United States v. Robinson, Case Number: 12-20319-CIV-MORENO

CourtU.S. District Court — Southern District of Florida
Writing for the CourtFEDERICO A. MORENO
Docket NumberCase Number: 12-20319-CIV-MORENO
Decision Date10 September 2012


Case Number: 12-20319-CIV-MORENO


Dated: September 10, 2012


The United States brought this case for civil penalties for violations of the Controlled Substances Act, codified at 21 U.S.C. §§ 801-904. Prior to filing this suit, the Government instituted administrative proceedings in the Drug Enforcement Administration to revoke Defendant Howard N. Robinson, M.D.'s registration. Based on the administrative proceedings, Defendants have moved to dismiss arguing the doctrines of res judicata and collateral estoppel bar this suit. Defendant Valerie McAllister has also moved to dismiss arguing the Government's case cannot be brought against her because she is not a registrant under the Controlled Substances Act. The Court disagrees with the Defendants' arguments and finds the case can go forward as to both Defendants.

THIS CAUSE came before the Court upon Defendants' Motions to Dismiss (D.E. No. 8, 11), filed on February 24, 2012 and March 8,2012.

THE COURT has considered the motions, the responses, and the pertinent portions of the record, and being otherwise fully advised in the premises, it is

ADJUDGED that the motions to dismiss are DENIED. Defendants shall file an answer to the complaint by no later than September 24, 2012.

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The United States brought this action against Valerie McAllister, a nurse anesthesist and the sole owner of the Premier Center for Cosmetic Surgery, Inc. and Howard N. Robinson, M.D., a plastic surgeon employed by the Premier Center, for multiple violations of the recordkeeping requirements of the Controlled Substances Act, 21 U.S.C. §§ 801-904. This is an action for civil money penalties under the Act against McAllister and Robinson.

McAllister and Robinson have each moved to dismiss the complaint. Robinson claims that a parallel administrative proceeding currently pending in the DEA before an Administrative Law Judge bars this civil action from proceeding under the doctrines of res judicata and collateral estoppel. McAllister adopts Robinson's arguments in her motion to dismiss and additionally argues that because she is not registered with the Drug Enforcement Administration ("DEA"), she cannot be liable under the Controlled Substances Act for the recordkeeping violations at the cosmetic center she owned and operated.

The Complaint in this case alleges that Robinson had a DEA registration for the purpose of possessing, distributing, and dispensing controlled substances. McAllister exercised "responsibility and authority for properly maintaining the controlled substance records of the Center, including DEA order forms (which Robinson would sign), invoices, and narcotics logs." Complaint at ¶ 4. The Complaint further alleges that McAllister determined when controlled substances needed to be ordered and verified and documented their receipt in the Premier Center's records. The United States also alleges that McAllister was responsible for the transfer of controlled substances between the Premier Center and another cosmetic surgery center she owned in Tampa, Florida. Both McAllister and Robinson were responsible for conducting an inventory of controlled substances both before and after patient procedures.

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DEA began investigating McAllister when an individual contacted its Tactical Diversion Squad to report that the drugs Demerol and Fentanyl, both Schedule II controlled substances, were not being appropriately handled at the Premier Center. The individual reported that the drugs were being transferred between the Miami Premier Center and the other cosmetic surgery center owned by McAllister in Tampa. As a result, the individual reported that patients were moving during surgical procedures because they were receiving insufficient medication and that bloody gauzes and syringes were not being disposed of properly.

The DEA investigation and resulting audit found that McAllister and Robinson failed on multiple occasions to maintain proper records of controlled substances purchased, received, and dispensed at the Premier Center. As a result, the Complaint alleges that significant quantities of controlled substances could not be accounted for, including Demerol and Fentanyl, as well as Midazolam and Versed, Schedule IV controlled substances. The DEA investigation also revealed other violations of applicable regulations. Those violations included a failure to conduct a biennial inventory, a failure to segregate DEA order forms for Schedule II controlled substances from other records, a failure to properly complete DEA order forms to include the required information for Schedule II controlled substances, a failure to complete DEA order forms for the transfer of controlled substances between locations, and a failure to locate missing drugs as recorded on the Premier Center's narcotics log. Finally, the DEA investigation discovered a prescription written by Robinson to McAllister for the acknowledged purpose of office supply, which is prohibited by the law.

Following the investigation, DEA issued an Order to Show Cause on September 7, 2011 to allow Robinson the opportunity to rebut DEA's finding that his registration should be revoked because it was inconsistent with the public interest as set forth in 21 U.S.C. § 823(f). The Order to

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Show Cause contained allegations in support of revoking Robinson's DEA registration, including the results of the DEA inspection and audit (but did not include the finding that Robinson had written a prescription for office supply). On November 29-30, 2011, the DEA held an administrative hearing.

On March 1, 2012, the Administrative Law Judge ("ALJ") issued a recommended decision. The ALJ found that DEA had sustained its burden in proving the facts set forth in the Order to Show Cause. More specifically, the ALJ found substantial evidence to support the allegations that Robinson failed to keep accurate records of controlled substances; failed to maintain inventories and records of controlled substances separately from other records; transferred controlled substances without complying with applicable recordkeeping requirements; improperly disposed of controlled substances; and improperly wrote a prescription for Demerol for office use. The ALJ also considered Robinson's acceptance of responsibility and the steps he took to remedy the deficiencies. The ALJ recommended against revoking the registration but that the registration should be maintained on a conditional basis.


"To survive a motion to dismiss, plaintiffs must do more than merely state legal conclusions," instead plaintiffs must "allege some specific factual basis for those conclusions or face dismissal of their claims." Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1263 (11th Cir. 2004). When ruling on a motion to dismiss, a court must view the complaint in the light most favorable to the plaintiff and accept the plaintiff's well-pleaded facts as true. See St. Joseph's Hosp., Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 953 (11th Cir. 1986). This tenet, however, does not apply to legal conclusions. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Moreover, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual

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allegations." Id. at 1950. Those "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). In short, the complaint must not merely allege a misconduct, but must demonstrate that the pleader is entitled to relief. See Iqbal, 129 S. Ct. at 1950.


A. Collateral Estoppel and Res Judicata

The United States District Courts have original jurisdiction in cases to recover civil money penalties under the Controlled Substances Act. See 21 U.S.C. § 842(c)(1); 28 U.S.C. § 1355. Nevertheless, the...

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