Summary
explaining that violations of Section 1306.05 violate Section 829 and “[i]t is a violation of section 842 of the [CSA] to distribute Schedule II controlled substances in violation of the provisions of section 829”
Summary of this case from United States v. Amerisource Bergen Corp.Opinion
CV-02-1095 (FB)(VVP)
January 29, 2003
REPORT AND RECOMMENDATION
Judge Block has referred this matter to me for a report and recommendation regarding the relief to be afforded to the plaintiff in this action brought by the government to redress alleged violations of the Controlled Substances Act, 21 U.S.C. § 801 et seq. In accordance with a schedule set by the court, the plaintiff submitted a letter brief dated January 3, 2003 and presented evidence at a hearing held on January 21, 2003. The defendant, by counsel, appeared at the hearing, but did not otherwise submit argument either orally or in writing for consideration by the court. On the basis of all proceedings held in this matter, the court issues the recommendation below.
The whereabouts of the defendant remain unknown. She has failed to maintain contact with her attorney, and her attorney's efforts to locate her have proved fruitless.
By virtue of the default entered in this matter, the well-pleaded allegations in the complaint are deemed admitted, and the court accepts them as true. See Greyhound Exhibitgroup v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.), cert. denied, 113 S.Ct. 1049 (1993); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). The court also credits the unrebutted testimony offered at the hearing by Joseph Mendes, an investigator employed by the Drug Enforcement Administration. The allegations of the complaint and his testimony established that between October 1999 and July 2001 the defendant Luzviminda Salcedo, who was then a physician, issued thirty-two prescriptions for Dexedrine, a controlled substance identified in Schedule II of the Act. Each prescription was for 100 5-milligram tablets of Dexedrine. It is a violation of section 842 of the Act to distribute Schedule II controlled substances in violation of the provisions of section 829A. See 21 U.S.C. § 842(a). The issuance of each of the thirty-two prescriptions constituted a separate violation of section 829 for two reasons. First, the prescriptions were issued in the name of a patient who was not under the direct care of the defendant, and therefore they were not issued in the "usual course of [the defendant's] professional practice." See 21 U.S.C. § 829(a); 21 C.F.R. § 1306.04(a). Second, the address listed by the defendant on each prescription was not the proper address for the patient; the address listed was in Queens, New York, but the purported patient was living in the Philippines throughout the time when the prescriptions were written. See 21 U.S.C. § 829(a); 21 C.F.R. § 1306.05(a).
The government seeks both civil penalties and injunctive relief for these violations of section 842. Civil penalties of up to $25,000 for each violation are authorized by the Act. See 21 U.S.C. § 842(c)(1). Injunctive relief is also available. See 21 U.S.C. § 843(f)(1). In setting the amount of the penalty the court may consider (1) the level of the defendant's culpability, (2) the harm to the public resulting from the violations, (3) the defendant's ability to pay, and (4) the defendant's profit from the violations. See United States v. Poulin, 926 F. Supp. 246, 253-54 (D. Mass. 1996) (citing United States v. Barbacoff, 416 F. Supp. 606, 610 (D.D.C. 1976); United States v. Queen Village Pharmacy, 1990 WL 165907, *2 (E.D. Pa.)). As to injunctive relief, the injunction "shall be tailored to restrain the violation of . . . section 842." 21 U.S.C. § 843(f)(3). Thus the court is not limited simply to enjoining violations of the Act, but may issue injunctions that more broadly restrict the defendant's conduct to eliminate the likelihood that she will distribute controlled substances in violation of the Act. See, e.g., United States v. Chemicals for Research and Industry, 10 F. Supp.2d 1125, 1130 (N.D. Cal. 1998).
In recommending a civil penalty in this case, the court considers the level of culpability of the defendant to be relatively high in view of the numerous repeated violations of the Act over an extended period of time. According to the investigator, each tablet can be sold on the street for between $5 and $8, according to recent statistics maintained nationwide by the DEA. This suggests both a high demand and a high potential for abuse since the drug is known to be highly addictive. It also suggests that the defendant could have grossed as much as $25,600 from the sale of the 3200 illegally obtained tablets. Although the court received no evidence regarding the defendant's ability to pay, consideration of the defendant's level of culpability, the risks of harm to the public and the potential profits earned lead the court to conclude that the government's suggested penalty of $25,600 is appropriate.
As to injunctive relief, the plaintiff requests an order that permanently enjoins the defendant from distributing, dispensing or administering any controlled substance by any means, including the writing of prescriptions, with the terms "distribute," "dispense," "administer," and "controlled substance" defined in the manner set forth in the definitional section of the Act. See 21 U.S.C. § 802. In view of the fact that the defendant has apparently abandoned the practice of medicine entirely, such an injunction would not impair her ability to earn a living. Thus, given her repeated violations of the Act, an injunction of that scope is appropriate.
Accordingly, the undersigned recommends that the defendant be ordered to pay to the plaintiff a civil penalty in the amount of $25,600 and that an injunction be entered prohibiting the defendant from distributing, dispensing or administering any controlled substance by any means, including the writing of prescriptions, with the terms "distribute," "dispense," "administer," and "controlled substance" defined in the manner set forth in 21 U.S.C. § 802.
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Any objections to the Report and Recommendation above must be filed with the Clerk of the Court with a copy to the undersigned within 10 days of receipt of this report. Failure to file objections within the specified time waives the right to appeal the District Court's order. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298 (2d Cir.), cert. denied, 113S.Ct. 825 (1992); Small v. Secretary of Health and Human Serv., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam).