Gordon v. Neugebauer

• Decision Date: 31 October 2014
• Docket Number: Civil Action No. 1:14–cv–0093–J.
• Citation: 57 F.Supp.3d 766
• Parties: Larry Russell GORDON, Plaintiff, v. Robert Randolph NEUGEBAUER, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

57 F.Supp.3d 766

Larry Russell GORDON, Plaintiff

v.Robert Randolph NEUGEBAUER, et al., Defendants.

Civil Action No. 1:14–cv–0093–J.

United States District Court, N.D. Texas, Abilene Division.

Signed Oct. 31, 2014.

Clay Thomas, Clay Thomas PC, Abilene, TX, for Plaintiff.

Kyle Thomas Jones, U.S. House of Representatives, Washington, DC, Wess H. Tribble, Dan McManus, Tribble & Ross, Houston, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

MARY LOU ROBINSON, District Judge.

On June 9, 2014, Plaintiff filed a complaint in this Court against twenty-two defendants: Congressman Robert Randolph Neugebauer, the Abilene Police Department, the City of Abilene, the Betty Hardwick Center, the County of Taylor, the County of Jones, the County of Shackelford, the County of Stephens, the County of Callahan, Stan Standridge, Abilene Behavioral Health, LLC, Joey A. Jacobs, Christopher L. Howard, David M. Duckworth, Brent Turner, Daniel Ryan Freshour, Duane C. Miller, John D. Crowley, Acadia Healthcare Company, Inc., Abilene Psychiatric Center Associates, LLC, Tori Hicks, and Williams Zimmerman. The complaint listed seventeen separate claims arising out of Plaintiff's temporary confinement in a mental health facility. This opinion addresses the motion to dismiss filed by John D. Crowley, a physician employed by Abilene Behavioral Health, LLC.

On July 21, 2014, Defendant Crowley filed a Motion to Dismiss for lack of subject matter jurisdiction and failure to state a claim, seeking this Court's dismissal of Plaintiff's claims against him. Plaintiff filed a response to Defendant's motion on August 10, 2014. Defendant filed a reply on August 22, 2014. Before this Court could rule on Defendant's Motion to Dismiss, Plaintiff filed an amended complaint and then followed that filing with a Motion for Leave to File Amended Pleadings, which this Court granted on September 18, 2014. On September 30, 2014, Defendant filed a second Motion to Dismiss, in response to Plaintiff's First Amended Complaint. Plaintiff filed a response on October 22, 2014. Defendant's motion is GRANTED.

BACKGROUND

Plaintiff Larry Russell Gordon is a sixty-nine-year-old Abilene resident and Vietnam War veteran. Plaintiff states that although he has a warm home and a spouse of many years, “his mission is to care for homeless and discarded veterans in whatever way may be available to his means.” This often extends to his spending nights away from home with veterans, “giving them company and emotional support as they seek ... refuge by sleeping under bridges or whatever shelter they may find in Taylor County, Texas.”

On September 24, 2012, Plaintiff visited the Abilene offices of Congressman Robert Randolph Neugebauer while carrying exercise weights. Plaintiff asked to meet with the Congressman but was told that the Congressman was very busy and did not have time. Plaintiff alleges that after he left the office, “and as he paused to adjust the exercise weights he was carrying,” he heard laughter coming from the office. He assumed the laughter was directed at him. He again rang the bell. When the door was opened, he said, “you don't have to laugh at me.” He then left the building. Following this incident, Plaintiff states that he received a telephone call from Detective William Zimmerman, a member of the United States Capitol Police. Although the exact conversation is not alleged, Plaintiff states that Detective Zimmerman threatened him “with reprisals meant to be believed by Plaintiff to mean imminent bodily injury if he were to ever again visit Defendant Neugebauer's office.” Nevertheless, Plaintiff continued to repeatedly visit Congressman Neugebauer's office for almost two years and attempted to meet him in person to no avail.

On April 24, 2014, Plaintiff once again visited the Congressman's office in Abilene. No one answered the door. Plaintiff walked down the hall and began chatting with a receptionist in a nearby office. At some point, two Abilene police officers arrived. When they went toward the elevator, Plaintiff stopped them to inquire about the seeming emergency. Plaintiff alleges that the officers started to handcuff him but released him and stated that he was banned from the building where the Congressman's offices were located.

After leaving the building, the Plaintiff gave a television interview with a KATB news reporter in which he stated that he had wanted to discuss veterans' issues with the Congressman and intended to tell the Congressman, “[s]ince I talked to you last, 66 people have taken their lives ... My brothers are ... once they're your brother, they're always your brother.” After the newscast, the Congressman released the following statement: “For the past few weeks, my staff has been working with a constituent whose behavior has given us reason to be concerned for his well-being. We referred the matter to the Capitol Police and Abilene Police Department so they could provide the assistance required to ensure his health and safety.”

That evening, Officer Pruitt of the Abilene Police Department visited Plaintiff's residence and interviewed Plaintiff and his wife. Plaintiff asserted his willingness to give his life to save the lives of others. In his report, Officer Pruitt stated that Plaintiff had made threats toward Congressman Neugebauer, was taking Paxil

for depression, had articulated suicidal thoughts, and seemed grandiose and obsessed with the issue of veteran suicide. However, during Plaintiff's preliminary examination on April 25, 2014, Plaintiff stated that he had made no threats toward the Congressman. After the interview, Officer Pruitt left Plaintiff's residence and returned with Judy McDowell, the Medical Crisis Outreach Team Coordinator at the Betty Hardwick Center, a unit of local government that provides mental health services to several counties in Texas. Plaintiff was then driven to Abilene Behavioral Health—a private mental health facility—where he was admitted as a patient at 2:40 AM on Friday, April 25, 2014.

Plaintiff alleges that on Monday, April 28, 2014, he was informed by Daniel Ryan Freshour, P.A., that his medication needed to be changed and that his signature was required to consent to the change. Plaintiff alleges that he asked to speak to his attorney first, but after pressure from Mr. Freshour, Plaintiff provided his signature and consented to the medication change.

On Monday, April 28, 2014, Abilene Behavioral Health submitted a commitment request to the Taylor County Attorney's Office pursuant to the Texas Mental Health Code. The request was signed by Dr. Duane Miller, the Attending Physician and Medical Director of Abilene Behavioral Health. The request contained an affidavit sworn by Dr. John Crowley, with Plaintiff's diagnosis listed as “Major Depressive Order, recurrent with severe psychosis

.” On the same day, Dr. Crowley submitted an Application for Court–Ordered Temporary Mental Health Services, requesting that Plaintiff be held for treatment for a period not to exceed ninety days.

A Temporary Commitment Hearing was held on April 30, 2014 at Abilene Behavioral Health via videoconference with the County Court of Taylor County. At the hearing, Mr. Freshour stated that he had changed Plaintiff's medication from Paxil

to Depakote and that Abilene Behavioral thus wished to monitor the results of the medication change. Plaintiff alleges that Depakote has certain possible side effects. At the conclusion of the hearing, in which it was determined that the effects of the medication change could be monitored by Plaintiff's private physician, Taylor County Assistant District Attorney Etta Warman decided to withdraw the Motion of Protective Order. Plaintiff was released from the Abilene Behavioral Health facility on the same day.

In his complaint, Plaintiff makes the following factual allegations specific to John D. Crowley. First, Plaintiff alleges that Dr. John Crowley performed Plaintiff's preliminary examination. Second, Plaintiff alleges that when Abilene Behavioral Health, LLC submitted its commitment request to the Taylor County Attorney's Office, the request included a Physician's Certificate of Medical Examination For Mental Illness with an affidavit sworn in Dr. John Crowley's name. In the affidavit, Dr. Crowley diagnosed Plaintiff as suffering from “Major Depressive Order, recurrent with severe psychosis

” and based this finding on Abilene Police Officer Pruitt's assertion that Plaintiff had made threats against Congressman Neugebauer. Plaintiff also alleges that the commitment request was sent to the Taylor County Attorney's Office by Dr. Duane C. Miller despite the fact that Dr. John Crowley was the sole physician that had the authority to further detain Plaintiff. Third, Plaintiff alleges that Dr. Crowley submitted an Application for Court Ordered Temporary Mental Health Services, presumably to Taylor County. Fourth, Plaintiff alleges that “John Dale Crowley ... sought to restrain, and did restrain, Plaintiff's liberty as [a] state actor[ ] in violation of the First, Fourth, and Fourteenth Amendments.”

In three sections outlining his civil RICO claims against Defendants, Plaintiff makes numerous factual assertions applicable to all Defendants listed in the RICO count, including Dr. John Crowley. First, Plaintiff alleges that “[t]he conduct of the Defendants violates the provisions of 18 U.S.C. § 1962(c).” Second, Plaintiff alleges that the Defendants created an association-in-fact enterprise whose purpose was to deprive Plaintiff of his liberty in order to fraudulently obtain payment from insurance companies and the Medicare program. Plaintiff then lists twenty-four different federal and state crimes which he claims were committed by the Defendants and which he claims represent predicate acts that form a pattern of racketeering activity. Plaintiff also alleges that “Defendants conspired among themselves” to engage in the lengthy list of predicate act crimes and that Defendants “agreed to ... withhold Plaintiff's...