the complaint filed Friday
Transcription
the complaint filed Friday
USDC IN/ND case 2:15-cv-00110 document 1 filed 03/20/15 page 1 of 17 002-224 THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION ) ) ) ) ) ) ) ) State of Indiana, the Indiana ) Case No.: 2:15 cv 110 Professional License Agency, the ) Indiana State Board of Dentistry, ) Calendar: Steven Hollar, individually, Matthew ) Miller, Individually, Richard Newton, ) Judge: individually, Mark Stetzel, individually, ) Jennifer Bartek, Individually, Clance ) LaTurner, Individually, and Cindy ) Vaught, in her official capacity as ) Director of the Indiana State Board of ) Dentistry and individually, Rajan ) Sharma, individually, ) Defendants Dr. Irfan Atcha, D.D.S., P.C, d/b/a Dyer Family Dentistry, an Indiana Professional corporation, and Dr. Irfan Atcha, Individually, Plaintiffs v. COMPLAINT The Plaintiffs, Dyer Family Dentistry, Inc. and Dr. Irfan Atcha, for their complaint states as follows: INTRODUCTION 1. This cause comes before the Court upon the Plaintiff’s complaint for damages as a result of the Defendants concerted and combined efforts to prevent the Plaintiff’s from doing business as a licensed dentist. 1 USDC IN/ND case 2:15-cv-00110 document 1 filed 03/20/15 page 2 of 17 2. Dr. Irfan Atcha was at all times relevant hereto a dentist licensed in the State of Indiana and the State of Illinois to perform and deliver dental services to a broad range of patients in Illinois and Indiana. 3. This action seeks recovery for damages incurred by the Plaintiffs as a result of malicious and groundless prosecution of claims by certain Defendants, State of Indiana, the Indiana Professional License Agency, the Indiana State Board of Dentistry, Steven Hollar, individually, Matthew Miller, Individually, Richard Newton, individually, Mark Stetzel, individually, Jennifer Bartek, Individually, Clance LaTurner, Individually, and Cindy Vaught, in her official capacity as Director of the Indiana State Board of Dentistry and individually (hereinafter referred to as the “State Defendants”), while acting under color of state law, the deprivation of constitutional rights afforded citizens of the United States under the 1st, 5th and 14th Amendments to the U.S. Constitution, Article I, Section 21 of the Constitution of the State of Indiana, and for state law claims against Defendants Sharma and Rodgers for defamation and false light invasion of privacy. PARTIES 2 USDC IN/ND case 2:15-cv-00110 document 1 filed 03/20/15 page 3 of 17 4. Irfan Atcha DDS, P.C., d/b/a Dyer Family Dentistry is an Indiana Professional Corporation licensed to do business in the State of Indiana, whose principal office is located at 890 Richard Rd., Dyer, Indiana. 5. Dr. Irfan Atcha, is a resident and citizen of the State of Illinois, whose principal residence is located at 330 N. Jefferson, Unit 601, Chicago, Illinois. 6. The State of Indiana is a sovereign territory and body politic organized under the laws of the United States and the State of Indiana. 7. The Indiana Professional License Agency is an administrative body organized pursuant to IC 25-1. 8. The Indiana State Board of Dentistry is an administrative body organized pursuant to IC 25-0.5-3-9. 9. Steven Hollar, individually, is a member of the Indiana Board of Dentistry and, upon information and belief is a resident of the State of Indiana. 10. Matthew Miller, Individually, is a member of the Indiana Board of Dentistry and, upon information and belief is a resident of the State of Indiana. 11. Richard Newton, individually, is a member of the Indiana Board of Dentistry and, upon information and belief is a resident of the State of Indiana. 12. Mark Stetzel, individually, is a member of the Indiana Board of Dentistry and, upon information and belief is a resident of the State of Indiana. 13. Jennifer Bartek, Individually, is a member of the Indiana Board of Dentistry and, upon information and belief is a resident of the State of Indiana. 3 USDC IN/ND case 2:15-cv-00110 document 1 filed 03/20/15 page 4 of 17 14. Clance LaTurner, Individually, is a member of the Indiana Board of Dentistry and, upon information and belief is a resident of the State of Indiana. 15. Cindy Vaught is the Director of the Indiana Board of Dentistry and, upon information and belief is a resident of the State of Indiana. 16. Rajan Sharma is a citizen and resident of the State of Illinois. JURISDICTION AND VENUE 17. The jurisdiction of this Court is conferred and invoked pursuant to 28 U.S.C. §§1343(3), 1331 and 42 U.S.C. §1983, and the Plaintiffs have exhausted all required administrative remedies. 18. Venue of this Complaint has properly been laid in the Northern District of Indiana, Hammond Division, and upon information and belief the parties are residents or have their principal places of business in the State of Indiana. All of the actions alleged herein occurred within the County of Lake, State of Indiana, all of which lie within the territorial boundries of Northern District of Indiana. FACTS COMMON TO ALL COUNTS 19. The Plaintiff is a dentist licensed in the States of Indiana, Illinois and Florida since 1996. 20. In 2010, the Plaintiff, Dr. Irfan Atcha and Dyer Family Dentistry, Inc., began serving patients in Dyer, Indiana and the surrounding area. 4 USDC IN/ND case 2:15-cv-00110 document 1 filed 03/20/15 page 5 of 17 21. Atcha had received training and skills regarding the “All-on-4” implant technique. 22. This technique was developed by Atcha after years of academic and well as clinical training. 23. The technique was also unique to the Northwest Indiana region and few, in any, dentists had the training or experience in the technique. 24. The technique effectively involved the implantation of fixed non-removable prosthetic teeth in four implantations. 25. Patients were supplied with temporary non-removable teeth on the same day as treatment was received and were duly informed that final implantation required 6-9 months. 26. The use of this technique was a significant advancement over traditional methods of teeth replacement and implantation, which typically took 2 years and 8-10 implants to complete. 27. Seeing a specific market for his skills, Atcha began advertising to the public. 28. On March 16, 2012, the Board filed a formal administrative complaint against Atcha. 29. In its complaint, the Board, through its members, Steven Hollar, Matthew Miller, Richard Newton, Mark Stetzel, Jennifer Bartek, Clance LaTurner, and Cindy Vaught, alleged multiple violations of the Board’s advertising regulations. 5 USDC IN/ND case 2:15-cv-00110 document 1 filed 03/20/15 page 6 of 17 30. The Board determined that Atcha violated regulations relating to the advertisement of dental services in two respects. 31. First, the Board, and its members, wrongfully determined that Atcha failed to list all the dentists in his practice in his advertisements. 32. Second, the Board, and its members, wrongfully determined that Atcha used words that express or imply specialization in implant dentistry and that Atcha’s advertising was false and misleading. 33. Third, the Board, and its members, wrongfully determined that Atcha falsely advertised himself to possess superior services, that he used better materials, and provided more skillful care and that such statements were deceptive and misleading. 34. On November 19, 2013, the Board issued its order and placed Atcha on probationary status. 35. The Defendants State of Indiana, the Board and Steven Hollar, Matthew Miller, Richard Newton, Mark Stetzel, Jennifer Bartek, Clance LaTurner, and Cindy Vaught, knew or reasonably should have known that the Order it issued was false, fraudulent and lacked any merit. 36. More specifically, the State Defendants set out intentionally and with malicious intent to deprive Atcha of his right to conduct business in Indiana. 37. The State Defendants were never concerned about any harm to the public, since it had no such evidence. 6 USDC IN/ND case 2:15-cv-00110 document 1 filed 03/20/15 page 7 of 17 38. As a result, the State Defendants’ inquiry focused solely on the amount of money Atcha paid for advertising and demanded that they, as state actors, be permitted to preview all advertising prior to its dissemination. 39. On December 31, 2014, the Marion County Superior Court found that, as a matter of law, the actions of the State Defendants were unconstitutional as a clear violation of Atcha’s protections under the First Amendment to the U.S. Constitution and that, in all respects in relation to the Board’s complaint, Atcha’s advertisements were well within those rights. 40. In each instance, the State Defendants were devoid of any articulated State interest in imposing punishment for the exercise of Atcha’s right to freedom of speech. 41. Further, the State Defendants were well aware that there is only one class of dental license in the State of Indiana and that the neither state law nor Board regulation establishes a “specialty” licensure distinction. 42. At all times relevant to this Complaint, the State Defendants well knew that nothing in Atcha’s advertising was false or misleading in any way. 43. Further, none of the State Defendants had any evidence or even an articulable basis on which to conclude that Atcha’s advertising was false or misleading in any respect. 44. The State Defendants were completely unable to produce any evidence that any member of the public was directly harmed by the advertisements, beyond its own subjective belief that the regulation was necessary in some way. 7 USDC IN/ND case 2:15-cv-00110 document 1 filed 03/20/15 page 8 of 17 45. In advancing its claims that Atcha’s advertisements were false, the State Defendants could not produce a single document, letter, statement, report, study, survey, finding, or even an anecdote that its regulations were constitutional. 46. Further, the State Defendants could not show, in any meaningful way, that it carefully calculated the costs and benefits associated with the burden it placed on Atcha. In other words, the State Defendants did not even make a rudimentary attempt to comply with known constitutional constraints. 47. The State Defendants have no actual evidence of any kind that Atcha misled or deceived anyone, much less an actual consumer. 48. Since the State Defendants were wholly without any basis on which to bring such claims, it was the express intention of the State Defendant to protect the market share of other specific dentists in an overarching scheme to deprive Atcha of the right to do business and enrich Rajan Sharma. 49. Sharma was a direct competitor of Atcha’s and it was, upon information and belief, Sharma who provided false and fraudulent information regarding Atcha’s advertising. 50. The State Defendants and Sharma conspired and combined to deprive Atcha of his First Amendment right to freedom of speech in such a way as to become a state actor. 51. The State Defendants and Sharma unlawfully conspired with one another, and with other direct competitors of Atcha, to discriminatorily, selectively 8 USDC IN/ND case 2:15-cv-00110 document 1 filed 03/20/15 page 9 of 17 and unlawfully enforce regulations they knew Atcha was in compliance with, all while treating other similarly situated licensees more favorably. 52. As a direct and proximate result of the constitutional deprivation, Atcha has suffered economic and non-economic losses. 53. In spite of orders of the Court directing the State Defendants to make Atcha whole, they have steadfastly refused to do so and, as a result, Atcha continues to suffer injury and harm and will continue to do so into the future. COUNT I 42 U.S.C. §1983 Freedom of Speech Against the State Defendants 54. As against all Individual Defendants, Plaintiff restates and realleges by reference paragraphs 1 through 53 above as though fully set forth herein. 55. After, and in retaliation for, the Plaintiff’s exercise of his right to free speech, the Defendants deprived the Plaintiff of his ability and capacity to practice dentistry in the State of Indiana. 56. At the time of the 2013 probationary suspension, the Defendants, either expressly or by acquiescence, adopted a custom or practice of depriving dental licensees of their right to advertise in a truthful and accurate manner, and based its prosecutorial decisions on the protection of certain favored market participants over the Plaintiff. 9 USDC IN/ND case 2:15-cv-00110 document 1 filed 03/20/15 page 10 of 17 57. The State of Indiana and all other Defendants adopted an illegal policy of discrimination and retribution against licensees who resisted and did not further Defendant Sharma’s business and opposed his actions. 58. The Defendants’ effected its policy and custom by employing tactics of discrimination, intimidation, and retaliation against dental licensees and the Plaintiff. 59. The prosecution of the Plaintiff under clearly known and defined unconstitutional provision of its regulations violated the Plaintiff’s right of free speech under the First Amendment, made applicable to the states through the Fourteenth Amendment to the Constitution of the United States. 60. The violation of the Plaintiff’s constitutional rights by the Defendants to this Count has caused the Plaintiff harm, damages, lost wages, lost profits and employment benefits, pain and suffering, emotional distress, embarrassment, humiliation and financial crisis. WHEREFORE, Plaintiffs respectfully request: A. All wages and benefits, back pay, front pay and future pecuniary damages Plaintiff would have received but for the discrimination, including pre-judgment interest; B. A temporary restraining order (1) restraining Defendants from taking any further retaliatory action against Plaintiffs, based on their exercise of First Amendment Rights, and (2) ordering Defendants to expunge all reference to the illegally obtained and enforced probationary suspension pertaining to Plaintiff’s lawful exercise of First Amendment rights; C. A permanent injunction (1) restraining Defendants from taking any further retaliatory action against Plaintiff, based on his exercise of First Amendment Rights, and (2) ordering Defendants to expunge from their files 10 USDC IN/ND case 2:15-cv-00110 document 1 filed 03/20/15 page 11 of 17 all documents pertaining to disciplinary actions pertaining to Plaintiff’s lawful exercise of First Amendment rights; D. Compensatory damages in an amount to be determined at trial to compensate Plaintiff for injuries and losses caused by Defendants’ conduct; E. Defendants be required to pay prejudgment interest to Plaintiff on these damages; F. A declaratory judgment that Defendants’ actions violate the First and Fourteenth Amendments to the United States Constitution; G. The Court retain jurisdiction of this case until such time as it is assured that the Defendants have remedied the policies and practices complained of herein and are determined to be in full compliance with the law; I. Punitive damages as allowed by law as against the individual Defendants; J. An award of reasonable attorneys’ fees, costs, and litigation expenses; and K. Such other relief as the Court may deem just or equitable. COUNT II (§ 1983 Violation of First Amendment – Retaliation-Monell Liability) 61. As against Defendants STATE OF INDIANA and INDIANA STATE BOARD OF DENTISTRY, Plaintiff restates and realleges by reference paragraphs 1 through 60 above as though fully set forth herein. 62. Defendants intentionally retaliated against Plaintiff for legally advertising and competing freely within the marketplace and against Sharma. 63. Defendants’ actions reflect a policy, custom, or pattern of official conduct of penalizing individual licensees for exercising their right to free speech under the First and Fourteenth Amendments of the United States Constitution. 64. The actions of the Defendants against Plaintiff violated his rights of free 11 USDC IN/ND case 2:15-cv-00110 document 1 filed 03/20/15 page 12 of 17 speech under the First Amendment to the United States Constitution as applicable to the states by the Fourteenth Amendment and 42 U.S.C. § 1983. 65. All of Plaintiff’ statements addressed constitutionally protected matters of commercial speech. 66. The actions of Defendants in intentionally engaging in and condoning discrimination and retaliation against Plaintiff is the proximate and direct cause of his great mental anguish, humiliation, degradation, inconvenience, lost wages, profits and benefits, future pecuniary losses, and other consequential damages. 67. The actions of Defendants were intentional, willful, and malicious and/or in deliberate indifference for Plaintiff’s rights as secured under 42 U.S.C. § 1983. 68. The Plaintiff was deprived of his right to free speech as guaranteed by the First Amendment to the U.S. Constitution. 69. The BOARD and STATE OF INDIANA were joint policymakers as pertains to development of advertising restrictions on dental practitioners. 70. The Defendants engaged in an official custom and widespread practice which caused the deprivation of the Plaintiff’s, and other dental practitioners’, constitutional rights. 71. The custom and practice of the Defendants was so permanent and wellsettled that it constituted a custom and usage with the force of law. WHEREFORE, Plaintiffs respectfully request: 12 USDC IN/ND case 2:15-cv-00110 document 1 filed 03/20/15 page 13 of 17 A. All wages, losses, lost profits and benefits, back pay, front pay and future pecuniary damages Plaintiff would have received but for the discrimination, including pre-judgment interest; B. A temporary restraining order (1) restraining Defendants from taking any further retaliatory action against Plaintiffs, based on their exercise of First Amendment Rights, and (2) ordering Defendants to expunge from their files all documents pertaining to disciplinary actions pertaining to Plaintiff’s lawful exercise of First Amendment rights; C. A permanent injunction (1) restraining Defendants from taking any further retaliatory action against Plaintiff, based on his exercise of First Amendment Rights, and (2) ordering Defendants to expunge from their files all documents pertaining to disciplinary actions pertaining to Plaintiff’s lawful exercise of First Amendment rights; D. Compensatory damages in an amount to be determined at trial to compensate Plaintiffs for injuries and losses caused by Defendants’ conduct; E. Defendants be required to pay prejudgment interest to Plaintiff on these damages; F. A declaratory judgment that Defendants’ actions violate the First and Fourteenth Amendments to the United States Constitution; G. The Court retain jurisdiction of this case until such time as it is assured that the Defendants have remedied the policies and practices complained of herein and are determined to be in full compliance with the law; I. Punitive damages as allowed by law as against Defendants; J. An award of reasonable attorneys’ fees, costs, and litigation expenses; and K. Such other relief as the Court may deem just or equitable. COUNT III Defamation Against Sharma 72. The Plaintiff herein re-alleges and adopts Paragraphs 1 through 71. 13 USDC IN/ND case 2:15-cv-00110 document 1 filed 03/20/15 page 14 of 17 73. The Defendant knew that his allegations of wrongful conduct and misconduct to be false, and communicated those allegations to the others, including the State Defendants. 74. Defendant Sharma, upon information and belief, false informed the State Defendants that Atcha’s advertisements were false, deceptive and misleading, for the sole purpose of restraining competition against his own dental practice. 75. Further, Defendant Sharma, upon information and belief, falsely stated to others that Atcha was unqualified in the dental profession and, knowing that the suspension was fraudulently obtained, advised others that Atcha was incompetent and deceptive. 76. The communication of the false statements by the Defendants to others was not privileged. 77. The nature of the false statements by the Defendants to others were harmful to the Plaintiff’s reputation because the false statements impute to the Plaintiff the commission of a illegal acts or his inclination to commit such acts, malfeasance and conduct injurious to the public, and a want of integrity in the discharge of his profession, thereby making the statements defamatory per se; alternatively, the character of the false statements are defamatory per quod. 78. As a result of the publication of the false statements by the Defendants Count to the others, the Plaintiff suffered harm, damages, lost wages, lost profits 14 USDC IN/ND case 2:15-cv-00110 document 1 filed 03/20/15 page 15 of 17 and employment benefits, pain and suffering, emotional distress, embarrassment, humiliation and financial crisis. WHEREFORE, the Plaintiffs respectfully request that this Honorable Court enter judgment in her favor and against the Defendants in the amount in excess of $15,000,000.00 for an award of compensatory damages, plus interest and costs, for an award of punitive damages, plus interests and costs, against all Defendants to this Count as allowed by law; and for any such further relief as this Court may deem just and appropriate. COUNT IV Malicious Prosecution Against all Defendants 79. The Plaintiff herein re-alleges and adopts Paragraphs 1 through 78. 80. An action for malicious prosecution is one for damages brought by a person against whom a criminal prosecution, civil suit or quasi-judicial proceeding has been instituted maliciously and without probable cause. 81. The State Defendants and Sharma instituted of civil proceedings against Atcha on March 16, 2012. 82. On December 31, 2014, those proceedings terminated in favor of Atcha. 83. The Defendants were without probable cause for the proceeding. 84. The Defendants acted with actual malice in bringing such proceedings in that it was their joint intent to interfere with Atcha’s right to conduct business, to control and monopolize the dental implant market in Northwest Indiana and not for any other legitmate purpose. 15 USDC IN/ND case 2:15-cv-00110 document 1 filed 03/20/15 page 16 of 17 85. Atcha further suffered special injury as a result of such action, to wit, the deprivation of freedom to contract with others and the interference with property. WHEREFORE, Plaintiffs respectfully request: A. All wages, losses, lost profits and benefits, back pay, front pay and future pecuniary damages Plaintiff would have received but for the discrimination, including pre-judgment interest; B. A temporary restraining order (1) restraining Defendants from taking any further retaliatory action against Plaintiffs, based on their exercise of First Amendment Rights, and (2) ordering Defendants to expunge from their files all documents pertaining to disciplinary actions pertaining to Plaintiff’s lawful exercise of First Amendment rights; C. A permanent injunction (1) restraining Defendants from taking any further retaliatory action against Plaintiff, based on his exercise of First Amendment Rights, and (2) ordering Defendants to expunge from their files all documents pertaining to disciplinary actions pertaining to Plaintiff’s lawful exercise of First Amendment rights; D. Compensatory damages in an amount to be determined at trial to compensate Plaintiffs for injuries and losses caused by Defendants’ conduct; E. Defendants be required to pay prejudgment interest to Plaintiff on these damages; F. A declaratory judgment that Defendants’ actions violate the First and Fourteenth Amendments to the United States Constitution; G. The Court retain jurisdiction of this case until such time as it is assured that the Defendants have remedied the policies and practices complained of herein and are determined to be in full compliance with the law; I. Punitive damages as allowed by law as against Defendants; J. An award of reasonable attorneys’ fees, costs, and litigation 16 USDC IN/ND case 2:15-cv-00110 document 1 filed 03/20/15 page 17 of 17 expenses; and K. Such other relief as the Court may deem just or equitable. JURY DEMAND The Plaintiff hereby demands a trial by a jury of 12. Respectfully submitted, ANDREOU & CASSON, LTD. By: /s/ Luke A. Casson_____________ Luke A. Casson Firm ID: 39203 LUKE A. CASSON Andreou & Casson, Ltd. Attorneys for Plaintiff 661 West Lake Street, Suite 2N Chicago, Illinois 60661 312.935.2000/ 312.935.2001 17