Economan v. Cockrell

• Decision Date: 23 November 2020
• Docket Number: Case No. 1:20-CV-32
• Parties: DALE W. ECONOMAN and ECONOMAN AND ASSOCIATES FAMILY MEDICINE, Plaintiffs, v. TONDA COCKRELL, GARY L. WHISENAND, THE GARRISON LAW FIRM L.L.C., JAMES LUTTRULL, JESSICA KRUG, and THE UNITED STATES, Defendants.
• Court: U.S. District Court — Northern District of Indiana

DALE W. ECONOMAN and ECONOMANAND ASSOCIATES FAMILY MEDICINE, Plaintiffs, v. TONDA COCKRELL, GARY L. WHISENAND, THE GARRISON LAW FIRM L.L.C.,JAMES LUTTRULL, JESSICA KRUG, and THE UNITED STATES, Defendants.

Case No. 1:20-CV-32

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION

November 23, 2020

OPINION AND ORDER

This matter is before the Court on the motions to dismiss filed by Defendants Tonda Cockrell, Gary Whisenand, and the United States ("the government" or "the United States"). The government filed its motion to dismiss and memorandum in support on July 10, 2020 (ECF Nos. 41 and 42). The Plaintiffs filed their response in opposition on July 31, 2020 (ECF No. 56) and the government filed its reply brief on August 13, 2020 (ECF No. 58). Cockrell filed her motion to dismiss and memorandum in support on July 17, 2020 (ECF Nos. 44 and 45), as did Whisenand (ECF Nos. 46 and 47). Both Cockrell and Whisenand moved to refile their memorandums due to technical errors (their original submissions having been filed with an improper typeface and font size). Their corrected versions appear at ECF No. 54 (Cockrell Memorandum) and ECF No. 55 (Whisenand Memorandum). The Plaintiffs filed responses in opposition to these motions on August 14, 2020 (ECF No. 59, Plaintiffs' Response to Whisenand motion to dismiss); (ECF No. 60, Plaintiffs' Response to Cockrell motion to dismiss). Cockrell and Whisenand filed their reply briefs on August 28, 2020 (ECF No. 67, Cockrell Reply Brief); (ECF No. 69, Whisenand Reply Brief).

Lastly, on September 11, 2020, Plaintiffs' counsel submitted a declaration in which he asks the Court to stay ruling on the motions to dismiss and requesting additional discovery. Application and Declaration of Eric D. Schmadeke (ECF No. 70). On September 25, 2020, the government, Cockrell and Whisenand filed a joint memorandum in opposition to Plaintiffs' request to stay. Defendants' Joint Memorandum (ECF No. 71). The Plaintiffs did not file a reply brief and the time for doing so has passed. Accordingly, the motions are ripe for ruling.

For the reasons explained below, the Motions to Dismiss are GRANTED in part and DENIED in part as follows:

1) The United States' motion to dismiss (ECF No. 41) is GRANTED as to the Plaintiffs' claims against the United States brought pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985; GRANTED in part and DENIED in part as to the Plaintiffs' claims against the United States pursuant to the Federal Tort Claims Act (the motion is granted as to the Plaintiffs' claims for malicious prosecution arising out of the underlying criminal and medical licensing board proceedings, denied as to the Plaintiffs' claims for malicious prosecution arising out of the underlying forfeiture proceeding, and denied as to the Plaintiffs' claims for abuse of process);

2) Cockrell's motion to dismiss (ECF No. 44) is GRANTED as to the Plaintiffs' claims under § 1985; DENIED as to the Plaintiffs' claims under § 1983; GRANTED in part and DENIED in part as to the Plaintiffs' claims for malicious prosecution (as stated in ¶ 1) above); DENIED as to the Plaintiffs' claims for abuse of process; and GRANTED as to the Plaintiffs' claims brought pursuant to Bivens v. Six Unknown Named Agents; and3) Whisenand's motion to dismiss (ECF No. 46) is GRANTED as to the Plaintiffs' claims under § 1985; DENIED as to the Plaintiffs' claims under § 1983; GRANTED in part and DENIED in part as to the Plaintiffs' claims for malicious prosecution (as stated in ¶ 1) above); DENIED as to the Plaintiffs' claims for abuse of process; and GRANTED as to the Plaintiffs' claims brought pursuant to Bivens v. Six Unknown Named Agents.

The Plaintiffs' Application to Stay (ECF No. 70) is DENIED.

BACKGROUND

Dale Economan worked as a physician in Marion, Indiana, and was the owner of Economan and Associates Family Medicine. EAFM was "a general family medical practice . . . created in August 2012 by Dr. Economan, and began officially seeing patients in December of 2012." Complaint, p. 5. Dr. Economan and EAFM brought this lawsuit alleging that state and federal authorities conspired to seize their assets and suspend Dr. Economan's medical license based on false allegations that he was illegally dispensing narcotics to some of his patients. The Plaintiffs alleged in their Complaint as follows:

In July 2015, local law enforcement, the Medicaid Fraud and Control Unit of the Indiana Office of the Attorney General, DEA agents, Grant County Prosecutors, and Joint Task Force officers met to discuss and conspire, upon information and belief, a multi-pronged attack to take down Dr. Economan and EAFM. Upon information and belief, this meeting occurred on July 16, 2015, and was tape recorded. . . . Upon information and belief, the Plaintiffs were targeted, in large part, because the Defendants were aware of their financial assets and the potential to seize those assets through forfeiture proceedings. . . . The first prong of the attack would be to seize the financial assets and accounts of Economan and EAFM through the forfeiture process. . . . The second prong of the attack would be to seek summary suspension of Dr. Economan's medical license. On July 29, 2015, local law enforcement, the Medicaid Fraud and Control Unit of the Indiana Office of the Attorney General, DEA agents, Grant County Prosecutors, and Joint Task Force officers executed a search warrant on the residence of Dr. Economan and EAFM. . . . The criminal allegations contained within the affidavit used tosecure the search warrant accused Dr. Economan of illegally prescribing opioids, or prescribing opioids without a legitimate medical purpose, to approximately fifty (50) of his 2,500 distinct patients. . . . However, the search warrant affidavit was devoid of any real probable cause, in that it lacked any medical opinions, or sworn statements from any medically trained individual, attesting to the medical illegitimacy of Dr. Economan's prescriptions or practices.

Id., pp. 6-7, ¶¶ 32-38. The Plaintiffs allege that their assets were illegally seized as a result of the Defendants' conspiratorial actions. The contend that on "July 29, 2015, a forfeiture action was filed against Dr. Economan and EAFM in Grant County, Indiana[,] under Cause Number 27D01-1507-MI-000102 again alleging that Dr. Economan was operating a "pill mill." Id., p. 7, ¶ 39. The Plaintiffs state that the state court, "based on the affidavits of Whisenand and Cockrell, . . . issued an Order ('Seizure Order') on July 29, 2015[,] which effectively served to seize Dr. Economan's entire lifesavings [sic], and all accounts belonging to EAFM." Id., p. 9, ¶ 49. The Plaintiffs assert that "the Seizure Order restricted over one million ($1,000,000.00) dollars of property belonging to the Plaintiffs. . . . For over the next three (3) years, the majority of the Plaintiffs' financial assets would remain seized, before being ultimately returned after all of the criminal allegations forming the basis for the forfeiture actions were dismissed with prejudice." Id., p. 10. Finally, the Plaintiffs contend that Dr. Economan's medical license was illegally suspended. The Plaintiffs state that "[t]he [Indiana Medical Licensing] Board ultimately stripped Dr. Economan of his ability to practice medicine on the sole basis of" false testimony submitted by the Defendants. Id., p. 11. The Plaintiffs claim that as a result of this conspiracy, Dr. Economan "never again practiced medicine[]" and that "[w]ithout Dr. Economan's medical license and after having had its financial accounts seized and frozen, EAFM was forced to close the practice." Id.

Based on the foregoing facts, the Plaintiffs bring several claims against the Defendants, including: (1) federal civil rights claims against all Defendants for violation of his Fourth, Fifth and Fourteenth Amendment rights, brought under 42 U.S.C. § 1983 (id., pp. 19-20)¹)id., pp. 20-22); (3) a state law claim for abuse of process against all Defendants (id., pp. 23-24); (4) a claim simply titled "conspiracy,"² (id., pp. 24-25); and (5) a claim for "injunctive and declaratory relief" (id., pp. 25-28).

The Plaintiffs named as Defendants the following entities and individuals:

1) Tonda Cockrell, "a sworn law enforcement officer employed by the United States Drug Enforcement Administration ("DEA") and the Kokomo Police Department."

2) Gary Whisenand, "a civilian investigator employed by the United States Drug EnforcementAdministration."

3) The Garrison Law Firm, LLC, "a law firm located in Indianapolis, Indiana and hired by the Grant County Prosecutor's Office to handle all forfeiture cases filed in Grant County, Indiana."

4) James Luttrull, who "served as the Grant County Prosecutor during all relevant times, representing the 48th Judicial Circuit in Indiana."

5) Jessica Krug, who "served as an employee of The Medicaid Fraud and Control Unit of the Indiana Office of the Attorney General."

6) "The Office of the Indiana Attorney General."

Complaint, pp. 3-4. The Plaintiffs also named the United States as a Defendant, alleging as follows:

The United States is a party to this action, in part, pursuant to 28 U.S.C. § 1346(b) [the Federal Tort Claims Act], which makes it liable for the injuries to Dr. Economan and EAFM that were caused by the negligent or wrongful acts of its employees and jointly and severally for those caused by their co-conspirators.

Id., p. 5.

On June 16, 2020, this Court issued an Opinion and Order granting in part and denying in part motions to dismiss filed by the "State Defendants," that is, the Office of the Indiana Attorney General, the Office of the Grant County Prosecutor, Jessica Krug, and James Luttrull. The Court granted the motions as to the Indiana Attorney General and the Grant County Prosecutor's office³, and denied the motions as to Krug and Luttrull. Opinion and Order (ECF No. 35). The"Federal Defendants," that is, the United States, Tonda Cockrell and Gary Whisenand, have...