Order Form indicates at the bottom that it is "Purchaser's Copy 3" of an original triplicate DEA Form 222. The Order Forms bear Defendant's name as the registered purchaser, the address of the O'Neil Medical Clinic, and a redacted DEA registration number ending in 95, which is consistent with Defendant's former DEA registration number. The Order Forms are alsocompleted by hand with the names and dosages of the various controlled substances ordered, including Roxicodone, Methadone, and Oxycodone; the number and sizes of packages ordered; the name and address of the desired supplier; and the date of the order.⁴

Each of the controlled substance orders described in one of the Order Forms was filled. (Doc. 42-1 ¶¶ 4, 10-11.) Despite this, the sections of each Order Form for the number of packages of controlled substances received and the date of receipt are blank. (Doc. 36-1.) The sections for the national drug code number for each controlled substance ordered are also blank.

II. STANDARD OF REVIEW

Summary judgment is proper when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the burden of demonstrating no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). The Court should view the evidence, including all reasonable inferences, in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp, 475 U.S. 574, 587 (1986); Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001).

To survive a motion for summary judgment, "the non-moving party must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial." Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). Indeed, a "[plaintiff]is not entitled to a trial on the basis of mere allegations." Smith v. City of Chattanooga, No. 1:08-cv-63, 2009 WL 3762961, at *2-3 (E.D. Tenn. Nov. 4, 2009) (explaining the court must determine whether "the record contains sufficient facts and admissible evidence from which a rational jury could reasonably find in favor of [the] plaintiff"). In addition, should the non-moving party fail to provide evidence to support an essential element of its case, the movant can meet its burden of demonstrating no genuine issue of material fact exists by pointing out such failure to the court. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).

At summary judgment, the Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). If the Court concludes a fair-minded jury could not return a verdict in favor of the non-movant based on the record, the Court should grant summary judgment. Id. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).

A court "cannot grant summary judgment in favor of a movant simply because the adverse party has not responded. The court is required, at a minimum, to examine the movant's motion for summary judgment to ensure that he has discharged [his initial] burden." Sough v. Mayville Cmty. Sch., 138 F.3d 612, 614 (6th Cir. 1998) (alteration in original) (quoting Carver v. Bunch, 946 F.2d 451, 454 (6th Cir. 1991)). Moreover, the Federal Rules of Civil Procedure "require that the party filing a motion for summary judgment 'always bears the burden of demonstrating the absence of a genuine issue as to a material fact.'" Sough, 138 F.3d at 614 (quoting Carver, 946 F.2d at 454).

III. DISCUSSION

It is unlawful for any person "to refuse or negligently fail to make, keep, or furnish any record, report, notification, declaration, order or order form, statement, invoice, or information required under" subchapter I or II of the Controlled Substances Act, 21 U.S.C. §§ 801 et seq.⁵ 21 U.S.C. § 842(a)(5). The civil penalty for a violation of 21 U.S.C. § 842(a)(5) is not to exceed $10,000.00. 21 U.S.C. § 842(c)(1)(B).

Subchapter I of the Controlled Substances Act requires a person placing an order for a Schedule I or II controlled substance to submit a written order on a form issued by the Attorney General and keep a duplicate copy of that form for two years. 21 U.S.C. § 828(a), (c)(2). Either a DEA Form 222 or its electronic equivalent is required for purchase of a Schedule I or II controlled substance. 21 C.F.R. § 1305.03. Each DEA Form 222 is serially numbered, comes pre-printed with the name, address, and registration number of the registered purchaser, and consists of "an original, duplicate, and triplicate copy (respectively Copy 1, Copy 2, and Copy 3)." 21 C.F.R. § 1305.11(a), (c), (d).

A purchaser must prepare a DEA Form 222 in triplicate using the carbon paper that comes with the forms. 21 C.F.R. § 1305.12(a). A purchaser must write each item desired (namely the number of containers of a certain form and quantity of a controlled substance) on a numbered line, state the number of lines completed, fill in the name and address of the supplier, and sign and date the form. Id. at (a)-(d). A purchaser must submit Copy 1 and Copy 2 to the supplier. 21 C.F.R. § 1305.13(a). The supplier must retain Copy 1 and forward Copy 2 to theDEA. Id. at (d). The purchaser must retain Copy 3 and record on it the number of containers ultimately received and the dates on which they were received. Id. at (a), (e). The purchaser must keep these forms available for inspection for two years. 21 C.F.R. § 1305.17(c).

The undisputed evidence establishes that Defendant failed to make a record required by Subchapter I of the Controlled Substances Act. Specifically, Defendant ordered and received controlled substances on ten occasions, but failed to record the number of containers he received and the dates on which they were received, as required by 21 C.F.R. § 1305.13(e).⁶

The Court must also consider, however, whether Defendant "refuse[d] or negligently fail[ed] to make" the relevant records. 21 U.S.C. § 842(a)(5) (emphasis added). Before 1998, the failure to make or keep a record under 21 U.S.C. § 842(a)(5) was assessed under a strict-liability standard. U.S. v. Grab Bag Distrib., 189 F. Supp. 2d 1072, 1080 (E.D. Cal. 2002). At that time, it was a civil violation to "refuse or fail to make, keep, or furnish any record . . . required under this subchapter . . . ." 21 U.S.C. § 842(a)(5) (1997). Effective October 21, 1998, the statute was amended to add the qualifier "negligently": "It shall be unlawful for any person . . . to refuse or negligently fail to make, keep, or furnish any record . . . required under this subchapter . . . ." 21 U.S.C. § 842(a)(5).

Only a few cases have been decided under the amended language of 21 U.S.C. § 842(a)(5) or the similar standard set out in 21 U.S.C. § 842(a)(10) ("negligently to fail . . ."). In two of these cases, a district court has found liability without explicit analysis of the negligence standard. See United States v. Heim, No. 5:13CV210, 2014 WL 245357, at *4 (N.D.Ohio Jan. 22, 2014); United States v. Akhtar, 95 F. Supp. 2d 668, 672 (S.D. Tex. 1999) ("[T]he evidence establishes that [defendant] violated 21 U.S.C. § 842(a)(10) . . . by failing to report to the DEA the four sales made by his representative . . .").⁷ In a third case, the Court of Appeals for the Second Circuit affirmed the trial court's finding that the defendants' multiple failures to report unusual pseudoephedrine sales, as required by 21 U.S.C. § 842(a)(1), were intentional, thereby more than satisfying the negligence standard. Advance Pharm., Inc. v. United...