Morris v. State of Texas et al

Filing 52

REPORT AND RECOMMENDATIONS re 23 Motion for Preliminary Injunction filed by Arnold J. Morris, M.D. Signed by Judge Andrew W. Austin. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ARNOLD J. MORRIS, M.D.

§
§
§
§
§

VS.
MARI ROBINSON, et al.

NO. A-16-CV-1000 LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are Plaintiff’s Motion for Preliminary Injunction (Dkt. No. 23); Defendant

Administrative Law Judge Beth Bierman’s Response to Plaintiff’s Request for Preliminary
Injunction (Dkt. No. 29); Plaintiff’s Reply to SOAH Defendant’s Response (Dkt. No. 33); Board
Defendants’ Response in Opposition to Plaintiff’s Motion for Preliminary Injunction (Dkt. No. 36);
and Plaintiff’s Reply to Board Defendants’ Response (Dkt. No. 38). The District Court referred the
above motions to the undersigned Magistrate Judge for report and recommendation pursuant to 28
U.S.C. §636(b)(1)(A), FED. R. CIV. P. 72, and Rule 1(c) of Appendix C of the Local Rules. This
Court held a hearing on the motion on March 1, 2017.1
I. GENERAL BACKGROUND
Plaintiff Arnold J. Morris brings this suit to enjoin the Texas Medical Board’s (TMB)
Executive Director Mari Robinson, employee Juanita Garner, and board members, and State Office

1

At the hearing, SOAH and the ALJ agreed that they would abide by any decision issued by
this Court, and would not proceed to hearing if an injunction were issued against TMB. Morris
conceded that he had included SOAH and ALJ Bierman only to have a “belt and suspenders,” and
agreed they could be dismissed from the case based on their agreement to follow the dictates of this
Court. Accordingly, the Court RECOMMENDS that SOAH and Bierman be dismissed as
defendants. Tr. 19-20.

of Administrative Hearings’ (SOAH) Administrative Law Judge (ALJ) Beth Bierman from
proceeding with a contested disciplinary process. The TMB is investigating Morris for violations
of the standard of care, and filed a SOAH complaint in August 2015. Morris filed this suit on
August 23, 2016, alleging the investigation is a bad faith prosecution and should be enjoined.
II. FINDINGS OF FACT
The Court held a hearing on the motion for preliminary injunction on March 1, 2017. Morris
and Texas Rep. William Wade Zedler, who sits on the Texas House Public Health Committee,
testified for the Plaintiff. For TMB, Scott Freshour, the Interim Executive Director of the TMB, and
Dr. Irvin Zeitler, former President of the TMB, testified.
At the heart of this case is Morris’s allegation that this is the thirteenth TMB investigation
he had been subjected to in the last ten years. He additionally points out that the TMB opened at
least four new investigations this past year—all for non-therapeutic prescribing (or over-prescribing).
Morris testified that of the previous twelve investigations, nine were dismissed before reaching the
SOAH hearing stage. Of the three that went to a hearing, none ended in a finding of wrongdoing.
Morris claims that this, coupled with the expansion of the pending investigation, evidences that TMB
is prosecuting him in bad faith, in violation of his constitutional rights.
The TMB investigation began in January 2014, following a complaint made in November
2013 by the wife of one of Morris’s patients. This complaint alleged that Morris over-prescribed her
husband narcotics for over a year. Morris alleges that the complaint was “ginned-up,” but on the
stand agreed that the TMB did not self-generate this complaint. Morris states that the investigation
began with a subpoena for the medical records of the single patient referred to in the complaint, but
before he was given an opportunity to respond to the initial subpoena, the investigation was
2

expanded and the TMB issued a subpoena for the records of fourteen additional patients. Morris
opined that this subpoena would require him to produce over ten thousand pages of medical records,
resulting in a significant burden on his time and resources. Additionally, the patient from the
original complaint is no longer involved in the investigation. Freshour testified that the TMB sought
the additional records after the investigator—noting a history of similar investigations—searched
the Prescription Access in Texas (PAT) database and believed that a possible pattern or practice of
non-therapeutic prescribing may exist, warranting further investigation. Morris testified that this
search of the PAT database and subsequent expansion of the investigation prior to even receiving
his response to the initial complain violated his constitutional rights.
Morris called Rep. Zedler to corroborate this. Zedler testified that he was originally called
by Morris to look into this case after Morris received the second subpoena. Zedler was known to
physicians, as he had frequently sat in on informal settlement conferences (ISC’s) with physicians
and had been vocal about what he perceived to be due process violations by the TMB. While he
originally received his knowledge directly from Morris, he claims that he was able to corroborate
the information given to him by looking at the case file. This led to an email conversation with then
Board President, Dr. Zeitler. Zedler claims that in this exchange, he asked Zeitler what the basis for
the TMB’s expansion of the investigation was, and that Zeitler responded that, in his opinion, there
was “no reason” for the expansion.
In his testimony, Zeitler disputed this. He clarified that the discussion began with Zedler
asking for information on this particular case, and at that time he had no prior knowledge of the case
and indicated this to Zedler. He stated that in his phone conversation with Zedler, they spoke only
in hypotheticals. After this initial conversation, both Zeitler and Zedler reviewed the information
3

produced from the PAT database, which led to the follow-up email conversation (which is in the
record). In the emails, Zeitler stated that—without looking at the case more fully—the expansion
of the investigation that Zedler had described appeared to be consistent with board policies and
procedures, especially given Morris’s history with the TMB and the pattern revealed by the PAT
database. In his testimony, Freshour agreed with this assessment, noting that it was standard
procedure when there is a complaint of non-therapeutic prescribing for the TMB to review the PAT
database, and, if anomalies are seen, to expand the universe of patient files to investigate whether
a pattern of non-therapeutic prescribing exists.
Freshour testified that all normal procedures were followed in this investigation. Both Morris
and Zedler contended in their testimony that the process for creating the expert report used in the ISC
was flawed and resulted in due process violations. In his testimony, Freshour rebutted this, noting
that TMB’s process was to consult with two board-certified physicians within the field of the
physician being investigated. Each of the two physicians would individually review the records and
determine whether there had been a violation of the standard of care. If both doctors found a
violation, the case would move forward; if neither found a violation, the case would be dismissed.
However, if only one physician found a violation, a third would be appointed and would be the
deciding vote. Freshour pointed out that the process called for the experts to be drawn from a
different geographic region from the physician being investigated to avoid any conflicts of interest,
and TMB’s policy called for it to defer to their findings. Again, Freshour testified that all procedures
and policies were followed by TMB in these proceedings.
In this investigation, two experts—one board certified anesthesiologist with additional
qualifications in pain management, and one board certified family medicine specialist—found Morris
4

had committed violations of the standard of care for six of the fifteen patients whose charts they
examined (not including the patient from the original complaint). Dkt. No. 36-8. All six of the
alleged failures to meet the standard of care related to allegations of non-therapeutic prescribing.
Id. The ISC was unsuccessful and the SOAH complaint was filed and set for a hearing.2 Morris then
filed this case, and moved for a preliminary injunction to enjoin the TMB from proceeding forward
with the hearing against him.
II. LEGAL STANDARD
The purpose of a preliminary injunction is to preserve the relative positions of the parties
until a trial on the merits can be held. University of Texas v. Camenisch, 451 U.S. 390, 395 (1981).
A preliminary injunction is an “extraordinary and drastic remedy” which is never awarded as of
right. Munaf v. Geren, 553 U.S. 674, 689-90 (2008). A party seeking a preliminary injunction must
demonstrate the following factors:
(1) a substantial likelihood of success on the merits, (2) a substantial threat of
irreparable injury if the injunction is not issued, (3) that the threatened injury if the
injunction is denied outweighs any harm that will result if the injunction is granted,
and (4) that the grant of an injunction will not disserve the public interest.
Texans for Free Enterprise v. Texas Ethics Comm’n, 732 F.3d 535, 537 (5th Cir. 2013) (quoting
Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009)).

2

The SOAH hearing was originally set for March 6, 2017. Based on this, on February 14,
2017, Morris filed a motion to expedite the preliminary injunction motion. The motion for a
preliminary injunction was referred to the undersigned on February 21, 2017, and the Court then
directed the parties to identify a date for a hearing. The agreed upon date was March 1, 2017, just
five days before the SOAH hearing was scheduled to commence. At the injunction hearing, SOAH
agreed to move its hearing to the week of April 24, 2017—a concession the Court appreciates very
much, as it permitted the Court sufficient time to consider the many issues raised in this case.
5

III. ANALYSIS
Morris’s suit is premised on the claim that TMB’s investigation has been brought in bad faith
prosecution, in violation of his constitutional rights. He argues that TMB, by pursuing this thirteenth
investigation in which he has been targeted, and expanding its scope prior to even receiving his
response, violated his Fourth Amendment rights, his substantive and procedural Due Process rights,
and the Equal Protection clause. TMB argues that Morris has not proven a likelihood of success on
the merits of each of these claims.
A.

Younger Abstention
First, as the parties agree, the Younger abstention doctrine has potential application here. See

Younger v. Harris, 401 U.S. 37 (1971) (federal court should not enjoin state criminal prosecution
when party has an adequate remedy at law and will not suffer irreparable injury); Middlesex Cty.
Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982) (extending application of the Younger
abstention doctrine to state bar disciplinary proceedings). The issue in dispute is whether the
exception courts have recognized to the Younger doctrine for prosecutions taken in bad faith is
applicable here. See Bishop v. State Bar of Texas, 736 F.2d 292, 294 (5th Cir. 1984). The TMB
defendants filed a motion to dismiss based on Younger, and that motion is currently pending. See
Dkt. Nos. 26, 32. In brief, Morris’s response to the argument that the Court should abstain from this
case is that he has been the subject of twelve previous investigations by the TMB, none of which
resulted in a finding of misconduct by him.3 He contends that this is sufficient to at least raise a
plausible claim that this dispute falls within the bad faith prosecution exception to the Younger

3

The evidence was that in nine of these proceedings, the cases were dismissed prior to a
hearing, and in the other three cases Morris prevailed at the hearing stage.
6

abstention doctrine. Although the motion to dismiss has not been referred to the undersigned, as will
be seen in what follows, the evidence at the preliminary injunction hearing does not demonstrate that
the TMB’s proceedings against Morris have been brought in bad faith. Thus, it does not appear that
Morris can demonstrate that his case falls within the bad faith prosecution exception to Younger
abstention. As a result, it appears that not only should a preliminary injunction be denied, but also
that this case should be dismissed based on the Younger abstention doctrine.4
B.

Likelihood of Success
Morris has failed to show a substantial likelihood of success on the merits. Though Morris’s

pleadings are not a model of clarity, he appears to be asserting a claim under Section 1983, alleging
that he is being subjected to a bad faith prosecution. But § 1983 “is not itself a source of substantive
rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Graham
v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotations omitted). To state a claim under
§ 1983, a “plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the
United States, and (2) demonstrate that the alleged deprivation was committed by a person acting
under color of state law.” Moore v. Willis Indep. Sch. Dist., 533 F.3d 871, 874 (5th Cir. 2000).
Here, the only question at issue is whether Morris has alleged the violation of a right secured by the
Constitution or the laws of the United States.
The Court pressed Morris’s counsel at the hearing to delineate the Constitutional right he
contends has been infringed here. In Morris’s letter brief filed after the hearing, he first alleges that

4

Though the district judge has referred the motions to dismiss to Magistrate Judge Lane, in
the event the recommendations contained herein are adopted, it would be appropriate for the district
judge to withdraw the reference of the motions to dismiss, and grant those motions based on the
findings herein that the TMB’s proceedings have not been brought in bad faith.
7

bad faith prosecution is by itself an independent cause of action under Section 1983. Alternatively,
he contends that the TMB’s bad faith prosecution violated his Fourth and Fourteenth Amendment
rights. Morris relies first on the prior prosecutions by TMB to support this claim, Dkt. No. 23 at 4,
and also his assertions at the hearing that: (1) the TMB’s initial complaint here was self-generated
by members of the TMB; (2) the expert report was improperly created;5 and (3) the investigation was
“expanded” prior to even receiving his response. The expansion of the investigation dominated
Morris’s argument at the hearing, as demonstrated by this exchange between Zedler and Morris’s
attorney:
Q:

If you start out with a lie and then you add ten layers of due process, does that
make it fair?

A:

No.

Q:

So what was the underlying basis of the problem you saw early on in this
investigation before it reached ISC and before it reached SOAH?

A:

The underlying problem, as I saw it, was that, before the board ever received
his response and had a chance to even look at it, they had already filed or sent
him a subpoena for expansion. And I think it was for 14, 15 patients. And
that was when I said, this is wrong. . . . Because – because if you can imagine
having to submit 10,000 pages of information to the board . . . . [B]asically,
that’s—that’s the problem, this expansion into all these other patients. I think
there needs to be some evidence of—of non-therapeutic prescribing. How do
you know that there’s non-therapeutic prescribing going on if you haven’t
even received the response or looked at the response of the first patient?

Tr. 61–62. Though Morris’s actual claims remain poorly defined, in what follows, the Court will
address whether any the actions Morris criticizes are enough to demonstrate a substantial likelihood
of success on Morris’s claim that TMB violated his constitutional rights.
5

Morris originally alleged that he never received a copy of the expert report, but only portions
of it. However, this claim appears to have been dropped, and Representative Zedler stated that he
believed Morris received a copy. Tr. 58–59.
8

1.

Constitutional Tort of Malicious Prosecution

First, Morris relies on a series of cases beginning in 1972 to allege that the TMB violated his
constitutional right to be free from bad faith prosecution. In Shaw v. Garrison, the Fifth Circuit
stated that a person has a “federal right to be free from bad faith prosecutions.” 467 F.2d 113 (5th
Cir. 1972). Over time, this evolved into what was considered to be a freestanding constitutional right
against malicious prosecution. For example, in Wheeler v. Cosden Oil & Chemical Co., the Fifth
Circuit cited Shaw for the proposition that under the Fourteenth Amendment, there is a “duty on state
prosecutors to charge only upon ascertaining probable cause.” 734 F.2d 254, 260 (5th Cir. 1988).
Relying on the state tort of malicious prosecution, the court in Wheeler found a cause of action under
Section 1983.
In 2003, however, the Fifth Circuit revisited this line of cases in Castellano v. Fragozo, 352
F.3d 939, 946 (5th Cir. 2003). In Castellano, the Fifth Circuit clarified the law after the Supreme
Court’s decision in Albright v. Oliver, 510 U.S. 266, 271 (1994), and concluded that “no such
freestanding constitutional right to be free from malicious prosecution exists.” 352 F.3d at 945. The
court further explained, “such claims of lost constitutional rights are for violation of rights locatable
in constitutional text, and some such claims may be made under 42 U.S.C. § 1983. Regardless, they
are not claims for malicious prosecution and labeling them as such only invites confusion.” Id. at
953-54; see also Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 812-13 (5th Cir. 2010)
(“[Plaintiff's] attempt to assert a free-standing § 1983 malicious prosecution claim [under the Fourth
Amendment] fails as a matter of law.”). As such, an arrest without probable cause would not present
a substantive due process violation standing alone. Castellano, 352 F.3d at 945. 35

9

On the other hand, the Castellano court did not rule out the possibility that a Fourteenth
Amendment substantive due process violation might still present itself in certain circumstances. In
fact, the court stated that “additional government acts that may attend the initiation of a criminal
charge could give rise to claims of constitutional deprivation.” Id. at 953. Thus, the court found that
a police officer giving false testimony at trial would likely violate the defendant’s substantive due
process rights—though ultimately the officer would have absolute immunity. Id. at 958. At the end
of the day, the main ruling of Castellano was that malicious prosecution, as defined by state tort law,
cannot be brought as a freestanding claim under § 1983.
Confronted with this problem, Morris offers two arguments in support of his claims. The
first is that the Castellano line of cases apply solely in the criminal context.6 However, the
requirement of a constitutional basis also applies in the context of administrative proceedings. In
Doe v. Louisiana, decided after Albright but before Castellano, the court stated that malicious
prosecution in a civil proceeding may give rise to constitutional violations when the litigation
conduct is “so egregious as to constitute a violation of § 1983,” and “subjects the tort-victim to a
deprivation of constitutional dimension.” 2 F.3d 1412, 1419 (5th Cir. 1993) (quoting Beker
Phosphate Corp. v. Muirhead, 581 F.2d 1187, 1189 (5th Cir. 1987)). Doe went on to state that only
two cases have reached this level of egregious behavior to constitute a constitutional violation. Id.
at 1420 (citing Vinson v. Campbell Cty. Fiscal Court, 820 F.2d 194 (6th Cir. 1987) and Cale v.
6

Morris contends that Texas only recognizes a malicious prosecution action if it arises out
of a criminal prosecution. Morris cites to Richey v. Brookshire Grocer Co. to support this
proposition. 952 S.W.2d 515, 517 (Tex. 1997). While one of the factors in that test is the end of
a criminal prosecution, in another Texas Supreme Court case, the court addressed the factors for a
civil malicious prosecution claim. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 206 (Tex. 1996).
Morris is thus incorrect; Texas law does provide a cause of action for malicious prosecution for civil
as well as criminal cases.
10

Johnson, 861 F.2d 943 (6th Cir. 1988)). Thus, in civil proceedings—as well as criminal—there is
a requirement that the alleged malicious prosecution be sufficiently severe so as to amount to a
“deprivation of constitutional dimension.” Morris’s argument on this point therefore fails.
Second, Morris argues that he is not asserting a claim for malicious prosecution, but rather
for bad faith prosecution, and this is a cognizable claim under Section 1983. To the extent that
Morris is arguing that bad faith prosecution—as opposed to the constitutional tort of malicious
prosecution—is a separate constitutional violation, this argument also fails. In Flowers v. Seki, the
court found that neither the constitutional tort of malicious prosecution nor a finding of bad faith
prosecution (as defined in the Younger abstention analysis) is a freestanding claim under Section
1983. 45 F. Supp. 2d 794, 805-06 (D. Haw. 1998) (“While Younger, and the cases following it,
discuss bad faith, they do not create a cause of action for bad faith. . . . As it stands today, without
more, such a constitutional tort does not exist . . . .”), aff’d 176 F.3d 482 (9th Cir. 1999).7 Rather,
the court in that case addressed whether the alleged bad faith prosecution—and the facts that gave
rise to it—would support a finding of a violation of an enumerated constitutional right. Flowers,
though not from the Fifth Circuit, is persuasive here as it has facts that are similar to those in the
current case. Moreover, this holding is consistent with Fifth Circuit case law. Cf. Hand v. Gary, 838
F.2d 1420, 1424-26 (5th Cir. 1988) (using “bad faith” and “malicious” prosecution interchangeably).
Thus, Younger did not create a new cause of action for bad faith prosecution, and if Morris wishes

7

The Ninth Circuit affirmed this holding, noting that “although the district court previously
stated in general terms that the right to be free from bad faith prosecution was protected by the
Constitution, it had not determined that [this] specific cause of action was cognizable under section
1983.” Flowers v. Seki, 176 F.3d 482 (9th Cir. 1999). It then went on to say that “[t]he district court
was correct in concluding that [the plaintiff’s] claim for bad faith prosecution was insufficient to
state a claim under section 1983.” Id.
11

to raise such a claim he must do so within the boundaries of the very narrow malicious prosecution
claim the Fifth Circuit recognizes—which requires a showing of an independent violation of a
constitutional right. See Graham v. Connor, 490 U.S. 386, 395 (1989).
2.

Fourth Amendment Claim

In an attempt to meet this burden, Morris argues that the TMB’s “bad faith prosecution”
violated his Fourth Amendment rights. Specifically, he contends that the TMB violated his Fourth
Amendment rights by instituting proceedings against him without probable cause. The Supreme
Court has held that for a Fourth Amendment violation, there must be “an intentional acquisition of
physical control.” Brower v. Cty. of Inyo, 489 U.S. 593, 596 (1989). A “summons, coupled with
the additional liberty restrictions . . . may constitute a seizure under the Fourth Amendment.” Evans
v. Ball, 168 F.3d 856, 861 (5th Cir. 1999). Morris, however, has not established that he has been
subjected to any liberty restrictions; he has not been arrested or subjected to a bond or travel
restrictions, as was the case in Evans. In fact, Morris’s complaint is more analogous to the plaintiff
in Becker v. Kroll in the Tenth Circuit, where the plaintiff was being investigated by the state
Medicaid Fraud Control Unit. 494 F.3d 904, 909. There, the court found that the burdens on time
and finances were not enough to support a seizure under the Fourth Amendment. Id. at 916. As in
that case, Morris is unable to allege more than impositions on his time and finances, which are
insufficient to establish a “seizure.”
Morris additionally argues that the scope of the investigation was “expanded” without
probable cause.

However, an agency is not required to have probable cause to issue an

administrative subpoena. U.S. v. Zadeh, 820 F.3d 746, 756 (5th Cir. 2016). Rather, administrative
subpoenas “are limited by the general reasonableness standard of the Fourth Amendment . . . not by
12

the probable cause requirement.” Id. (quoting In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th
Cir. 2000)). As is clear from the testimony at the hearing, in cases like that involving Morris, it is
standard procedure for the TMB to seek additional records from a physician even before receiving
a response. Freshour testified that:
Q:

Mr. Freshour, could you explain to the Court what the policy is for the
expansion of an existing investigation?

A:

Yes. When – when an investigation is assigned to an investigator, if there is
evidence of same or similar ongoing violations or if there is a history of the
same or similar violations, whether or not there has been disciplinary action
resulting from those or even if they were dismissed, it can be expanded to see
if there is a pattern of practice related to that physician. Again, a prime
example of that is when we have historically or had several complaints on a
physician about their prescribing practices, whether or not they’ve been
dismissed, if you get a new complaint, you can expand to look at further
patients to be sure you get a true representative sample of what’s going on,
because one patient may or may not demonstrate it. Even in cases where there
may not be a history, if the complaint relates to over-prescribing, that gives
authority to be sure that it – to expand to look at other patients to determine
is it a pattern or could it be just an isolated incident, to be sure that you get
a true representative sample. . . .

Q:

Can you explain what the expansion meant [in the SOAH case]?

A:

Well, yes. What it meant in this case was that Dr. Morris has – and, as by his
own testimony, had been subject to prior investigations related to prescribing.
In addition, when this complaint came in, it was a complaint about
prescribing practices with a – with a patient. And given that, along with the
authority to expand, we – our investigator expanded to look and see if it was
a pattern of practice in this particular case. The standard is to get a true
representative sample as best you can, and normally expand between 10 to 15
patients. And that is the standard sample that – that the investigator will look
at when they have a prescribing case.

Q:

Now, is that the practice of the TMB in every over-prescribing case?

A:

In most over-prescribing cases, yes. Particularly if there has been same or
similar allegations dismissed or not, because there is also a board rule that
talks about any dismissal is without prejudice to further – to looking back at
13

those for purposes, not to necessarily reinvestigate, but to show if there’s a
pattern or that there’s been a prior history of notice of concerns of the medical
board.
Q:

So is it your testimony today, then, that there was nothing out of the ordinary
about looking at the PAT database to examine Dr. Morris’s prescribing
history in relation to [the SOAH case]?

A:

No. There was nothing out of the ordinary. In fact, it was consistent with
board policy and procedures.

Tr. 77–81. Thus, it appears that this “expansion” is not only typical, but necessary for the
investigation. The only fact cited by Morris to rebut this testimony was the large number of pages
subpoenaed. However, this fact alone would not make the subpoena unreasonable, particularly in
light of the reasons cited for this policy.
3.

Substantive Due Process

As discussed above, malicious (or bad faith) prosecution—standing alone—is not a
substantive due process violation. Instead, the Fourteenth Amendment “protects against arbitrary
acts of government by promoting fairness in procedure and ‘by barring certain government acts
regardless of the fairness of the procedures used to implement them.’” Castellano, 352 F.3d at 958.
To find a substantive due process violation, the conduct of the state actor must “shock[] the
conscience.” See Rochin v. California, 342 U.S. 165, 172 (1952). Here, Morris relies on Shaw and
its progeny to argue that a finding of bad faith (as referred to in Younger) would support a finding
of a substantive due process violation. As discussed previously, this has not been the law in this
circuit for some time. Moreover, the initiation of an investigation without probable cause does not,
without more, create a substantive due process violation. Though the evidence of twelve previous,
unsuccessful investigations might be enough to support an allegation of bad faith sufficient to state

14

a claim, that would only be sufficient to survive a Rule 12(b)(6) motion. The number of failed
investigations, without more, is not enough to prove a substantive due process violation.
Further, Morris has failed to allege any conduct that would shock the conscience. Again, as
mentioned previously, Freshour noted that after receiving a complaint of non-therapeutic prescribing,
it is not unusual for the TMB to seek medical records from additional patients if a review of the PAT
suggests there is a pattern of such prescribing. Tr. 81. In fact, looking at Morris’s history of past
TMB investigations, Freshour stated that this was “consistent with board policy and procedures.”
Id. The mere fact that the subpoena produced so many documents does not “shock the conscience”
such that it would constitute a Fourteenth Amendment violation. Nor did Morris present any
evidence that the complaints were “ginned up,” as Morris himself admitted that the initial complaint
came from the family member of a patient. Tr. 39.8
Morris also argues that the expert reports accusing him of not meeting the standard of care
were faulty or inappropriate in some way. For example, Morris stated that the experts are “instructed
to find everybody guilty.” Tr. 35. Ironically, this is rebutted by the fact that Morris had nine
previous investigations dismissed before they reached a SOAH hearing. Rep. Zedler went further
than Morris, stating “I’ve seen instances where expert witnesses misrepresented the facts,” and noted
that he thought it happened in this case. Tr. 59. When asked to provide his basis for this belief,
however, he was unable to provide one. Id. In contrast, Freshour stated directly that the TMB never
interferes with the work of the experts, and refuted the proposition that the TMB “ginned up” the
8

Indeed, it also is not clear that even if the TMB self-generated the complaint that this would
necessarily violate due process. On cross, Freshour stated that at times the TMB can self-generate
complaints when, for example, “a newspaper article . . . says a doctor was arrested in a raid or
something like that.” Tr. 88. Regardless, this is not the case here.

15

expert report. Tr. 86–87 (“Whatever the experts say, we go with. So if they say dismiss, we dismiss.
If they say there’s a–a violation of standard of care, the case will go forward.”). He additionally
pointed out that the TMB chooses the experts “in the same or similar practice, but [makes] sure
they’re not competitors, they’re not in the same geographic area.” Tr. 87. Further, the thoroughness
and detail of the experts’ report in this case, by itself, rebuts Morris’s assertions. The hearing
evidence strongly rebuts Morris general, vague claim that the experts are somehow biased against
doctors under investigation.
4.

Equal Protection

Morris also alleges the TMB’s actions violate his rights under the Equal Protection clause.
This claim, however was never mentioned in the brief and only mentioned in passing at the hearing.
Counsel never addressed specifically how the TMB inequitably applied its procedures. In fact, the
only reference to the TMB potentially acting inequitably came from Zedler, who stated: “The deal
is, is that do [the board members] look into every doctor who does exactly the same thing? My
suggestion is they don’t.” Tr. 50. However, this conclusory allusion to a potential “class of one”
equal protection claim is insufficient to support a preliminary injunction. See Village of Willowbrook
v. Olech, 528 U.S. 562 (2000) (allowing a claim for a class of one “where the plaintiff alleges that
she has been intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment”) .
5.

Procedural Due Process

Finally, Morris asserts his procedural due process rights have been violated. The Fourteenth
Amendment prevents States from depriving citizens of property without due process of law. U.S.

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CONST. amend. XIV § 1. “[A] reasonable, continued expectation of entitlement to a previously
acquired benefit, such as a medical license, constitutes a cognizable property interest for purposes
of due process protection.” Ramirez v. Ahn, 843 F.2d 864 867 (5th Cir. 1988). To prevail on a
procedural due process claim, a plaintiff must show that (1) he or she has a recognized property or
liberty interest and (2) was deprived of that liberty or property interest without adequate notice or
meaningful opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 332–35 (1976). “[T]o
determine whether a constitutional violation has occurred, it is necessary to ask what process the
State provided, and whether it was constitutionally adequate.” Zinermon v. Burch, 494 U.S. 113, 126
(1990). The requirements of procedural due process are “flexible and call[ ] for such procedural
protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
At a minimum, due process requires that notice and an opportunity to be heard “be granted at a
meaningful time and in a meaningful manner.” Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (citation
and internal quotation marks omitted). The ultimate requirements of due process are dependent on
three factors: First, the private interest that will be affected by the official action; second, the risk
of an erroneous deprivation of such interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and finally, the Government’s interest,
including the function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail. Mathews, 424 U.S. at 335.
As is clear from Freshour’s testimony at the hearing, in these proceedings Morris has
received, and will receive, more than constitutionally sufficient process. As Freshour noted, pointing
to the detailed flow chart admitted at the hearing showing the process physicians receive in these

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proceedings, “every single step was followed by the board as laid out from the due process
standpoint procedure that’s delineated on this chart.” Tr. 76. Morris has never argued that the
TMB’s procedures are deficient. Moreover, as noted on multiple occasions already, Morris provided
no evidence that the complaint was self-generated or that the experts were inappropriately influenced
by board members. In fact, the expert report is detailed and carefully reasoned. Similarly, the
complaint, generated by the wife of a patient, is sufficiently detailed to begin an investigation.
This merely leaves the “expansion” of the TMB’s investigation into Morris’s prescribing for
other patients, which he has not shown violated his due process rights. He argues that because TMB
expanded the investigation prior to receiving his response to the initial complaint, the prosecution
cannot possibly be in good faith. However, as noted by Freshour, it was standard practice to do so
in cases alleging non-therapeutic prescribing. Tr. 77–81. Nor does Morris point to any legal
authority to support his argument; indeed, it would be difficult to do so as the TMB followed its
procedures and issued its subpoena according to Texas law. Moreover, as shown by the evidence
presented, Morris was given an opportunity to object to the subpoena—and took the opportunity to
do so. Morris’s procedural due process claim is unsupported by the evidence.9
IV. RECOMMENDATION
In accordance with the foregoing discussion, the Court RECOMMENDS that the District
Court DENY Plaintiff’s Motion for Preliminary Injunction (Dkt. No. 23).

9

As it is readily apparent from the above discussion that Morris has not shown a likelihood
of success on the merits, the Court need not address the remaining three preliminary injunction
factors.

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V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153 (1985);
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-1429 (5th Cir. 1996) (en banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 24th day of March, 2017.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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