Gordon v. Neugebauer
| Decision Date | 21 November 2014 |
| Docket Number | CIVIL ACTION NO. 1:14-cv-0093-J |
| Parties | LARRY RUSSELL GORDON, Plaintiff, v. ROBERT RANDOLPH NEUGEBAUER, et al., Defendants. |
| Court | U.S. District Court — Northern District of Texas |
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 lists seventeen separate claims arising out of Plaintiff's temporary confinement in a mental health facility. This opinion addresses Plaintiff's claims against Defendants Abilene Behavioral Health, LLC, Acadia Healthcare Company, Inc., Daniel Ryan Freshour, Tori Hicks, and Duane C. Miller.
Plaintiff later filed a First Amended Complaint and then followed that filing with a Motion for Leave to File Amended Pleadings, which this Court granted on September 18, 2014. In response, Defendants Abilene Behavioral Health, LLC, Acadia Healthcare Company, Inc.,Daniel Ryan Freshour, Tori Hicks, and Duane C. Miller filed an answer to Plaintiff's First Amended Complaint on September 30, 2014. In that answer, Defendants asserted several affirmative defenses, including (1) Plaintiff's failure to state a claim upon which relief can be granted, and (2) an assertion that Defendants are not state actors and thus cannot be held liable under 42 U.S.C. § 1983.
On October 21, 2014, Plaintiff filed a Motion to Strike, requesting that this Court strike the affirmative defenses raised in Defendants' answer to Plaintiff's First Amended Complaint. Defendants filed a response on November 12, 2014.
For purposes of this opinion and order, the Court will construe the affirmative defenses in Defendants' answer to Plaintiff's First Amended Complaint as a motion to dismiss. See United States v. Benavides, No. CIV.A. B-07-108, 2008 WL 362682, at *4 (S.D. Tex. Feb. 8, 2008) (). Plaintiff's Motion to Strike is DENIED. Defendants' Motion to Dismiss is GRANTED.
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. Plaintiffalleges 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:
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 thesame 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 Defendants Abilene Behavioral Health, LLC, Acadia Healthcare Company, Inc., Daniel Ryan Freshour, Tori Hicks, and Duane C. Miller. First, Plaintiff alleges that Abilene Behavioral Health, LLC is an entity that is 100% owned by Acadia Healthcare Company, Inc. Second, Plaintiff alleges that Abilene Behavioral Health, LLC accepted Plaintiff as a patient during the early morning hours of April 25, 2014. Third, Plaintiff alleges that Daniel Ryan Freshour, a healthcare professional employed by Abilene Behavioral Health, LLC, obtained Plaintiff's signature and consent to a medication change through coercion, despite the fact that Plaintiff informed Mr. Freshour that he would prefer to speak to his attorney first. Plaintiff states that this decision to change Plaintiff's medication to Depakote "did rise to extreme and outrageous conduct."
Fourth, Plaintiff alleges that Abilene Behavioral Health, LLC submitted a temporary commitment request to the Taylor County Attorney's Office in the name of Dr. Duane C. Miller,the Attending Physician and Medical Director of Abilene Behavioral Health, LLC. As part of this request, Abilene Behavioral Health, LLC included sworn attestations detailing Plaintiff's diagnosis. Fifth, Plaintiff alleges that Abilene Behavioral Health, LLC employee Dr. John D. Crowley submitted an application to Taylor County for Court Ordered Temporary Mental Health Services. Sixth, Plaintiff alleges that a temporary commitment hearing was held on April 30, 2014 inside a room at the Abilene Behavioral facility via videoconference with the County Court of Taylor County. Daniel Ryan Freshour was the State's sole witness at this hearing. Plaintiff alleges that during the hearing, Mr. Freshour stated...
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