May v. Strain
| Decision Date | 21 October 2014 |
| Docket Number | Civil Action No. 13–176. |
| Citation | 55 F.Supp.3d 885 |
| Parties | Corina MAY, et al. v. Rodney Jack STRAIN, Jr., et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Philip Jeremy Kaplan, Law Offices of Philip J. Kaplan, Los Angeles, CA, Cameron M. Mary, Brown & Mary, LLC, Mandeville, LA, for Corina May, et al.
Keith M. Detweiler, Gerald J. Nielsen, John Dennis Carter, Nielsen, Carter & Treas, LLC, Metairie, LA, Charles M. Hughes, Jr., Gary L. Hanes, Talley, Anthony, Hughes & Knight, LLC, Gregory Carl Weiss, Weiss & Eason, LLP, Mandeville, LA, Lambert Joseph Hassinger, Jr., Jason A. Camelford, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Rodney Jack Strain, Jr., et al.
ORDER AND REASONS
Before the Court is Rodney “Jack” Strain, Jr. (“Strain”) and Lindsey “Scott” Crain's (“Crain”) (collectively, “Officer Defendants”) “Motion for Summary Judgment Pursuant to Rule 56(b) of the Federal Rules of Civil Procedure.”1 Defendants Walgreens Louisiana Co. (“Walgreens”), K & B Louisiana Corp. (“K & B”), Appriss, Inc. (“Appriss”), and the National Association of Drug Diversion Investigators, Inc. (“NADDI”) (collectively, “Corporate Defendants”) join the Motion for Summary Judgment.2 Having considered the motion, the response, the reply, the record, and the applicable law, the Court will GRANT the motion in part and DENY the motion in part.
In 2009, the Louisiana legislature enacted the Ephedrine, Pseudoephedrine, and Phenylpropanolamine Monitoring Act (“LEPPMA”).3 One of the legislative findings included in LEPPMA states: “In order to assist law enforcement and prosecutorial agencies in addressing the growing problems associated with methamphetamine production, a real time electronic database is needed to record purchases of products containing ephedrine, pseudoephedrine, and phenylpropanolamine at a pharmacy.”4 LEPPMA authorizes instant access to information collected by the Louisiana Department of Public Safety and Corrections from pharmacies in Louisiana to the Louisiana Sheriff's Association and, under some circumstances, to other local law enforcement agencies.5 Sometime subsequent to the enactment of LEPPMA, Louisiana began to utilize a computer program and database known as the National Precursor Log Exchange (“NPLEx”).6 NPLEx is a multi-state database that is currently used by approximately ten state jurisdictions.7 According to the Complaint, NPLEx is an electronic tracking service used to track the sale of over-the-counter cold medicines containing pseudoephedrine.8
On January 31, 2012, Defendant Crain was participating in surveillance of several pharmacies in Slidell, Louisiana.9 As part of that surveillance, Crain accessed the NPLEx system on a laptop computer provided to him by Defendant Strain.10 Crain monitored pseudoephedrine purchases at those pharmacies in real-time.11 According to the Complaint, he used NPLEx to access the real-time pharmacy records of Corina May (“May”) and Joel Weaver (“Weaver”) (collectively, “Plaintiffs”). Based in part on the information that he obtained from the NPLEx system, Crain arrested Plaintiffs.12 On September 12, 2012, May was convicted of Attempted Creation or Operation of a Clandestine Laboratory, and Weaver was convicted of Accessory After the Fact of Creation or Operation of a Clandestine Laboratory.13
Plaintiffs filed the complaint in this case on January 30, 2013, wherein they allege claims under 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendments, as well as a Louisiana state law claim for privacy rights violations.14 Officer Defendants filed the pending Motion for Summary Judgment on June 5, 2014.15
On June 20, 2014, Defendant Walgreens Louisiana Co. (“Walgreens”) filed a “Motion to Join Motion of Rodney J. ‘Jack’ Strain, Jr., in His Capacity as Sheriff of St. Tammany Parish, and Detective Lindsey ‘Scott’ Crain for Summary Judgment.”16 Noting that Plaintiffs did not file any objection to Walgreens' motion, and that the Officer Defendants had no objection to the motion, the Court granted Walgreens' motion on July 15, 2014.17
On July 22, 2014, K & B Louisiana Corp. (“K & B”), Appriss, Inc. (“Appriss”), and the National Association of Drug Diversion Investigators, Inc. (“NADDI”) (collectively with Walgreens, “Corporate Defendants”) filed a “Motion to Join Motion for Summary Judgment by Rodney J. ‘Jack’ Strain, Jr. and Detective Lindsey ‘Scott’ Crain.”18 Because Corporate Defendants submitted that they conferred with, and received no objection from, all other Defendants, and because Plaintiffs have not filed any objection in the record, the Court granted Corporate Defendants' Motion to Join.19
On July 29, 2014, Plaintiffs filed a memorandum in opposition to Defendants' Motion for Summary Judgment.20 Officer Defendants filed a memorandum in further support on August 7, 2014.21
Defendants argue that there is no constitutionally-protected right to privacy regarding the purchase of over-the counter (“OTC”) medications.22 Defendants aver that no court, at any level or in any jurisdiction, has yet decided whether use of the NPLEx system by law enforcement constitutes a violation of an individual's Fourth Amendment rights.23
Defendants contend that the provisions of LEPPMA, and the resulting use of the NPLEx System, do not constitute a per se violation of an individual's Fourth Amendment rights.24 Defendants argue that purchasers of OTC medications containing ephedrine, pseudoephedrine, and phenylpropanolamine, which are within the scope of NPLEx's record keeping, are entitled to a lesser expectation of privacy than purchasers of prescription drugs.25 Defendants aver that restrictions of access to medical information usually extend to information regarding prescriptions, and “OTC medication[s] are typically less likely to be harmful and less likely to involve the types of serious medical conditions about which privacy concerns become legitimate.”26 Moreover, OTC medications are often sold in grocery stores and pharmacies, and are typically placed on open shelves available to “any one, at any time, for any reason, or for no reason at all.”27 Defendants aver that although they cannot point to authority from this circuit on point, several other courts have addressed concerns about the privacy rights of individuals relative to health information.28 Because this is apparently a matter of first impression, Defendants argue, there is no clear constitutional violation of the Plaintiffs' privacy rights, a “bedrock concept” of a claim under § 1983.29
Defendants raise the qualified immunity defense. According to Defendants, “in the face of the assertion by a defendant public official of the defense of qualified immunity, a § 1983 plaintiff must comply with a heightened pleading standard.”30 This standard, according to Defendants, requires claims of specific conduct and actions giving rise to a constitutional violation.31 Specifically, Defendants argue, Plaintiffs must adequately establish that the Defendants committed a constitutional violation under current law, and that the Defendants' actions were objectively unreasonable in light of the law that was clearly established at the time the actions complained of occurred.32
Defendants argue that part of Plaintiffs' burden in rebuttal is to show that Crain knew, or that all officers in his position should have known, that his conduct was violative of Plaintiffs' constitutional right to be free from the purportedly unlawful search and seizure.33 Even if NPLEx does in fact unconstitutionally invade the privacy rights of individuals, Defendants contend, they cannot be held to have knowledge of it because “how could Det. Crain have had such knowledge when ... use of NPLEx has never been determined by any court to constitute a violation of constitutional rights?”34
Defendants distinguish this case from State v. Skinner, wherein, according to Defendants, the Louisiana Supreme Court determined that the necessity for a search warrant was strictly limited to prescription records, not records of OTC medication.35 Defendants point instead to Douglas v. Dobbs, where the Tenth Circuit extended the right of privacy to prescription drug records but rejected the plaintiff's § 1983 claim because the right had not been clearly established at the time.36 Defendants also assert that Plaintiffs have failed to offer any evidence that Defendants were “deliberately indifferent” to Plaintiffs' constitutional rights as required by the second prong of the qualified immunity defense.37
Defendants next argue that “the simple fact that some situations may constitute a technical violation of [the Health Insurance Portability and Accountability Act] does nothing to establish the existence of a constitutional right of privacy.”38 Additionally, Defendants contend, there is a law enforcement exception to HIPAA.39
In the alternative, Defendants contend that Plaintiffs' § 1983 claims are barred by application of the Heck v. Humphrey doctrine, which, they contend, holds that a § 1983 action cannot be utilized to obtain damages for alleged civil rights violations if doing so would impugn the validity of the plaintiff's underlying criminal conviction arising from the same factual context.40 According to Defendants, the Heck doctrine prohibits a plaintiff from bringing a civil rights claim against a government employee if (1) the plaintiff was convicted of an underlying criminal action, and (2) success in the civil rights claim would require negating a factual element of the criminal conviction.41 In this matter, according to Defendants, the Plaintiffs were arrested for and pled guilty to offenses related to the crime of “Creation or Operations of a Clandestine Laboratory for the Unlawful Manufacture of a Controlled Dangerous Substance,” which may be defined as “[t]he purchase ..., or possession ...
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