US Department of Justice v. Ricco Jonas

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States
Department of Justice
v. 	Case No. 18-mc-56-LM
Michelle Ricco Jonas
REPORT AND RECOMMENDATION
Before the court is the United States Department of
Justice’s (DOJ) petition to compel compliance with an
administrative subpoena the United States Drug Enforcement
Agency (DEA) issued to Michelle Ricco Jonas, manager of the New
Hampshire Prescription Drug Monitoring Program (PDMP). Doc. no.
1. 	The district judge ordered Jonas to show cause why she
should not be compelled to obey the subpoena and produce certain
PDMP records. 	The judge referred the matter to the undersigned
magistrate judge for a recommended disposition. 	Doc. no. 3.
See 28 U.S.C. § 636(b)(1)(B); LR 72.1. 	After reviewing the
parties’ submissions and hearing their arguments, the court
recommends that the district judge grant the petition.
I. Legal Standard
“The requirements for enforcement of an administrative
subpoena are not onerous.” 	United States v. Sturm Ruger & Co,
84 F.3d 1, 4 (1st Cir. 1996). 	The court will enforce the
subpoena if the agency proves that: (1) the subpoena is issued
for a congressionally authorized purpose, the information sought
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is (2) relevant to the authorized purpose and (3) adequately
described, and (4) proper procedures have been employed in
issuing the subpoena. 	Id. 	“As long as the agency satisfies
these modest requirements, the subpoena is per se reasonable and
Fourth Amendment concerns are deemed satisfied.” 	Id. (citing
Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208 (1946)).
“The role of a court in a subpoena enforcement proceeding is
strictly limited to inquiring whether the above requirements
have been met. ’Such proceedings are designed to be summary in
nature.’” 	United States v. Comley, 890 F.2d 539, 541 (1st Cir.
1989) (quoting EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th
Cir. 1987)). 	“[A]ffidavits of government officials have been
accepted as sufficient to make out a prima facie showing that
these requirements are satisfied.” 	Id.
II. 	Background1
Pursuant to the Controlled Substances Act (CSA), the
Attorney General is authorized to issue administrative subpoenas
to investigate suspected criminal drug activity. 21 U.S.C. §
876(a). 	The Attorney General has delegated that authority to
the DEA. 	28 C.F.R. § 0.100. 	The subpoena power extends to
“requir[ing] the production of any records (including books,
papers, documents, and other tangible things which constitute or
1 The facts are drawn from the parties’ filings. 	They are
undisputed unless indicated otherwise.
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contain evidence) which the Attorney General finds relevant or
material to” any investigation being conducted pursuant to the
CSA. 	21 U.S.C. § 876(a). 	The CSA permits subpoenas to be
served on natural persons by personal delivery. Id. § 876(b).
The CSA further provides that “[i]n the case of contumacy by or
refusal to obey a subp[o]ena issued to any person,” the federal
court has jurisdiction to compel compliance. 	Id. § 876(c).
The New Hampshire Board of Pharmacy operates the PDMP.
N.H. Rev. Stat. Ann. § 318-B:33, I. 	All “prescribers and
dispensers” of certain controlled substances are required to
submit information to the PDMP database, including the patient’s
name and address and the type, quantity and refill regimen of
the prescribed substance. 	Id. § 318-B:33, IV (a)-(o).
Information the PDMP gathers is confidential and can be released
for research and educational purposes if the data is “de-
identified.” 	Id. § 318-B:34. 	As particularly relevant here,
the PDMP can release information to “authorized law enforcement
officials . . . for the purpose of investigation and prosecution
of a criminal offense when presented with a court order based on
probable cause.” 	Id. § 318-B:35, I(a)(3).
On June 13, 2018, the DEA served a subpoena on Ricco Jonas
which requested all PDMP records pertaining to a particular
individual dating back to February 2016.2 	Subpoena, doc. no. 1-
2 The DEA first served the subpoena naming PDMP. 	The New
Hampshire Attorney General objected on the ground that the PDMP
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3. 	Ricco Jonas, represented by the New Hampshire Attorney
General, objected to providing the requested information.
Galdieri Ltr., doc. no. 1-2. 	The instant petition followed.
III. Analysis
Ricco Jonas claims that the petition “is nothing more than
an attempt to circumvent federal law,” Def. Obj., doc. no. 7, at
3, and asserts several grounds for denial. 	The court addresses
them in turn.
A. 	Threshold burden
Ricco Jonas first argues that the DOJ has failed to meet
its burden of showing that its investigation has a legitimate
authorized purpose. 	Id. 	DEA Investigator Stern’s declaration
doc. no. 8-1, persuades the court that DOJ has met these “modest
requirements.”3 	Sturm Ruger & Co, 84 F.3d at 4. 	She states that
the New Hampshire Board of Pharmacy provided her with
information “regarding the potential diversion of large amounts
of opiates through pharmacies” in New Hampshire. 	Id. ¶ 2.
was not a “person” within the meaning of the CSA. 	Without
conceding the point, the DEA nevertheless subsequently served
the subpoena naming Ricco Jonas.
3 The DOJ asserts that it appended Stern’s declaration to
its reply memorandum, rather than its original petition, because
Ricco Jonas raised this threshold argument for the first time in
her objection to the Petition, rather than in the letter
announcing her refusal to comply with the subpoena. 	Reply.
Mem., doc no. 8, at 2 n.1. 	The court takes no issue with the
timing of the submission.
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Investigator Stern stated further that “an individual [was]
reported to be filling fraudulent prescriptions for . . .
control[led] substances which he receives from out-of-state
practitioners in New Hampshire.” 	Id.
“The main objectives of the CSA were to conquer drug abuse
and to control the legitimate and illegitimate traffic in
controlled substances. 	Congress was particularly concerned with
the need to prevent the diversion of drugs from legitimate to
illicit channels.” 	Gonzalez v. Raich, 545 U.S. 1, 12-13 (2005)
(footnotes omitted). 	Given this mandate and the Attorney
General’s authority under 21 U.S.C. § 876(a) to “require
production of any records . . . which the Attorney General finds
relevant or material to the investigation,” the court has little
trouble finding that the DOJ has proven that the subpoena is
relevant to a congressionally authorized purpose, the
information sought is adequately described and DEA followed
proper procedures. 	Sturm Ruger & Co., 84 F.3d at 4. 	Ricco
Jonas does not contest the adequacy of the DOJ’s evidence on
this issue.
B. 	Suit against the State of New Hampshire
Ricco Jonas next asserts that the subpoena cannot be
enforced because it was issued to her in her official capacity
as PDMP Program Manager, rather than in her personal capacity.
This distinction, she argues, has significant ramifications.
Ricco Jonas contends that such an “official capacity” subpoena
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is the equivalent of an action against the State of New
Hampshire. 	And, she argues, because the State is not a “person”
under 21 U.S.C. § 876(c), the subpoena is unenforceable. 	Def.
Mem., doc no. 7, at 13. 	Ricco Jonas’s argument founders on the
initial premise – that DOJ has sued the State by serving her
with a subpoena. 	As will be explained in more detail below, the
court finds that this action is not a suit against the State.
Ricco Jonas has cited no authority for her proposition that
her being served because of her position as PDMP manager
converts this subpoena enforcement action into a suit against
the State of New Hampshire. 	Indeed, the weight of persuasive
authority is against her.
Generally speaking, “[f]ederal subpoenas routinely issue to
state and federal employees to produce official records or
appear and testify in court and are fully enforceable despite
any claim of immunity.” 	United States v. Juvenile Male 1, 431
F. Supp. 2d 1012, 1016 (D. Ariz. 2006). 	Although the First
Circuit Court of Appeals has not addressed the precise issue
Ricco Jonas raises, another district court in this Circuit has
recently observed that a motion to compel non-party discovery
from a state agency is not a suit against the state because it
“will not result in a judgment of any kind requiring financial
payment from the state.” 	United States v. Univ. of. Mass., 167
F. Supp. 2d 221, 225 (D. Mass. 2016). 	In reaching this
conclusion, the court relied on Allen v. Woodford, 544 F. Supp.
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2d 1074 (E.D. Cal. 2008), adopting rep. and rec., 543 F. Supp.
2d 1138). 	In Allen, a prison inmate sought document production
from several state agencies under the Federal Rules of Civil
Procedure. 	Id. at 1075. 	The agencies claimed Eleventh
Amendment immunity. 	Id. 	The court defined the “threshold issue
[as] whether issuance and required compliance with a third-party
subpoena by State custodians of records in an action in which
the State is not a party constitutes” a suit against the state.
Id. at 1078. 	The court concluded that the subpoena was not a
suit. 	Id.
Several aspects of the Allen court’s reasoning are
instructive here. 	First, the court observed that discovery from
a state agency can only be obtained through the custodians of
records or “other employees having custody and control of the
information or documents sought.” 	Id. at 1079. 	In this case,
the DEA served the subpoena on Ricco Jonas because, as her
counsel conceded at oral argument, she has custody and control
over PDMP information. 	Next, the Allen court remarked that:
Neither the State, nor any of its employees to whom
subpoenas have been directed to obtain the information
sought, that have been found essential to the
prosecution of the Plaintiff's case, are parties, nor
has any relief in law or equity been sought against
them or the State. 	No judgment will be issued in this
action against the State that could have any
conceivable effect on the State treasury; the State
custodians are only subpoenaed to produce documents
for use in the prosecution of this federal civil
rights action. 	The Non–Parties' assertion that they
must comply with the subpoenas in their official
capacities as custodians of record is irrelevant; no
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judgment or other relief of any kind is sought against
them in this litigation.
Id. (emphasis added).
The Allen court also cited two cases that further persuade
the court that this action is not a suit against the State.
First, in Florida Dept. of State v. Treasure Salvors, Inc., 458
U.S. 670 (1982), the plurality approved service of process on
state officials in possession of certain artifacts. 	Rejecting
the state’s immunity argument, the Court declared that “[i]t is
clear that the process at issue was directed only at state
officials and not at the State itself or any agency of the
State.” 	Id. at 691. 	The Court concluded: “Treasure Salvors is
not asserting a claim for damages against either the State of
Florida or its officials. . . . 	The relief sought is not barred
by the Eleventh Amendment.” 	Id. at 699.
Allen also cited with approval Laxalt v. C.K. McClatchy,
109 F.R.D. 632 (D. Nev. 1986), a libel suit in which the
district court rejected a Nevada gaming agency’s claim that the
Eleventh Amendment barred compliance with a federal subpoena.
Id. at 633. 	The Laxalt court first noted that only assertions
of liability and claims for relief against the state are
considered to be “lawsuits against a state.” 	Id. at 634. 	It
then found the case’s similarity to Treasure Salvors, Inc.,
dispositive, because “inspection and copying of state records is
all that is being sought . . . .” 	Id. at 634-35. 	Other cases
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have employed the same analysis and reached the same result.
See, e.g., Jackson v. AFSCME Local 196, No. 3:07CV0471(JCH),
2008 WL 1848900, at *2 (D. Conn. Apr. 25, 2008) (finding that
subpoena on state agency official was not an action against the
state); Arista Records LLC v. Does 1-14, No. 7:08cv00205, 2008
WL 5350246, at *5 (W.D. Va. Dec. 22, 2008) (same; citing
Jackson).
Ultimately, Ricco Jonas’s argument that the State of New
Hampshire is not a “person,” within the meaning of the CSA begs
the question of whether DOJ has initiated a suit against the
State merely by naming her and her title in the subpoena. 	Given
the one-sided authority that Ricco Jonas has not contradicted,
the court finds that her assertion that she “must comply with
the subpoenas in [her] official capacity[y] as custodians of
record is irrelevant.” 	Allen, 544 F. Supp. 2d at 1079.
“[I]nspection and copying of state records is all that is being
sought . . . .” 	Laxalt, 109 F.R.D. at 634-35. 	This action is
not a suit against the State of New Hampshire. 	The court
therefore need not reach the question of whether the State is a
“person” within the meaning of the CSA.4
4 DOJ also relies on Ott v. City of Milwaukee, 682 F.3d 552,
556 (7th Cir. 2012) in which the court rejected an immunity
defense in a discovery dispute. 	Ott, however, is inapposite, as
it relied on federal discovery rules definitions to find that a
city agency was a “person.” 	By contrast, this case involves a
federal statute. 	Also misplaced is Ricco Jonas’s reliance on Al
Fayed v. CIA, 229 F.3d 272 (D.C. Cir. 2000), in which the Court
held that the CIA is not a “person” within the meaning 28 U.S.C.
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C. 	Supremacy Clause
Ricco Jonas next argues that DOJ must demonstrate probable
cause to seize the PDMP records as required by N.H. Rev. Stat.
Ann. § 318-B:35(I)(b)(3). 	This argument fails because the
Supremacy Clause of the Constitution preempts the provisions of
New Hampshire law upon which Ricco Jonas relies. 	Under the
Supremacy Clause, state laws that “interfere with, or are
contrary to the laws of [C]ongress” are invalid. U.S. Const.
art. VI, cl. 2. 	Unless Congress directs otherwise, the
Supremacy Clause preempts state laws which are in conflict with
federal law. 	Hillman v. Maretta, 569 U.S. 483, 490 (2013).
Such conflicts exist when a state law “stands as an obstacle to
the accomplishment and execution of the full purposes and
objectives of Congress.” 	Wisconsin Pub. Intervenor v. Mortier,
501 U.S. 597 (1991) (quoting Hines v. Davidowitz, 312 U.S. 52
(1941)). “If the purpose of the [federal] act ... must be
frustrated and its provisions be refused their natural effect,”
then a conflict exists. 	Savage v. Jones, 225 U.S. 501, 533
(1912).
§ 1782, which gives district courts power to order a person to
produce documents for use in foreign or international tribunals.
Id. at 275-76. 	Al Fayed, however, involved a federal discovery
subpoena served on a federal agency in private litigation, not,
as here, an administrative subpoena served by a federal agency
on a state-agency record custodian. 	Regardless, because the
court finds that this action is not a “suit” against the State,
it does not reach the issue of whether the State is a “person”
under the CSA.
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Several courts have invoked the Supremacy Clause in
enforcing administrative subpoenas issued under the CSA. 	As
especially relevant here, three of those cases involved
prescription drug databases similar to the NH PDMP. 	For
example, in Oregon Prescription Drug Monitoring Program v. U.S.
Drug Enforcement Admin., 860 F.3d 1228 (9th Cir. 2017) the court
held that the CSA preempted an Oregon statute requiring “a valid
court order” before that state’s PDMP could comply with a DEA
subpoena. 	Id. at 1236. 	The Court observed that the “Oregon
statute stands as an obstacle to the full implementation of the
CSA because it interferes with the methods by which the federal
statute was designed to reach [its] goal.” 	Id. (citing Gade v.
Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 103 (1992))
(internal quotation marks omitted). 	Similarly, in United States
Dep’t of Justice v. Utah Dep’t of Commerce, No. 2:16-cv-611,
2017 WL 3189868 (D. Utah July 27, 2017), the court, relying on
the Supremacy Clause, found that the CSA preempted the state’s
requirement of a warrant to access a state prescription
database. 	Id. at *6. 	Also, in United States Dep’t of Justice
v. Colo. Bd. Of Pharm, Civ. No. 10-cv-0116-WYD-MEH, 2010 WL
3547898 (D. Colo. Aug. 13, 2010), rep. and rec. aff’d and
adopted, 2010 WL 3547896 (Sept. 3, 2010), the court addressed a
DEA subpoena issued to the Colorado PDMP seeking information
about three prescription prescribers. 	The PDMP did not comply,
arguing that a Colorado statute only allowed the release
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information related to patients. 	After observing that the state
statute would require the DEA to individually review the records
of hundreds of pharmacies to find information on three
prescribers, the court found that the state statute was an
“obstacle to the DEA’s efforts to conduct its investigation,”
id. at *4, and that the CSA therefore preempted the state
restriction. 	Id.; see also United States v. Mich. Dep’t of
Cmty. Health, No. 1:10-mc-109, 2011 WL 2412602 (W.D. Mich. June
9, 2011) (enforcing DEA subpoena seeking information from state
medical marijuana database despite state confidentiality
provision).
Courts have also relied on the Supremacy Clause to uphold
administrative subpoenas in other contexts. 	See, e.g., Presly
v. United States, 895 F.3d 1284 (8th Cir. 2018) (rejecting
argument that Florida Constitution’s privacy provisions can
affect Internal Revenue Service’s ability to subpoena bank
records); United States ex rel. Office of Inspector Gen. v.
Philadelphia Hous. Auth., Misc. No. 10-0205, 2011 WL 382765, at
*5 (E.D. Pa. Feb. 4, 2011) (rejecting city housing authority’s
reliance on state privacy laws because they “obstruct
fulfillment” of an administrative subpoena issued by the Officer
of Inspector General of the Department of Housing and Urban
Development); Massanari v. Nw. Cmty. Mental Health Ctr., No. 01-
MC-50E, 2001 WL 1518137, at *1 (W.D.N.Y. Nov. 7, 2001) (finding
that defendant must comply with Social Security Commissioner’s
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administrative subpoena despite privacy provisions of New York
law); St. Luke's Reg'l Med. Ctr., Inc. v. United States, 717 F.
Supp. 665, 666 (N.D. Iowa 1989) (rejecting doctor’s reliance on
state disclosure prohibitions to avoid complying with Department
of Health and Human Services administrative subpoena in Medicaid
investigation).
Given the consistent weight of authority, the court is
persuaded that giving effect to New Hampshire’s requirement of a
court order based on probable cause would create “an obstacle to
the full implementation of the CSA because it interferes with
the methods by which the federal statute was designed to reach
[its] goal.” 	Oregon Prescription Drug Monitoring Program, 860
F.3d at 1236. 	The state statute is therefore preempted and must
give way to the CSA’s subpoena process.
D. 	Fourth Amendment
Even if New Hampshire’s warrant requirement is pre-empted,
Ricco Jonas argues that DOJ must nevertheless satisfy the Fourth
Amendment’s protection against unreasonable searches and
seizures.5
5 Ricco Jonas also contends that the DOJ, apparently fearful
of her argument that the State of New Hampshire is not a
“person” under the CSA, is now claiming that it served her in
her individual capacity. 	In that capacity, she argues, she can
only comply with the subpoena by violating state law because, in
her personal capacity, she has no legal right to the
information.” 	Def. Obj., doc. no. 7, at 9. 	As the court has
already concluded, however, the official capacity/personal
capacity analysis is irrelevant here.
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Ricco Jonas asserts both the State’s and other individuals’
Fourth Amendment privacy interests in the personal information
PDMP possesses. 	DOJ argues that Rico Jonas does not have
standing to raise this argument on others’ behalf. 	The standing
issue is not dispositive. 	Assuming without deciding that Ricco
Jonas does have standing – either in her own right or on behalf
of others -- the Court of Appeals has held that “Fourth
Amendment concerns are deemed satisfied” if the agency proves
that the subpoena seeks information relevant to an authorized
purpose, is adequately described and was issued in accordance
with proper procedures. 	Sturm Ruger, 84 F.3d at 4; see also
United States v. Tivian Labs., Inc., 589 F.2d 49, 54 (1st Cir.
1978) (“A subpoena may be issued without first obtaining a
court's permission . . . 	and may be judicially enforced without
a showing that probable, or even reasonable, cause exists to
believe that a violation of law has occurred.”) (citation
omitted). As previously noted, supra, p. 6, DOJ has already
cleared this hurdle.
Moreover, the court does not interpret the DOJ’s argument
in the manner Ricco Jonas suggests. 	The CSA allows service on a
“natural person,” 21 U.S.C. § 876(b), and allows court
enforcement of a subpoena issued to “any person.” 	Id. § 876(c).
“If a party is going to subpoena documents from the government,
they need to subpoena the person who has possession, custody, or
control over the documents . . . .” 	United States v. 2121
Celeste Road SW, Albuquerque, N.M., 307 F.R.D. 572, 590-91
(D.N.M. 2015) (emphasis added). 	Ricco Jonas does not dispute
that she is that person. Def. Obj., doc. no. 7, at 6 (citing
N.H. Admin. R. Ph. 1505.03(c)).
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But that is not the end of the inquiry. 	As the Supreme
Court recently observed, “[t]he Government will be able to use
subpoenas to acquire records in the overwhelming majority of
investigations” but “a warrant is required in the rare case
where the suspect has a legitimate privacy interest in records
held by a third party.” 	Carpenter v. United States, 138 S. Ct.
2206, 2222 (2018). 	In Carpenter, the Court found that the
criminal defendant had a reasonable expectation of privacy in
“cell-site location information” that ostensibly tracked his
whereabouts based on information retrieved from cell phone
towers. 	Accordingly, it found that the government could not use
a court order authorized by the Stored Communications Act which
required only “reasonable grounds,” rather than probable cause,
to retrieve the information. 	Id. at 2222-23; see 18 U.S.C. §
2703(d). 	Here, however, the patients whose interests Ricco
Jonas advances do not have such a reasonable expectation of
privacy.
Ricco Jonas relies on two cases for the proposition that
patients have a Fourth Amendment-based expectation of privacy in
their prescription drug records and that DOJ must therefore
demonstrate probable cause. 	See Douglas v. Dobbs, 419 F.3d
1097, 1102 (10th Cir. 2005); Doe v. Se. Pa. Transp. Auth., 72
F.3d 1133, 1138 (3d Cir. 1995). 	But neither case supports the
weight that Ricco Jonas places upon them. 	While both noted the
patient’s privacy interest in prescription information, both
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also noted that the right is “not absolute.” 	Douglas, 419 F.3d
at 1102 n.3; Doe, 72 F.3d at 1138. 	See also Whalen v. Roe, 429
U.S. 589, 602 (1977) (holding that patients’ expectation of
privacy in their prescription drug use must be weighed against
the state’s interest in monitoring the use of controlled
substances). 	Moreover, Dobbs explicitly declined to resolve the
issue of whether a warrant is required to conduct an
investigatory search of prescription records, finding only that,
for purposes of a qualified immunity analysis, the issue was
unsettled. 	419 F.3d at 1103; see also, Pyle v. Woods, 874 F.3d
1257, 1264 (10th Cir. 2017) (observing that as of April 2013 “no
court had conducted the necessary analysis and no judicial
opinion held that a warrantless search of a prescription drug
database by state law enforcement officials is
unconstitutional.”).
Ultimately, Rico Jonas cites no case holding that the
Fourth Amendment requires DOJ to obtain a warrant to secure
information from a state prescription database and the only case
to directly address the issue has held that the DEA may access
state prescription databases without a warrant. 	In Utah Dep’t
of Commerce, supra, the court enforced a DEA subpoena issued to
the Utah equivalent of the PDMP. 	The court’s reasoning is
persuasive. 	It first noted that “the pharmaceutical industry,
like the mining, firearms, and liquor industries, is a
pervasively regulated industry and that consequently pharmacists
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and distributors subject to the [CSA] have a reduced expectation
of privacy in the records kept in compliance with the [CSA].”
Id. at *8 (quoting United States v. Acklen, 690 F.2d 70, 75 (6th
Cir. 1982)); see also New York v. Burger, 482 U.S. 691, 702
(1987) (“Because the owner or operator of commercial premises in
a ‘closely regulated’ industry has a reduced expectation of
privacy, the warrant and probable-cause requirements, which
fulfill the traditional Fourth Amendment standard of
reasonableness for a government search . . . have lessened
application in this context.”). 	The CSA, the court concluded,
created the expectation that “the prescription and use of
controlled substances will happen under the watchful eye of the
federal government.” 	Id.
Next, the court observed that the Utah prescription
database’s mandatory reporting requirements further eroded
patients’ claimed right to privacy. 	In trusting a prescribing
physician with health information, “a patient takes the risk —
in this circumstance, a certainty — that his or her information
will be conveyed to the government as required by the Database
Act.” 	Id. (citing United States v. Miller, 425 U.S. 435, 443
(1976) (holding that the Fourth Amendment does not bar the
government from obtaining information “revealed to a third party
and conveyed by him to Government authorities, even if the
information is revealed on the assumption that it will be used
only for a limited purpose and the confidence placed in the
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third party will not be betrayed.”)). 	As a result, the Court
found, the mandatory reporting requirement “means the State
already has decided that any individual right to privacy in
one's prescription drug records is outweighed by a
countervailing interest in the government monitoring the
prescriptions for unlawful or improper use,” id., and that
“physicians and patients have no reasonable expectation of
privacy from the DEA in the Utah database.” 	Id.
The Utah Dep’t of Commerce court’s reasoning is an
appropriate fit for this case. 	While New Hampshire law treats
PDMP information as confidential, see N.H. Rev. Stat. Ann. §
318-B:34, I, it also makes clear that program information about
a patient can be disclosed “to others who are authorized by
state or federal law” to receive such information. 	Id. 	In
addition, the law allows the PDMP to provide information to a
variety of entities, including state medical boards and other
states’ prescription safety programs. 	See id., § 318-B:35, I-
III.
Ricco Jonas argues that the holding in Utah Dep’t of
Commerce is contrary to the Tenth Circuit Court of Appeals’s
declaration in Dobbs, that patients have a right to privacy in
their prescription drug records. 	But as previously noted, Dobbs
cautioned that that right is not absolute. 	In addition, Dobbs
presciently observed that “state law can operate to diminish the
privacy expectation in prescription drug records.” 	419 F.3d at
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1102 n.3. 	New Hampshire law has done exactly that. 	To the
extent that Ricco Jonas has standing to assert their claims,
patients do not have a reasonable expectation of privacy in the
records maintained by the PDMP.
IV. Conclusion
The court agrees with the government’s view that “Ricco
Jonas’s objection . . . make[s] the simple complicated. 	Gov.
Rep., doc no. 8, at 1. 	The CSA authorizes the court to enforce
subpoenas issued to “any person.” 	21 U.S.C. § 876(c). 	The
government has met its burden to satisfy the “modest
requirements” for enforcement. 	“The State has, admirably,
placed considerable controls and precautions on [PDMP] access.
The determination that a[n] [order supported by probable cause]
is required of . . . State and local law enforcement officers .
. . is within the State's authority. 	But the State's attempt to
regulate federal law enforcement fails.” 	Utah Dep’t of
Commerce, 2017 WL 3189868 at *9 (internal quotation marks and
footnote omitted). 	Accordingly, the court recommends that the
district judge grant the government’s petition to compel doc.
no. 1.
Any objections to this report and recommendation must be
filed within fourteen days of receipt of this notice. See
Fed.R.Civ.P. 72(b)(2). 	Failure to file specific written
objections to this Report and Recommendation within the
Case 1:19-cv-00030-LM Document 11 Filed 11/01/18 Page 19 of 20

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specified time waives the right to appeal the district court’s
order. 	See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
November 1, 2018
cc: 	Seth R. Aframe, Esq.
Anthony Galdieri, Esq.
Lawrence Edelman, Esq.
Case 1:19-cv-00030-LM Document 11 Filed 11/01/18 Page 20 of 20