Anderson v. Reynolds, C 63-70.
| Decision Date | 09 March 1972 |
| Docket Number | No. C 63-70.,C 63-70. |
| Citation | 342 F. Supp. 101 |
| Parties | Richard L. ANDERSON, Plaintiff, v. David W. REYNOLDS and W. L. (Joe) Gee, Defendants. |
| Court | U.S. District Court — District of Utah |
Ronald C. Barker, Salt Lake City, Utah, for plaintiff.
Harold G. Christensen, Salt Lake City, Utah, for defendant W. L. (Joe) Gee.
Verl R. Topham, Salt Lake City, for defendant David W. Reynolds.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This is an action for damages in reliance upon the Civil Rights Acts, 42 U.S.C. §§ 1983, 1985(3).1 Jurisdiction is claimed in the complaint by virtue of 28 U.S.C. § 1343.2 It will also be assumed that plaintiff's action includes pendant state claims for false arrest and defamation.3 The case was tried in August, 1971. Collateral intra-court assignment problems have intervened but these now have been resolved and the parties have submitted the issues of fact and law upon the evidence heretofore received, the oral arguments following the trial, and upon later briefs and memoranda, the latest of which is a supplemental note of points and authorities furnished by counsel for the plaintiff under date of February 28, 1972. Now deeming itself fully advised, the court now makes and enters the following:
FINDINGS OF FACT
1. At all times material herein the plaintiff was licensed under the laws of the State of Utah as a physician and surgeon and under the laws of the United States to purchase, prescribe, administer and professionally use narcotics.
2. Defendant David W. Reynolds, hereinafter referred to as defendant Reynolds, at all times material to this cause was an employee of the Department of Business Regulation and is and was the chief narcotics investigator of the State of Utah.
3. Reynolds' only association with the plaintiff prior to the events involved herein was participation in an investigation of plaintiff conducted in 1964 by the Department of Business Regulation and other law enforcement agencies when two small girls died following tonsillectomies in the office of plaintiff. There is no evidence that there was any impropriety on the part of plaintiff in connection therewith or that Reynolds entertained malice against the plaintiff as a result thereof.
4. Defendant W. L. (Joe) Gee, hereinafter referred to as defendant Gee, is and at all times material to this cause was a Salt Lake County Deputy Sheriff assigned to the narcotics detail as a detective. He had no association with the plaintiff prior to the events hereinafter set forth.
5. All acts done by the defendants which are material to the issues in this case were done under color of office while the defendants were acting in their official capacities as law enforcement officers of the State of Utah, and in particular were done in connection with their assignments concerning narcotics.
6. On December 18, 1969, while making a routine pharmacy inspection at Grand Central Pharmacy, 3271 East 3300 South Street, Salt Lake County, Utah, defendant Reynolds discovered an unusually large number of prescriptions for injectable morphine sulphate and Demerol, both Class A narcotics, which prescriptions were written upon prescription blanks of the plaintiff and bore signatures purporting to be those of the plaintiff. In canvassing other pharmacies in the same neighborhood, Mr. Reynolds found numerous other almost identical prescriptions. A pharmacist had relayed to the investigator plaintiff's claim to him that his wife had forged his name on prescriptions filled by that pharmacist. Defendant Reynolds asked defendant Gee to assist him with his investigation and at a time prior to December 29, 1969, defendants Reynolds and Gee interviewed the plaintiff's wife. She told them that the signature upon the prescriptions appeared to be that of the plaintiff.
7. The defendants had only partial, if any, confirmation of plaintiff's relayed claim when they first contacted plaintiff and had reasonable grounds to further check other sources of information, including the narcotics records of the plaintiff, in attempting to reach a conclusion whether, or in what respect, the narcotics laws had been violated and, if so, by whom.
8. On December 29, 1969, the defendants visited the office of plaintiff as a part of their investigation. Defendants had no appointment and gave no advance word, although it is reasonable to infer from the evidence that plaintiff had anticipated an investigator might call, and were required to wait for the plaintiff to complete routine surgery in progress when they arrived. Defendants were then admitted to plaintiff's private office, gave plaintiff the "Miranda warning", and asked to see plaintiff's narcotics records. Plaintiff produced for inspection copies of a U. S. Treasury Department form by which narcotics are ordered from drug suppliers but refused to permit inspection of any records of drugs actually received, administered, dispensed, prescribed, or professionally used by him. At this meeting the plaintiff said that he had not increased his administration of narcotics and when informed that his order forms so indicated, he stated that narcotics had been stolen from the office but that he had not reported the theft. Plaintiff during this interview stated that he had talked to his attorney and his attorney had advised him not to say anything.
9. The defendants requested to see plaintiff's "narcotics records" and in the context of the evidence of what was then said and done it is clear that all parties understood that this included patient treatment records at least to the extent necessary to check questioned prescriptions in their names. There is no proof that plaintiff then kept narcotics records other than U. S. Treasury order forms and patient treatment records. Except for the former, however, plaintiff refused to furnish or permit inspection of any patients' records and of any narcotics records whatsoever. On this occasion defendants did not have any releases or consents from plaintiff's patients.
10. Defendants again visited the office of plaintiff without an appointment on Saturday, January 10, 1970, and again were required to wait while plaintiff completed routine surgery then in progress. After an extended delay the defendants were permitted to see plaintiff, repeated the "Miranda warning", demanded that plaintiff give defendants access specifically to plaintiff's patient treatment records, advised plaintiff that no doctor-patient relationship privilege existed in Utah when narcotics records were required from physicians, that no patients' releases were required in such cases, and that plaintiff would be guilty of a crime if he refused to permit inspection of his narcotics records. Plaintiff requested that he be permitted to call his attorney and to have his attorney present during this interview, located his attorney at a local Justice of the Peace court where he was trying a case, and was advised that his attorney would come to plaintiff's office as soon as the trial was completed, which was expected to be ½ to 1 hour, or that he would make a later appointment. A further discussion followed concerning the claimed right of the defendants to see patient treatment records without patient releases, and on advice of plaintiff's attorney the plaintiff refused to permit inspection of the patient treatment records at least without his attorney being present and until his attorney had sufficient time to familiarize himself with the laws relied upon by defendants concerning said records and to advise plaintiff concerning those laws. Defendants refused to wait for plaintiff's attorney to arrive and left without seeing any records on this occasion.
11. At the December 29 interview, there was an unqualified refusal on the part of the plaintiff to permit defendants to examine any of his narcotics, including patient treatment, records which was not conditioned upon further opportunity to consult with his attorney. At the January 10 interview, as aforesaid, the plaintiff refused to permit inspection of his records at least without the presence of his attorney.
12. At no time after January 10, 1970, and until the time of plaintiff's arrest did plaintiff communicate with defendants or offer to make any of his narcotics records available to them, nor did defendants communicate with plaintiff. Plaintiff at no time sought to modify his December 29 refusal of records or to clear up with the defendants the unlawful use of his prescription forms by his wife.
13. Especially on the January 10 interview, the defendants as well as the plaintiff became exercised and to a degree resentful at the positions taken by the other. But it is a reasonable inference that the defendants' personal feelings stemmed from the fact, and were substantially limited to the belief, that plaintiff was acting unreasonably and contrary to law in refusing access to his narcotics records, and that in view of the circumstances his suspected participation in the narcotics problem as well as that of others warranted further investigation. The court finds also that there has been no evidence adduced aside from the question of the unavailability of records and any concealment of known facts concerning the conduct of others and, particularly, his wife, that the planitiff did not conduct his practice in a lawful and ethical manner aside from the inattention claimed by the hospital hereinafter mentioned.
14. Following the January 10, 1970, interview, the defendants continued their investigation and confirmed that at least some of the prescriptions appeared to be forgeries, that most of the persons whose names appeared on the prescriptions as patients were unaware of the prescriptions and were not receiving narcotics, but that all persons shown on the prescriptions as patients were or had been patients of the plaintiff.
15. Prior to the events here considered the Holy Cross Hospital had under consideration a refusal to...
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