1. law, govt and politics

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
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State of Indiana, the Indiana
) Case No.: 2:15 cv 110
Professional License Agency, the
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Indiana State Board of Dentistry,
) Calendar:
Steven Hollar, individually, Matthew
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Miller, Individually, Richard Newton,
) Judge:
individually, Mark Stetzel, individually, )
Jennifer Bartek, Individually, Clance
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LaTurner, Individually, and Cindy
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Vaught, in her official capacity as
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Director of the Indiana State Board of
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Dentistry and individually, Rajan
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Sharma, individually,
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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
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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
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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:
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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.
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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
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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.
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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
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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
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