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December 17, 1982

ROBERT T. DALE, Plaintiff,
JOHN BARTELS, et al., Defendants

The opinion of the court was delivered by: BRIEANT


 [Summary Judgment]

 Brieant, J.

 In this ancient Bivens type civil rights action, filed March 19, 1974, there has been pending since December 22, 1981 a motion by all those defendants actually served and appearing, to dismiss the complaint for failure to state a claim, or alternatively, for summary judgment. Joined with Bivens allegations of constitutional violations by agents of the Bureau of Narcotics and Dangerous Drugs ("BNDD", now Drug Enforcement Agency) are pendent claims under state law for false arrest and defamation.

 The sole remaining plaintiff, Robert T. Dale (hereinafter "Dr. Dale") was a physician. In 1971-72 together with his wife he operated a methadone clinic in New York City. Following an audit of the clinic records by agents of the BNDD, plaintiff closed his clinic and fled to Europe.

 On February 14, 1973, a Grand Jury in this district returned an indictment against Dr. Dale and another, under docket number 73 Cr. 163, charging Dr. Dale with one count of violation of 21 U.S.C. §§ 812, 827 and 843 by furnishing false and fraudulent information in records of a controlled substance dispensed, and two counts for making false statements to federal agents in violation of 18 U.S.C. § 1001. For reasons which need not concern us, this indictment never proceeded to trial on the merits. Leave was granted to the Government by Judge Stewart of this Court on March 4, 1974 to file an order nolle prosequi, and that was done.

 This Court's consideration of the summary judgment motion was of necessity deferred in order to permit access by plaintiff's attorney and also by the defendants' attorney and this Court, to the grand jury testimony of the defendant Steinberg, at relevant times an agent of the BNDD. Following limited release of Steinberg's testimony to the grand jury, discussed below, and further argument, the Court has now taken the entire motion as fully submitted for decision. Familiarity is assumed with respect to all prior proceedings, including this Court's decision in Dale v. Bartels, 532 F. Supp. 973 (S.D.N.Y. 1982), requiring disclosure of the grand jury minutes under a protective order.

 The complaint herein, familiarity with which is assumed, pleads some thirteen separate claims or "causes of action." Mrs. Lily Farley Ross Dale, wife of Robert T. Dale, and Ross Tatum Dale, their child, are no longer parties to the action. The remaining plaintiff, Robert T. Dale, at relevant times was a licensed physician, registered with federal authorities to dispense methadone at a clinic which he operated in New York City.

 Defendant John Bartels was the Administrator of BNDD between July 1, 1973 and May 30, 1975. On the latter date he returned to civilian life. The remaining defendants were all agents of the BNDD. Their individual participation is discussed below.

 From about February 28, 1971 until about October 1st of that year, Dr. Dale operated a methadone maintenance out-patient program for the detoxification and treatment of heroin addicts, at 740 West End Avenue in this City. On the latter date he removed the clinic to 249 West 30th Street and operated at that location until about July 13, 1972, when, under circumstances detailed below, he closed the clinic and fled to Europe.

 Acting pursuant to the "Comprehensive Drug Abuse Prevention and Control Act" of 1970, 21 U.S.C. § 801, et seq. the BNDD on June 9, 1972 commenced an administrative audit of the dispensing records of the Dale Clinic with respect to methadone. Defendant James Steinberg was in charge of the audit, which was authorized by the aforementioned statute and regulations adopted thereunder, and conducted pursuant to an administrative warrant for an "establishment inspection" issued by Hon. Harold J. Raby, a United States Magistrate of this district. See 21 U.S.C. § 880. A sufficient factual basis existed for the warrant, which sought to reconcile the methadone dosages purchased with those dispensed during the audit period, adjusting for opening and closing inventories. According to the results of the audit, completed on July 13, 1972, the Clinic, having a caseload of about 1100 patients, had dispensed approximately 54,660 dosage units or diskets of methadone for which it had no record. Dr. Dale disputed this factual contention at the time, and claimed during the audit that the agents insisted on looking at the wrong records. He also alleged that the audit was characterized by harassment and intimidation, conducted in an unreasonable manner and in bad faith, and was "overlong and unnecessarily disruptive" (Complaint, para. 14). The complaint alleges that a later warrant, resulting in a search of the clinic premises on or about July 17, 1972 was issued without probable cause and also resulted in a seizure of items not within its scope. It is also pleaded that "unknown agents of BNDD" turned over clinic [patient] records to one Dr. Alan Kaye, a non-party private physician, who apparently also operated a methadone clinic (Complaint para. 17). In the Sixth and Seventh claims pleaded, unknown persons are accused of seizing records of the clinic, and arresting Dr. Dale in an unauthorized fashion. In the Eighth claim it is said that defendant Steinberg and others entered plaintiff's apartment, abused his parents and converted money and "certain other items" (Complaint para. 20).

 The complaint continues, to allege that defendant Steinberg caused an arrest warrant and complaint to be issued against the plaintiff by making "false and malicious statements" leading to his arrest in Denmark in January 1973.

 We defer momentarily, our discussion of the Tenth claim pleaded, because there are found the allegations giving greatest concern to this Court in passing upon the summary judgment motion.

 In the Eleventh claim the pleader repeats all prior allegations as "taken together a pattern of harassment and intentional violations of plaintiff['s] constitutional rights which is in itself a violation of the Fourth and Fifth Amendments, and which represents part of a pattern of conduct of BNDD agents and officers by which American citizens have been unlawfully harassed, intimidated, disgraced and killed." (Complaint, para. 24).

 There follows two pendent state law tort claims; for false arrest and for defamation.

 The prayer for relief, framed as it was before Dr. Dale's wife and son dropped their claims, sought both legal and equitable relief as follows:

"WHEREFORE, plaintiffs respectfully request that this Court:
1. Grant judgment against defendants in compensation for the damages suffered by them, in the amount of at least $3,500,000.
2. Grant judgment against defendants for punitive and exemplary damages because of their willful and malicious conduct in the amount of at least $1,000,000.
3. Award plaintiffs the costs of this action including a reasonable attorney's fee.
4. Issue injunctions ordering defendants to cease and desist from all illegal activities of the sort alleged above, and ordering John Bartels, Director of the BNDD, to cause to be issued public statements of apology and, on request, statements confirming that plaintiffs were wrongly accused in the above-mentioned indictment. (Emphasis added).
5. Retain jurisdiction to issue orders to all relevant federal officers to take all appropriate actions on any application filed by plaintiffs for permission to function within their fields of expertise.
6. Grant such other relief as the interests of justice require."

 Of course this Court lacks the power to cause bureaucrats to issue public apologies for the allegedly excessive zeal or incompetence of their subordinates. And there is no basis for a Court to require a certificate of good conduct or a statement of "wrongly accused" to be issued by the Executive Branch of Government, especially where, as here, an indictment, the wrongness of which is sought to be confirmed, was never tried to a jury on the merits. Were it otherwise, our Court would truly be overwhelmed with suitors, and this even were we to limit ourselves to those cases where an apology would clearly be appropriate. This relief sought of Bartels is essentially frivolous. Accordingly, and because his dates of service in the office do not include the relevant time period of the rest of the claims (see supra, slip op. at 2-3) it is clear that defendant Bartels is entitled to summary judgment in his favor.

 The proof submitted on this motion shows without question that plaintiff closed his clinic and fled the country prior to receipt of the customary ten (10) day letter from the Food and Drug Administration revoking his authority to dispense methadone. While perhaps an argument can be made concerning the clinic's accountability records, or more particularly, concerning whether any improprieties were wilful, the record as a whole, amplified by pre-trial discovery and depositions, as well as affidavits, shows that there was an accountability problem, there was probable cause for the audit or inspection warrant and also for the search warrant.

 All persons having knowledge deny that unauthorized objects were seized pursuant to the search warrant, and there is no competent evidence to the contrary.

 The transfer of patient records to Dr. Kaye was not effected by these defendants sued here.

 Similarly there is no evidence of theft of personal property or money from the Dale apartment by any defendant sued here. The arrest was lawful, and defendant was released to the custody of his attorney without even being held overnight. There was nothing improper about handcuffing plaintiff. There is no evidence that defendants sued here were those who notified the press of Dr. Dale's arrest; even if they did, the Court believes that the public has a legitimate interest in the enforcement of the narcotics laws and has the right to have the press know of the arrest of a prominent professional whose indictment is under consideration. A returning fugitive has no civil right to a voluntary surrender in lieu of being arrested.

 We assume for purposes of our argument the allegations by plaintiff to the effect that the audit of the clinic's methadone dispensing records was negligently done, and that the agents were hostile. Undisputed affidavits suggest Dr. Dale was hostile also. The dispensing of controlled substances is a proper subject for audit by the employees of the federal agency. It is understandable, and non-actionable, that the social atmosphere of an afternoon tea party may not prevail at such an audit. Plaintiff had adequate due process protections available to him at the agency level, and thereafter, in the courts, if the agency had sought to revoke his dispensing authority without justification. See Foxman v. Renison, 625 F.2d 429 (2d Cir.), cert. denied, 449 U.S. 993, 101 S. Ct. 530, 66 L. Ed. 2d 290 and cases therein cited.

 To the extent "harassment" is charged, the facts apparent as a result of extensive discovery even when viewed most favorably to plaintiff, do not reach the level of a constitutional tort. See Fairchild, Arabatzis & Smith, Inc. v. Sackheim, 451 F. Supp. 1189, 1192 (S.D.N.Y.), aff'd., 591 F.2d 1330 (2d Cir. 1978); Contemporary Mission, Inc. v. United States Postal Service, 648 F.2d 97, 105-06 (2d Cir. 1981); Black v. United States, 534 F.2d 524, 528 (2d Cir. 1976).

 The balance of the constitutional tort claims, except for the Tenth Claim, discussed below, are all either insufficient in law, unsupported by credible evidence, or both. The pendent state law claims for defamation do not speak well for the accuracy of the "Bulletin," a house organ of the BNDD, circulating among BNDD agents and affiliated law enforcement personnel. Its 1972-73 winter issue referred to plaintiff and his wife as fugitives and characterized them as "the largest supplier of illicit amphetamines on the East Coast." (Emphasis added). This was wrong, as the illicit drug which Dr. Dale was allegedly supplying was methadone, not amphetamines, and he was by no means the largest such supplier. Later, the house magazine referred to him as "in custody" when he was in fact free on bail. This defamation claim is not actionable in light of Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976), decided after this complaint was filed. There is no evidence that defendant Daugherty, one of the unnamed agents sued, and actually appearing in the action, who was the editor of the publication, had any responsibility for this misdescription of plaintiff. In any event, he would be personally immune from liability under state law for defamation committed in the course of his official duties. Barr v. Matteo, 360 U.S. 564, 572-76, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959); Birnbaum v. United States, 588 F.2d 319, 332 (2d Cir. 1978); Expeditions Unlimited v. Smithsonian Institution, 184 U.S. App. D.C. 397, 566 F.2d 289, 291 (D.C. Cir. 1977). The pendent state law false arrest claim also lacks merit. Plaintiff was arrested upon a validly issued warrant, processed, and released immediately. See Baker v. McCollan, 443 U.S. 137, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979). He was later indicted. See Garris v. Rowland, 678 F.2d 1264, 1273, n. 6 (5th Cir. 1982).

 We turn now to the only part of the motion which presents a close question, that found in the Tenth claim pleaded. Plaintiff's complaint alleges:

"23. By making false and malicious statements to a grand jury, and acting in bad faith, certain unknown defendants caused an indictment to issue against defendants [sic, should read "plaintiffs"] on or about February 16, 1973 charging them with serious and infamous crimes which defendants knew or should have known there was no cause to believe plaintiffs have committed, thus depriving plaintiffs of their right to 'due process of law' guaranteed by the Fifth Amendment."

 Defendants sought amplification of this allegation by their Interrogatory 15, which was answered in relevant part as set forth below:

" Question 15(a):
With respect to the allegations set forth in Paragraph 23 of the complaint . . .
(a) Identify . . . (ii) the false and malicious statements referred to;
Answer 15(a):
* * *
(ii) The grand jury minutes are essential to answering this question. It is plaintiff's belief that Steinberg gave his testimony in such an inaccurate or distorted manner as to mislead the grand jury. For example, he may have testified that Dr. Dale denied that James Richardson was a patient in the program whereas Dr. Dale asserted that he had the patient record of James Richardson.
Question 15(b):
State the basis of your contention that the defendants (i) acted in bad faith, (ii) knew or should have known that there was no cause to believe plaintiffs committed the acts alleged;
Answer 15(b):
(i) Steinberg knew or should have known that the audit was inaccurate and that the statements made by Dr. Dale for which he was subsequently indicted were not lies but were misunderstandings or mistakes. Again, Steinberg knew or should have known that there was no basis for indicting Dr. Dale on the claims set forth in (a) above.
(ii) Steinberg should have listened to the Dales as to the correct records to use for the audit and should have reviewed the accuracy of the audit after its completion by the agents. Steinberg knew that Dr. Dale's statement to the F.D.A. that there were 788 patients (Second Count of Indictment) was an estimate, not intended to mislead. (Dr. Dale had every reason to exaggerate not to underestimate patients.) Steinberg knew from his conversation with Dale concerning James Richardson (Count Three of Indictment) that Dr. Dale's statement 'no he wasn't' contained in the Government's bill of particulars on the indictment (supposedly denying Richardson's inclusion in the program on the relevant dates) resulted from a Dale mistake, if that, as to the dates of the ...

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