Appendix — Hooper v. Sachs

Supreme Court brief1987

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Me Md al

In the Supreme Court of the United States

OCTOBER TERM, 1987

JAMES L. HOOPER AND

DEER PARK MEDICAL GROUP, P.A..,

Petitioners,

STEPHEN H. SACHS, DALE P. KELBERMAN,

AND ANDREW C. TARTAGLINO,

Respondents.

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CiRCUIT

ALLEN H. SACHSEL STEPHEN A. ARMSTRONG

3918 Prosperity Avenue 3027 Rosemary Lane

Suite 200 Third Floor

Fairfax, Falls Church,

Virginia 22031 Virginia 22042

(703) 385-8788 (703) 241-2855

Attorneys for Petitioners

CONTENTS

Opinion of the United

States Court of Appeals

me BB ke Ck 4 Sa ee 1

Opinions and Orders of the

United States District

Court for the District

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ae Sk ar arr 8

es ks eh eke ks hee ee 19

Memorandum and Order (9/8/83).........e6. 23

Memorandum and Order (4/3/85).........0.. 33

Memorandum and Order (9/16/85)........... 38

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ECF WOE oh ie 66 he 68 case cane kes 124

Judgment of the United States

Court of Appeals for the

Fourth Circuit......... Terrerrer ey et oe el Z6

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NO. 86-1623

JAMES L. HOOPER; DEER PARK MEDICAL

GROUP, P.A., a Maryland professional

corporation

Plaintiff-Appellant

Vv.

STEPHEN H. SACHS; DALE P. KELBERMAN;

HENRY AARON ROSE; ANDREW TARTAGLINO

Defendant-—Appellee

and

STATE OF MARYLAND; JOHN STOPPLEMAN;

CHERYL WINCHELL; JEFFREY ROSEN;

STOPPLEMAN AND ROSEN

Defendant

PER CURIAM:

Dr. James L. Hooper and Deer Park Medical

Group appeal from the district court's grant

of summary judgment in favor of Stephen H.

Sachs, Dale P. Kelberman and Andrew J.

Tartaglino, 1/ the defendants in Hooper's 42

U.S.C. Section 1983 action based on an

alleged fourth amendment violation. In his

complaint, Hooper alleged that the defendants

violated his fourth amendment rights by using

a private individual, Dr. Cheryl Winchell, to

illegally search and seize his medical

records. Hooper contends on appeal that the

district court erred in granting summary

judgment to the defendants because a genuine

issue of fact was in dispute. We disagree

and affirm.

Hooper is the president of the Deer Park

Medical Group, a Maryland professional

1/ When this litigation was commended, Sachs

was the Attorney General of Maryland,

Kelberman was an Assistant Attorney General

and Tartaglino was chief investigator for the

Medicaid Control Fraud Unit.

association. Winchell joined Deer Park as a

doctor-employee in 1973 and became a

shareholder in 1975 when whe acquired 50 of

the 150 shares of stock in the corporation.

Winchell left Deer Park in 1978, however, and

filed suit against Hooper and Deer Park in

state court, requesting an accounting and a

dissolution of Deer Park. Among other

things, her complaint also alleged Medicaid

fraud.

In May 1979, Winchell requested that

Hooper produce documents potentially relevant

to her lawsuit. When he refused, she moved

to compel production and her motion was

granted in September 1979. She filed a

motion for additional discovery in December

1979. While this motion was pending,

Winchell telephoned the Medicaid Fraud

Control Unit (MFCU) of the Maryland Attorney

General's office on February 21, 1980, and

spoke with Tartaglino. She indicated she had

information regarding Medicaid fraud

occurring at Deer Park and agreed to meet

with MFCU personnel on February 27, 1980. On

that day, Winchell met with MFCU personnel

Kelberman, Tartaglino, and Anton Keating and

provided them with documents she had already

obtained through previous discovery. These

documents indicated that Deer Park had billed

patients (and Medicaid) for visits not

reflected on the patients’ charts.

Between Winchell's telephone conversation

with Tartaglino and her subsequent meetiny

with MFCU personnel, a hearing was held on

her motion for additional discovery. The

state court partially granted her request,

Ordering that she

shall have discovery of all

Medicaid vouchers and

corresponding plaintiff [sic]

charts for the period January

1, 1975 to the present; said

discovery to consist of

plaintiff's inspection and

photocopying of those

documents shee [sic] deems

relevant, and this inspection

and photocopying are to take

place on Monday, March 10,

1980, ... and on Wednesday,

March iz, i360.

Pursuant to the state court's order, Winchell

returned to Deer Park and conducted discovery

on March 10 and 12.

Following Winchell's additional discovery

efforts and a subsequent investigation by the

MFCU, the state brought criminal charges

against Hooper for Medicaid fraud. The

charges ultimately were dismissed, however,

because the state could not produce

sufficient evidence of Hooper's guilt.

Hooper and Deer Park then filed this Section

1983 action, alleging that Winchell was

acting as a government agent when she

conducted discovery on March 10 and 12, and

that her actions thus constituted an

unreasonable search and seizure in violation

of Hooper's fourth amendment rights. After

the parties completed discovery on the

Section 1983 action, the defendants moved for

summary judgment. The district court granted

the motion, rufling that no genuine issue of

material fact existed because Hooper had not

presented sufficient evidence to establish

that Winchell might have been a government

agent, a necessary element for a fourth

amendment violation. See United States ve

Jacobsen, 466 U.S. 109, 113 (1984) (fourth

amendment inapplicable to actions by private

individuals).

To establish that Winchell acted as a

government agent when she conducted discovery

at Deer Park on March 10 and 12, 1980, Hooper

had to show, inter alia, that the government

encouraged her activity. See United States

v. Lambert, 771 F.2d 83, 89 oo a 4 2 Pe

cert. denied, 106 S. Ct. 598 (1985); United

States v. Walther, 652 F.2d 788, 791 (9th

Cir. 1981). On appeal, Hooper contends that

a genuine issue existed over this fact and

the district court therefore erred in

granting summary judgment. We disagree. The

record is devoid of any direct evidence that

the MFCU personnel encouraged Winchell to

obtain information for them, and Hooper

offered no more than speculation and

conjecture to support that position. On the

other hand, Winchell testified at her

deposition that the MFCU personnel "made it

very clear to me that my litigation and their

investigation were two separate things."

Morevoer, Kelberman and Tartaglino submitted

signed affidavits stating that they neither

directed nor encouraged Winchell to obtain

additional documents. 2/

In view of the above, the judgment of the

Gistrict court is affirmed.

AFFIRMED

OP .HOO

2/ The defendants contend that Hooper and

Deer Park's claim is also barred by the

statute of limitations. In light of our

holding, we need not address this issue.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

vAMES L. HOOPER, et al.

Plaintiffs,

Ms : Civil Action No.

M82-2870

STEPHEN H. SACHS, et al.

Defendants.

MEMORANDUM

The plaintiffs brought this civil action

pursuant to 42 U.S.C. Section 1983 and its

jurisdictional counterpart, 28 U.S.C. section

1343(3), alleging violations of their civil

rights stemming from the criminal prosecution

of plaintiff Hooper for Medicaid fraud.

Named as defendants were the State of

Maryland;l/ four officials of the State

including Attorney General Sachs, Assistant

Attorney General Kelberman, and two

investigators with’ the Attorney General's

Office, Tartaglino and Rose; and a private

citizen, Winchell.

In Count I, the plaintiff Hooper alleges

that the defendants in their investigation

and prosecution of him conspired to deny him

his civil rights "to be free of malicious

1/ The State of Maryland was later

dismissed. See Paper 28.

prosecution, abuse of process, false arrest,

trespass, and ultra vires prosecution,

vindictive prosecution, invasion of privacy

and unwarranted publicity."2 The plaintiff

Deer Park Medical Center alleges that the

defendants interfered with its right to

conduct lawful business.3/ The plaintiff

Hooper also alleges that the defendants Sachs

and ;Kelberman deprived him of Due Process.4/

Counts II and III were dismissed

previously.5/

The defendants, Sachs, Kelberman, Rose,

and Tartaglino, have moved for judgment on

the pleadings, 6/ plaintiffs have

2/ Complaint at Paragraph 12.

3/ Complaint at Paragraph 13.

4/ Id. The court assumes that Paragraph 14

alleges a denial of due process as to the

plaintiff Hooper only. It is phrased in the

Singular, "plaintiff," and it names Sachs and

Kelberman only as defendants. They

prosecuted only Hooper.

5/ Paper 28.

6/ Papers 31 & 65.

responded,7/ and the defendants have

replied.8/ The defendant Winchell has moved

for summary judgment,9/ and the plaintiffs

have responded.10/ The court has considered

the motions, responses and reply and has

determined that decision without oral hearing

is appropriate. Local Rule 6(E).

I. Statement of Facts

The gravamen of the plaintiffs’ complaint

is that Dr. Cheryl Winchell, an ex-member of

the plaintiff Deer Park Medical Center (Deer

Park), and an ex-coworker of the plaintiff,

Dr. James L. Hooper, supplied the Attorney

General's Office with false information which

led to prosecution of the plaintiff Hooper

for “false pretenses" involving alleged

Medicaid fraud. The plaintiffs allege that

Dr. Winchell, Attorney General Sachs, and

7/ Paper 77a.

8/ Paper 80.

9/ Paper 59.

10/ Paper 78.

members of the Attorney General's Office

conspired to violate the plaintiffs’ rights.

In August, 1980, a Montgomery County,

Maryland Grand Jury indicted Dr. Hooper on

six counts of false pretenses. The

Montgomery County Circuit Court dismissed the

indictment. While this dismissal was on

appeal to the Maryland Court of Special

Appeals, the Attorney General brought a 330-

count criminal information against the

plaintiff Hooper. The Court of Special

Appeals reinstated the indictment, but while

appeal was pending before the Maryland Court

of Appeals, the Attorney General withdrew the

indictment.11/

The present suit alleges not only that

the information giving rise to the criminal

charges was false, but also alleges that the

Attorney General was without authority to

proceed in a Medicaid fraud case by criminal

1/ Complaint at Paragraph 16.

——

information.12/ It is this latter allegation

which gives rise to the claim of Hooper that

Sachs and Kelberman violated his right to Due

Process.13/

it Discussion

"The first inquiry in any Section 1983

suit... is whether the plaintiff has been

deprived of a right ‘secured by the

Constitution and laws.’ Baker v. McCollan,

443 U.S. 137, 140 (1979), quoting 42 U.S.C.

section 1983. Section 1983 does not impose

liability for a mere violation of state tort

law. A civil rights claim depends on a

deprivation of constitutional magnitude.

The Fourth Circuit has expressly held

that the state law torts of malicious

prosecution and abuse of process do not

allege a deprivation of constitutional

rights. Cramer v. Crutchfield, 648 F.2d 943,

945 (4th Cir. 1981). Accord Occhino v.

12/ Id. at Paragraphs 17 & 18.

13/ Id. at Paragraph 14. See note 4 supra.

United States, 686 F.2d 1302, 1311-12 (8th

Cir. 1982); Pollard v. Baskerville, 481 F.

Supp. 1157 (E.D. Va. 1979), aff'd, 620 F.2d

294 (4th Cir. 1980). See also Riggs v.

Miller, 480 F. Supp. 799 (E.D. Va. 1979).

Therefore, Hooper's allegations of malicious

prosecution and abuse of process do nct state

a cause of action under 42 U.S.C. section

1983. Similarly, his claims of false

arrest,14/ trespass, ultra vires prosecution,

vindictive prosectuion, invasion of privacy

14/ Although false arrest can rise to the

level of a constitutional deprivation when it

results in loss of liberty without due

process of law, see Baker v. McCollan, 443

U.S. 137, 145 (1979), the plaintiff has not

alleged that he was deprived of his liberty

at all. Moreover, the Supreme Court has made

it clear that even a false arrest resulting

in three days' imprisonment will not give

rise to a cause of action under section 1983

where there is a valid warrant. Id. The

plaintiff herein has not alleged the

invalidity of any warrant. .

ca ala ca

15/ and unwarranted publicity, if they state

a cause of action at all, state one under

Maryland tort law only.

The only injury expressly alleged to have

been suffered by the plaintiff Deer Park was

an interference with the conduct of its

lawful business. Deer Park has not provided

specific factual allegations with respect to

this injury, but it has alleged that

defendants were responsible for adverse

publicity concerning it. Damage to

reputation is not a loss of liberty or

property sufficient to state a constitutional

15/ The complaint alleges the prosecution

was instituted for publicity purposes, but no

other allegations giving rise to a claim of

invasion of privacy are present. Injury to

reputation does not give rise to a cause of

action under section 1983. See text infra.

Plaintiff Hooper states in his affidavit that

the defendant Winchell acted at the direction

of, or in concert with, state investigators

in conducting an illegal search of Deer Park

records. These claims are not a part of the

complaint, however. Even if they were, a

cause of action pursuant to section 1983 may

be foreclosed by Allen v. McCurry, 449 U.S.

90 (1980). i ny

deprivation. Paul v. Davis, 424 U.S. 693

(1976).

The only remaining issue is whether the

action of Attorney General Sachs and

Assistant Attorney General Kelberman in

bringing the criminal prosecution by

information, rather than indictment, is

actionable under section 1983. Assuming that

a constitutional deprivation were alleged by

the allegations of denial of due process, and

that the Attorney General was without

authority to proceed by information,16/ Sachs

and Kelberman would still not be liable.

They enjoy absolute immunity for their

prosecutorial acts done within the scope of

their authority. See Imbler v. Pachtman, 424

U.S. 409 (1976).

The plaintiff's contention that Sachs and

Kelberman acted beyond the scope of their

16/ This precise issue was decided against

the plaintiff Hooper in the Circuit Court for

Montgomery County. See State Defendants'

Reply, Paper 80, Ex. A at p. 4.

authority is without merit. Hooper does not

contend that they were without authority to

initiate criminal prosecution against him,

but argues merely that their decision to

proceed by information, rather than

indictment, transformed the prosecution into

one beyond their authority. This

interpretation of “beyond the scope" is

entirely too narrow. It would subject

prosecutors to suit for each technical error

made in the course of prosecution. Such a

narrow reading would undermine the intent of

the Supreme Court in Imbler to permit the

prosecutor to carry out his public duty

without the threat of civil liability. Id.

at 424.

For the foregoing reasons, the motions of

the defendants for judgment on the pleadings

and summary judgment 17/ will be granted.

Date: June 9, 1983 /s/

James R. Miller, Jr.

United States District

Judge

17/ The defendant Winchell did not rely

expressly on a failure to state an injury of

constitutional magnitude, in her motion for

summary judgment, but it was fairly raised by

her Answer, Paper 3, and Memorandum

accompanying her motion, Paper 59 at 4.

Furthermove, the plaintiffs had fair notice

of the issue as it was raised by the other

defendants.

HOO .MEM

IN THE UNITED STATES DISTRICT COURT

FOR THF DISTRICT OF MARYLAND

JAMES L. HOOPER, et al.

Plaintiffs,

Vv. : Civil Action No.

M82-2870

STEPHEN H. SACHS, et al.

Defendants.

ORDER

For the reasons expressed in the

accompaying Memorandum, it is this 9th day of

June, 1983, by the United States District

Court for the District of Maryland, ORDERED:

(1) | The motion of defendants Sachs,

Kelberman, Rose and Tartaglino for judgment

on the pleadings (Papers 31 and 65) is

GRANTED.

(2) The motion for summary judgment of

the defendant Winchell (Paper 59) is GRANTED.

(3) Judgment shall be entered for all

defendants.

(4) The plaintiffs’ motion for further

extension of time to file a motion to compel

(Paper 75) is DENIED as moot.

(3) The plaintiffs' motion to

supplement their opposition to the

defendants’ motion for judgment on the

pleadings (Paper 76) is GRANTED to the extent

that it seeks to have a new page 5 of its

original memorandum substituted and DENIED to

the extent that it seeks to raise new

undisclosed issues.

(6) The hearing scheduled for Friday,

June 10, 1983, has been CANCELLED.

(7) The Clerk shall mail a copy of this

Order and the accompanying Memorandum to

counsel for the parties.

/s/

James R. Miller, Jr.

‘United States District Judge

HOO.ORD

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

JAMES L. HOOPER, et al.

Plaintiffs,

Vv. : Civil Action No.

M82-2870

STEPHEN H. SACHS, et al.

Defendants.

MEMORANDUM AND ORDER

This court granted the motion of the

State defendants, Sachs, Kelberman, Rose and

Tartaglino, for judgment on the pleadings

(Papers 31 & 65) and the motion for summary

judgment of the defendant Winchell (Paper

59). The plaintiffs have moved for

reconsideration or, alternatively, for leave

to file an amended complaint (Paper 88) have

responded and the plaintiffs have replied

(Paper 89). The court has concluded that

decision without oral hearing is appropriate.

Local Rule 6(E).

The plaintiffs have challenged the

court's conclusion that the plaintiffs

suffered no injury of constitutional

magnitude sufficient to sustain their tort

claims, i.e., malicious prosecution and abuse

of process, pursuant to Section 1983. They

argue again that the injury Hooper suffered

was a denial of Due Process in having been

brought to trial on false information and by

incorrect procedures. Due Process is a

constitutional right, but the denial of Due

Process, without more, is not actionable.

There must be some loss of liberty or

property to which the denial of Due Process

attaches. The plaintiffs cite the court to

Claine v. Bursett, 661 F.2d 108 (Sth. Cir.

1981), for the proposition that malicious

prosecution results in a deprivation that is

actionable under Section 1983. The

deprivation in Claine, however, was the

imprisonment of the plaintiff in that case,

obviously causing a loss of liberty. Having

to stand trial on criminal charges is not, in

and of itself, an injury to liberty or

property. See Landrigan v. City of Warwick,

628 F.2d 736, 742 (lst Cir. 1980).

The plaintiffs argue also that both

Hooper and Deer Park alleged injury to

reputation and concomitant economic injury.

To the contrary, paragraph 13 it alleged that

the defendants "interfered with the rights of

plaintiff Deer Park to conduct lawful

business." That is the only allegation with

respect to economic injury in the original

complaint.

The nature of the injury is unclear, but

the plaintiffs argue in their motion for

reconsideration that the injury is one of

damage to reputation and goodwill. They cite

Marrero v. City of Hialeah, 625 F.2d 499 (5th

Cir. 1980), for the proposition that injury

to reputation and the goodwill of a business

is a property interest protected by the Fifth

and Fourteenth Amendments.

Assuming the allegations in Deer Park's

Original complaint allege a damage to

reputation and goodwill, the Fourth Circuit

has disapproved, implicitly, the holding of

the Fifth Circuit. See Recker v. Russek, 518

F. Supp. 1040 (W.D. Va. 1981), aff'd menm.,

679 F.2d 876 (4th Cir. 1982).

The allegations of the proposed amended

complaint do not bring the alleged injury

within constitutional protection. The

amended complaint merely states that both

plaintiffs suffered injury to reputation and

economic injury. Presumably, it is the same

type of injury to reputation and goodwill or

business opportunity alleged in the original

complaint.

it.

Finally, the plaintif£fés seek

reconsideration of the court's conclusion

that Sachs and Kelberman are immune for their

acts in initiating prosecution by information

rather than indictment. It should be noted,

first, that this was an alternative holding

based on the assumption that a constitutional

deprivation has been alleged. Nevertheless,

the court reaffirms its alternative holding

that Sachs and Kelberman were acting within

the scope of their authority in initiating

prosecution by information rather than

indictment.

Iil.

The amended complaint at paragraph 18

also seeks to allege that the State

defendants were without authority to

prosecute for any period more than five years

prior to the time of the investigation

because Medicaid providers are not required

to keep records longers than five years.

Permitting amendment based on these

allegations would be futile because (1) the

claim is still one for malicious prosecution

which the court has held cannot be the basis

for a Section 1983 action under the facts

alleged here, and (2) it is an act in

initiating prosecution for which the

defendants, Sachs and Kelberman, are entitled

to immunity.

iv.

The plaintiffs in the proposed amended

complaint have also sought to state a cause

of action based on the alleged gross

negligence of the defendants, Sachs and

Kelberman, in sineeeieee subordinates.

Since, with one exception, these allegations

are in reality an alternative factual basis

for the attempt to state a cause of action

for malicious prosecution, abuse of process,

and denial of Due Process, they fail to state

a cause of action under Section 1983 for the

same reasons previously stated.

While the plaintiffs, as noted above,

have attempted to restate in the proposed

amended complaint their Section 1983 causes

of action based on malicious prosecution,

abuse of process and denial of Due Process,

this court has concluded that they have

failed effectively to do so. While it is

Ordinarily appropriate to grant liberal

opportunity to amend a complaint, even after

dismissal, see, 3 Moore's Federal Practice,

Paragraph 15.10 at 15-140 (2nd ed. 1983),

when amendment would be futile, the court is

not required to allow amendment. For this

reason, the plaintiffs’ motion to amend will

be denied as to these causes of action.

VI.

The proposed amended complaint does

differ from the original in one significant

respect. The plaintiffs have stated a cause

of action under Section 1983 pursuant to the

Fourth Amendment for warrantless search and

seizure. These allegations are contained

principally in paragraphs 14 and 18. The

plaintiffs' allegations of gross negligence

can also be construed to allege that the

defendants were negligent in supervising the

search procedure giving rise to the Fourth

Amendment claim. The plaintiffs will be

permitted to file their amended complaint to

the extent and only to the extent that it

seeks to state a cause of action for

warrantless search and seizure.

Accordingly, it is this 8th day of

September, 1983, by the United States

District Court for the District of Maryland,

ORDERED:

i. The plaintiztts’ motion for

reconsideration (Paper 86) is DENIED.

2. The plaintiffs' motion for leave to

file an amended complaint is GRANTED to the

extent that the plaintiffs state a cause of

action under Section 1983 for warrantless

search and seizure in violation of the Fourth

Amendment and DENIED in all other respects.

c The Clerk is instructed to reopen

the case as to all defendants for proceedings

consistent with this Memorandum and Order.

4. The Clerk shall mail a copy of this

Memorandum and Order to counsel for the

parties.

/s/

James R. Miller, Jr.

United States District

Judge

MEMORD.HOO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

JAMES L. HOOPER, et al.

Plaintiffs,

Vv. : Civil Action No.

M82-2870

STEPHEN H. SACHS, et al.

Defendants.

MEMORANDUM AND ORDER

— 4

On September 9, 1983, the plaintiffs,

James L. Hooper and Deer Park Medical Group,

were granted leave to file an amended

complaint "to the extent and only to the

extent that it seeks to state a cause of

action [under Section 1983] for warrantless

search and seizure." (Paper No. 94 at 4-5).

In the amended complaint thereafter filed,

Attorney General Stephen H. Sachs; Assistant

Attorney General Dale Kelberman; two

investigators with the Attorney General's

Office, Messrs. Andrew Tartaglino and Harold

Rose; and a private citizen, Dr. Cheryl

Winchell, were named as defendants.

The defendants fiied a motion to dismiss

the amended complaint (Paper No. 98) and the

plaintiffs responded (Paper No. 104). After

a hearing on the motion, the parties were

directed to file supplemental memoranda and

they have done so (Paper Nos. 112 & 113).

A decision on the motion to dismiss is

pending. The plaintiffs have in the meantime

moved to file a second amended complaint to

add additional parties and additional pendent

state claims (Paper No. 120). Defendant

Winchell has opposed that amended (Paper No.

121), and the plaintiffs have replied to his

opposition (Paper No. 122).

The second amended complaint seeks to

add as defendants John Stoppleman and Jeffrey

Rosen, individually, and Stoppelman and

Rosen, a law firm in which Messrs. Stoppleman

and Rosen are general partners. Both men

were allegedly employed as counsel to

defendant Winchell and in various ways

collaborated in the deprivation of civil

rights alleged herein.

The plaintiffs have realleged in the

second amended complaint all allegations and

causes of action set forth in the first

amended complaint. Leave to file the first

amended complaint was granted only as to the

warrantless search and seizure issue,

however. The plaintiffs recognize that all

claims except that Fourth Amendment claim

have been disposed of by this court as to all

defendants currently before the court. They

state:

"We do not by seeking

to amend the complaint abandon

Our position that all claims

set forth in our original

complaint, and in our First

Amended Complaint, set forth

causes of action cognizable

under 42 U.S.C. 1983. For that

reason, we have realleged all

matters set forth in the First

Amended Complaint. We do not

thereby seek EuUrtagere

reconsideration of the Court's

prior rulings with regard to

Our initial complaint, or the

First Amended Complaint. The

allegations are repeated solely

to preserve our position. It

is not our intent to require

that either the State

defendants or defendant

Winchell (assuming leave to

amend is granted) refile their

pending motions to dismiss,

currently under consideration

by the Court. Similarly, we

would anticipate that

Gefendants Stoppleman and

Rosen, and their law firm, can,

pro forma, move to dismiss the

42 U.S.C. 1983 claims this

court has ruled do not state a

cause of action. As is the

case with the State defendants

and defendant Winchell, the

claims are pled to preserve our

position. So that our position

is understood by the newly

added defendants, and to avoid

an unnecessary burden for them

and for the Court, it is our

intent to serve a copy of this

motion and the accompanying

memorandum on the newly named

defendants, if the Court

authorizes filing and service

of the Second Amended

Complaint.”

(Paper No. 120 at 2).

The proposed amendment is subject toa

valid motion to dismiss based on prior

rulings in this case. Therefore, leave to

amend is granted only as to the warrantless

search and seizure claim set forth in

paragraph 23 (formerly paragraphs 14 & 18 in

the First Amended Complaint). As to all

other claims, leave to amend is denied. See,

e.g-., 3 Moore's Federal Practice, Paragraph

15.08[L4] at 15-109 and cases cited therein.

(If a complaint as amended would be subject

to a Rule 12(b) (6) motion to @Gismiss, it

would be an idle move for the court to allow

such amendment).

Accordingly, it is this 3rd day of

April, 1985, by the United States District

Court for the District of Maryland, ORDERED:

lL. That leave to amend is GRANTED in

part and DENIED in part as set forth in this

Memorandum and Order.

2. That the Clerk shall mail a copy of

this Memorandum and Order to counsel for the

parties.

/s/

James R. Miller, Jr.

United States District

Judge

MEMORD2.HOO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

JAMES L. HOOPER and :

DEER PARK MEDICAL GROUP,

P.A. :

Vv. : CIVIL ACTION NO.

M-82-2870

STEPHEN H. SACHS :

DALE KELBERMAN :

ANDREW TARTAGLINO :

HAROLD ROSE :

CHERYL WINCHELL :

JOHN STOPPLEMAN :

JEFFREY ROSEN and :

STOPPLEMAN AND ROSEN

Filed: September 16, 1985.

MEMORANDUM AND ORDER

On September 9, 1983, the plaintiffs,

James L. Hooper and Deer Park Medical Group,

P.A., were granted leave to file an amended

complaint pursuant to 42 U.S.C. Section 1983

and its jurisdictional counterpart, 28 U.S.C.

Section 1343(3), alleging violations of their

Civil rights stemming from an illegal search

and seizure of certain records of the

plaintiffs. Named as defendants were

Attorney General Sachs, Assistant Attorney

General Kelberman, two investigators with the

Attorney General's Office, Tartaglino and

Rose, and a private citizen, Dr. Winchell.

The plaintiffs were allowed to amend their

complaint "to the extent and only to the

extent that it seeks to state a cause of

action [under Section 1983] for warrantless

search and seizure." (Paper 94 at 4-5).

This court stated that leave to amend was

granted only as to those parts of paragraphs

14 and 18 of the proposed amended complaint

(Paper 95) related to the Fourth Amendment

claim. In addition, those parts of the

complaint alleging gross negligence in

supervising the search procedure giving rise

to the Fourth Amendment claim (see Paper 95,

Paragraphs 22-24) were also considered as

part of the amended complaint (Paper 94 at

4).

The defendants filed a motion to dismiss

the first amended complaint (Papers 98, 99,

103) and the plaintiffs responded to their

motions (Paper 104).

On May 25, 1984, a hearing on the

motions to dismiss was held in open court.

After hearing the arguments of all parties,

the court instructed counsel to submit post-

argument memoranda directed to the statute of

limitations issue. The parties did so

(Papers 112 & 113).

While a decision on the issues presented

in the motions to dismiss was pending, the

plaintiffs sought, and were granted, in part,

leave to file a second amended complaint to

add as defendants, Stoppleman and Rosen, a

law firm, and John Stoppleman and Jeffrey

Rosen, lawyers who apparently acted as

counsel for defendant Winchell in prior state

court civil cases (Paper 123, Court Order;

Paper 124 , Second Amended Complaint). Those

new defendants filed a motion to dismiss the

second amended complaint (Paper 130). The

plaintiffs have responded to that motion to

dismiss (Paper 132).

Bs Issues Before the Court

All defendants set forth similar

arguments or adoptyeach other's arguments

regarding the grounds on which the first or

second amended complaint 1/ should be

dismissed. They are:

1) The Fourth Amendment claim set forth

in the amended complaint does not

relate back to the original

complaint.

2) As a result, the amended complaint

is barred by the statute of

limitations.

3) Even if the complaint is not time

barred, it fails to state a claim as

to each defendant.

1/ The court will consider all motions to

dismiss filed as to the first amended

complaint to apply also to the second amended

complaint. Further, leave to file tne second

amended complaint was granted only as to the

Fourth Amendment claim. That claim is set

forth in paragraphs 23 and 27 of the second

amended complaint (Paper 124). All

references herein to the “amended complaint"

refer to the second amended complaint.

4) Even if the complaint states a

claim, the state defendants and Dr.

Winchell are immune from suit.

II. Background

This case grows out of the prosecution

of Dr. Hooper by the State of Maryland for

Medicaid fraud. After the presentation of

the prosecution's case, the state court

apparently dismissed the criminal charges

against Dr. Hooper. Dr. Hooper and Deer Park

Medical Group, the professional association

in which he is the main partner, subsequently

filed suit in this court alleging numerous

constitutional violations related to that

prosecution. Only the alleged Fourth

Amendment violation and related issues remain

before this court for resolution.

Resolution of those issues requires an

understanding of the relationship between Dr.

Hooper and Dr. Winchell. After joining Deer

Park Medical Group in 1972 as a

doctor/employee, Dr. Winchell bought into the

partnership in 1975. That partnership was

not satisfactory to her and in 1978 she left

Deer Park and filed several civil suits in

state court against Dr. Hooper and Deer Park

Medical Group.

In Dr. Winchell's suit filed in equity,

Winchell v. Deer Park Medical Group, et al.,

No. 64714 (Circuit Court for Montgomery

County, October 11, 1978), she sought

dissolution of the corporation, an injunction

pendente lite and an accounting. Among the

allegations stated in that complaint were

allegations of Medicaid fraud (Paper 107, Ex.

A, Complaint Paragraph 10(e)).

Dr. Winchell conducted discovery in her

several state court cases, but the discovery

conducted in the equity case provides the

basis for the Fourth Amendment claims set

forth in the second amended complaint. The

gGravamen of that amended complaint is that

Dr. Winchell was acting as an agent of the

state when, on March 10, 1980, she conducted

discovery pursuant to a discovery order

issued in the equity case. Allegedly the

state defendants directed her to obtain

evidence for them of Medicaid fraud --

evidence, the plaintiffs contend, the state

defendants had no legal right to obtain, at

least not without a proper subpoena. The

plaintiffs further contend that, even if the

state defendants had attempted to obtain

Medicaid records from Deer Park Medical

Center with a subpoena, they could not hie

obtained records going back more than five

years. They conclude that Dr. Winchell's

copying of the Medicaid records and alleged

subsequent delivery of some of them to the

state defendants constituted an illegal

search and seizure. Messrs. Stoppleman and

Rosen and their law firm are implicated,

because they allegedly advised Dr. Winchell

to conduct the alleged illegal search and

seizure for the benefit of the State.

Normally, because the motions pending

before this court are motions to dismiss, the

court would not go beyond the amended

complaint in deciding the issues. This case,

however, has been before the court for almost

three years. Motions to dismiss the

complaint and amended complaints, and motions

to reconsider have been presented and argued.

Each party in previous motions has added to

the record by providing exhibits and

attaching depositions to the memoranda filed.

Thus this court is cognizant of facts beyond

the face of the second amended complaint --

facts which are relevant to the issues

presented for resolution. Therefore,

pursuant to Fed. R. Civ. P. 12(b), this court

will consider the full record before it,

converting the motions to dismiss to motions

for summary judgment. In doing so, the court

is aware that, at the request of the state

defendants, discovery has been stayed pending

resolution of the immunity issue. To the

extent that further discovery may be

necessary to resolve that issue or other

issues on summary judgment, such discovery

will be ordered.

With those considerations in mind, the

following chronology of facts, at this time,

is not disputed.

As stated previously, Dr. Winchell

initiated an equity action in state court on

October 11, 1978 against Dr. Hooper and Deer

Park. That court docket reveals that on May

31, 1979, Dr. Winchell filed a request for

production of documents (Paper 107, Ex. B,

docket entry 62). Apparently, Deer Park and

Dr. Hooper refused to produce the requested

documents, and, therefore, Dr. Winchell filed

a motion to compel on June 26, 1979 (id.,

docket entry 77). A hearing was held on

September 18, 1979 (id., docket entry 100),

and on September 29, 1979, the court ordered

that "Plaintiff shall be given full

opportunity to examine each and every chart

and associated documents that she chooses

that are maintained by Defendants and select

such charts as she deems appropriate for the

purpose of making copies thereof..." (id.,

docket entry 102). Dr. Winchell apparently

conducted discovery pursuant to that order.

On December 10, 1979, Dr. Winchell filed

a "motion for increased discovery” (id.,

docket entry 113). That motion was opposed

(id., docket entries 116 & 117). While that

motion was pending, Dr. Winchell called the

Medicaid Fraud Control Unit of the Attorney

General's Office.

In a memo to file dated February 21,

1980, Andrew Tartaglino, of the Medicaid

Fraud Control Unit, stated that Dr. Winchell

had called him on that date indicating that

she had "information regarding Medicaid fraud

taking place in the Deer Park Medical Group"

(Paper 89, Dep. of Winchell, Ex. 1). An

appointment was set at that time for Dr.

Winchell to meet with the Medicaid Fraud

Control Unit personne! on February 27, 1980

(id. ).

The day after Dr. Winchell's initial

phone call to Tartaglino a hearing was held

on her motion for increased discovery, and

her request was granted in part (Paper 107,

Ex. B, docket entry 122). The court order,

hauawes: was not issued until February 29,

1980. That order stated that the plaintiff

"shall have discovery of all Medicaid

vouchers and corresponding plaintiff charts

for the period January 1, 1975 to the

present; said discovery to consist of

plaintiff's inspection and photocopying of

those documents shee [sic] deems relevant,

and this inspection and photocopying are to

take place on Monday, March 10, 1980... and

on Wednesday, March 12, 1980" (id., docket

entry 124).

Before she conducted that discovery, she

met, as previously planned, with the Medicaid

Fraud Control Unit. Ina memo to file dated

February 28, 1980, Dale Kelberman, of the

Medicaid Fraud Control Unit, described in

detail his interview with Dr. Winchell on

February 27, 1980. Mr. Kelberman stated in

that memo "(Dr. Winchell] provided us with 10

or 11 sample vouchers and patients' charts

which she had obtained pursuant to her Court

Order which grew out of her law suit."

(Paper 89, Winchell Dep., Ex. 2 at 2-3). He

went on, "A review of the vouchers and

patient charts presented to us by Dr.

Winchell substantiates what she had told us

Since in each instance there are office

visits billed where no record of such a visit

is in the patient's chart." (Id. at 3).

It appears from the record that Dr.

Winchell took documents to the Medicaid Fraud

Control Unit on February 27, 1980 -- eleven

days before she conducted the alleged illegal

search and seizure. She was asked by

plaintiffs’ counsel at her deposition on

April 27, 1983, whether the state defendants

asked her "to bring to them any discoveritive

evidence?" Dr. Winchell answered, "They

didn't request any further information other

than what I brought them in the first

meeting." She was also asked by plaintiffs'

counsel, "Did they say they'd help you and

you'd help them with any discovery of

evidence?" Dr. Winchell answered, "No, they

didn't say that." (Paper 89, Winchell Dep.

at 15).

In summary, the deposition testimony of

Dr. Winchell and the state court records

indicate that Dr. Winchell approached the

state defendants with some evidence of

Medicaid fraud prior to her March 10, 1980

"search" of the records at Deer Park and that

she provided no further information to the

defendants after that March 10, 1980 “search.

With those facts in mind, and aware that

the record before this court may not be fully

developed, this court will consider the

issues presented.

that the ‘right of the veople to be secure in

their persons, houses, papers and effects,

against unreasonable searches and seizures,

shall not be violated ....' This text

protects two types of expectations, one

involving ‘searches, and the other

‘seizures.’ A ‘search’ occurs when an

expectation of privacy that society is

prepared to consider reasonable is

infringed. A ‘seizure' of property occurs

when there is some meaningful interference

with an individual's possessory interest in

that property. [The Supreme Court] has...

consistently construed this protection as

proscribing only governmental action; it 1s

wholly inapplicable to a search or seizure,

even an unreasonable one, effected by a

private individual not acting as an agent of

the Government...." United States v.

Jacobsen, i # , 52 U.6.L.8. 4614, 4433

(April 2, 1984) (citations omitted). It is

recognized, however, that when a private

person acts as an instrument or agent of the

state, Fourth Amendment considerations are

implicated. See, e.g., Coolidge v. New

Hampshire, 403 U.S. 443, 487 (1971); United

States v. Jennings, 653 F.2d 107, 110 (4th

Cir. 1981); Annot., 44 ALR Fed. 547, 561-62

(1979).

The plaintiffs have occa that Dr.

Winchell was acting as an agent of the state

when she conducted the alleged illegal search

and seizure. The defendants argue that Dr.

Winchell was not an agent of the state, and

that this court can so conclude as a matter

of law.

Whether a private individual is acting

as an agent of the state requires a "highly

fact-specific" inquiry. See United States v.

Cova, 585 F. Supp. 1187, 1193 (E.D. Mo. 1984)

citing C. Whitebread, Criminal Procedure

Section 4.02 at 91 (1980); see also Coolidge

v. New Hampshire, 403 U.S. at 487 ("CtJhe

test ... is whether [the private citizen] in

light of all the circumstances of the case,

must be regarded as having acted as an

‘instrument’ or agent of the State....").

Although a fact-specific inquiry would

not be appropriate on a motion to dismiss, it

is appropriate herein on summary judgment.

1) Was Dr. Winchell an Agent for the

State Defendants?

Courts which have considered the agency

question in the context of Fourth Amendment

violations focus on two issues: 1) the

extent of the involvement of the government,

and 2) the purpose or purposes of the private

citizen in conducting the search. See, e.g.,

United States v. Ford, F.2d », No. 84-

5982 (llth Cir., July 16, 1985); United

States v. Howard, [an woe 220, 227 (6th Cir.

1985); United States v. Bennett, 729 F.2d

923, 924 (2d Cir.), cert. denied, 105 S.Ct.

572 (1984); United States v. Miller, 688 F.2d

652, 657 (9th Cir. 1982); United States v.

Jennings, 6%3 F.2d 107, 110-11 (4th Cir.

From the record before this court, the

extent of government involvement in obtaining

Deer Park Medicaid records appears minimal,

if not non-existent. Even if the state

defendants requested Dr. Winchell to bring

Medicaid records with her to the February 27,

1980, meeting, those records obviously were

in her possession before the alleged illegal

search and seizure. She obtained them in

prior discovery in her state civil suit

conducted long before she contacted the

Medicaid Fraud Control Unit. There is no

allegation or any evidence in the record that

Dr. Winchell, at the behest of the state

defendants, went to Deer Park Medical Center

anytime between February 21, 1980 -- when she

first spoke to Mr. Tartaglino -- and February

27, 1980 -- when she met with Mr. Kelberman

-- to obtain Medicaid records for them.

Furthermore, Dr. Winchell stated under

Oath in her deposition that after the

February 27, 1980, meeting she provided no

further Medicaid documents to the state

defendants.

Assuming for the moment that state

involvement were present in this case, courts

also look at the purpose the private citizen

had to conduct the search. In the Ninth

Circuit, a line of cases holds that if the

Only purpose of a private search is to

further a government interest, it is subject

to Fourth Amendment strictures. See, e.g.-,

United States v. Walther, 652 F.2d 788, 791l-

93 (9th Cir. 1981); United States v. Krell,

388 F. Supp. 1372, 1374 (D. Alaska 1975).

When, however, a dual purpose for the search

exists such that the private person is also

furthering his own ends, the search generally

retains its private character. See, e.g.,

United States Ve Miller, 688 F.2d at 657-58;

NNN

; United States v. Jennings, 653 F.2d at

110-11; United States v. Cova, 585 F. Supp.

at 1194-95.

As stated previously, Dr. Winchell

alleged in her state civil suit that Deer

Park and Dr. Hooper had committed Medicaid

fraud. Any discovery conducted prior to her

February meeting with the state defendants

had only one purpose -- to prove those

allegations.

That purpose, however, was not

diminished by her meeting with the state

defendants. When she conducted further

discovery on March 10, 1980, it must

logically be assumed that she did so to gain

further proof of Medicaid fraud for her own

benefit. If in doing so she also obtained

information beneficial to the Medicaid Fraud

Control Unit and turned it over to them (and

there is no indication in the record that she

did so), that dual purpose does not eradicate

the private nature of her search.

Based on the facts before the court,

summary judgment for the defendants would be

appropriate on the agency issue. Because the

court, without specific notice to the

parties, has treated the motions as ones for

summary judgment and because discovery as to

the state defendants has been stayed pending

resolution of the immunity issue,2/ this

court will provide the plaintiffs with an

opportunity to controvert those apparent

facts, however, admissible in evidence.3/

Sufficient evidence must be produced

tending to show 1) that the state defendants

2/ The immunity issue, as discussed infra,

remains a live issue in this case.

3/ In the Fourth Circuit, some notice to the

parties that motions to dismiss will be

treated as motions for summary judgment is

required. Davis v. Zahradnick, 600 F.2d 458

(4th Cir. 1979). In this case, all parties

have supplemented the record beyond the

pleadings. In an abundance of caution,

however, because the facts are so crucial to

the agency inquiry, the plaintiffs will have

an additional opportunity to respond.

directed Dr. Winchell to obtain records for

them on March 10, 1980; 2) that Dr. Winchell

did so and turned records over to the state

defendants after the March 10 "search"; 3)

that those records were different from the

ones she turned over to the state defendants

on February 27, 1980; 4) that Dr. Winchell

would not have conducted further discovery on

March 10, 1980, but for the direction of the

state defendants that she gather evidence for

them.

The additional opportunity to provide

sufficient evidence to controvert the facts

present in the record is not to be viewed as

a license for broad, sweeping discovery

requests. The issue here is a narrow one and

discovery must remain focused thereon. To

that end, the discovery stay as to the state

defendants is lifted.

2) Was There a Legitimate Expectation of

Privacy in the Documents Seized?

The state defendants argue that under

the "required records" doctrine Dr. Hooper

had no legitimate expectation of privacy in

the Medicaid documents allegedly seized by

Dr. Winchell. Under the required records

doctrine, "records required to be kept

pursuant to valid regulatory programs have a

"public aspect’ for purposes Ge

constitutional analysis, and thus are not

private papers entitled to the protection of

the fourth or fifth amendments." Donovan v.

Mehlenbacher, 652 F.2d 228, 231 (2d Cir.

1981), citing, inter alia, Shapiro v. United

States, 335 U.S. 1, 32-36 (1948).

It well may be true, as the state

defendants argue, that Dr. Hooper chose to

engage in the regulated business of medicine,

see Md. Health Occupations Code Ann. Section

14-101 et seg.; and that Dr. Hooper and his

medical group voluntarily agreed to

participate in the State's Medical Assistance

Program, COMAR, Medical Care Programs,

Physician's Services, Section 10.09.02; and

that under the regulations governing the

Medical Assistance Program, Dr. Hooper agreed

"to maintain adequate records for a minimum

of €ive (5) yveare <««s.” COMAR Section

10.09.02.03(d). And it may be true that asa

result those records have taken on public

aspects which bring them within the required

records doctrine.

The required records exception, however,

does not grant the state a license to conduct

an illegal search and seizure as has been

alleged herein. The regulations governing

inspection of the records kept by Dr. Hooper

state that they are to be made "available,

upon request, to the Department [of Health

and Mental Hygiene] or its designee." COMAR

Section 10.09.02.03(D).

Most regulatory acts allowing

warrantless inspections of records require

that some type of subpoena be issued for the

documents. See, e.g., In Re Kenny, 715 F.2d

53, S$2-53 (260 Cire. a983} (diescuseing

“required records" doctrine as it relates to

medical records -- records were subpoenaed);

United States v. McCoy, 492 F. Supp. 540,

543-44 (M.D. Fla. 1980) (discussing subpoena

of customshouse broker's records and the

required records doctrine). Even the

required records doctrine does not purport to

allow unreasonable inspections. The

regulations governing inspection herein

require that the records be available upon

request.

Under the facts as alleged, no request

was made, and if such a request were made by

Dr. Winchell she would have been acting as an

agent of the state -- a position the state

defendants argue against.

In summary, although the records at

issue here may have been required records,

that doctrine cannot obviate the Fourth

Amendment claim made herein.

3) Role of Stoppleman and Rosen

The amended complaint alleges that Dr.

Winchell's “search and seizure" of Medicaid

records on March 10, 1980 was "performed with

the knowledge, advice, consent, and direction

of defendants Stoppleman and Rosen and S & R,

acting in concert with defendants Winchell,

Sachs, Kelberman, Tartaglino, and/or Rose."

(Paper 124, Paragraph 23).

A _Sarey charged with the

[constitutional] deprivation must be a person

who may fairly be said to be a state actor.

This may be because he is a state official,

because he has acted together with or has

obtained significant aid from state

officials, Or because his conduct is

otherwise chargeable to the state." Lugar v.

Edmondson Oc; ¢Ce., inei:; 297 0.8. Bae. Bae

(1982).

Although the allegation connecting these

defendants with the state deferdants is a bit

threadbare and the link between them tenuous,

this court cannot state at this time that the

plaintiffs would inno way be able to provea

claim against them. Therefore, dismissal, at

this stage of the litigation, would be

inappropriate. See Conley v. Gibson, 355

U.S. 42 (31957).

B. Immunity Issue

Two types of immunity from Section 1983

suits may be extended to prosecutors and

their agents. The first, absolute immunity,

extends to prosecutors in “initiating a

prosecution and in presenting the State's

case." Imbler v. Pachtman, 424 U.S. 409, 431

(1976). The second, qualified immunity, is

applicable “insofar as [the challenged]

conduct does not violate clearly established

statutory or constitutional rights of which a

reasonable person would have known." Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982).

Turning first to the issue of qualified

immunity, it is clear that the facts of this

case, as they now stand before this court,

show that no constitutional right has been

violated. The plaintiffs, however, have been

provided an opportunity to come forward with

proof that Dr. Winchell was an agent of the

state defendants. If such proof is

forthcoming and if it establishes that the

state defendants used Dr. Winchell to obtain

evidence in an illegal manner, the doctrine

of qualified immunity will not apply. The

right to be free of illegal searches and

seizures by private citizens acting as agents

of the state is a clearly established one.

The issue of absolute immunity is not so

easily resolved. "CA] prosecutor enjoys

absolute immunity from Section 1983 suits for

damages when he acts within the scope of his

prosecutorial duties." Imbler v. Pachtman,

424 U.S. at 420. Imbler held that a

prosecutor was acting within the scope of his

prosecutorial duties when "initiating a

prosecution and presenting the State's

case...." Id. at 431.

The Court, however, had "no occasion to

consider whether like or similar reasons

require immunity for those aspects of the

prosecutor's responsibility that cast him in

the role of administrator or investigative

officer rather than advocate." Id. at 430-

31. The Court recognized that "[d]Jrawing a

proper line between [those] functions may

present difficult questions." Id. at 431

n.33.

That such a line drawing is a most

difficult question is demonstrated by the

variety of tests, factors, and criteria used

by various circuits to determine whether a

particular action of a prosecutor is

advocacy, investigative or administrative.

See generally Note, Supplementing the

Functional Test of Prosecutorial Immunity, 34

Stan.L.Rev. 487 (1982) (identifying the

strict functional test; the "Imbler umbrella"

test of the Fifth Circuit; the "harm" test of

the Second Circuit; the “general features"

test of the Third Circuit; and recommending a

test which combines several of those

approaches). See also Gray v. Bell, 712 F.2d

490 (D.C. Cir.), eert. denied, i104 8.Cct. ises

(1983) (adopting a two-step analysis focusing

on type of conduct and available deterrents).

The dividing line between absolute

immunity and qualified immunity rests on the

answer to the question: "Is the challenged

conduct ‘quasi-judicial’ conduct?" Justice

Powell, writing for the Court in Imbler,

remarked, "It is the functional comparability

of [a prosecutor's] judgments to those of a

judge that has resulted in... prosecutors

being referred to as ‘quasi-judicial’

officers, and their immunities being termed

‘quasi-judicial’ as well." Imbler, 424 U.S.

at 423 n.20. Thus, Imbler called for a

functional analysis of the conduct in

question.

Some prosecutorial conduct, because it

is so closely connected to the judicial

process, can be labeled easily as quasi-

judicial. See Annot., 67 ALR Fed. 640, 748-

49 (1984) (describing pre-trial, trial, and

’

post-trial prosecutorial conduct courts have

protected by the bar of prosecutorial

immunity). For example, conduct in

connection with grand jury proceedings,

arrest, indictment, and plea bargaining is

considered so closely related to the

initiation and presentation of a criminal

prosecution that courts routinely apply the

doctrine of absolute immunity to bar civil

rights actions based on prosecutorial conduct

in those areas, no matter how outrageous that

conduct may have been. See id. at 658-70

(citing cases).

When the challenged conduct involves

searches and/or seizures, however, courts

often categorize the activity as

investigative and deny the application of

absolute immunity, applying instead the

doctrine of qualified immunity. See, e.g.,

Fullman v. Graddick, 739 F.2d 553, 558 (llth

Cir. 1984); McSurely v. McClellan, 697 F.2d

209, g219"20 €0.C. Cir. 1982): Taylor v.

Kavanagh, 640 F.2d 450, 452-53 (2d Cir. 1981)

(dicta); Marrero v. City of Hialeah, 625 F.2d

499, 505-506 (5th Cir. 1980), cert. denied,

450 U.S. 913 (1981); Hampton v. Hanrahan, 600

F.2d 600, 632-33 (7th Cir.), cert. denied,

446 U.S. 754, 759 (1979) (per curiam); see

also Pembaur v. City of Cincinnati, /46 F.2d

337, 339 (6th Cir. 1984) (discussing only

good faith immunity defense in illegal search

and seizure Section 1983 case); Note, supra,

34 Stan.L.Rev. at 491 n.19 (citing cases from

the 9th and 3rd Circuits before and after

Imbler which have held "that investigative

activity is essentially police work, and that

‘enmbneins performing an investigative

function should therefore receive the same

immunity (qualified) afforded law enforcement

officers.").

Investigative conduct of all types often

has been categorized as non-quasi-judicial

because of its similarity to police functions

rather than judge-like functions. See, e.g.,

Rex v- Teeples, 753 F.2d 840, 843-44 (10th

Cir. 1985) (participating in interrogation of

suspect is police-related work not entitled

to absolute immunity); Weathers v. Ebert, 505

F.2d 514, 517 (4th Cir. 1974), cert. denied,

424 U.S. 975 (1976) (prosecutor's making an

arrest is a police function; no absolute

immunity).

If the task before this court were

merely to label the conduct involved herein,

assuming that the conduct constituted an

illegal search and seizure, there can be no

question that the activity engaged in was

investigative. This court recognizes,

however, that since the decision in Imbler,

some circuits have gone beyond a mere

labeling exercise and have tried to determine

when investigative conduct should be

considered quasi-judicial. To understand why

and how they have done so, the goals and

rationale supporting absolute prosecutorial

immunity must also be understood.

Free ne et a ee ee

1) Reasons for Absolute Prosecutorial

Immunity

Imbler identified at least four main

reasons for granting prosecutors absolute

immunity. First, the Court wished to protect

a prosecutor's ability to exercise his

discretion for the benefit of the public he

is required to serve vigorously.

"CHjarassment by unfounded litigation would

cause a deflection of the prosecutor's

energies from his public duties." 424 U.S.

at 423.

Second, the Court recognized the heavy

burden that defending a civil rights suit,

even under a qualified immunity standard,

would impose on a prosecutor. The Court

reasoned that "[f]requently acting under

serious constraints of time and even

information, a prosecutor inevitably makes

many decisions that could engender colorable

claims of constitutional deprivation." Id.

at 425. Defending innumerable civil suits,

in all likelihood, “would require a virtual

“amen

retrial of the criminal offense in a new

forum ...." Id.

Third, the Court expressed concern that

a prosecutor in a close case might elect not

to proceed to trial for fear that if he lost

the case Section 1983 liability would be

triggered. "If prosecutors are hampered in

exercising their judgment ... by concern

about resulting personal liability, the

triers of fact in criminal cases often would

be denied relevant evidence." Id. at 426.

Finally, the Court looked at the

possibility that when a lower court reviews

the ultimate fairness of a trial it could be

reluctant to decide in favor of the accused

if such a finding could lead to a Section

1983 action. The decision regarding whether

there had been a fair trial under the law

"should not be blurred by even the

subconscious knowledge that a post-trial

decision in favor of the accused might result

in the prosecutor's being called upon to

respond in damages for his error of mistaken

judgment." Id at 427.

Several years after Imbler, the Court

again reviewed the rationale supporting

absolute immunity and again emphasized the

need to give prosecutors wide discretion in

decisionmaking without fear of retaliatory

Suits. Butz v. Economou, 438 U.S. 478, 515

(1978). Protecting such decisionmaking, the

Court determined, also enhanced the fairness

of the judicial proceedings assuring to the

extent possible the presentation of all

relevant evidence. Id. at 517.

Both Imbler and Butz view absolute

prosecutorial immunity as a safeguard to the

criminal justice system. Safeguards within

that system, such as judge-imposed sanctions,

cross-examination and rebuttal, and the

penalty for perjury, also militate in favor

of absolute immunity for prosecutors acting

in a quasi-judicial capacity. See Butz, 438

U.S. at 515-17; Imbler, 424 U.S. at 429.

If absolute immunity applies when a

prosecutor is engaged in investigative

activities, such application must rest on the

Imbler/Butz rationale.

2) How Other Circuits Have Approached

the Problem

Drawing the line between quasi-judicial

and non-quasi-judicial conduct, as stated

previously, is a difficult task. The courts

of appeal which have addressed the issue have

developed several different types of tests to

facilitate the line drawing.4/

4/ Inthe Fourth Circuit there are no cases

which analyze in depth the issue of when

investigative conduct might be considered

quasi-judicial.

Before the Supreme Court decided Imbler,

however, the Fourth Circuit in 1974

recognized that "a number of courts have held

that prosecuting attorneys are immune from

Civil suits for damages based on the

performance of duties that are part of the

judicial process." Weathers v. Ebert, supra,

505 F.2d at 525. Weathers also recognized

that when a prosecutor functions like a

policeman, absolute immunity does not apply.

Id. at 517.

Two years later, the court relied on

Weathers to hold a prosecutor absolutely

“immune from any civil action connected with

his prosecuting function." Kipps v. Ewell,

[continued next page]

4/ [continued] 528 F.2d 564, 566 (4th Cir.

1976). In Kipps, the prosecutor allegedly

had advised the police during the pre-arrest

investigation. The court avoided any

decision on whether such investigative

conduct would be entitled to absolute

immunity "since the defense of probable cause

and good faith would protect [the prosecutor ]

in this case even if he were to be judged by

standards for police rather than

prosecutorial conduct." Id. at 566.

Judge Hamilton, in Cribb v. Pelham, 552

F. Supp. 1217, 1221-23 (D.S.C. 1982), looked

to the function of the prosecutor's

activities to determine that his decision to

docket a case was an act of advocacy, not one

of administration. Id. at 1222. Although

that case did not address the

advocacy/investigative dichotomy, it

demonstrates the functional analysis approach

and adopts the "harm test," discussed infra,

of the 2nd Circuit. Id. at 1223.

In Waller v. Butkovich, 584 F.Supp. 909

(M.D.N.C. 1984), Judge Merhige briefly

alluded to an FBI agent defendant engaged in

an investigation following the Greensboro,

North Carolina Klu Klux Klan attack during an

anti-Klu rally. Judge Merhige stated, "It is

arguable that such investigative work would

be protected by absolute prosecutorial

immunity." Id. at 929 (citing Ross v. Reed,

719 F.2d 689, 694-95 n.5 (4th Cir. 1983);

Segarra v. McDade, 706 F.2d 1301 (4th Cir.

1983). Neither of those Fourth Circuit cases

directly addressed the investigative v.

advocacy issue and both concern prison

officials as defendants. Judge Merhige did

not decide the issue, finding instead that

the complaint failed to state a claim against

the investigating agent. Id. at 930.

In Taylor v. Kavanagh, 640 F.2d 450 (2d

Cir. 1981), the Second Circuit adopted a test

which refers "to the type of harm suffered

from the alleged misconduct ...." Id. at

453. The court concluded that "if as a

result of prosecutorial misconduct a

defendant is compelled to face prosecution,

or to suffer imprisonment or pretrial

detention, the harm cannot be redressed via a

Section 1983 civil rights suit. But, where

the alleged harm is inflicted independently

from the prosecution, for example, ... the

violation of Fourth Amendment privacy rights

resulting from a prosecutor's authorization

of an illegal search -- the prosecutor cannot

rely on the blanket protection of absolute

immunity." Id. at 453 (citations omitted)

(The Fourth Amendment example, however, is

dicta. The case involved a plea bargaining

issue). Thus, it appears, that the Second

Circuit classifies investigative type conduct

as non-quasi-judicial, because such conduct

is “not directly related to the delicate

judgments prosecutors must make concerning

the development of the Government's case."

Id. at 452.

The Fifth Circuit has adopted the

“Imbler umbrella" test. See Marrero v. City

of Hialeah, 625 F.2d 499, 505 (5th Cir.

1980), cert. denied, 450 U.S. 913 (1981). In

Marrero, the prosecutor allegedly had

participated in an illegal search and seizure

and allegedly slandered the plaintiffs. The

court stated, "[the] participation in the

allegedly illegal search and seizure occurred

not only outside the courtroom but prior to

the initiation of any judicial proceedings

against appellants. Although some activities

which a prosecutor undertakes prior to

indictment may be classified as quasi-

judicial ... a prosecutor who assists,

directs, or otherwise participates with, the

police in obtaining evidence prior to an

indictment undoubtedly is functioning more in

his investigative capacity than in his quasi-

judicial capacities of deciding which suits

to bring and... conducting them in court."

Id. at 505 (ellipsis in original) (citing to

Imbler, 424 U.S. at 424).

The court concluded that such

investigative activity did not fall "within

the sphere of activity for which prosecutors

are given absolute immunity in Imbler." Id.

at 507.

That conclusion, however, did not end

the inquiry. Imbler left open the question

of when investigative activity would be

covered by absolute immunity. Thus the Fifth

Circuit went on to review the rationale set

out in Imbler and Butz for absolute immunity

and concluded that even the fear of

retaliatory lawsuits, the chilling effect on

a prosecutor's decisionmaking, and the need

to protect the criminal justice system did

not militate in favor of granting absolute

immunity. Id. at 507-08. The court stated,

"CwlJhen a prosecutor makes an investigative

decision, such as whether to conduct a search

Or seizure, he is making a decision

essentially comparable to that of a

policeman. With respect to such decisions,

the Supreme Court has determined that a

qualified immunity adequately preserves the

official's ability to function." Id. at 508.

Marrero recognized that "imposition of

liability upon a prosecutor for participating

in an illegal search and seizure could

interfere with the prosecutor's performance

of his quasi-judicial duties .... However,

at least two considerations militate against

extension of absolute immunity to such

investigative conduct. First, ... the nexus

between the judicial process and the decision

to search is sufficiently attenuated that

extension of absolute immunity to such a

decision is not justified .... [E]xtension

of absolute immunity to a decision to engage

in a search and seizure on the ground that

protection of that decision would further

protect his decisions at trial could serve as

carte blanche for prosecutorial abuse without

any certainty of a counter-balancing benefit

to the judicial process. Second, ... the

safeguards inherent in the judicial system do

not accompany a prosecutor when he engages in

investigating conduct «es. Unlike

prosecurotiral misconduct which occurs within

the confines of the judicial process,

unconstitutional conduct which occurs outside

that process may never be subject to judicial

scrutiny unless individuals are allowed to

bring private actions." Id. at 508 n.12.

Thus, Marrero establishes that if the

challenged conduct does not fall under the

Iimbler umbrella, it will be protected by

absolute immunity only if the Imbler/Butz

policy reasons require such protection. Pre-

indictment searches and seizures, Marrero

concluded, do not merit absolute immunity.

The Third Circuit has tried a variety of

approaches, but illustrative is that in

Forsyth v. Kleindienst, 599 F.2d 1202 (3d

Cir. 1979), cert. @Genied, 453 U.S. Gig

(1981). The court stated: "[T]he decision

of ... a prosecuting attorney to initiate a

prosecution is not made in a vacuum. On

occasion, the securing of additional

information may be necessary before an

informed decision can be made. To grant a

prosecuting attorney absolute immunity over

his decision to initiate a prosecution while

subjecting him to liability for securing the

information necessary to make that decision

would foster uninformed decisionmaking and

the potential for needless actions ....

[T]he right to make the decision without

being subject to suit must include some

limited right to gather necessary

information. At the same time, we are

sensitive to the possibility that this narrow

exception could be distorted to include all

of a prosecutor's investigative-activities.

We hold only that to the extent that the

securing of information is necessary to a

prosecutor's decision to initiate a criminal

prosecution, it is encompassed within the

protected, quasi-judicial immunity afforded

the decision itself." 599 F.2d at 1215.

Forsyth recognized that the application

of its holding would require a limited

factual inquiry on the issue of absolute

immunity. Id. In the Third Circuit, the

district courts appear to conduct such an

inquiry “to examine whether the information

seized was to be used in deciding whether or

not to prosecute -- and not merely to gather

evidence in support of a prosecution already

decided upon. 70 this end, Fo

ha)

“+

contemplates that the information seized must

be ‘necessary to [the] decision to initiate a

criminal prosecution’ ... in order for

immunity to exist, and not information

additional to that which would already

support a prosecution.’

Klitzman, Klitzman &

Gallagher v. Krut, 591 F. Supp. 258, 265

(E.D. Pa.), affirmed on other grounds, 744

F.2d 955 (3d Cir. 1984). See also Mancini Ve

Lester, 630 F.2d 990, 993-94 (3d Cir. 1980);

Hawk v. Brosha, 590 F. Supp. 337, 344 (E.D.

Pa. 1984).

The Court of Appeals for the District of

Columbia in Gray v. Bell, supra, 712 F.2d 490

(D.C. Cir. 1983), describes another approach

to determine when investigative conduct

should be considered quasi-judicial.

In Gray, Judge Edwards, writing for the

court, surveyed the literature and the case

law which developed after Imbler. He defined

the purpose of absolute immunity for

prosecutors -- to allow prosecutors to make

decisions regarding the initiation and

conduct of criminal cases without fear of

retaliating lawsuits. Id. at 497-98. With

that purpose in mind, "[tJhe controlling

question ... is whether the conduct in

question is so closely associated with the

judicial process that it can be characterized

as advocatory." Id. at 499.

Gray sets forth a two-step test to

determine whether the prosecutor's conduct at

issue is part of his quasi-judicial role.

First, the court should "look ... to whether

[the conduct] was sufficiently adversarial to

evoke strong resentment and thus frequent

retaliatory litigation." Id. at 500. At

this first level of analysis, "the phase of

the proceedings at which the conduct occurs"

provides the starting point. Id. (emphasis

in original). If the conduct occurred during

the post-indictment phase, "[tJhe prosecutor

is far more likely to be the target of

vindictive hositility," and the conduct is

more likely to be advocatory. Id.

Pre-indictment conduct, however, may

also be advoustacy. Judge Edwards set forth

a non-exhaustive list of “clues that may

indicate whether the prosecutor's role at

pre-indictment stages approximates his

position after an indictment has been

returned." Id. Judge Edwards recommended

that courts examine the "particularity of the

proceedings," id. at 500-01 (emphasis in

Original), i.e., whether the investigative

conduct was focused on a specific target or

was more generalized. A more focused

investigation "may cast a shadow of public

suspicion and thus evoke vindictive reactions

no less intense than could be expected from

an indicted defendant." Id. at 501.

The court also stated that the "context

of the conduct," i.e., whether the prosecutor

had taken an “adversarial posture," and the

"nature of particular prosecutorial actions

Or decisions" were clues to whether the

conduct was quasi-judicial. Id.

At the second stage of the Gray

analysis, the court recommended an inquiry

"CLijJnto whether there [are] prosecutorial

safeguards to minimize the necessity for

’

Civil damage suits." Id. Judge Edwards

recognized that post-indictment prosecutorial

conduct is subject to close judicial

scrutiny, but the pre-indictment conduct is

subject generally to little judicial

monitoring. He noted that "investigatory

conduct may be subject to the exclusionary

Sanction at trial or to professional

discipline. But these are often hollow and

ineffective remedies." Id. He recommended

that "[La]Js the relationship between pre-

indictment activity and the judicial process

becomes more attenuated, the more important

it becomes to take into account the adequacy

of the aYailable sanctions to deter abuse."

Id. at 501.

Both Gray and Forsyth recognize that

utilizingpanalyses they recommend may require

a limited factual inquiry to decide whether

absolute immunity applies in a given case.

See Forsyth, 599 F.2d at 1215; Gray, 712 F.2d

at 496. As such, granting a motion to

dismiss based on an absolute immunity defense

would be precluded in such circumstances.

In summary, the decisions discussed

herein show two different approaches to the

problem. The Fifth and the Second Circuits

conduct little or no factual inquiry, label

the conduct investigative, analyze the

reasons for absolute immunity, and hold that

such immunity does not extend to search and

seizure conduct when that conduct occurs

prior to indictment.

The Third and the District of Columbia

Circuits envision a limited factual inquiry

into the type of conduct and to some extent

the reasons for it.

3) Test to be Applied

It is the opinion of this court that

decision line-drawing is necessary in this

area of the law. Specifically, prosecutors

must know the boundaries of absolute immunity

in order to function effectively and with

confidence.

In addition, the bar of absolute immunity

should be just that -- an absolute bar to

suit. The issue should be one capable of

resolution on a motion to dismiss. The

factual inquiry which the Third Circuit

established, for example, focuses on the

necessity of the information seized to the

decision to prosecute. A district court

utilizing that analysis may have to review

all the evidence gathered prior to an

indictment to determine whether the

information gleaned from the search and

seizure met the necessity test -- a nebulous

test at best, and one subject to much second-

guessing.

Further, the issue of absolute immunity

should be capable of resolution prior to

extensive discovery of prosecution records in

a given case. See Harlow v. Fitzgerald, 457

U.S. 800, 816-18 (1982) (recognizing the

disruptive effect on effective government

occasioned by broad ranging discovery). If a

clear line between "protected" and

"unprotected" conduct is not drawn, discovery

of specific facts must be allowed.

Particularly in cases in which feelings run

high, such as the case at bar, that type of

discovery easily could become the subject of

long and bitter disputes creating additional

burdens for prosecutors.

Therefore, in the opinion of this court,

the choices are either that all pre-

indictment search and seizure conduct is

protected by absolute immunity or it is not.

After considering the cases cited above,

this court concludes that the Fifth Circuit's

decision in Marrero is most persuasive. That

opinion draws the line most decisively by

concluding that pre-indictment search and

seizures are not protected by absolute

immunity.

In the case at bar, the plaintiffs allege

that prior to March 10, 1980, Dr. Winchell

met with the state defendants and at that

meeting they directed her to obtain for them

evidence of Medicaid fraud from the records

at Deer Park Medical Center, that on March

10, 1980, Dr. Winchell, acting as an agent

for the state, obtained the records, turned

them over to the state defendants and, in

essence, did for the state an act which the

state defendants could not have done legally

at that time. Such conduct is similar to

police-type conduct. It occurred at the

initial stage of investigation, months before

an indictment was brought.

This court agrees with Marrero that the

decision to conduct a search, particularly

the type of search allegedly conducted in the

case at bar, is too far removed from the

judicial process to merit the protection of

absolute immunity. Judicial scrutiny and

judicial deterrents are not available to

protect persons subject to such conduct, when

that conduct occurs.

Of course, the exclusionary rule is

available, but that safeguard can be invoked

only if an indictment is brought. To

conclude, based on the availability of the

exclusionary rule, that a deterrent to

prosecutorial misconduct at the investigative

level exists sufficient to raise the bar of

absolute immunity would create two classes of

plaintiffs -- one who, because he was

indicted, could not bring suit under Section

1983 for alleged Fourth Amendment violations

and one who could bring suit because no

indictment followed the investigation. Such

a dichotomy is an untenable solution to the

problem.

‘For all those reasons, and for the

reasons stated in Marrero, this court

declines to extend the doctrine of absolute

immunity to cover pre-indictment searches and

seizures like the one alleged herein.

C. Relation Back of the Amended Complaint

The defendants contend also that the

Fourth Amendment claim set forth in the

amended complaint does not relate back to the

original complaint and that it is barred by

the relevant statute of limitations.

Under Fed. R. Civ. P. 15(c):

"Whenever the claim or

defense asserted in the amended

pleading arose out of the

conduct, transaction, or

occurrence set torth or

attempted to be set forth in

the original pleading, the

amendment relates back to the

date of the original pleading.”

In determining whether a claim relates back,

courts will look to the "operational facts"

set forth or attempted to be set forth inthe

Original complaint, see Goodman v. Poland,

395 Ff. Supp. 660, 664 +(D. Md. 1975), to

determine whether the original complaint

gave the defendants notice regarding the

claim or defense asserted in the amended

pleading. See, id.; Schoonfield v. Mayor and

City Council of Baltimore, 399 F. Supp. 1068,

1090 (D. Md. 1975), aff'd, 544 F.2d 515 (4th

Cir. 1975); 6 C. Wright & A. Miller, Federal

Practice and Procedure Section 1497 at 495

(1971).

An amended complaint will not relate

back, however, if it states an entirely new

cause of action based on facts different from

the facts alleged in the original complaint.

See, e.g., Howard v. McCrory, 601 F.2d 133,

136 (4th Cir. -1979); Griggs v. Farmer, 430

F.2d 638, 639 (4th Cir. 1970): 3 Moore's

Federal Practice Paragraph 15.15[{2] at 15-

196. Although "[tJhe Federal Rules have

broadened the concept of ‘cause of action'

shifting the emphasis from a theory of law as

to the cause of action, to specific conduct

of the defendant upon which the plaintiff

relies to enforce his claim," 3 Moore's

Federal Practice Paragraph 15.15[2] at 15-

198, there must be a factual nexus between

the original and the amended complaint. See

Grattan v. Burnett, 710 F.2d 160, 163 (4th

Cir. 1983), affirmed on other grounds, sub

nom., Burnett v. Grattan, ___U.S. » o2

U.S.L.W. 4916 (June 27, 1984).

The plaintiffs alleged in the original

complaint that the defendants denied

plaintiff Hooper his "civil rights to be free

of malicious prosecution, abuse of process,

false arrest, trespass, ultra vires

prosecution, vindictive prosecution, invasion

of privacy and unwarranted publicity ....”

(Paper 1, Paragraph 12). In effect, the

major focus of the original complaint was the

allegedly unlawful prosecution of the

plaintiff Hooper.

The amended complaint, to the extent

amendment was allowed, alleges an unlawful

search and seizure which occurred prior to

the prosecution. The amendment presents a

new cause of action different from the ones

presented in the original complaint.

Even a new cause of action may relate

back if the defendants' conduct, relief¥on to

Support the original complaint, is factually

similar to the defendants’ conduct relied on

to support the amended complaint. A

comparison of the original and amended

complaints, to determine if such a factual

nexus exists, is therefore necessary.

1) Facts Alleged in the Original

Complaint

The plaintiffs alleged in the original

complaint that defendant Winchell, who was a

shareholder and a physician/member of the

Deer Park Medical Group, "furnished false

Criminal Information to the other defendants

and/or other persons, and said defendants

failed to exercise ordinary and reasonable

care to determine the accuracy of [the]

Criminal Information." (Paper 1, Paragraph

Li}.

Based on "alleged documents, false

allegations, misrepresentations, and

incomplete documentary materials furnished by

defendant Winchell to defendants Sachs,

Kelberman, Rose, and Tartaglino," a criminal

information was filed against Hooper for

Medicaid fraud (Paper 1, Paragraphs 16 & 18).

The case was tried from April 26, 1982 to May

3, 1982 and at the close of the State's case,

it “was Lissised by the court for failure

of proof." (Paper 1, Paragraph 22).

The original complaint also alleges that

the state defendants negligently supervised

an investigation of the plaintiff (Paper l,

Paragraph 20).

2) Facts Alleged in the Amended

Complaint

The plaintiffs allege in their amended

complaint that "LiJn late February, 1980

defendant Winchell conferred by telephone and

met personally with defendants Sachs,

Kelberman, Tartaglino and/or Rose in

Baltimore, Maryland. Thereafter on or about

March 10, 1980, defendant Winchell, at the

direction of ... [said] defendants

entered the premises of Deer Park for the

purpose of examinging and seizing records of

Deer Park for ... said defendants .... At

said time, defendant Winchell was acting

under color of an order permitting discovery

in a Maryland civil case involving Hooper and

Deer Park ..-. [TjJhere existed no subpoena

for such vacerta All the foregoing

actions of defendant Winchell were performed

with the knowledge ... and direction of

defendants Stoppleman, Rosen, andS &R...."

(Paper 124, Paragraph 23).

If a factual nexus exists between the

Original and amended complaints, the nexus

occurs in the factual allegation in the

Original complaint that Winchell furnished

information to the state defendnts, i.e.,

Medicaid records of Hooper and Deer Park.

Even assuming that some factual nexus exists

between the original and amended complaints,

the original complaint must put the defendant

on notice regarding the claim asserted in the

amended pleading.

The plaintiffs point to several parts of

the original complaint which they assert put

the defendants on notice that a Fourth

Amendment violation was a possible claim:

"[DJefendant Sachs is sued ... for

wrongful acts done outside his

prosecutorial functions and done in

his investigatory and/or

administrative capacities" (Paper l,

Paragraph 7).

An identical allegation is contained

as to defendant Kelberman in

paragraph 8 or the original

complaint.

Paragraphs 9 and 10 of the original

complaint allege that Rose and

Tartaglino are "“investigator[s]

employed by .-.. the Medicaid Fraud

Control Unit."

“Defendant Winchell ... conspired

with other defendants ... in such a

manner as to subject, or cause,

plaintiff to be denied civil rights

within the meaning of 42 U.S.C. 1983"

(Paper 1, Paragraph ll).

"Defendants by their acts,

individually, and by conspiring

together with each other ... have,

inter alia, denied plaintiff Hooper

his civil rights-..to be free

of...trespass, .-. invasion of

privacy, and unwarranted publicity

caused by the acts of the defendants

and instigated by the defendants"

(Paper 1, Paragraph 12).

"[DJjefendants have interferred with

the rights of plaintiff Deer Park to

conduct lawful business" (Paper l,

Paragraph 13).

The State defendants acted on

"'facts' (alleged documents, false

allegations, misrepresentations, and

incomplete documentary material)

furnished by defendant Winchell to

defendants Sachs, Kelberman, Rose,

and Tartaglino" (Paper 1, Paragraph

18).

7. "The false ‘facts' provided to

defendants Sachs, Kelberman, Rose,

and Tartaglino by defendant Winchell

were furnished by defendant Winchell

maliciously and with intent to injure

plaintiff" (Paper 1, Paragraph 19).

8. "[T]he investigation of plaintiff ...

was the result of the negligence of

defendants Sachs, Kelberman, Ros:

and/or Targalino in that said persons

failed to use reasonable case in the

selection and supervision of their

subordinates and/or said persons

carelessly and/or negligently

conducted, and/or caused to be

conducted, the proceedings in

question" (Paper 1, Paragraph 20).

The plaintiffs apparently argue that the

broad language of the original complaint

referring to wrongful acts, a conspiracy, and

a negligent investigation indicate that an

illegal search and seizure occurred. In

addition, they seem to imply that, because

trespass and invasion of privacy are

mentioned in the complaint, notice was given

of the Fourth Amendment claim. That general

language, even coupled with the allegation

that a private citizen furnished information

to the State which allegedly formed the basis

for the State's prosecution of Hooper, does

not presage an illegal search and seizure

claim.

After comparing the allegations in the

amended complaint with the allegations in the

Original complaint, the court concludes that

there is insufficient nexus between the facts

in each complaint to have given the

defendants notice of a possible claim of

Fourth Amendment violation.

De Statute of Limitations

It is undisputed that the alleged illegal

search and seizure occurred on or about March

10, 1980 (see Paper 104 at 9; Paper 107 at

10). All defendants argue that the Fourth

Amendment claim arose on that date.

Therefore, the state defendants and Dr.

Winchell assert that when the first amended

100

complaint was filed on September 8, 1983, it

was time barred. Defendants Stoppleman and

Rosen similarly argue that when they were

added as defendants in the second amended

complaint on April 3, 1985, the statute of

limitations had run on the claim against

them. 5/

of No argument has been made by the

plaintiffs that the second amended complaint

should relate back to the first amended

complaint. Under Fed. R. Civ. P. 15(c):

"Whenever the claim or defense asserted

in the amended pleading arose out of the

conduct, transaction, or occurrence set

forth or attempted to be set forth in the

Original pleading, the amendment relates

back to the date of the original

pleading. An amendment changing the

party against whom a claim is asserted

relates back if the foregoing provision

is satisfied and, within the period

provided by law for commencing the action

against him, the party to be brought in

by amendment (1) has received such notice

of the institution of the action that he

will not be prejudiced in maintaining his

defense on the merits, and (2) knew or

should have known that, but for a mistake

concerning the identity of the proper

party, tne action would have been brought

against him."

It is unlikely, given the requirements of

Rule 15(c), that the second amended complaint

would relate back to the first amended

complaint.

101

The plaintiffs argue, however, that

although they knew that Dr. Winchell had

conducted discovery on March 10, 1980, it was

not until Dr. Hooper's criminal trial in late

April to ones May, 1982 that the records Dr.

Winchell obtained were introduced as evidence

against Dr. Hooper by the State. Further,

the plaintiffs assert that even that

knowledge did not alert them to a possible

Fourth Amendment violation. They argue that

it was not until April 27, 1983, when Dr.

Winchell was deposed, that they gained "proof

of her relationship with the state

Gefendants...." (Paper 104 at 9).

There is no federal statute of

limitations applicable to suits arising under

Section 1983. Therefore, federal courts

borrow the applicable state statute of

limitations. Board of Regents v. Tomanio,

446 U.S. 478, 484 (1980); Bireline v.

Seagondollar, 567 F.2d 260, 262 (4th Cir.

1977), cert. denied, 444 U.S. 842 (1979).

102

The applicable statute for actions brought

under 42 U.S.C. Section 1983 in Maryland

normally is the three-year statute of

limitations set forth in Md. Cts. & Jud.

Proc. Code Ann. Section 5-101 (1984).

Burnett v. Grattan, U.S. , a2 UaL.F.

at 4917-18; Lewis v. Clark, 534 F. Supp. 714,

716 (D. Md. 1982).

"Although the time for bringing the

action is borrowed from state law, federal

law determines the time of accrual of the

action. Under the federal rule, the time of

accrual is that point in time when the

plaintiff knows or has reason to know of the

injury which is the basis of the action."

Lewis v. Clerk, 534 F. Supp. at 716

(citations omitted). "It is the awareness of

the facts giving rise to the course of action

and not the awareness that the illegality of

the action is conclusively provable that

begins the running of the statute of

limitations." Id. at 716-17.

103

The record reveals that the earliest

possible date on which the plaintiff knew or

should have known of the facts giving rise to

the cause of action is March 10, 1980. On

that date, Dr. Winchell, pursuant to the

Montgomery County Circuit Court's discovery

order, began photocopying documents at Deer

Park Medical Center.

In that prior civil case, filed in

October, 1978, Dr. Winchell petitioned for

involuntary dissolution of the Deer Park

Medical Group, sought an injunction pendente

lite and an accounting, alleging, inter alia,

that Dr. Hooper had filed false and

fraudulent claims to Medicaid for

reimbursement (Paper 107, Ex. A. Paragraph

10(e)). The case was marked by several

protracted discovery disputes (Paper 107, Ex.

B, docket entries 60, 63, 77, 89, 90, 108-10,

112-14, 116-17). Dr. Winchell was permitted

Giscovery of Deer Park patient charts in the

fall of 1979 (Paper 107, Ex. B, docket entry

Tica ieaaneaeniineeeienieea

104

102), and discovery of all Medicaid vouchers

and patient charts on February 29, 1980

(Paper 107, Ex. B., docket entry 124).

If the plaintiffs knew on March 10, 1980

only that Dr. Winchell had copied Deer Park

records and taken them with her, they were

not on that date aware of all of the facts

giving rise to the Fourth Amendment claim.

Something more was needed -- knowledge of the

agency of Winchell for the state

defendants.6/

—

The defendants argue that the plaintiffs

in fact were aware of the alleged agency of

Winchell at that time or shortly thereafter.

Specifically, the defendants point to a

motion to stay filed on April 7, 1980 by Deer

Park Medical Center in the Montgomery County

6/ "Invocation of Fourth Amendment

protections requires both an unreasonable

intrusion into privacy and a finding of

governmental conduct. United States v.

Miller, 688 F.2d 652, 656 (9th Cir. 1982);

see also Rakas v. Illinois, 439 U.S. 128

(1978); United States v. Torch, 609 F.2d

1088, 1091 (4th Cir. 1979).

105

Court. In support of that motion, Dr. Hooper

averred:

"2. That on Monday, March 10, 1980

and Wednesday, March 12, 1980, Cheryl

Winchell, herself, the plaintiff in this

cause, pursuant to discovery ordered in

this case, examined many Medicaid

vouchers and corresponding patient charts

of Deer Park Medical Group, P.A., a

professional service corporation

organized and existing under the laws of

the State of Maryland, for which the

plaintiff was employed prior to this

action; and in whicn ene is a

stockholder. It is to be noted that she

spent a considerable amount of time in

the task.

3. That during the week ending March

28, 1980 I was personally served with a

summons duces tecum by the Office of the

Attorney General to produce and permit

the inspection of various records and

documents of the aforesaid corporation.

A copy of said summons duces tecum is

attached hereto and made a part hereof

entitled ‘Exhibit A.'

4. That while it is my sincere

belief and expectation that the result of

such investigation will be complete

exoneration, I have been advised that it

is entirely possible that testimony may

be requested of me, and that with respect

to such testimony in that cause, and in

the instant case, it is entirely possible

that I might wish to avail myself of

certain Constitutional rights, among

them, the privilege against self-

incrimination under the Constitution of

the United States.

106

5. With vital corporate records

necessary to defend this case in the

hands of the Attorney General; and with

the danger that testimony by me in

depositions and at trial in this cause

may possibly be detrimental to my rights

in the criminal matter; I therefore

Sincerely belief [sic] and accordingly

state that I do not feel I can receive a

fair trial in this matter pending the

Outcome of the investigation of the

Attorney General."

(See Paper 107, Ex. C).

In addition to Dr. Hooper's affidavit,

the defendants point to other evidence in the

record which allegedly shows that Dr. Hooper

knew in March or April of 1980 that Dr.

Winchell was going to, or had gone to, the

Attorney General's Office with her complaint

of Medicaid fraud (see Paper 107 at 12 citing

to affidavits and depositions of Hooper and

Tartaglino).

The plaintiffs do not dispute those

facts, but they do dispute the conclusion of

the defendants that such facts were

sufficient to alert them to a Fourth

Amendment violation.

“BEST AVAILABLE COPY

107

In review, it is undisputed that circa

March 10, 1980 Dr. Hooper knew that Dr.

Winchell had copied and removed Medicaid

documents and that before or after that date

Dr. Winchell had gone to the Attorney General

with a Medicaid fraud complaint. Thus it is

not a question of what the plaintiffs knew at

that time, but what they reasonably should

have known given the facts at their disposal.

Although the facts are not in dispute

here, there is a dispute regarding the

inferences and conclusions that can be drawn

from the facts. When the undisputed facts

and inferences that flow from them lead to

Only one reasonable conclusion, summary

judgment on a limitations issue may be

appropriate. See, e.g., Brown v. American

Broadcasting Co., Inc., 704 F.2d 1296, 1304

(4th Cir. 1983); see generally Nunez v.

oe ——

Superior Oil Co., 572 F.2d 1119, 1124 (5th

Cir. 1978) (if inferences point so strongly

in one direction that court believes that

108

reasonable men could arrive at but one

verdict, the court may grant summary

judgment). "When conflicting inferences can

be drawn from the facts, [however], the

question of when the [cause of action] should

have been discovered must be submitted to the

jury." Newman v. Prior, 518 F.2d 97, 100

(4th Cir. 1975).

It appears to this court that the

question of whether the facts known to the

plaintiffs in March/April 1980 should have

made them aware of a possible Fourth

Amendment claim is one for the jury, not the

judge.7/ Reasonable men, in the opinion of

this court, could draw different conclusions

from the facts presented herein regarding

7/ Although the Maryland statute of

limitations sets the time period for this

cause of action, federal law governs, not

only accrual, but the distribution of

functions between judge and jury. See Byrd

v. Blue Ridge Cooperative, 356 U.S. 525, 537-

39 (1958). As discussed, federal law

requires that the limitations issue herein be

decided by the jury.

109

when the plaintiffs should have known of the

injury allegedly caused them.

Accordingly, it is this 16th day of

September, 1985, by the United States

District Court for the District of Maryland,

ORDERED:

1. That the defendants’ motions to

dismiss/or for summary judgment are hereby

DENIED.

2. That the stay of discovery imposed

herein is hereby lifted for the purposes set

out in this Memorandum.

3. That the following schedule will

govern the final disposition of this case:

Discovery Completion

Date December 16, 1985

Summary Judgment

Filing Date January 6, 1986

Summary Judgment February 14, 1986

Hearing at 10:30 a.m.

Pre-Trial Con- March 4, 1986 at

ference 4:30 p.m.

110

Trial March 24, 1986 at

10:00 a.m.

(9:30 a.m. voir

dire)

/s/

James R. Miller, Jr.

United States District

Judge

MEMORD3 . HOO

111

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

CIVIL

JAMES L. HOOPER AND :

DEER PARK MEDICAL GROUP, :

P.A. $

Vv. : NO. M-82-2870

STEPHEN H. SACHS, ET AL

APRIL 18, 1986

ORAL OPINION

The Court: I have read the voluminous

record or most of it in this case. My law

clerk has been over it with a fine tooth

comb. I set out what I consider to be the

law fairly thoroughly in the memorandum and

order of September the 16th, 1985.

The plaintiffs have been given

substantial opportunity for discovery on the

points which I consider to be still relevant

in the case. There are still some loose ends

which I assume will be covered by this

affidavit or affidavits, and what I am about

to say is subject to receiving those

112

affidavits and being satisfied that they are

accurate and adequate.

It is apparent that there were, to say

the least, hard feelings between Dr. Hooper

and Dr. Winchell and there was very

apparently no love lost between the two and

that the feelings were mutual.

Dr. Hooper is of the view that Dr.

Winchell was an agent of the state when she

went into the offices of Deer Park and

obtained files, apparently, on March the 10th

and possibly also on March the 12th, 1980.

Incidentally, as far as Rose is

concerned, it is my understanding that you

concede that there is no evidence.

Mr. Sachsel: Yes. We don't contend that

there is any evidence as far as Mr. Rose's

involvement.

The Court: All right. As to Mr. Rose,

the motion for summary judgment is granted,

the plaintiffs conceding that there is

113

insufficient evidence as to him to support

their amended complaint.

As to the remaining defendants, the

plaintiffs argue that while there is no

direct evidence which they have been able to

come up with to satisfy the essential

requirements of my memorandum and order of

September the 16th, that there is sufficient

evidence to justify reasonable inferences

that she -- that is, that Dr. Winchell was

the agent of the state in doing what she did

on March the 10th and March the 12th of 1980

and that she would not have done this but for

the importuning or request of the state to --

for her to get them information.

There is no question that summary

judgment, where reasonable inferences can be

drawn which are conflicting, should not be

Granted. There is, however, a line between

inference piled on ambiguous inference and

speculation on the one hand and an inference

which reasonably can be drawn to support the

114

contention of the party opposing summary

judgment.

Of course, an inference which can

reasonably be drawn should be drawn in favor

of the party opposing the motion for summary

judgment.

Having said that, it is a lot simpler

then to apply the standard. However, I have

made a very deliberate effort to do so and

have, as I have said, read all of this

material or substantially all of it that was

relevant; and what I come up with is that

this is on the line, the plaintiff's position

She of the

is on the,/line in which inference is piled

upon vague or ambiguous inference, which the

Fourth Circuit has indicated is insufficient

to support an opposition to summary judgment.

For instance -- and certainly not

intended to be exhaustive, because I would

like for the Fourth Circuit to read the

entire record and let them reach their own

conclusions if they disagree -- a lot is made

ako

of the statement made apparently by Dr.

Winchell on or about March the 10th, 1980

that "my job is done" -- or words to this

effect -- "my job is done and now the state

will take over."

The first step in placing that in the

proper context in this motion is to determine

what that means, what the witness or what the

defendant, Dr. Winchell, was saying.

It requires a leap of faith to me to

conclude that she was saying, "I have now

completed getting information which I am

going to get for the state and am going to

give it to them and then they will get

whatever else they want" or "they will now

sue Dr. Hooper" or "they will now try Dr.

Hooper" or whatever they were going to do.

It might just as reasonably be, among

many other meanings, that she meant, if she

was correctly quoted, which I assume she was

for this purpose, "I have now completed my

discovery", since, in fact, that is what the

116

status of the matter was. She had already

had discovery in her civil case and she had

moved for additional discovery and the court

had given her additional discovery and said,

"This is it. Go in there these two days and

that is it."

Now, it could just as reasonably have

been that she was saying, "I have completed

my discovery", which, in fact, was the case.

She had already seen the state and she

figured "the state is going to go after him

based on what I am telling them", and there

is no question she wanted them to go after

him as far as I could see. And she was

saying, "and — the state is going to come

in and they are going to do their discovery."

Obviously, if she was saying the latter,

then there is certainly no inference that can

be drawn from that which would be favorable

to the plaintiff in this situation. So, you

have to, in order to arrive at the inference,

based upon the statement which the plaintiff

| |

117

wants the court to draw or wants the court to

find could reasonably be drawn, you have to

determine what was meant by the statement,

and the statement is so ambiguous that I

don't think you can reasonably draw an

inference, based upon this ambiguous

statement, that would be sufficient to deny

summary judgment.

Now, another point is made about the

number of documents and when they were given

and when they weren't given, and there is a

lot of confusion about them, no question.

However, it seems to be most of the confusion

was created by a reading of this document,

which I referred to earlier, which is the

February 28th memorandum to the file, which

is contained in the plaintiffs' summary

judgment opposition exhibits, exhibit number

four, where apparently everybody assumed what

was being said there was there were ten or ll

patients' charts delivered on that date and

they ended up with more than ten or ll

‘ —

118

patients’ charts. So, a lot of them must

have been delivered after that date and I

just think that that, based on a reading of

that exhibit, is not a strong enough or

reasonable enough inference to draw to

support to summary judgment.

Again, it is a situation where the

statement itself is so ambiguous, I mean,

actually, that a literal reading of it would

not support at all the plaintiffs’ position.

You have to read it very liberally to support

the plaintiffs' position, that is, that they

were taiking about ten or 11 charts rather

than ten or 11 vouchers in order to get to

the inference which is sought to be drawn,

which is that therefore they produced 14 or

15, whatever it was, charts later and,

therefore, those later produced charts were

Ones that were produced as an agent of the

state.

I appreciate the able arguments advanced

by plaintiffs' counsel for their position.

119

They have certainly been vigorous in their

attempt to overcome the motion for summary

judgment, but without belaboring it any

further, I believe, having reviewed all of

the relevant materials, that the motion

should be denied because there is

insufficient evidence to allow reasonable

inferences to be drawn that Dr. Winchell, on

March the 10th and/or 12th, or either of

those dates, 1980, was acting as the agent of

the state or, even assuming that she was,

that she would not have done the same thing

in any event.

It is, of course, without real question

in the case that she had sought the discovery

before she ever saw the state and that she

pursued her civil action before she ever met

the state or saw the state; that she paid Mr.

Simpson to appear in court after she met the

state to obtain the discovery pursuant to the

request filed before she met the state and it

is also without dispute that the defendant in

[iceseieeeeseecesiesnieaeetmmnineceaettaetesiataetrasinieemeemmmll

120

the criminal case, that is, Dr. Hooper, the

plaintiff in this case, moved to stay the

civil action. He apparently felt that Dr.

Winchell was pursuing it. He didn't

apparently think that she had abandoned the

civil action because he filed a motion to

stay it. That certainly doesn't indicate to

me that she had abandoned anything. And the

fact that two years later she may have

decided that she had enough, I think does not

justify an inference that when she was

pursuing her case she was doing it as an

agent of the state.

So, for all of those reasons and other

reasons which I could go on and on about, but

which I don't intend to, I have already spent

enough time on it, I do not believe there is

enough to support the opposition to summary

judgment and, therefore, the motion will be

granted. Thank you very much.

121

Subject, of course, to getting that

affidavit. When will you furnish that

affidavit?

Ms. Gauvey: We will try to furnish it by

Wednesday next week.

The court: Well, furnish plaintiffs'

counsel with it and if they have something to

Say about it, I will expect to hear from them

promptly.

(Thereupon, at 6:55

an adjournment was

had inthis

matter. )

nae223

ORALOP . HOO

122

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

JAMES L. HOOPER, et al.

Vv. : CIVIL ACTION NO.

M-82-2870

STEPHEN H. SACHS, et al.

ORDER

On April 18, 1986, a hearing was held on

pending motions for summary judgment in this

case. The court having reviewed the

subsequently filed affidavits, it is, for the

reasons stated in open court, this 2nd day of

May, 1986 by the United States District Court

for the District of Maryland, ORDERED:

1) That the motion of defendant Cheryl

Winchell for summary judgment is hereby

GRANTED.

2 ) That the motion of the state

defendants for summary judgment is hereby

GRANTED.

cD That the defendants’ motions to

revise this court's Memorandum and Order of

——

123

September 16, 1985 are hereby DISMISSED as

moot.

4) That the plaintiffs' request for

permission to depose affiants Susan K. Gauvey

and Debra Y. Gillaspie is hereby DENIED.

/s/

James R. Miller, Jr.

United States District

Judge

HOO2.ORD

124

IN THE UNITED STATE‘: DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

JAMES L. HOOPER and :

DEER PARK MEDICAL GROUP, :

P.A. $

a Maryland professional :

corporation

CIVIL ACTION NO.

: M82-2870

Vs.

STEPHEN H. SACHS and

DALE P. KELBERMAN and

HENRY AARON ROSE and :

ANDREW TARTAGLINO and $

CHERYL WINCHELL; STATE

OF MARYLAND; JOHN :

STOPPLEMAN; JEFFREY $

ROSEN; STOPPLEMAN AND :

ROSEN :

oe eOOOe «

In accordance with the Stipulation and

Order dated March 18, 1986 (paper No. 184)

| and Order dated May 2, 1986 (paper No. 195)

and filed in the above entitled case, it is

ORDERED and ADJUDGED:

1) That case be and is hereby

"DISMISSED" with prejudice as to

Defendants JOHN STOPPLEMAN, JEFFREY

ROSEN, and STOPPLEMAN AND ROSEN.

That Motion of Defendant CHERYL

WINCHELL for Summary Judgment is

GRANTED.

That Motion of the STATE Defendants

for Summary Judgment is GRANTED.

125

That Judgment be and is hereby

entered in favor of DEFENDANTS CHERYL

WINCHELL and STATE Defendants STEPHEN

H. SACHS, DALE P. KELBERMAN, HENRY

AARON ROSE and ANDREW TARTAGLINO and

STATE OF MARYLAND.

Dated at Baltimore, Maryland this 14th day of

May, 1986.

JUD.HOO

JOSEPH A. HAAS

Clerk

/s/

Deputy Clerk

Ron Lawson

126

JUDGMENT

UNITED STATES COURT OF APPEALS

for the

Fourth Circuit

No. 86-1623

JAMES L. HOOPER; DEER PARK MEDICAL

GROUP, P.A., a Maryland professional

corporation

Plaintiff -— Appellant

Vv.

STEPHEN H. SACHS; DALE P. KELBERMAN;

HENRY AARON ROSE; ANDREW TARTAGLINO

Defendant - Appellee

and

STATE OF MARYLAND; JOHN STOPPLEMAN;

CHERYL WINCHELL; JEFFREY ROSEN;

STOPPLEMAN AND ROSEN

Defendant

APPEAL FROM the United States District

Court for the Middle District of North

Carolina.

THIS CAUSE came on to be heard on the

record from the United States District Court

127

for the Middle District of North Carolina,

and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the

judgment of the said District Court appealed

from, in this cause, be, and the same is

hereby, affirmed.

/s/

JOHN M. GREACEN

Clerk

JUD2.HOO

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.