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Kawam v. United States

United States District Court, D. New Jersey

July 9, 2015

MOHAMED M. KAWAM, M.D., Plaintiff
UNITED STATES OF AMERICA, et al., Defendants.


WILLIAM J. MARTINI, District Judge.

Dr. Mohamed M. Kawam has filed the instant action against the United States and a number of federal agents. He alleges that Defendants violated his rights when conducting a raid on his home in August 2014. This matter comes before the Court on Defendants' motion to dismiss and motion for summary judgment. For the reasons stated below, Defendants' motion to dismiss is GRANTED in part and DENIED in part, while their motion for summary judgment is DENIED.


Plaintiff Dr. Mohamed Kawam, M.D. is a solo practitioner physician who specializes in internal medicine. Both his home and place of business are located in New Jersey. This case largely arises out of a Drug Enforcement Agency ("DEA") raid conducted on Dr. Kawam's home and place of business. Unless otherwise noted, Dr. Kawam alleges the following facts in his complaint.

Beginning in February 2014, the DEA began investigating Dr. Kawam with the suspicion that he was unlawfully distributing Oxycodone, Alprazolam, and other controlled substances in violation of the Controlled Substances Act ("CSA"). After investigating Dr. Kawam for a period of six to seven months, on August 12, 2014 the DEA issued an Order to Show Cause and Immediate Suspension of Registration, thereby terminating Dr. Kawam's ability to administer, dispense, and prescribe certain controlled substances. During the same time, Defendant Adriana DiMiceli - who is a Special Agent for the DEA - sought and obtained a search warrant for Dr. Kawam's business office. The next day, Defendants Popowich and Germano (who are also DEA Special Agents) arrived at Dr. Kawam's home and conducted a search that resulted in the seizure of patient files and United States currency.[1] Dr. Kawam states that he never voluntarily consented to the search and that the DEA Agents obtained access to his home through coercion. He claims that the DEA arrived at his home early in the morning in order to catch him at a time when he was "off guard." Upon the DEA's arrival, "at least ten armed law enforcement officers" roamed his home while "authoritatively shouting" at him and his family. While the Agents vaguely informed Dr. Kawam that they had a warrant, they did not specify that the warrant was only for his office and not his home. While at his home, the DEA Agents interrogated Dr. Kawam and his wife separately in different rooms for nearly two hours. Moreover, the Agents "verbally intimidate[d]" Dr. Kawam by informing him that he faced imprisonment and asking him several unrelated questions about his Syrian descent.

After searching the home, the DEA Agents accompanied Dr. Kawam to his office where they found and seized more patient files. Subsequently, the DEA Agents presented to Dr. Kawam for his signature a DEA-104 Voluntary Surrender of Controlled Substances Privileges and a Consent Order of Temporary Suspension of N.J. CDS Registration. In his complaint, Dr. Kawam contends that the Agents coerced him into the signing those forms, while Defendants argue that the signing was consensual.

Shortly after the DEA raid, Dr. Kawam requested an administrative hearing to lift or modify the temporary suspension of his registration to prescribe controlled substances. While the Administrative Law Judge ("ALJ") initially granted Dr. Kawam's request, he later dismissed Dr. Kawam's action on the ground that Dr. Kawam voluntarily relinquished his prescription rights by signing the DEA-104 form. Because he signed the DEA-104 form, the ALJ reasoned, the CSA did not entitle Dr. Kawam to a hearing.

Approximately two months after the DEA raid, Dr. Kawam filed the instant action. His complaint asserts the following four counts: (1) Judicial Review of Agency Decision; (2) Illegal Search and Seizure; (3) Dispute of Civil Asset Forfeiture; and (4) Replevin of Documents and Files. Dr. Kawam voluntarily dismissed Count Three after the DEA agreed to return the currency seized from his home. Defendants now move to dismiss the remaining three counts.


Defendants move to dismiss for lack of subject matter jurisdiction and failure to state a claim. Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of a complaint for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). There are two types of challenges to subject-matter jurisdiction: (1) facial attacks, which challenge the allegations of the complaint on their face; and (2) factual attacks, which challenge the existence of subject-matter jurisdiction, quite apart from any pleadings. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In reviewing a facial attack, like the one in this case, the court must consider the allegations of the complaint in the light most favorable to the plaintiff. Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000); PBGC v. White, 998 F.2d 1192, 1196 (3d Cir. 1993). In reviewing a factual attack, the court may consider evidence outside the pleadings, and no presumptive truthfulness attaches to the plaintiff's allegations. Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir. 1997).

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998).

Although a complaint need not contain detailed factual allegations, "a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, such that it is "plausible on its face." See id. at 570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While "[t]he plausibility standard is not akin to a probability requirement'... it asks for more than a sheer possibility." Id.

A. Count One: Judicial Review of Agency Decision

Count One is against the United States and asserts that the ALJ was arbitrary and capricious when he denied Dr. Kawam's request for a hearing and dismissed the administrative proceeding. Essentially, Dr. Kawam is asking this Court to review a DEA determination made under the CSA. However, Congress has provided that "[a]ll determinations, findings, and conclusions [made under the CSA]... shall be final and conclusive... except that any person aggrieved by a final decision... may obtain review of the decision in the United States Court of Appeals for the District of Columbia or for the circuit in which his place of business is located..." 21 U.S.C. § 877. Dr. Kawam appears to agree that the ALJ's decision was a determination, finding, or conclusion falling within §877. However, he argues that the permissive "may" contained in §877 means that he is permitted to file his claim here. Notwithstanding Dr. Kawam's argument, courts have firmly held that the courts of appeals have exclusive jurisdiction over challenges to final determinations made by the DEA under the ...

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