Burge v. Ferguson

• Decision Date: 16 December 2008
• Docket Number: Case No. 8:07-cv-2217-T-23MSS.
• Parties: Allena BURGE, Plaintiff, v. Theodore K. FERGUSON, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

Page 1225

619 F.Supp.2d 1225

Allena BURGE, Plaintiff, v. Theodore K. FERGUSON, et al., Defendants.

Case No. 8:07-cv-2217-T-23MSS.

United States District Court, M.D. Florida, Tampa Division.

December 16, 2008.

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Allena Burge, Tarpon Springs, FL, pro se.

Helen B. Fouse, Office of the Attorney General, Tampa, FL, Alexis M. Wert, Robert D. Eckard, Robert, Eckard & Associates, PA, Palm Harbor, FL, for Defendants.

ORDER

STEVEN D. MERRYDAY, District Judge.

This lawsuit arises from an investigation and criminal charges of Medicaid provider fraud against the plaintiff, a dentist specializing in oral surgery. The plaintiff sues Walter Bowlin, Jr., D.D.S., ("Bowlin"), Theodore K. Ferguson ("Ferguson") and Patrick J. Nieman ("Nieman") in their individual capacities and alleges both a deprivation of her federal constitutional rights actionable under 42 U.S.C. § 1983 and related state-law claims. Pursuant to Rules 12(b)(6) and 12(e), Federal Rules of Civil Procedure, Bowlin moves (Doc. 16) for dismissal of the claims against Bowlin and alternatively for a more definite statement of the plaintiff's claims. Additionally Ferguson and Nieman move (Doc. 26) to dismiss the claims against them. The plaintiff responds (Docs. 25, 29) in opposition.

BACKGROUND

The complaint (Doc. 1), which fails to present each discrete claim for relief in a separate count as required by Rule 10(b),¹ includes the following allegations, presumed true for the purpose of this motion.

On June 28, 2002, Ferguson, an investigator for the Medicaid Fraud Control Unit (the "MFCU") of the Florida Attorney General's Office, "forced his entrance into the private business of Plaintiff, where he seized and arrested Plaintiff by unnecessary force." (Compl. ¶ 4) The complaint describes the event as a "SWAT-style" arrest that was "effectuated in a manner that would shock the consious [sic] of the citizens of St. Petersburg." (Compl. ¶ 18) The arrest was preceded and followed by an "illegal search" of Plaintiff's business premises, and followed by "an illegal search" of the plaintiff. (Compl. ¶ 4) Although the complaint fails to specify who conducted the searches, a further allegation (Compl. ¶ 18) that Ferguson "coordinated" the plaintiff's arrest (and the absence of other named defendants) suggests that Ferguson directed or participated in the allegedly unlawful searches. Additionally, the complaint alleges that Ferguson fabricated unspecified evidence "and/or presented [unspecified] evidence in a false light" to unspecified authorities, which conduct resulted in the plaintiff's arrest. (Compl. ¶ 19²) Without elaboration, the complaint further alleges (Compl. ¶ 20) that Ferguson "conspir[ed] with Defendant Bowlin to `find' Medicaid fraud where it did not exist."

Besides incorporating the previous allegations, the complaint alleges (Compl. ¶ 27) that Bowlin, a dentist practicing in Palm Harbor and the plaintiff's business competitor, acted as an expert witness in Ferguson's investigation. Apparently, as part of an MFCU investigation into the plaintiff's billing practices, the Attorney General hired Bowlin to review and evaluate the plaintiff's billing records.³ The complaint alleges that Bowlin intentionally or recklessly provided false information about the plaintiff's Medicaid billing practices to authorities investigating the plaintiff and (although the records he reviewed did not support the conclusion) informed the authorities that "Plaintiff engaged in Medicaid fraud." (Compl. ¶¶ 30, 32, 40) Additionally, Bowlin went beyond the scope of his duty as an expert witness by personally contacting the plaintiff's patients and by "relaying his alleged information directly to Officer Ferguson instead of" to an unspecified state panel. (Compl. ¶ 30) Bowlin also provided false information about the plaintiff's Medicaid billing practices to the plaintiff's patients and told the patients that the plaintiff "malpracticed on her patients." (Compl. ¶¶ 31, 34, 40) Finally, the complaint alleges that (a) Bowlin and Ferguson's joint actions "constituted a conspiracy to interfere with the civil rights of Plaintiff" (apparently, the rights under the Fourth and Fourteenth Amendments alleged to have been violated by "the Defendants, individually and in concert") "and/or outright destroy Plaintiff's dental practice," (b) Bowlin and Ferguson acted in furtherance of the conspiracy "by directing Plaintiff's patients to cease their appointments with Plaintiff and come directly to Bowlin for dental treatments paid for by Medicaid," and (c) as a result, "a significant number of Plaintiff's former patients" are now seeing Bowlin for their dental needs. (Compl. ¶¶ 27, 29)

After again incorporating the previous allegations, the complaint alleges that Nieman was Ferguson's supervisor and was required to approve reports, arrests, and warrants during Ferguson's investigation. (Compl. ¶ 46) Nieman possessed actual or constructive knowledge of Ferguson's conduct, and Nieman's "acquiescence" in Ferguson's conduct directly led to the constitutional violations alleged against Ferguson. (Compl. ¶ 45) Additionally, Nieman knew that, upon commencing employment with the MFCU in 1998, Ferguson possessed no pertinent previous experience. Moreover, Ferguson's training for his duties comprised a three-day training seminar. (Compl. ¶ 47) Accordingly, Nieman knew or should have known that the investigation into the plaintiff's billing practices was Ferguson's "first big Medicaid Fraud Unit case" and therefore should have known that Ferguson needed direction and guidance and "that his conduct endangered Plaintiff's rights." (Compl. ¶¶ 47-48) In short, Nieman "was deliberately indifferent to the need to train officers (including Defendant Ferguson) to properly investigate claims of Medicaid fraud and this failure to train led directly to the deprivation of Plaintiff's Constitutional rights." (Compl. ¶ 48) Finally, Nieman intentionally or recklessly provided unspecified false information about the plaintiff's Medicaid billing practices to unspecified authorities, which information caused the filing of the criminal charges against the plaintiff. (Compl. ¶ 53)

Finally, the complaint alleges that on December 22, 2003, the State Attorney's Office filed a nolle prosequi terminating the criminal prosecution against the plaintiff because "`further investigation of this case by the State Attorney's Office ... revealed that further prosecution is not warranted.'" (Compl. ¶ 39) The plaintiff commenced this action on December 6, 2007.

DISCUSSION

A motion under Rule 12(b)(6), Federal Rules of Civil Procedure, challenges the legal sufficiency of the complaint. On a Rule 12(b)(6) motion, the complaint's factual allegations are accepted as true and construed most favorably to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Christopher v. Harbury, 536 U.S. 403, 406, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). "However, a court's duty to liberally construe a plaintiff's complaint in the face of a motion to dismiss is not the equivalent of a duty to re-write it for her." Peterson v. Atlanta Hous. Auth., 998 F.2d 904, 912 (11th Cir.1993). Rule 8(a)(2) requires a short and plain statement of the claim that fairly notifies the defendant of both the claim and the supporting grounds. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007). However, "Rule 8(a)(2) still requires a `showing,' rather than a blanket assertion, of entitlement to relief." Twombly, 127 S.Ct. at 1965 n. 3. The plaintiff's "obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 127 S.Ct. at 1964-65 (citation omitted). "Factual allegations must be enough to raise [the plaintiff's] right to relief above the speculative level, on the assumption that all of the allegations in the complaint are true." Twombly, 127 S.Ct. at 1965 (citations omitted). In short, the complaint must include "enough facts to state a claim to relief that is plausible on its face." Twombly, 127 S.Ct. at 1974. Moreover, "while notice pleading may not require that the pleader allege a specific fact to cover every element or allege with precision each element of a claim, it is still necessary that a complaint contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Fin. Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11th Cir.2007) (internal quotation marks and citations omitted). "A complaint is also subject to dismissal under Rule 12(b)(6) when its allegations—on their face—show that an affirmative defense bars recovery on the claim." Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11th Cir.2001) (en banc). Finally, materials considered on a motion to dismiss under Rule 12(b)(6) are generally limited to the complaint and attached exhibits.⁴ Accordingly, the testimony and affidavits attached to the plaintiff's response in opposition (Docs. 25-2, 25-3, 25-4, and 25-5) receive no consideration except insofar as they clarify actual allegations in the complaint. See Pegram v. Herdrich, 530 U.S. 211, 230 n. 10, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000).

Qualified Immunity

On a motion to dismiss, "the qualified immunity inquiry and the Rule 12(b)(6) standard become intertwined." GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1366 (11th Cir.1998). A Section 1983 claim against a person arguably entitled to qualified immunity (e.g., a government official sued in his individual capacity) confronts a heightened pleading requirement. GJR Invs., 132 F.3d at 1367. To protect public officials from the burdens of protracted litigation and dispose of...