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Wadhwa v. Nicholson

March 29, 2010

DOM WADHWA, M.D., ET AL.
v.
R. JAMES NICHOLSON, ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

Dom Wadhwa, M.D., and Sharon A. Finizie, R.N., are employees of the United States Department of Veterans Affairs Medical Center in Philadelphia, Pennsylvania ("DVAMC"). This consolidated case, which was originally filed as four separate lawsuits, is the result of a series of alleged employment disputes between the plaintiffs and the DVAMC.*fn1 At this stage, the only claims remaining are those related to the plaintiffs' "Bivens action," originally filed as Civil Action No. 07-2750.

The defendants moved in seven separate motions to dismiss the plaintiffs' complaint, or in the alternative for summary judgment. The plaintiffs opposed the motion.*fn2 For the reasons stated below, the Court will grant the defendants' motions to dismiss and dismiss the plaintiffs' complaint with prejudice.

I. Background

The plaintiffs originally filed four suits in 2007 against R. James Nicholson in his official capacity as Secretary of Veterans Affairs, alleging various violations related to the plaintiffs' employment at the DVAMC. On October 24, 2007, the Court consolidated the actions into one suit. After various motions from the parties, the plaintiffs filed an amended complaint.*fn3 On June 23, 2008, the Court dismissed all of the plaintiffs' claims with the exception of the claims in the plaintiffs' "Bivens action," Civil Action No. 07-2750.

The plaintiffs then requested leave to file a second amended complaint and a third amended complaint. On July 18, 2008, the Court granted the plaintiffs' motion for leave and allowed the plaintiffs to file a single new complaint, a second amended consolidated complaint, containing the allegations from the plaintiffs' three amended complaints. The Court then struck the plaintiffs' second amended consolidated complaint on August 18, 2008, because it included allegations not contained in the previous complaints and attempted to revive claims that the Court already dismissed. The Court clarified that the plaintiffs could "include only the alleged false arrest and related events on June 23 and 26, 2007; the alleged retaliatory incident on February 29, 2008; and the alleged unreasonable search and seizure of June 27, 2008."

The plaintiffs filed a new second amended consolidated complaint on October 30, 2008. On December 29, 2008, the plaintiffs moved to amend the caption of the complaint to include individual defendants. The Court granted in part the plaintiffs' motion, and the plaintiffs filed another new second amended consolidated complaint on January 2, 2009. On January 20, 2009, the Court ordered the Clerk to file the latest new second amended consolidated complaint submitted by the plaintiffs ("SACC"), which contained the modified caption and additional individual defendants. The SACC is the operative complaint in this action.

In a memorandum and order issued April 24, 2009, the Court dismissed with prejudice Secretary Nicholson from the SACC. The Court also struck all claims that related to employment discrimination under Title VII and the Age Discrimination in Employment Act ("ADEA") and all non-Bivens-related tort claims because the Court did not grant the plaintiffs leave to include such allegations or causes of action in the plaintiffs' SACC. On October 19, 2009, the defendants moved to dismiss, or in the alternative, for summary judgment.

At this point in the litigation, the plaintiffs' remaining claims are: (1) a free speech violation under the First Amendment, (2) a substantive due process violation under the Fifth Amendment, and (3) a procedural due process violation under the Fifth Amendment.*fn4 The plaintiffs allege that they were subjected to various incidents that constitute these constitutional violations. First, on June 23, 2007, the plaintiffs were stopped and questioned, and Dr. Wadhwa's car was searched in the parking garage at the DVAMC. The police officer who took these actions claimed to be looking for patient-related information that the plaintiffs possessed.*fn5 No patient information was found, and the plaintiffs were permitted to leave the premises. SACC ¶ 16.

Second, on June 26, 2007, the plaintiffs were questioned about the June 23 incident. They were taken to the DVAMC police holding room and read their Miranda rights. They were informed that they were being placed under criminal investigation for theft of government property. Id. ¶ 17.

Third, on February 29, 2008, "agency officials . . . staged an incident in an attempt to arrest" the plaintiffs for battery, assault, and disorderly conduct. The plaintiffs do not allege that they were actually arrested for these crimes. The plaintiffs do not detail what actions constituted the staged incident. Id. ¶ 19.

On June 27, 2008, a police officer "subjected [Dr. Wadhwa] to a search and seizure" of his personal items because the officer was looking for patient-related information.*fn6 Id. ¶ 20.

The plaintiffs brought suit against Margaret O'Shea-Caplan as the Associate Director of the DVAMC; Doctors Martin Heyworth, Michael Grippi, and John Murphy, as supervisors of Dr. Wadhwa; and Linda Aumiller, R.N., as supervisor of Ms. Finizie;*fn7 for authorizing the June 26, 2007 incident and for various torts because they authorized and publicized the June 26, 2007 incident: false light, false imprisonment, defamation per se, slander per se, libel per se, and intentional infliction of extreme emotional distress and severe mental anguish.*fn8

The plaintiffs also assert a claim of search and seizure under false pretenses against Ms. O'Shea-Caplan and Jeffrey Kaufman, the Chief of Police at the DVAMC, for authorizing the June 27, 2008 search of Dr. Wadhwa's personal items. Finally, the plaintiffs assert torts of attempted battery, attempted assault, disorderly conduct, and attempted larceny against "agency officials" for having ...


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