Harsh Sharma v. Drug Enforcement Agency , 511 F. App'x 898 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-10963
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cv-20508-WMH
HARSH SHARMA,
Plaintiff - Appellant,
versus
DRUG ENFORCEMENT AGENCY,
UNITED STATES ATTORNEY GENERAL,
UNITED STATES MARSHALL SERVICE,
MIKE LNU,
DEA,
AMBER BAGINSKI,
TFO and others unknown individual
and official capacities,
U.S. ATTORNEY'S OFFICE,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 4, 2013)
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Before MARCUS, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Harsh Sharma, proceeding pro se, appeals the district court’s grant of the
defendants’ motion for summary judgment. Sharma initially brought suit in
federal district court under 28 U.S.C. § 1983; however, he later amended his
complaint, and alleged, under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), constitutional violations
in connection with the revocation of his Drug Enforcement Administration (DEA)
registration. The defendants responded with a motion to dismiss, which the
magistrate judge construed as a motion for summary judgment. The district court
adopted the magistrate’s report and recommendation, and granted summary
judgment in favor of the defendants. On appeal, Sharma argues that the defendants
revoked his DEA registration without providing him notice and a hearing, which
amounted to a violation of his Fifth Amendment right to due process. After a
thorough review of the record, we affirm.
I. BACKGROUND
Sharma filed a pro se amended Bivens complaint against the DEA, the
Attorney General, DEA Agent Amber Baginski, “Mike c/o DEA,” and other
unknown DEA employees in both their individual and official capacities, alleging
violations of his rights under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth
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Amendments, and the Equal Protection Clause of the Fourteenth Amendment. He
alleged that he was a DEA registrant for over 12 years and that, unbeknownst to
him, the DEA revoked his registration on February 28, 2009, a year before it was
scheduled to expire. He alleged that the DEA and its employees had conspired to
terminate or revoke his license to possess, distribute, or dispense controlled
substances without providing him with “actual meaningful notice” and an
opportunity to be heard. Sharma further alleged that Baginski and “Mike” had
falsely arrested him, and Baginski had committed perjury by stating that notice had
been sent to him. He requested compensatory and punitive damages in the amount
of $250 million.
The Attorney General and the DEA filed a motion to dismiss Sharma’s
complaint. They argued that the claims against the DEA and the official capacity
claims against the individual defendants were barred by sovereign immunity. The
Bivens claims against the individual defendants for their roles in allegedly denying
Sharma notice prior to revocation of his DEA registration should be dismissed
because there was a comprehensive statutory scheme that provides adequate
remedial mechanisms for the alleged deprivation of Sharma’s property without due
process.
In support of its motion, the government provided the plea agreement from
Sharma’s criminal prosecution in the U.S. District Court for the Middle District of
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Florida, pursuant to which Sharma pleaded guilty to one count of knowingly and
intentionally distributing controlled substances, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(D), and two counts of knowingly and intentionally
possessing with intent to distribute controlled substances, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(D). Sharma acknowledged that he was entering the
agreement and pleading guilty intelligently, freely, and voluntarily, and he
admitted that he was in fact guilty of the offenses for which he was pleading guilty.
The plea agreement contained a factual basis for the plea, and Sharma admitted
that the facts were true and that the government would have been able to prove
those specific facts and others beyond a reasonable doubt had the case proceeded
to trial. Relevant to this appeal, the plea agreement set forth the following set of
facts regarding the revocation of Sharma’s medical license and DEA registration:
In 1996, defendant Harsh Sharma (“Sharma”) became licensed to
practice medicine in Florida. From October 19, 2004, through
January 31, 2007, Sharma was also registered with the Florida Board
of Medicine as a “dispensing practitioner,” which authorized him to
directly dispense prescription medication to his patients. Because
Sharma had a controlled substance Registration Number
(#BS4579679) with the Drug Enforcement Administration (“DEA”)
during this time period, he was also permitted to use his Florida
dispensing license to dispense certain types of controlled substances
directly to his patients in Florida. However, Sharma intentionally
allowed his dispensing license to expire on January 31, 2007.
Accordingly, as of February 1, 2007, Sharma was not permitted to
directly dispense prescription medication—including controlled
substances—for a fee to his patients.
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On June 26, 2007, the Florida Board of Medicine permanently
revoked Sharma’s Florida medical license (#ME0071440) for
violations of Florida Statutes §§ 458.331(1)(q), 458.331(1)(t),
458.331(1)(m), 458.331(1)(x), and 458.331(1)(g), in Department of
Health case # 2005-08226. Sharma received a copy of this Final
Order of Revocation which was sent to his post office box—P.O. Box
11761, Naples, Florida, 34101. After the Florida Board of Medicine
revoked Sharma’s medical license on June 26, 2007, Sharma no
longer had the legal authority to possess controlled substances not
intended for personal use. On February 27, 2008, the DEA’s
Diversion Office rescinded Sharma’s DEA Registration Number.
The government also submitted the judgment showing that Sharma was
adjudicated guilty of the offenses and sentenced to a term of imprisonment of 60
months on each count, to run concurrently.
The matter was referred to a magistrate judge, who construed the
defendants’ motion as a motion for summary judgment. The magistrate judge
recommended that the defendants’ motion be granted. Sharma objected. The
district court overruled Sharma’s objections, adopted the magistrate’s report and
recommendation, and granted summary judgment in favor of the defendants on all
claims.
II. STANDARD OF REVIEW
A district court’s order granting summary judgment is reviewed de novo,
“viewing all the evidence, and drawing all reasonable inferences, in favor of the
non-moving party.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th
Cir. 2005) (per curiam). “Summary judgment is appropriate ‘if the pleadings,
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depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.’” Eberhardt v.
Waters, 901 F.2d 1578, 1580 (11th Cir. 1990) (quoting Fed. R. Civ. P. 56). Pro se
pleadings are held to a less stringent standard and liberally construed. Alba v.
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). We may affirm the district
court’s judgment on any ground that the record supports. Lucas v. W.W. Grainger,
Inc., 257 F.3d 1249, 1256 (11th Cir. 2001).
III. DISCUSSION
Here, Sharma brought suit against the defendants, who are federal officials,
in both their official and individual capacities. As an initial matter, Bivens only
applies to claims against federal officers in their individual capacities; it does not
create a cause of action for federal officers sued in their official capacities. See
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69–71, 122 S. Ct. 515, 521–22 (2001).
“Absent a waiver, sovereign immunity shields the Federal Government and its
agencies from suit,” and “[t]he terms of the federal government’s consent to be
sued in any court define that court’s jurisdiction to entertain the suit.” JBP
Acquisitions, LP v. U.S. ex rel. F.D.I.C., 224 F.3d 1260, 1263 (11th Cir. 2000)
(internal quotation marks omitted). Summary judgment, therefore, was appropriate
as to Sharma’s claims against the defendants in their official capacities.
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As stated, however, Sharma also brought suit againt the defendants in their
individual capacities, alleging violations of his Fifth Amendment due process
rights. The Supreme Court has allowed Bivens actions against defendants in their
individual capacities for violations of the Due Process Clause of the Fifth
Amendment. See Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264 (1979). As an
affirmative defense, however, “qualified immunity protects government officials
performing discretionary functions from suits in their individual capacities unless
their conduct violates clearly established statutory or constitutional rights of which
a reasonable person would have known.” Andujar v. Rodriguez, 486 F.3d 1199,
1202 (11th Cir. 2007) (internal quotation marks omitted). To overcome qualified
immunity, Sharma must show that: (1) the defendants violated a constitutional
right; and (2) the right was clearly established at the time of the alleged violation.
See id. at 1202–03.
Sharma argues that his Fifth Amendment due process rights were violated.
The Fifth Amendment provides that “[n]o person shall be . . . deprived of life,
liberty, or property, without due process of law.” U.S. Const. Amend. V. When
appropriate, we will review a procedural due process claim by first determining
whether the plaintiff had a protected liberty or property interest, to which he was
entitled, that was infringed by government action. Ross v. Clayton County, Ga.,
173 F.3d 1305, 1307 (11th Cir. 1999) (analyzing procedural due process under the
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Fourteenth Amendment); see Dusenbery v. United States, 534 U.S. 161, 167, 122
S. Ct. 694, 699 (2002) (stating that the Fourteenth Amendment’s Due Process
Clause and Fifth Amendment’s Due Process Clause prohibit the same activity,
with the Fifth simply applying to federal officials, rather than state). The Supreme
Court has held that the ability to practice one’s profession may be a liberty or
property interest protected by the Due Process Clause. Schware v. Bd. of Bar
Exam’rs of the State of New Mexico, 353 U.S. 232, 238–39, 77 S. Ct. 752, 756
(1957) (“A State cannot exclude a person from the practice of law or from any
other occupation in a manner or for reasons that contravene the Due Process
[Clause]”).
If we determine that a deprivation of a protected interest took place, then we
must determine if the individuals received sufficient process regarding that
deprivation. Ross, 173 F.3d at 1307. The essence of due process is an opportunity
to be heard at a meaningful time and in a meaningful way. Reams v. Irvin, 561
F.3d 1258, 1263 (11th Cir. 2009). Thus, even where a governmental entity fails to
follows its own regulations providing for procedural safeguards, it is not a denial
of due process if the individual was provided with adequate notice such that his
rights were not prejudiced. See Gov’t of the Canal Zone v. Brooks, 427 F.2d 346,
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347–48 (5th Cir. 1970) (per curiam). 1 Further, there is no due process violation
where the government has made available a post-deprivation remedy sufficient to
correct an alleged procedural deprivation. Cotton v. Jackson, 216 F.3d 1328, 1331
n.2 (11th Cir. 2000) (per curiam). In the instant matter, Sharma had a post-
deprivation remedy available.
The Controlled Substances Act (CSA), Title II of the Comprehensive Drug
Abuse Prevention and Control Act, was designed by Congress as a “closed
regulatory system making it unlawful to manufacture, distribute, dispense, or
possess any controlled substance except in a manner authorized by the CSA.”
Gonzales v. Raich, 545 U.S. 1, 13, 125 S. Ct. 2195, 2203 (2005). The Act
authorizes the Attorney General to license manufacturers, distributers, and
dispensers to handle controlled substances. 21 U.S.C. § 823. Accordingly,
physicians who dispense prescription medications that are controlled substances
are required to obtain proper registration from the Attorney General. See 21
U.S.C. §§ 822(a), 823(f); Gonzales v. Oregon, 546 U.S. 243, 250–51, 126 S. Ct.
904, 912 (2006).
Under the CSA, the Attorney General has the authority to deny, revoke, or
suspend registrations. 21 U.S.C. § 824. However, the Attorney General has
1
See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (holding that
decisions in the Fifth Circuit Court of Appeals “shall be binding as precedent in the Eleventh
Circuit, for this court, the district courts, and the bankruptcy courts in the circuit”).
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delegated this authority to the DEA. See United States v. Lippner, 676 F.2d 456,
460 (11th Cir. 1982) (holding that the functions vested in the Attorney General by
the Comprehensive Drug Abuse Prevention Act were properly delegated to the
DEA). In the event that an existing registration is proposed for revocation, the
DEA is required to serve an “order to show cause” on the registrant and give the
registrant an opportunity for a hearing before an Administrative Law Judge in
order to contest the proposed action. See 21 U.S.C. § 824(c). Pursuant to 21
U.S.C. § 877, federal appellate courts have jurisdiction to review the Attorney
General’s decision regarding revocation of a physician’s DEA registration.
Summary judgment was thus appropriate as to Sharma’s claims against the
defendants in their individual capacities because Sharma has failed to establish a
violation of his constitutional due process rights, as he was afforded adequate
notice and an opportunity to be heard, as well as an opportunity to appeal the
revocation of his DEA registration, which he did not. See Gov’t of the Canal Zone,
427 F.2d at 347–48; Cotton, 216 F.3d at 1331 n.2. In Sharma’s plea agreement in
his criminal case, he admitted that he “intentionally” allowed his registration to
expire on January 31, 2007, and “accordingly,” he was not permitted to dispense
prescription medications. He further conceded that he knew that his DEA
registration was rescinded on February 27, 2008. Since, by his own admission,
Sharma knew that his DEA registration had expired, his constitutional due process
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rights were not violated by an alleged lack of notice as to the rescission of the
registration. See Gov’t of the Canal Zone, 427 F.2d at 347–48 (holding that there
is not a denial of due process if the individual was provided with adequate notice
such that his rights were not prejudiced). Sharma was given sufficient notice and
an opportunity to be heard; he cannot show a violation of his due process rights or
any other clearly established constitutional right. Moreover, because the plea
agreement conclusively established that Sharma was aware of the DEA’s actions,
there is no evidence that he could submit that would show that he was not afforded
sufficient notice. Accordingly, the defendants are entitled to qualified immunity
on the claims against them in their individual capacities.
Additionally, although the district court granted the motion on other
grounds, the government correctly argued that Sharma’s Bivens claims against the
individual defendants could not proceed given the existence of an adequate
alternative remedy. See Hardison v. Cohen, 375 F.3d 1262, 1264 (11th Cir. 2004);
Lucas, 257 F.3d at 1256 (holding that this Court may affirm the district court’s
judgment on any ground that the record supports). The CSA is a “closed
regulatory system” that provides an alternative means of redress for the actions of
which Sharma complains. See Gonzales, 541 U.S. at 13, 125 S. Ct. at 2203. Thus,
Sharma should have contested the revocation of his DEA registration by appealing
to this court, pursuant to the scheme provided by the CSA. See 21 U.S.C. § 877.
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Because Sharma had an alternative means of obtaining redress, we decline to
recognize a cause of action under Bivens. See Hardison, 375 F.3d at 1264.
Accordingly, the district court’s order granting defendants’ motion for summary
judgment is affirmed.
AFFIRMED.
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