Cotropia v. Chapman

• Decision Date: 22 October 2020
• Docket Number: No. 19-20688,19-20688
• Parties: Joseph COTROPIA, Plaintiff—Appellant, v. Mary CHAPMAN, Individually, Defendant—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

978 F.3d 282

Joseph COTROPIA, Plaintiff—Appellant,

v.Mary CHAPMAN, Individually, Defendant—Appellee.

No. 19-20688

United States Court of Appeals, Fifth Circuit.

FILED October 22, 2020

Tommy Swate, Swate Law, Houston, TX, for Plaintiff - Appellant.

Bill L. Davis, Assistant Attorney General, Office of the Attorney General for the State of Texas, Eric Alan Hudson, Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Defendant - Appellee.

Before Smith, Clement, and Oldham, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Joseph Cotropia sued Mary Chapman, an investigator for the Texas Medical Board ("TMB"), under 42 U.S.C. § 1983 for searching his medical office and seizing documents without a warrant. The district court granted Chapman's motion for summary judgment on the basis of qualified immunity ("QI"). We affirm.

I.

On February 13, 2015, the TMB issued a Final Order revoking Cotropia's medical license¹ because he had improperly prescribed controlled substances and had directed and supervised an unregistered pain management clinic ("PMC"), an entity that needed to be registered under Texas law. TEX. OCC. CODE § 168.101. The TMB's Final Order instructed Cotropia to "immediately cease practice in Texas," explaining that violations could result in "disciplinary action by the Board or prosecution for practicing without a license in Texas."²

But Cotropia, by his own admission, continued to practice after the February 13, 2015, revocation, until March 20, 2015. After the TMB received a complaint against Cotropia, the TMB sent Chapman to execute an administrative subpoena at Cotropia's office on March 27, 2015.³ The subpoena directed Cotropia to produce copies of prescriptions and patient sign-in sheets from February 27, 2015, to the present.

Cotropia was away from his office that day, preparing for a hearing involving the TMB. Betty Spaugh, Cotropia's receptionist, remained at the office to handle communications with patients. Accompanied by a federal DEA agent, Chapman arrived at Cotropia's office and presented Spaugh with the administrative subpoena. After speaking on the phone with Cotropia's attorney, Spaugh requested that Chapman leave the office, but Chapman stayed.

Chapman removed several documents from Spaugh's desk and made copies.⁴ Those documents included appointment ledgers, a patient payment ledger,⁵ sign-in sheets, and five credit card receipts showing payments to "T.E. Swate."⁶ After an hour, a constable arrived and told Chapman to leave.

Cotropia filed this § 1983 action against Chapman for violations of his Fourth and Fourteenth Amendment rights based on Chapman's search and seizure of documents without a warrant. Chapman then moved to dismiss on the basis of QI. Although the district court granted Chapman's motion to dismiss with prejudice, we reversed. See Cotropia v. Chapman , 721 F. App'x 354 (5th Cir. 2018) (per curiam). We concluded that Cotropia "alleged sufficient facts to show that Chapman ... violated the clearly established right to an opportunity to obtain precompliance review of an administrative subpoena before a neutral decisionmaker." Id. at 357.

In that appeal, we declined to adopt two of Chapman's arguments. First, although we noted that 22 TEXAS ADMINISTRATIVE CODE § 179.4(a) and TEXAS OCCUPATIONS CODE § 153.007(e) —which together constitute the TMB's subpoena authority—might provide the power to demand medical records on short notice, Chapman had not "made clear (on the arguments that she ha[d] provided thus far) whether § 179.4(a) applies to this situation at all." Cotropia , 721 F. App'x at 359.⁷ Second, Chapman contended, at oral argument, that medical practices constitute "a closely regulated industry and that the regulatory scheme TMB has in place provides a constitutionally adequate substitute for a warrant" under New York v. Burger , 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). Cotropia , 721 F. App'x at 360. But because Chapman had not previously raised that argument, we declined to address it. Id.

On remand, after discovery, Chapman moved for summary judgment on the basis of QI. She argued that, because she reasonably relied on the Texas Administrative Code and Texas Occupations Code, her search was reasonable. The magistrate judge issued a Recommendation and Memorandum granting Chapman's motion, which the district court adopted in full, and Cotropia appeals.

II.

After a defendant makes a "good-faith assertion of [QI]," the burden of proof for summary judgment purposes "shift[s] ... to the plaintiff to show that the defense is not available." Melton v. Phillips , 875 F.3d 256, 261 (5th Cir. 2017) (en banc) (quotation omitted). To satisfy its burden, a plaintiff must show "(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct." Morgan v. Swanson , 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (quotation omitted).

Cotropia contends that (1) Chapman violated his constitutional rights, by executing the administrative subpoena without any opportunity for Cotropia to obtain precompliance review, and (2) Cotropia's constitutional rights were clearly established at the time of the search. We agree that Chapman violated Cotropia's constitutional rights, but the law was not clearly established at the time of the search.

A.

"Warrantless searches and seizures are per se unreasonable unless they fall within a few narrowly defined exceptions." United States v. Kelly , 302 F.3d 291, 293 (5th Cir. 2002) (quotation omitted). Two are relevant. First, as a general matter, "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. 2443. Second, even without precompliance review, there is an "administrative exception," the relevant test for which comes from Burger . Zadeh v. Robinson , 928 F.3d 457, 465 (5th Cir. 2019), cert. denied , ––– U.S. ––––, ––– S.Ct. ––––, 207 L.Ed.2d 1051 (2020). Under 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.’ "

Id. at 464–65 (quoting Burger , 482 U.S. at 703, 107 S.Ct. 2636 ). Because Chapman did not have a warrant and Cotropia had no opportunity for precompliance review of the subpoena, we analyze whether Chapman complied with the administrative exception.

Last year, in Zadeh —a case factually similar to this one—we examined whether the TMB's authority to investigate the medical industry as a whole—and PMCs in particular—fell within the administrative exception under Burger . Zadeh , 928 F.3d at 466. We declined to apply Burger to the medical industry as a whole, because it "is not a closely regulated industry for purposes of Burger ." Id. PMCs, on the other hand, are medical facilities in which "a majority of patients are issued on a monthly basis a prescription for opioids, benzodiazepines, barbiturates, or carisoprodol

." TEX. OCC. CODE § 168.001(1). Assuming that PMCs could be considered a closely regulated industry, we concluded that the TMB's administrative-subpoena authority for searching PMCs failed on the third prong of Burger . Zadeh , 928 F.3d at 466–68. That prong requires "a warrant substitute authorized by statute to be constitutionally adequate." Id. at 467. Constitutional adequacy in turn requires that "the regulatory statute ... must limit the discretion of the inspecting officers." Burger , 482 U.S. at 703, 107 S.Ct. 2636.

Zadeh dealt with two sources of the TMB's authority. First, §§ 153.007(a) and 179.4(a) grant the TMB authority to issue administrative subpoenas. Those provisions, however, provide "no identifiable limit on whose records can properly be subpoenaed." Zadeh , 928 F.3d at 467. Second, §§ 168.052(a) and 195.3 grant the TMB authority to inspect PMCs. Those provisions, however, "d[o] not limit how the clinics inspected are chosen." Zadeh , 928 F.3d at 468. Given the dearth of constraints, we concluded that both sources of the TMB's authority failed under Burger . Id.

In the instant case, like Zadeh , Chapman relied on TEXAS OCCUPATIONS CODE §§ 153.007(a) and 168.052 and 22 TEXAS ADMINISTRATIVE CODE §§ 179.4(a) and 195.3 as the sources of her authority to execute the administrative subpoena and search Cotropia's office.⁸ Zadeh 's Burger analysis, therefore, controls the constitutional question here. As Chapman concedes, " Zadeh already contains the very holding Cotropia asks the Court to announce in accordance with this constitutional analysis." Chapman thus violated Cotropia's constitutional rights when she copied documents in Cotropia's office without any precompliance review of the administrative subpoena.

B.

With the first prong satisfied, we address whether Cotropia's right to precompliance review was clearly established at the time of the search. In Zadeh , even though we concluded that the TMB's subpoena authority for searching pain management clinics was unconstitutional, we could not conclude that "every reasonable official prior to conducting a search under the circumstances of this case would know this Burger factor was not satisfied." Zadeh , 928 F.3d at 470. We "[did] not hold that all reasonable officers would have known that, until now." Id. Zadeh was issued in 2019; Chapman searched Cotropia's office in 2015. Thus, at that time, it was not clearly established that her search per §§ 153.007(a), 168.052, 179.4(a), and 195.3 was unconstitutional. Cotropia seeks to avoid that conclusion by differentiating Zadeh in several respects.

1.

Cotropia tries to distinguish Zadeh by reasoning that, unlike the office in Zadeh , Cotropia's office was "undisput...