Morgan et al v. Freshour et al
Filing
126
MEMORANDUM OPINION AND ORDER DENYING 111 MOTION to Dismiss 110 Amended Complaint/Counterclaim/Crossclaim etc. GRANTING in part and DENYING in part 112 MOTION to Dismiss. (Signed by Judge Drew B Tipton) Parties notified.(BrittanyBoniface, 6)
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United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
COURTNEY MORGAN,
Plaintiff,
v.
MARY CHAPMAN
and JOHN KOPACZ,
Defendants.
§
§
§
§
§
§
§
§
§
§
September 21, 2022
Nathan Ochsner, Clerk
Civil Action No. 6:17-CV-00004
MEMORANDUM OPINION AND ORDER
On July 18, 2013, “a team of law enforcement officers and Medical Board
investigators locked down [Plaintiff Courtney Morgan’s] clinic, rifled through private
patient records, and seized confidential files.” Morgan v. Chapman, 969 F.3d 238, 241 (5th
Cir. 2020). As a result, Morgan was indicted on “trumped-up charges of running a pill
mill” that were later dismissed by a state district court. Id. Morgan now “brings a civil
suit agents two government agents for violating his constitutional rights.” Id.
Pending before the Court are two Motions to Dismiss filed by Defendants Mary
Chapman and John Kopacz. After the Fifth Circuit remanded the case, this Court granted
Plaintiff Courtney Morgan leave to amend his complaint. Morgan, a physician, now
asserts claims under 42 U.S.C. § 1983 arising out of the use of an instanter subpoena to
search his medical facilities in 2013. The documents obtained from the 2013 search
resulted in an indictment and Morgan’s arrest. Chapman and Kopacz move to dismiss
under Rule 12(b)(6). Both raise statute of limitations, but only Chapman asserts qualified
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immunity. For the reasons that follow, the Court concludes that Chapman is entitled to
qualified immunity as to the Fourth Amendment unreasonable seizure claim, but all
other claims survive.
BACKGROUND
A.
FACTUAL ALLEGATIONS
The following allegations are from the Third Amended Complaint.1 (Dkt. No.
110). This case arises out of the arrest of Morgan, a licensed physician, and the search of
his family medical practices in 2013 under an administrative instanter subpoena.2 The
search was authorized by the Texas Medical Board and led by one of its agents—
Chapman.
While serving the subpoena, Chapman was aided by Kopacz, a law
enforcement officer with the Texas Department of Public Safety. Chapman and Kopacz
executed the instanter subpoena for the purpose of conducting a criminal investigation of
Morgan.
After seizing several documents from Morgan’s family medical practices,
including some that were not listed in the subpoena, Chapman compiled an investigative
report. Chapman deliberately falsified information in his report with the purpose to
mislead, while Kopacz concealed exculpatory evidence.
After receiving the seized
documents and investigative report, the District Attorney indicted Morgan for violating
1
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court evaluates the
pleadings by “accepting all well-pleaded facts as true and viewing those facts in the light most
favorable to the plaintiffs.” Hutcheson v. Dall. Cnty., 994 F.3d 477, 481–82 (5th Cir. 2021).
2
An instanter subpoena does not allow for court review and demands immediate
compliance. Morgan v. Chapman, 969 F.3d 238, 241 (5th Cir. 2020). Instanter subpoenas are
generally unconstitutional. Id.
2
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Section 162.152 of the Texas Occupations Code. Based on the way the report was
compiled, including the deliberate exclusion of relevant information, Chapman
purposefully led the District Attorney to believe that Morgan was operating an
uncertified pain management clinic. Chapman’s report was the sole evidence used to
support Morgan’s indictment.
Following his arrest, Morgan moved to suppress the evidence in his state-court
proceedings. The state court made findings that were critical of Chapman’s testimony
and the search of Morgan’s facilities and granted the motion to suppress. The charge
against Morgan was later dismissed in January 2016.
B.
PROCEDURAL HISTORY
One month after the charge against him was dismissed, Morgan filed this lawsuit
in federal court. (Dkt. No. 1). Morgan amended his complaint twice. (Dkt. No. 39); (Dkt.
No. 63). In the Second Amended Complaint, Morgan generally asserted claims under
Section 1983 for malicious prosecution and abuse of process. (Dkt. No. 63 at ¶¶ 71–121).
Chapman and Kopacz moved to dismiss, but Judge Kenneth M. Hoyt concluded that they
were not entitled to qualified immunity. (Dkt. No. 75). Chapman and Kopacz filed an
interlocutory appeal. (Dkt. No. 78).
The Fifth Circuit reversed. Morgan v. Chapman, 969 F.3d 238 (5th Cir. 2020). It held
that Chapman and Kopacz were entitled to qualified immunity because “malicious
prosecution and abuse of process are not viable theories of constitutional injury.” Id. at
241 (emphasis added). Instead, malicious prosecution and abuse of process are torts. Id.
at 245. But the Fifth Circuit also concluded that it would not be futile for Morgan to assert
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a due process claim or a claim for unreasonable search or seizure. Id. at 250. It remanded
to allow this Court to consider providing Morgan another opportunity to amend his
complaint. Id.
Morgan promptly moved for leave to amend. (Dkt. No. 98). Chapman and
Kopacz opposed the amendment. (Dkt. No. 101); (Dkt. No. 102). The Court granted
Morgan’s request. (Dkt. No. 108). The Third Amended Complaint is now the live
pleading. (Dkt. No. 110).
The Third Amended Complaint asserts claims against Chapman and Kopacz in
their individual capacities. (Dkt. No. 110 at 2). Those claims include: (1) unreasonable
search under the Fourth Amendment against both Chapman and Kopacz;
(2) unreasonable seizure under the Fourth Amendment against both Chapman and
Kopacz; and (3) violation of due process under the Fourteenth Amendment against
Chapman. (Id. at 14–28). Morgan seeks monetary damages, costs, interest, and attorney’s
fees. (Id. at 1, 28).
Chapman and Kopacz once again move for dismissal. (Dkt. No. 111); (Dkt. No.
112). Morgan is opposed. (Dkt. No. 118); (Dkt. No. 119).
LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a defendant to move
to dismiss for “failure to state a claim upon which relief can be granted.” Rule 8(a)(2) of
the Federal Rules of Civil Procedure requires a pleading to contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Although “the
pleading standard Rule 8 announces does not require ‘detailed factual allegations,’” it
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demands more than labels and conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,
127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007)).
Rule 12(b)(6) dismissals are generally disfavored. Scanlan v. Tex. A&M Univ., 343
F.3d 533, 536 (5th Cir. 2003); Boudreaux v. Axiall Corp., 564 F. Supp. 3d 488 (W.D. La. 2021).
In reviewing a motion to dismiss under Rule 12(b)(6), a court must accept the plaintiff’s
factual allegations as true and view those allegations in the light most favorable to the
plaintiff. White v. U.S. Corrections, L.L.C., 996 F.3d 302, 306–07 (5th Cir. 2021). The court
must evaluate whether “a complaint contains sufficient factual matter to state a claim to
relief that is plausible on its face.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (cleaned up).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Thus,
a court should dismiss when the live pleading fails to “raise a right to relief above the
speculative level.” Montoya v. FedEx Ground Package Sys., Inc., 614 F.3d 145, 148 (5th Cir.
2010).
DISCUSSION
Kopacz raises a single ground for dismissal: the Fourth Amendment claims are
time barred. (Dkt. No. 111 at 2–5). Chapman similarly argues that all claims are time
barred. (Dkt. No. 112 at 20–22) But she further argues that, even so, she is entitled to
qualified immunity and the Fourteenth Amendment does not apply. (Dkt. No. 112 at 10–
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20). The Court begins with the statute of limitations because Chapman and Kopacz both
raise it. See, e.g., Arnone v. Syed, No. 3:17-CV-03027-E, 2020 WL 2085594, at *3–4 (N.D. Tex.
Apr. 30, 2020).
A.
STATUTE OF LIMITATIONS
Kopacz and Chapman both argue that the statute of limitations for Morgan’s
Fourth Amendment claims began to accrue on July 18, 2013, when the alleged
unreasonable search and seizure occurred. (Dkt. No. 111 at 3–5); (Dkt. No. 112 at 20–22).
In response, Morgan raises two arguments. First, as to his unreasonable seizure claims,
Morgan argues that the claims did not begin to accrue until the charges were dismissed.
(Dkt. No. 118 at 4–6). Second, as to his unreasonable search claims, Morgan argues that
he asserts a viable theory of tolling. (Id. at 4–7).
The statute of limitations is an affirmative defense. Fed. R. Civ. P. 8(c)(1). Thus,
dismissal under Rule 12(b)(6) for a time barred claim “is proper only where it is evident
from the complaint that the action is barred and the complaint fails to raise some basis
for tolling.” Acad. of Allergy & Asthma in Primary Care v. Quest Diagnostics, Inc., 998 F.3d
190, 200 (5th Cir. 2021) (cleaned up). Put differently, the live pleading must show
“beyond doubt” that the plaintiff cannot overcome the statute of limitations defense. See
Bell v. Eagle Mountain Saginaw Indep. Sch. Dist., 27 F.4th 313, 320 (5th Cir. 2022). The Fifth
Circuit “will remand if the plaintiff has pleaded facts that justify equitable tolling.” KingWhite v. Humble Indep. Sch. Dist., 803 F.3d 754, 758 (5th Cir. 2015) (internal quotation marks
omitted).
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Morgan’s claims are brought under 42 U.S.C. § 1983. Section 1983 “provides a
cause of action against persons who, under color of state law, deprive him ‘of any rights,
privileges, or immunities secured by the Constitution.’” Morgan, 969 F.3d at 245 (quoting
42 U.S.C. § 1983). The rights secured by the Constitution that were violated, according to
Morgan, are grounded in the Fourth and Fourteenth Amendments.
“Section 1983 claims are subject to a state’s personal injury statute of limitations.”
Reed v. Goertz, 995 F.3d 425, 431 (5th Cir. 2021). In Texas, the statute of limitations for
personal injury claims is two years. Tex. Civ. Prac. & Rem. Code § 16.003(a). “Although
state law provides the limitations period for a section 1983 claim, federal law determines
when the claim accrues.” Turnage v. Britton, 29 F.4th 232, 244 (5th Cir. 2022).
The Fifth Circuit did not consider whether Morgan’s claims were timely, instead
noting that the statute of limitations was “outside of the scope” of the appeal. Morgan,
969 F.3d at 250. This Court, too, acknowledged that Chapman and Kopacz could raise
the statute of limitations after Morgan amended his complaint. (Dkt. No. 108 at 11 n.7).
Now that Morgan has amended his complaint following remand, the Court considers
timeliness.
Because the “accrual analysis begins with identifying the specific
constitutional right alleged to have been infringed,” McDonough v. Smith, ____ U.S. ____,
____, 139 S.Ct. 2149, 2155, 204 L.Ed.2d 506 (2019) (cleaned up), the Court will separately
analyze each claim.
Unreasonable Seizure: Chapman and Kopacz
The Court begins with Morgan’s claims for unreasonable seizure under the Fourth
Amendment. Morgan describes these unreasonable seizure claims against Chapman and
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Kopacz as “analogous to malicious prosecution.”
(Dkt. No. 110 at 17–19, 23–25).
Chapman and Kopacz argue that the unreasonable seizure claims are not analogous to
malicious prosecution. (Dkt. No. 112 at 21–22); (Dkt. No. 123 at 3–9). Resolving this
disagreement is material because it will determine when the claim began to accrue.
“In defining the contours and prerequisites of a § 1983 claim, including its rule of
accrual, courts are to look first to the common law of torts.” Winfrey v. Rogers, 901 F.3d
483, 492 (5th Cir. 2018) (quoting Manuel v. City of Joliet, Ill., 580 U.S. 357, 137 S. Ct. 911,
920, 197 L. Ed. 2d 312 (2017) (internal quotation marks omitted)). A court should first
determine whether the claim “more closely resembles one for false imprisonment or one
for malicious prosecution.” Winfrey, 901 F.3d at 492. An unlawful detention under legal
process, as opposed to “detention with no legal process,” is most analogous to malicious
prosecution. See id. at 493. Here, as the live complaint shows, Morgan complains about
an unlawful detention under legal process.
Morgan asserts two claims for “unreasonable seizure in violation of the 4th
Amendment analogous to malicious prosecution”—one against Chapman and the other
against Kopacz. (Dkt. No. 110 at 17, 23). The substance of the pleading confirms that the
title—malicious prosecution—is correct. Morgan alleges that Chapman and Kopacz
worked together to pursue a criminal charge against him. (Id. at 17–18). The prosecution
started when Kopacz asked for the Texas Medical Board investigative file on Morgan,
including records from the 2013 search. (Id. at 17). Even though Chapman knew the
report was inaccurate, she gave that investigative file to Kopacz and told Kopacz that she
would testify against Morgan. (Id. at 23).
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Kopacz then delivered the investigative file on Morgan to the District Attorney’s
Office and suggested which charge to bring against Morgan. (Id. at 17). Morgan was
indicted on or around August 14, 2014 and arrested approximately two weeks later. (Id.
at 17, 23). Morgan’s arrest was the unreasonable seizure. (Id. at 17, 24). The indictment
was the legal process that resulted in Morgan’s pretrial arrest on August 28, 2014. (Id. at
17).
Notwithstanding the legal process involved in securing an indictment, Morgan
alleges that the entire prosecution lacked probable cause. (Id. at 17–18). In fact, Kopacz
and Chapman knew Morgan was innocent. (Id. at 18, 24). Still, Kopacz and Chapman
provided sworn testimony in support of Morgan’s prosecution. (Id. at 17–18, 24). They
further made material misstatements and omissions of fact—all with the purpose of
facilitating Morgan’s prosecution. (Id. at 18, 24). Kopacz even “withheld exculpatory
evidence.” (Id. at 18). Without Kopacz and Chapman’s involvement, Morgan would not
have been prosecuted and, by extension, seized under the Fourth Amendment. (Id. at 18,
24).
Kopacz disagrees, raising three main arguments. First, he focuses on the instanter
subpoena, which he argues is not detention pursuant to legal process. (Dkt. No. 123 at
5–6). But Morgan’s Fourth Amendment seizure claim is premised on his detention
resulting from the indictment, not detention for failing to comply with the instanter
subpoena. See (Dkt. No. 118 at 5).
Second, Kopacz argues that Morgan failed to allege “that he suffered pretrial
detention or any deprivation of rights separate from his prosecution.” (Dkt. No. 123 at
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7). Yet this ignores that Morgan focuses on his pretrial arrest on August 28, 2014 and
subsequent detention. While it remains unclear whether Morgan was detained up until
the moment that the state court dismissed the charges against him, this observation does
not change the plausibility of Morgan’s theory at the Rule 12(b)(6) stage. See Winfrey, 901
F.3d at 492–493.
Finally, Kopacz invites the Court to read Winfrey as applying to “an arrest warrant
affidavit containing material omissions or misstatements.” (Dkt. No. 123 at 8). True,
Winfrey involved “an arrest pursuant to a warrant, issued through the normal legal
process, that is alleged to contain numerous material omissions and misstatements.” 901
F.3d at 493. But the inquiry is whether a claim under Section 1983 more closely resembles
malicious prosecution because it “is based upon detention accompanied by wrongful
institution of legal process.” Id. at 492 (cleaned up) (emphasis added). Legal process—not
a warrant—is the focal point. See id. That the Fifth Circuit found a warrant constitutes
legal process says nothing about whether a warrant is the only way to show legal process.
In sum, considering these factual allegations as a whole, the Court finds that
Morgan’s Fourth Amendment claim for unreasonable seizure most closely resembles one
for malicious prosecution.
See Winfrey, 901 F.3d at 492.
Morgan’s detention was
“accompanied by wrongful institution of legal process”—here, an indictment. See id.
Having recognized the claim is one for malicious prosecution under the Fourth
Amendment, the Court next turns to when the claim accrued. A claim for malicious
prosecution under the Fourth Amendment “does not accrue until the prosecution ends
in the plaintiff’s favor.” Id. More recently, the Supreme Court noted that a plaintiff can
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assert a Fourth Amendment claim for malicious prosecution if, among other
requirements, the plaintiff has “obtained a favorable termination of the underlying
criminal prosecution.” Thompson v. Clark, 596 U.S. ____, ____, 142 S.Ct. 1332, 1335, 212
L.Ed.2d 382 (2022). The Supreme Court then held that a favorable termination includes
a showing that the plaintiff’s “prosecution ended without a conviction.” Id.
Under these directions, the Court holds that Morgan’s Fourth Amendment claim
for unreasonable seizure began to accrue on January 20, 2016 when his charges were
dismissed. Morgan alleges that he was indicted in August 2014. (Dkt. No. 110 at 9). In
October 2015, a state court granted Morgan’s motion to suppress. (Id. at 10–12). The
prosecutor then moved to dismiss the charge. (Id. at 12). On January 20, 2016, the state
court granted the request and dismissed the charge against Morgan. (Id.). At this point,
his “prosecution ended without a conviction.” See Thompson, 596 U.S. at ____, 142 S.Ct.
at 1335. January 20, 2016, then, is when the two-year statute of limitations began to tick.
A year later, Morgan filed this lawsuit. (Dkt. No. 1). This is within the two-year statute
of limitations. See Tex. Civ. Prac. & Rem. Code § 16.003(a). The Court therefore holds
that the Fourth Amendment claim for unreasonable seizure is not time barred.
Due Process Clause: Chapman
Next, the Court considers whether Morgan’s due process claim against Chapman
is timely. Chapman analogizes the claim to abuse of process, contending that the statute
of limitations began to run when the subpoena was served in 2013. (Dkt. No. 112 at 21–
22). In response, Morgan asserts that his claim—one for fabricated evidence rather than
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abuse of process—is timely because it started to accrue when the criminal proceeding
was terminated in his favor. (Dkt. No. 119 at 13–14). The Court agrees with Morgan.
Morgan’s claim against Chapman for “deliberately fabricating evidence and using
it to frame and bring false charges against Morgan,” (Dkt. No. 110 at 25) falls under the
Fourteenth Amendment’s Due Process Clause. The Due Process Clause provides that no
State shall “deprive any person of life, liberty, or property, without due process of law.”
U.S. Const. amend. XIV, § 1.
A claim under the Due Process Clause for fabricated evidence is cognizable under
existing precedent. In McDonough v. Smith, for example, the Supreme Court held that the
limitations period for the plaintiff’s fabricated evidence claim began to run after the
plaintiff was acquitted. ____ U.S. at ____, 139 S.Ct. at 2153. In particular, the plaintiff’s
claim sought to “vindicate a right not to be deprived of liberty as a result of the fabrication
of evidence by a government officer.” Id. at ____, 139 S.Ct. at 2155 (cleaned up). After
assuming without deciding that the Second Circuit properly treated the claim as arising
under the Due Process Clause and articulated “the right at issue and its contours,” the
Supreme Court agreed that “malicious prosecution is the most analogous common-law
tort here.” Id. at ____, 139 S.Ct. at 2155–56. This conclusion flowed from the recognition
that the plaintiff’s fabricated evidence claim “require[d] him to show that the criminal
proceedings against him—and consequent deprivations of his liberty—were caused by
[the defendant’s] malfeasance in fabricating evidence.” Id. at ____, 139 S.Ct. at 2156
(footnote omitted).
Further, the fabricated evidence claim challenged the criminal
prosecution that was taken under legal process. Id. Thus, the Supreme Court concluded,
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the plaintiff “could not bring his fabricated-evidence claim under § 1983 prior to
favorable termination of his prosecution.” Id.
Here, Morgan’s claim is substantially similar to that in McDonough. First, like
McDonough, Morgan’s claim is grounded in the Due Process Clause. (Dkt. No. 110 at 25–
28). Second, similar to McDonough, Morgan’s claim is grounded in the alleged fabrication
of evidence by a government official—Chapman’s inaccurate report regarding
prescriptions Morgan issued. (Id. at 25 ¶ 124). Finally, as in McDonough, Morgan’s claim
seeks to show that the criminal proceedings brought against him were caused by
Chapman fabricating evidence. (Id. at 26 ¶¶ 127–29). In light of McDonough, Morgan’s
claim under the Due Process Clause did not begin to run until the favorable termination
of his prosecution. See McDonough, ____ U.S. at ____, 139 S.Ct. at 2156. The two-year
clock, therefore, started ticking in January 2016 when the charges against Morgan were
dismissed. (Dkt. No. 110 at 12). Therefore, the Court holds that Morgan’s claim under
the Due Process Clause is timely because he filed it one year into the two year limitations
period.
Unreasonable Search: Chapman and Kopacz
Finally, the Court turns to Morgan’s unreasonable search claims against Chapman
and Kopacz. Chapman argues these claims began to accrue in 2013 and are untimely.
(Dkt. No. 112 at 20–22). Kopacz agrees. (Dkt. No. 111 at 5). In response, Morgan assumes
for the sake of argument that his unreasonable search claims were brought outside the
two-year statute of limitations. (Dkt. No. 119 at 16). But he argues that the statute of
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limitations should be tolled. (Id. at 16–21). Kopacz disagrees. (Dkt. No. 123 at 9–12). The
Court finds that Morgan has asserted a viable tolling theory at this stage.
As a general rule, a “claim accrues when the would-be plaintiff knows or has
reason to know that he has been hurt and who has inflicted the injury.” Turnage, 29 F.4th
at 244 (cleaned up). Here, Morgan knew that he was injured and who inflicted the injury
as early as July 18, 2013. On that day, Chapman and Kopacz knowingly and intentionally
searched Morgan’s medical offices using an instanter subpoena. (Dkt. No. 110 at 14–15,
19–20). This is the same search that Morgan claims was warrantless, without his consent,
and against his will. (Id. at 15, 19–20). As such, the claims began to accrue in 2013. See
Moore v. McDonald, 30 F.3d 616, 620–621 (5th Cir. 1994); Humphreys v. City of Ganado, 467
F.App’x 252, 255–256 (5th Cir. 2012) (per curiam).
Because Morgan’s Fourth Amendment claims for an unreasonable search began
accruing in 2013, his claims are untimely unless tolling applies. In this respect, Morgan
advances a fraudulent concealment theory in support of tolling.3 (Dkt. No. 119 at 16–21).
Texas’s state-law tolling provisions apply to this case. Bargher v. White, 928 F.3d
439, 444 (5th Cir. 2019) (“The forum state’s applicable tolling provisions are also given
full effect.”). These tolling provisions include fraudulent concealment, which “is a factspecific equitable doctrine.” Valdez v. Hollenbeck, 465 S.W.3d 217, 229 (Tex. 2015). Proof
of fraudulent concealment “suspend[s] the running of limitations until such time as the
3
Kopacz improperly characterizes Morgan’s fraudulent concealment theory as an
independent claim. (Dkt. No. 123 at 9–10). But it is a theory, not a separate claim for relief. Cf.
Middaugh v. InterBank, 528 F. Supp. 3d 509, 539–540 (N.D. Tex. 2021) (finding no authority for the
proposition that a tolling argument must be affirmatively plead in the complaint).
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plaintiff learned of, or should have discovered, the deceitful conduct or the facts giving
rise to the cause of action.” Earle v. Ratliff, 998 S.W.2d 882, 888 (Tex. 1999). To show
fraudulent concealment, a plaintiff must demonstrate “that the ‘defendant [1] actually
knew the plaintiff was in fact wronged, and [2] concealed that fact to deceive the
plaintiff.’” ExxonMobil Corp. v. Lazy R Ranch, LP, 511 S.W.3d 538, 544 (Tex. 2017) (quoting
BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 67 (Tex. 2011)).
The question the first element of fraudulent concealment asks is whether
Chapman and Kopacz “actually knew” that Morgan “was in fact wronged.” ExxonMobil
Corp., 511 S.W.3d at 544.
To answer that question, Morgan points to his factual
allegations. (Dkt. No. 119 at 17). Those allegations begin by asserting that the state court
judge who presided over Morgan’s prosecution found that Chapman and Kopacz
conducted a warrantless search with the explicit purpose of pursuing criminal charges
against Morgan. (Dkt. No. 110 at 11 ¶ 56). The factual allegations quote findings that
Chapman’s testimony was “evasive” and “less than credible”; the subpoena was served
in a way to avoid judicial oversight; and the search lacked consent. (Id. at 11 ¶ 57).
Morgan further alleges that he “and his staff were told that they could not refuse to
comply with the instanter subpoena.” (Id. at 7–8 ¶ 40). While it was Chapman who
physically served the instanter subpoena, (id. at 6 ¶ 32), both Chapman and Kopacz
worked together in serving it. (Id. at 5 ¶ 27).
Read together, these factual allegations
plausibly allege that Chapman and Kopacz actually knew that Morgan was wronged by
the use of the instanter subpoena. See ExxonMobil Corp., 511 S.W.3d at 544. As the Fifth
Circuit explained, “those subpoenas—which do not allow for court review and demand
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immediate compliance—are unconstitutional.”
Morgan, 969 F.3d at 241.
Morgan
plausibly alleges the first requirement for fraudulent concealment.
The second requirement for fraudulent concealment asks whether Chapman and
Kopacz concealed the fact that Morgan was wronged with the purpose of deceiving him.
ExxonMobil Corp., 511 S.W.3d at 544. For this inquiry, Morgan again points to his factual
allegations, this time to show that Chapman and Kopacz deliberately mischaracterized
and concealed the fact that there was no exigency at the time of the search. (Dkt. No. 119
at 17–19). Morgan also points to the state-court suppression hearing. (Id. at 19).
During the state-court hearing on the motion to suppress, Chapman deceitfully
portrayed Morgan’s medical facility “as an illegitimate medical practice,” (Dkt. No. 110
at 9 ¶ 52), by, for example, stating “that no complete patient medical records were located
at” the medical facility—even though Chapman knew those records could be accessed
electronically, (id. at 22 ¶ 109). Further, while Chapman testified that law enforcement
did not seize records that were not listed in the instanter subpoena, the Texas Medical
Board’s records log shows that hundreds of pages were seized even though they were
outside the scope of the subpoena. (Id. at 10 ¶ 53). Chapman then concealed the unlawful
seizure of documents. (Id.). Kopacz also possessed exculpatory evidence but withheld it
in violation of a court order. (Id. at 11 ¶ 55).
It was not until the September 2015 state court hearing that Morgan first became
aware of the factual basis to support the alleged exigency that was used to demand
immediate compliance with the instanter subpoena. (Id. at 22 ¶ 109). Indeed, Texas
Medical Board investigative files are generally confidential under Texas law. Tex. Occ.
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Code § 164.007(c).4 As a result, Morgan had no way of knowing about the precise nature
of the instanter subpoena until hearing the evidence presented at the suppression
hearing.5 Cf. Texas v. Allan Const. Co., Inc., 851 F.2d 1526, 1533 (5th Cir. 1988) (“[E]ven
though a plaintiff might have inquiry notice of a potential claim, it does not necessarily
follow that reasonable diligence will discover sufficient facts to support legal action.”).
The evidence at the suppression hearing revealed that there was no exigency
excusing the use of an instanter subpoena without procedural safeguards. At the time of
the search, Morgan was told that he and his staff could not refuse to comply with the
instanter subpoena. (Dkt. No. 110 at 7–8 ¶¶ 39–40). Yet the state court judge evaluated
the evidence presented at the suppression hearing and found Chapman to be “evasive”
and “less than credible” before ultimately granting the motion to suppress. (Id. at 11–12
¶¶ 57–59). Rather than a “legitimate pursuit of its administrative authority,” Chapman
used the instanter subpoena “to circumvent both the Texas and US Constitutions’
requirements for a warrant.” (Id. at 11 ¶ 58). Perhaps most relevant was the state court’s
conclusion that “no exigent circumstances existed at the time the subpoenas were
4
“Each . . . investigation file . . . is privileged and confidential and is not subject to
discovery, subpoena, or other means of legal compulsion for release to anyone other than the
board or its employees or agents involved in discipline of a license holder.” Tex. Occ. Code
§ 164.007(c).
5
Kopacz argues that the basis of the claim could have been discovered on the day of the
search and that Morgan should have known the instanter subpoena was unlawful. (Dkt. No. 123
at 11). At the very least, Kopacz explains, Morgan would have known of the injury on the date
he filed the motion to suppress. (Id.). Both theories are unpersuasive. As the Court explains, the
nature of the violation was undiscoverable until the suppression hearing.
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served.” (Id. at 11 ¶ 57). Exigency is relevant because it is required to demand immediate
compliance with an instanter subpoena. As the Texas Administrative Code makes clear,
Upon the request by the board or board representatives, a
licensee shall furnish to the board copies of medical records
or the original records within a reasonable time period, as
prescribed at the time of the request. “Reasonable time,” as
used in this section, shall mean fourteen calendar days or a
shorter time if required by the urgency of the situation or the
possibility that the records may be lost, damaged, or
destroyed.
22 Tex. Admin. Code § 179.4(a) (emphasis added).
By demanding immediate compliance with the instanter subpoena and
withholding information regarding the exigency until the suppression hearing, the Court
concludes that Morgan plausibly alleges the second requirement for fraudulent
concealment. See ExxonMobil Corp., 511 S.W.3d at 544; see also Hunton Energy Holdings,
LLC v. HL Seawater Holdings, LLC, 539 F. Supp. 3d 685, 692 (S.D. Tex. 2021) (holding that
the complaint “plausibly alleges” fraudulent concealment).
Recall that at the Rule 12(b)(6) stage, the live pleading must show “beyond doubt”
that Morgan cannot overcome the statute of limitations defense. See Bell, 27 F.4th at 320.
It does not. Because Morgan has plausibly alleged that he could not have discovered the
unlawful conduct until the September 2015 hearing, Chapman and Kopacz have not
shown beyond doubt that the statute of limitations bars the claim. Again, Morgan filed
this lawsuit in January 2017—less than two years after the September 2015 hearing.
***
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In sum, Chapman and Kopacz have not carried their burden of showing that
Morgan’s claims are untimely. See Acad. of Allergy & Asthma, 998 F.3d at 200 (“Defendants
bear the burden of proof on the statute of limitations defense.”). Thus, the Court turns to
qualified immunity.
B.
QUALIFIED IMMUNITY
Chapman argues she is entitled to qualified immunity as to all three claims
asserted against her. (Dkt. No. 112 at 10–17). Kopacz, by contrast, does not assert
qualified immunity.
Qualified immunity, if properly asserted, protects state officials performing
discretionary functions from liability for civil damages. Buehler v. Dear, 27 F.4th 969, 981
(5th Cir. 2022). “To defeat the defense of qualified immunity at the motion to dismiss
stage, [the plaintiff] must plausibly allege [1] a violation of a constitutional right that [2]
was clearly established at the time of the purported violation.” Morgan, 969 F.3d at 245.
“Courts have discretion to decide the order in which to engage these two prongs.” Tolan
v. Cotton, 572 U.S. 650, 656, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014). The plaintiff bears
the burden of showing qualified immunity does not apply. Mayfield v. Currie, 976 F.3d
482, 486 (5th Cir. 2020).
To be clearly established, a right must be “sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.” Mullenix v.
Luna, 577 U.S. 7, 11, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (internal
quotations omitted).
Further, “the clearly established right must be defined with
specificity.” City of Escondido v. Emmons, ____ U.S. ____, ____, 139 S.Ct. 500, 503, 202
19
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L.Ed.2d 455 (2019). While a plaintiff need not point to “a case directly on point for a right
to be clearly established, existing precedent must have placed the statutory or
constitutional question beyond debate.” Rivas-Villegas v. Cortesluna, ____ U.S. ____, ____,
142 S.Ct. 4, 7–8, 211 L.Ed.2d 164 (2021) (per curiam). The inquiry “is judged against the
backdrop of the law at the time of the conduct.” Kisela v. Hughes, ____ U.S. ____, ____,
138 S.Ct. 1148, 1152, 200 L.Ed.2d 449 (2018) (per curiam) (internal quotation marks
omitted).
The Court will first analyze Morgan’s Fourth Amendment claims before turning
to the single claim under the Fourteenth Amendment.
1.
Fourth Amendment
The Fourth Amendment provides: “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated[.]” U.S. Const. amend. IV. “As that text makes clear, the ultimate
touchstone of the Fourth Amendment is reasonableness.” Lange v. California, ____ U.S.
____, ____, 141 S.Ct. 2011, 2017 (2021) (quoting Brigham City v. Stuart, 547 U.S. 398, 403,
126 S.Ct. 1943, 1947, 164 L.Ed.2d 650 (2006)). “The Fourteenth Amendment ensures that
the same protection runs against state officials.” Morgan, 969 F.3d at 245. Morgan takes
issue with both a search and a seizure.
Unreasonable Search
First, the search. Morgan’s claim under the Fourth Amendment for unreasonable
search against Chapman is predicated on the 2013 search of Morgan’s medical facilities
under the instanter subpoena. (Dkt. No. 110 at 19–22). Morgan argues that, at the time of
20
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the search, there was a clearly established right to be free from a warrantless search
without an opportunity for precompliance review. (Dkt. No. 119 at 14–16).
The text of the Fourth Amendment guarantees the right to be free from
unreasonable searches. U.S. Const. amend. IV. “The Founding generation crafted the
Fourth Amendment as a response to the reviled general warrants and writs of assistance
of the colonial era, which allowed British officers to rummage through homes in an
unrestrained search for evidence of criminal activity.” Carpenter v. United States, ____ U.S.
____, ____, 138 S.Ct. 2206, 2213, 201 L.Ed.2d 507 (2018) (internal quotation marks omitted).
It should be no surprise, then, that “warrantless searches are per se unreasonable under
the Fourth Amendment” other than “a few specifically established and well-delineated
exceptions.” City of Ontario v. Quon, 560 U.S. 746, 760, 130 S.Ct. 2619, 2630, 177 L.Ed.2d
216 (2010) (internal quotation marks omitted).
One of the “few specifically established and well-delineated exceptions” to the per
se rule, see City of Ontario, 560 U.S. at 760, 130 S.Ct. at 2630, is an administrative search.
Camara v. Mun. Court of City & Cnty. of San Francisco, 387 U.S. 523, 534, 87 S.Ct. 1727, 1733,
18 L.Ed.2d 930 (1967). Administrative searches are appropriate “where special needs
make the warrant and probable-cause requirement impracticable and where the primary
purpose of the searches is distinguishable from the general interest in crime control.” City
of Los Angeles, Calif. v. Patel, 576 U.S. 409, 420, 135 S.Ct. 2443, 2452, 192 L.Ed.2d 435 (2015)
(cleaned up). As a general rule, “in order for an administrative search to be constitutional,
the subject of the search must be afforded an opportunity to obtain precompliance review
before a neutral decisionmaker.” Id.
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There is also a second exception. Closely regulated industries can be searched
without a warrant and without precompliance review. Cotropia v. Chapman, 978 F.3d 282,
286 (5th Cir. 2020) (hereinafter Cotropia II). This is because closely regulated industries
have “no reasonable expectation of privacy.” Marshall v. Barlow’s, Inc., 436 U.S. 307, 313,
98 S.Ct. 1816, 1821, 56 L.Ed.2d 305 (1978). Nonetheless, closely regulated industries have
some protection. As the Supreme Court explained in New York v. Burger, “warrantless
inspections in closely regulated industries must still satisfy three criteria: (1) a substantial
government interest, (2) a regulatory scheme that requires warrantless searches to further
the government interest, and (3) a constitutionally adequate substitute for a warrant.”
Zadeh v. Robinson, 928 F.3d 457, 464–65 (5th Cir. 2019) (quoting New York v. Burger, 482
U.S. 691, 702–03, 107 S.Ct. 2636, 2643–44, 96 L.Ed.2d 601 (1987)) (internal quotation marks
omitted).
The Fifth Circuit had these principles in mind when it considered whether any
unreasonable search claim would be futile. See Morgan, 969 F.3d at 248–49. In examining
futility, it also recounted the two “cases involving the Texas Medical Board’s
unconstitutional use of instanter subpoenas.” Id. at 248. The first case was Cotropia v.
Chapman, a 2018 decision denying qualified immunity to Chapman—the same defendant
in this case—after she “searched and seized patient medical records over a physician’s
objection.” Id. (citing 721 F. App’x 354, 357, 361 (5th Cir. 2018) (per curiam) (hereinafter
Cotropia I)). The plaintiff, who was a physician, operated the pain management clinic that
Chapman searched. Cotropia I, 721 F. App’x at 356. The Fifth Circuit denied qualified
immunity to Chapman because the physician-plaintiff “plausibly alleged that Chapman
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‘violated the clearly established right to an opportunity to obtain precompliance review
of an administrative subpoena before a neutral decisionmaker.’” Morgan, 969 F.3d at 248
(quoting Cotropia I, 721 F. App’x at 357). It then reversed and remanded.
After remand, the district court adopted the magistrate judge’s recommendation
to grant Chapman qualified immunity. The magistrate judge noted that the Fifth Circuit
did not consider Chapman’s argument that precompliance review was not required
because the Burger exception for closely regulated industries applied.
Cotropia v.
Chapman, No. 4:16-CV-00742, 2019 WL 4346500 at *2 (S.D. Tex. Aug. 21, 2019), report and
recommendation adopted, 2019 WL 4331216 (S.D. Tex. Sept. 12, 2019). The magistrate judge,
however, considered that argument and observed that “it was not until August 31, 2018,
when the [Fifth Circuit] issued its first opinion in Zadeh, that the [Texas Medical Board]
and its employees were put on notice that its instanter subpoena process fell outside” the
exception for closely regulated industries. Id. at *5 (citing Burger, 482 U.S. at 691, 107 S.Ct.
at 2636; Beck v. Tex. State Bd. of Dental Exam’rs, 204 F.3d 629 (5th Cir. 2000)). Because “the
law was not clearly established in 2015 when Chapman served the instanter subpoena on
Cotropia,” Chapman was entitled to qualified immunity. Id.
The Fifth Circuit affirmed. While the administrative subpoena issued to search a
pain management clinic was unconstitutional, the Fifth Circuit concluded that a
reasonable official would not have known that at the time of the search. Cotropia II, 978
F.3d at 287.
The second opinion the Fifth Circuit discussed before remanding this case was
Zadeh v. Robinson, a 2019 decision that awarded qualified immunity to a Texas Medical
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Board investigator but nonetheless held that the “investigator violated a physician’s
Fourth Amendment rights by executing an instanter subpoena without precompliance
review.” Morgan, 969 F.3d at 248 (citing Zadeh, 928 F.3d at 464). In reaching this
conclusion, the Fifth Circuit rejected the argument that “the medical industry as a whole”
falls within the “closely regulated industry” exception, which would excuse the
warrantless search. Morgan, 969 F.3d at 248–49 (citing Zadeh, 928 F.3d at 464, 466). The
Fifth Circuit then “assumed without deciding that pain management clinics were closely
regulated and that the plaintiff was operating such a clinic.” Morgan, 969 F.3d at 249
(citing Zadeh, 928 F.3d at 466). But even operating under these assumptions, the Fifth
Circuit “held that the statutory scheme of the [Texas Medical Board’s] inspection
authority lacked sufficient limits on the discretion of the Board and was therefore not a
proper substitute for a warrant.” Morgan, 969 F.3d at 249 (citing Zadeh, 928 F.3d at 468).
Chapman points to both Cotropia I and Morgan as supporting her qualified
immunity defense. (Dkt. No. 112 at 13–20). As she puts it, it was not clearly established
in 2013 that it is unconstitutional for a Texas Medical Board agent to execute an instanter
subpoena without a warrant, consent, and pre-compliance review. (Id. at 16–17); (Dkt.
No. 122 at 3–4). But the Fifth Circuit’s analysis in Morgan undermines Chapman’s case
for qualified immunity. See Morgan, 969 F.3d at 247–50.
Before remand, the Fifth Circuit specifically concluded: “Neither the closely
regulated industry holding nor the pretextual search analysis would stop Morgan’s
claims.” Id. at 249. In doing so, the Fifth Circuit characterized Zadeh as awarding
“qualified immunity because the law of instanter searches of closely regulated pain
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management clinics was unclear.” Id. (citing Zadeh, 928 F.3d at 466) (emphasis added). In
this case, by contrast, Morgan alleges that he “was not operating a pain management
clinic.” Id. (emphasis in original); see also (Dkt. No. 110 at 2–4 ¶¶ 10–12, 18–21) (alleging
that characteristics of a “pill mill” are not descriptive of Morgan’s facility). Summing up,
the Fifth Circuit concluded: “Because Morgan was not operating a pain management
clinic, the qualified immunity available to the defendants in Zadeh would be inapplicable
here.” Morgan, 969 F.3d at 249. The implication is that because Morgan plausibly alleges
that he was not operating a pain management clinic, Chapman’s authority to search must
revert back to the baseline constitutional rule governing administrative searches.
That rule governing administrative searches is straightforward and comports with
the core purpose of the Fourth Amendment: “absent consent, exigent circumstances, or
the like, in order for an administrative search to be constitutional, the subject of the search
must be afforded an opportunity to obtain precompliance review before a neutral
decisionmaker.” Patel, 576 U.S. at 420, 135 S.Ct. at 2452. This makes sense. After all,
other than a few exceptions, “warrantless searches are per se unreasonable under the
Fourth Amendment.” City of Ontario, 560 U.S. at 760, 130 S.Ct. at 2630 (internal quotation
marks omitted).
Morgan’s allegations track these well-established constitutional principles.
Indeed, the entire premise of Morgan’s complaint is that Chapman searched Morgan’s
medical facilities without consent and without an exigency using an administrative
search in the form of an instanter subpoena.
25
But that instanter subpoena, which
Case 6:17-cv-00004 Document 126 Filed on 09/20/22 in TXSD Page 26 of 40
demanded immediate compliance, did not afford an opportunity to obtain
precompliance review before a neutral decisionmaker.
Thus, like the plaintiff in Cotropia I, Morgan has plausibly alleged that Chapman
“violated the clearly established right to an opportunity to obtain precompliance review
of an administrative subpoena before a neutral decisionmaker.” Cotropia I, 721 F. App’x
at 357 (citing See v. City of Seattle, 387 U.S. 541, 545, 87 S.Ct. 1737, 1740, 18 L.Ed.2d 943
(1967); Donovan v. Lone Steer, Inc., 464 U.S. 408, 415, 104 S.Ct. 769, 773, 78 L.Ed.2d 567
(1984)); see also Advanced Bldg. & Fabrication, Inc. v. Cal. Highway Patrol, 918 F.3d 654, 656
(9th Cir. 2019) (affirming the district court’s denial of qualified immunity because, among
other reasons, the administrative-search exception did not apply); Bruce v. Beary, 498 F.3d
1232, 1250 (11th Cir. 2007) (reversing the district court’s grant of qualified immunity
because “it was clearly established that an administrative search must be reasonable
under the circumstances and may not exceed its limited scope”).
In addition to contending that the use of the instanter subpoena was
unconstitutional as an administrative search, Morgan advances another theory: pretext.
On this theory, the Fifth Circuit already recognized what Chapman now ignores: “A
search is not really administrative if it is used solely to find evidence of criminal
wrongdoing.” Morgan, 969 F.3d at 249. “In the law of administrative searches, one
principle emerges with unusual clarity and unanimous acceptance: the government may
not use an administrative inspection scheme to search for criminal violations.” Burger,
482 U.S. at 724, 107 S.Ct. at 2655 (Brennan, J., dissenting) (collecting cases); see also Riggs
v. Gibbs, 923 F.3d 518, 524 (8th Cir. 2019) (noting the officers’ concession that the
26
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administrative search exception to the Fourth Amendment “does not apply when the
administrative search is a mere subterfuge for criminal investigation”). Yet Chapman’s
use of the instanter subpoena to search for a criminal violation is precisely what Morgan
takes issue with.
Start with the purpose of Chapman’s search, which was to determine whether
Morgan’s family medicine practice was an illegal “pill mill.” (Dkt. No. 110 at 4 ¶ 22).
Before the search, Chapman coordinated with Kopacz and other law enforcement agents
for the purpose of obtaining records to support a criminal investigation. (Id. at 5 ¶ 27, 11
¶¶ 56–58, 19–20 ¶¶ 96–97, 20 ¶¶ 101–02, 21 ¶ 107).
When completing the six-hour
search—conducted without Morgan’s consent—Chapman and other officials seized
documents and searched the entire medical facility. (Id. at 8 ¶¶ 42–43, 19–20 ¶¶ 97–98).
In an astonishing display of authority during the search, Chapman said, “We’re the
medical board, we can do whatever we want.” (Id. at 8 ¶ 42). The state court disagreed.
It concluded that the Texas Medical Board’s interest in executing the instanter subpoena
“was not a legitimate pursuit of its administrative authority but an exercise to circumvent
both the Texas and US Constitutions’ requirement for a warrant.” (Id. at 11 ¶ 58). And
after the search, Chapman used the seized documents to create an investigative report
that was ultimately used as “the sole evidence relied upon” to prosecute Morgan. (Id. at
9 ¶¶ 47–48, 13 ¶ 66).
Despite the clarity of Morgan’s factual allegations, Chapman argues that there was
no pretext because she was investigating whether Morgan was operating a pain
management clinic. (Dkt. No. 112 at 14–15). In support, Chapman points to Cotropia II.
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(Id.). Cotropia II, which was issued two months after this case was remanded, emphasized
that the relevant pretext inquiry is “whether the search that occurred was under a scheme
serving an administrative purpose.” 978 F.3d at 290 (quoting Zadeh, 928 F.3d at 471)
(internal quotation marks omitted). In this way, Chapman and the Texas Medical Board
can permissibly “address a major social problem both by way of an administrative scheme
and through penal sanctions.” Cotropia II, 978 F.3d at 290 (quoting Burger, 482 U.S. at 712,
107 S.Ct. at 2649) (emphases in original) (internal quotation marks omitted). In Cotropia
II, the Fifth Circuit noted that the Texas Medical Board “had received a complaint that
Cotropia was operating an unregistered” pain management clinic and had his license
revoked. 978 F.3d at 290. Thus, the Fifth Circuit agreed that there was no pretext. Id. at
289–90.
Here, by contrast, there are no allegations that Morgan’s purpose was anything
other than finding evidence of criminal wrongdoing. To the contrary, the sole purpose
was to obtain records to support a criminal investigation. (Dkt. No. 110 at 5 ¶ 27, 11
¶¶ 56–58, 19–20 ¶¶ 96–97, 20 ¶¶ 101–02, 21 ¶ 107). As the Supreme Court explained,
“actual motivations” matter when analyzing administrative search cases. Ashcroft v. alKidd, 563 U.S. 731, 736, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011).
Chapman disagrees that her purpose was a criminal investigation citing two
factual allegations. (Dkt. No. 112 at 14–15). The first is that Chapman “served as an
investigator involving [Morgan’s] alleged operation of a ‘pill mill’ at” the family medical
practice. (Dkt. No. 110 at 3 ¶ 16). The second allegation is that there is not a “record of
any complaints whatsoever made against [Morgan] or his practice sites to the TMB by
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any individual . . . that warranted [Chapman’s] investigation.” (Id. at 4 ¶ 23). Viewed in
a light most favorable to Morgan, neither of these allegations can fairly be stretched as
far as Chapman suggests. Morgan’s alleged operation of a pill mill is not a concession
that Chapman’s purpose of the search was both criminal and administrative. Such a
reading ignores the specific and categorical allegations of the sole purpose—a criminal
investigation—elsewhere in the live complaint. And it ignores the thrust of the complaint
when read as a whole. See Gulf Coast Hotel-Motel Ass’n v. Miss. Gulf Coast Golf Course
Ass’n, 658 F.3d 500, 506 (5th Cir. 2011). Morgan, therefore, plausibly alleges a pretext
theory.
The Fifth Circuit acknowledged as much when it distinguished this case from the
pretext analysis in Zadeh. In Zadeh, the Fifth Circuit “concluded that the searches were
not pretext for a criminal investigation because there was no evidence that the
‘investigation resulted in a criminal prosecution’ and because the [Texas Medical Board]
took ‘subsequent administrative action against’ the physician.” Morgan, 969 F.3d at 249
(quoting Zadeh, 928 F.3d 471–72). In contrast, “neither of those two facts are present” in
this case. Morgan, 969 F.3d at 249. Instead, Chapman’s “search did result in a criminal
prosecution, and [the Texas Medical Board] did not take any subsequent administrative
action against Morgan.” Id. (emphasis in original). Unlike in Zadeh, then, Morgan
plausibly alleges that Chapman’s search of the medical facilities was pretextual because
it was designed to uncover evidence of criminality. See id.
This case is also unlike Cotropia, where the magistrate judge concluded that the
plaintiff “failed to support his pretext argument with relevant facts or applicable
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caselaw.” 2019 WL 4346500, at *6. The summary-judgment evidence there did not
indicate that Chapman’s search “was solely to investigate a crime.” Id. Instead, the
evidence showed that Chapman completed the search to determine whether Cotropia
“was practicing medicine after his license had been suspended, a legitimate
administrative purpose.” Id. The Fifth Circuit agreed, finding there was a proper
administrative purpose for the search because the Texas Medical Board “received a
complaint that Cotropia was operating an unregistered” pain management clinic and had
his license revoked at the time of the search. Cotropia II, 978 F.3d 289–90.
Here, by contrast, Morgan’s burden at the Rule 12(b)(6) stage is plausibly alleging
a pretext theory—not showing evidence of pretext. See Iqbal, 556 U.S. at 678, 129 S.Ct. at
1949. Morgan’s allegations may turn out to be unsubstantiated at the next stage of
litigation, but that is a question reserved for summary judgment.
Cotropia is also
distinguishable because, unlike in that case, there are no factual allegations that Chapman
had an administrative purpose for the search. Instead, Morgan’s factual allegations detail
that Chapman’s sole purpose was to investigate Morgan’s alleged criminal wrongdoing.
Notwithstanding Chapman’s arguments, Morgan has properly pleaded a pretext theory.6
6
To be sure, the Fifth Circuit did not definitively hold that Morgan’s newly amended
claims would survive qualified immunity. Instead, it contemplated that the claims might have
merit if properly asserted after remand. See Morgan, 969 F.3d at 248 (“If adding these claims
would be futile on the merits, we will not remand for efficiency’s sake . . . . But, if these claims
might have merit if added-on-amendment, we will remand to the district court for a full
determination of whether leave to amend is proper.”). But the Fifth Circuit’s reasoning in
concluding that it would not “be futile for Morgan to add a Fourth Amendment claim for an
unreasonable search,” id. at 249, applies when analyzing Morgan’s live complaint.
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In the end, Morgan’s task in “seeking to overcome a motion to dismiss because of
qualified immunity or for failing to state a claim [is to] plead facts that allow the court to
draw the reasonable inference that the defendant is liable for the harm alleged.” Bevill v.
Fletcher, 26 F.4th 270, 274 (5th Cir. 2022). At least at this stage, Morgan has done just that.
The Court holds that Chapman is not entitled to qualified immunity on the unreasonable
search claim.7
Unreasonable Seizure
Morgan also raises two claims under the Fourth Amendment for unreasonable
seizure: one against Chapman and the other against Kopacz. (Dkt. No. 110 at 17–19, 23–
25). Again, only Chapman raises qualified immunity, contending that Morgan fails to
carry his burden as to the clearly established prong because he does not cite an analogous
case and defines the conduct too broadly. (Dkt. No. 112 at 12–13); (Dkt. No. 122 at 2).
Chapman does not argue that her conduct was constitutional. In response, Morgan
points to Winfrey. (Dkt. No. 119 at 10). The Court agrees with Chapman.
i.
Constitutional Violation
Before remand, the Fifth Circuit considered whether any unreasonable seizure
claim would be futile. Morgan, 969 F.3d at 249–50. It first described Winfrey as holding
“that an unlawful seizure claim was cognizable and qualified immunity did not apply
where a plaintiff ‘was wrongfully arrested due to the knowing or reckless misstatements
7
Although unsuccessful at the Rule 12(b)(6) stage, Chapman can still show that she is
entitled to qualified immunity. See Sims v. Griffin, 35 F.4th 945, 952 n.24 (5th Cir. 2022) (“Qualified
immunity remains a live issue for trial.”).
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and omissions’ in a law enforcement officer’s affidavits.” Id. at 249 (quoting Winfrey, 901
F.3d at 492). The unlawful seizure claim was cognizable as malicious prosecution under
the Fourth Amendment when the “facts that follow the state tort of malicious prosecution
also constitute an illegal seizure.” Morgan, 969 F.3d at 250 (citing Winfrey, 901 F.3d at
492). That is the case here. See supra III.A.a.
Recall Morgan’s allegations that Chapman and Kopacz knew that Morgan was
innocent. (Dkt. No. 110 at 18 ¶ 90, 24 ¶ 118). Morgan claims Chapman and Kopacz made
material misstatements and omissions of fact and further “withheld exculpatory
evidence, to facilitate the prosecution.” (Id. at 18 ¶ 91, 24 ¶ 119). These knowing or
reckless misstatements were made in sworn testimony in support of Morgan’s
prosecution. (Id. at 17–18 ¶ 89, 24 ¶ 117). The documents and investigative report
prepared by both Kopacz and Chapman were also “the sole evidence relied upon” to
prosecute Morgan. (Id. at 9 ¶¶ 47–48, 13 ¶ 66, 24 ¶ 120).
But Morgan offers more than a barebones recitation of the elements of a malicious
prosecution claim. The claim moves from the realm of possible to plausible when Morgan
details the specific misstatements and omissions. Chapman prepared a “knowingly
inaccurate compiled report.” (Id. at 23 ¶ 113). That report was based on only one month
of Morgan’s prescriptions. (Id. at 23 ¶ 114). Chapman also “untruthfully stated under
oath that an unregistered pain management clinic is a pill mill” even though the
characteristics of a pill mill were not present in Morgan’s medical practices. (Id. at 4
¶¶ 19–20). Indeed, Chapman did not have any record of complaints against Morgan or
his family medicine practices that would warrant an investigation. (Id. at 4 ¶ 23). Yet
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Chapman completed the report without a preliminary investigation, which would have
refuted her initial impression of Morgan’s practices. (Id. at 4 ¶ 21). Morgan even details
Chapman’s other false and misleading practices. (Id. at 13 ¶¶ 67–70).
Chapman’s misstatements and omissions continued during the state court
suppression hearing. Chapman, for example, “made numerous false statements” that
were designed to portray Morgan’s family medicine practices as “illegitimate,” including
by overstating the number of patients that were seen on a daily basis and by claiming
that there were no complete patient medical records at one of the facilities—even though
she knew those records were electronically accessible. (Id. at 9–10 ¶ 52). Chapman also
falsely claimed that she did not seize medical records that were not contained in the
instanter subpoena, a claim that is contradicted by the Texas Medical Board’s log of
records. (Id. at 10 ¶ 53). Perhaps most startling is the allegation that Chapman concealed
the unlawful seizure by duplicating an affidavit. (Id.). These allegations are supported
by the state court’s findings, including that Morgan did not legitimately use her
administrative authority but instead circumvented the Texas and U.S. Constitutions. (Id.
at 11 ¶ 58). This should not be a surprise, according to Morgan. He alleges that Chapman
has also used fabricated evidence in another court. (Id. at 14 ¶ 72).
Together, these allegations plausibly allege a Fourth Amendment unreasonable
seizure violation under a malicious prosecution theory. See Thompson, 596 U.S. at ____,
142 S.Ct. at 1335; Castellano v. Fragozo, 352 F.3d 939, 953 (5th Cir. 2003) (en banc).
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ii.
Clearly Established Law
Nonetheless, the Court cannot conclude that Morgan defeats Chapman’s
invocation of qualified immunity because Morgan has not “identified a single precedent
finding a Fourth Amendment violation under similar circumstances.”
See City of
Tahlequah v. Bond, ____ U.S. ____, ____, 142 S.Ct. 9, 12, 211 L.Ed.2d 170 (2021) (per curiam).
And it is unlikely that he could have. Malicious prosecution jurisprudence has lacked a
firm foundation as recently as this year, see Thompson, 596 U.S. ____, 142 S.Ct. 1332, not to
mention 2013. While the Supreme Court recently recognized a cognizable malicious
prosecution claim as grounded in the Fourth Amendment, Justice Alito explained that
the Court “create[d] a chimera of a constitutional tort by stitching together elements taken
from two very different claims: a Fourth Amendment unreasonable seizure claim and a
common-law malicious-prosecution claim.”
Id. at ____, 142 S.Ct. at 1341 (Alito, J.,
dissenting).
Winfrey, as the Fifth Circuit recognized, is undoubtedly relevant. See Morgan, 969
F.3d at 249–250. But it is not dispositive for the purpose of qualified immunity. As
Winfrey explained, it is has been clearly established since 1978 “that a defendant’s Fourth
Amendment rights are violated if (1) the affiant, in support of the warrant, includes ‘a
false statement knowingly and intentionally, or with reckless disregard for the truth’ and
(2) ‘the allegedly false statement is necessary to the finding of probable cause.’” Winfrey,
901 F.3d at 494 (quoting Franks v. Delaware, 438 U.S. 154, 155–56, 98 S.Ct. 2674, 2676, 57
L.Ed.2d 667 (1978)). But Morgan’s allegations do not discuss a false statement by
Chapman in an affidavit and in support of a warrant. See id. Instead, every indication is
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that Morgan was seized after being indicted by a grand jury. See (Dkt. No. 110 at 9 ¶ 49,
23 ¶ 115).
The Court concludes that Morgan has not carried his burden of defeating qualified
immunity regarding his Fourth Amendment unreasonable seizure claim against
Chapman. As a result, the Court dismisses this claim.
2.
Fourteenth Amendment
Morgan’s final claim is solely against Chapman under the Due Process Clause of
the Fourteenth Amendment. Chapman again raises qualified immunity. This time,
Chapman does not dispute that the law was clearly established. Instead, Chapman
argues that Morgan has failed to show a constitutional violation because his allegations
are “insufficiently specific and granular.” (Dkt. No. 122 at 2–3); see also (Dkt. No. 112 at
17). He claims that “Constitutional rights are not interchangeable,” especially when the
source of the purported violation is under Substantive Due Process. (Dkt. No. 112 at 18–
20). Morgan disagrees, recounting his specific factual allegations. (Dkt. No. 119 at 12).
He then argues that the Fifth Circuit already determined his Fourteenth Amendment
claim would not be futile. (Id. at 12–13). The Court largely agrees with Morgan.
Clearly established law
The Fourteenth Amendment provides that no State shall “deprive any person of
life, liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, cl. 1.
The Fifth Circuit has recognized “a due process right not to have police deliberately
fabricate evidence and use it to frame and bring false charges against a person.” Morgan,
969 F.3d at 250 (internal quotation marks omitted). Before remand, the Fifth Circuit
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determined that the recognition of this due process right remains binding precedent. Id.
As such, the Fifth Circuit held that Morgan’s fabricated evidence claim would not be
futile. Id.
The source of the due process right is Cole v. Carson—a case the Fifth Circuit
described as “on point.”
Id.
In Cole, the Fifth Circuit considered whether a law
enforcement officer violated the plaintiff’s “clearly established due process rights when
he allegedly lied to investigators to secure a false charge of aggravated assault.” Cole v.
Carson, 802 F.3d 752, 765 (5th Cir. 2015), cert. granted, judgment vacated sub nom. Hunter v.
Cole, ____ U.S. ____, 137 S.Ct. 497, 196 L.Ed.2d 397 (2016), and opinion reinstated in part, 905
F.3d 334 (5th Cir. 2018) (en banc). Regarding the alleged constitutional violation, the Fifth
Circuit held: “Where police intentionally fabricate evidence and successfully get someone
falsely charged with a felony as cover for their colleagues’ actions, and the Fourth
Amendment is unavailing, there may be a due process violation.” Id. at 773.
Turning to the clearly established prong, the Fifth Circuit concluded that, “[b]y
2010, no reasonable law enforcement officer would have thought it permissible to frame
somebody for a crime he or she did not commit.” Id. (internal quotations omitted); see
also Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)
(“[T]he right to due process of law is quite clearly established by the Due Process Clause,
and thus there is a sense in which any action that violates that Clause (no matter how
unclear it may be that the particular action is a violation) violates a clearly established
right.”); Brown v. Miller, 519 F.3d 231, 237 (5th Cir. 2008) (“[T]he right of criminal
defendants to be free from false or fabricated evidence was well settled by 1959 or
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earlier.”). While Cole has a complicated procedural history, its core “holding is binding
Fifth Circuit precedent today.” Morgan, 969 F.3d at 250. Thus, the law was clearly
established in 2013—at the time of the alleged constitutional violation. It is no surprise,
then, that Chapman does not contest the clearly established prong.
Constitutional Violation
Chapman primarily takes issue with the plausibility of Morgan’s claim under the
Due Process Clause. But Morgan’s factual allegations in support of this claim are both
straightforward and plausible. Morgan alleges that Chapman “deliberately fabricat[ed]
evidence and us[ed] it to frame and bring false charges against [him].” (Dkt. No. 110 at
25).
As the lead investigator, Chapman “knowingly and deliberately compiled an
inaccurate report tabulating all prescriptions issued for controlled substances by
[Morgan].” (Id. at 25 ¶ 124). The “inaccurate calculations falsely inflated the percentage
of prescriptions issued by [Morgan] for the category drugs, to over a majority of his
patients.” (Id. at 26 ¶ 125). The creation of “the knowingly inaccurate report based on
only one month of [Morgan’s] prescriptions” was the catalyst for Morgan’s indictment,
arrest, and prosecution for an alleged violation of Section 165.152 of the Texas
Occupations Code.8 (Id. at 26 ¶¶ 127–31). If Chapman would have included in her report
certain information that was in her possession, it would have been clear that Morgan’s
family medicine practices were exempt from the statutory requirement to obtain
certification for a pain management clinic. (Id. at 12–13 ¶¶ 64–70). As Morgan puts it,
8
“A person commits an offense if the person practices medicine in this state in violation
of this subtitle.” Tex. Occ. Code § 165.152(a).
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there would not have been a criminal prosecution but for Chapman’s fabricated evidence.
(Id. at 27 ¶ 135).
Notwithstanding Chapman’s arguments to the contrary, these
allegations state a plausible claim for fabricated evidence.
Chapman’s only remaining argument is that the Fourteenth Amendment claim
fails because Morgan also raises Fourth Amendment claims. Cole once again provides
guidance. There, the Fifth Circuit explained that fabricated evidence and the associated
harm “may be addressed through a Fourth Amendment challenge in many cases.” Cole,
802 F.3d at 772 (emphasis added). Thus, “where there is no more specific constitutional
protection available, the Fourteenth Amendment may offer protection.” Id. A plausible
reading of the Fifth Circuit’s explanation is that courts should not permit a fabricated
evidence claim under the Due Process Clause when the Fourth Amendment (or some
other provision of the Constitution) provides an avenue for seeking relief for the same
injury.
Here, Morgan asserts two claims under the Fourth Amendment. But those Fourth
Amendment claims arise from two separate injuries: a seizure and a search. Recall that
Chapman is entitled to qualified immunity as to the seizure claim. See supra III.B.1.b.
Morgan would, therefore, have no remedy for any injury associated with his prosecution
unless the Fourteenth Amendment claim survives. This is because the only surviving
Fourth Amendment claim—unreasonable search—is entirely separate from the
prosecution.
The recognition that Morgan’s unreasonable search and fabricated evidence
claims are distinct is well supported by precedent. As the Supreme Court explained:
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“Certain wrongs affect more than a single right and, accordingly, can implicate more than
one of the Constitution’s commands. Where such multiple violations are alleged, we are
not in the habit of identifying as a preliminary matter the claim’s ‘dominant’ character.
Rather, we examine each constitutional provision in turn.” Soldal v. Cook Cnty, Ill., 506
U.S. 56, 70, 113 S.Ct. 538, 548, 121 L.Ed.2d 450 (1992); see also McDonough, ____ U.S. at____
n.2, 139 S.Ct. at 2155 n.2 (quoting Soldal with approval).
This case, then, is similar to Castellano, where the Fifth Circuit “found that a Fourth
Amendment violation had been alleged with regard to [the plaintiff’s] pretrial seizure,
and a Fourteenth Amendment due process violation was pled with regard to the knowing
use of fabricated evidence and perjury at trial.” Cole, 802 F.3d at 767 (citing Castellano,
352 F.3d at 953–55, 960) (emphasis added). In that case, pretrial seizure and fabricated
evidence were two separate incidents with two separate injuries. See id. With these
principles in mind, Chapman offers no discernable basis for collapsing the two separate
injuries into one constitutional claim simply because the initial search eventually resulted
in Morgan’s seizure. See Soldal, 506 U.S. at 70, 113 S.Ct. at 548; see also Archbold-Garrett v.
New Orleans City, 893 F.3d 318, 325 n.4 (5th Cir. 2018) (noting “that the availability of a
takings claim does not necessarily subsume a plaintiff’s ability to pursue a seizure claim
as well”).
***
In sum, Chapman does not raise a meritorious basis for dismissing the Due Process
Claim.
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CONCLUSION
The Court DENIES John Kopacz’s Motion to Dismiss. (Dkt. No. 111).
The Court further GRANTS in part and DENIES in part Mary Chapman’s Motion
to Dismiss. (Dkt. No. 112). The Court DISMISSES WITH PREJUDICE Count IV of the
Third Amended Complaint on the basis of qualified immunity. See (Dkt. No. 110 at 23–
25). The Court DENIES all other requested relief.
Finally, the Court ORDERS the Parties to submit a proposed amended scheduling
order within 14 days of the date of this Memorandum Opinion and Order. The Court
intends to expeditiously resolve this case, which has been on file since January 2017.
It is SO ORDERED.
Signed on September 20, 2022.
___________________________________
DREW B. TIPTON
UNITED STATES DISTRICT JUDGE
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