Morgan v. Freshour

• Decision Date: 29 September 2021
• Docket Number: Civil Action 6:17-cv-00004
• Parties: COURTNEY MORGAN, DRIVE THRU DOC, PLLC, and HOP MEDICAL SERVICES, M.D.P.A., Plaintiffs, v. SCOTT FRESHOUR, in his official capacity as Interim Director of the Texas Medical Board, MARY CHAPMAN, in her individual capacity; and JOHN KAPACZ, in his individual capacity, Defendants.
• Court: U.S. District Court — Southern District of Texas

COURTNEY MORGAN, DRIVE THRU DOC, PLLC, and HOP MEDICAL SERVICES, M.D.P.A., Plaintiffs,
v.
SCOTT FRESHOUR, in his official capacity as Interim Director of the Texas Medical Board, MARY CHAPMAN, in her individual capacity; and JOHN KAPACZ, in his individual capacity, Defendants.

Civil Action No. 6:17-cv-00004

United States District Court, S.D. Texas, Victoria Division

September 29, 2021

MEMORANDUM OPINION AND ORDER

DREW B. TIPTON UNITED STATES DISTRICT JUDGE

Pending before the Court is Plaintiff Courtney Morgan's Motion for Leave to File Plaintiffs Third Amended Complaint (“Motion”). (Dkt. No. 98). After reviewing the Motion, the Responses, the Replies, the record, and the applicable law, the Court GRANTS the Motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from the arrest of Courtney Morgan and the search of his medical facilities, Hop Medical Services, M.D.P.A. (“Hop Medical”) and Drive Thru Doc, PLLC (“Drive Thru”) in 2013 under an administrative instanter subpoena. (Dkt. No. 63 at ¶¶ 9-16, 20-24, 84). The search was authorized by the Texas Medical Board (“Medical Board”) and led by one of its agents, Mary Chapman, who, in serving the subpoena, received

1

assistance from John Kopacz, a law enforcement officer with the Texas Department of Public Safety. (Id. at ¶¶ 5, 16, 27).

After seizing several documents from Morgan's facilities, some of which were listed in the subpoena and some of which were not, Chapman and another Medical Board agent compiled an investigative report. (Id. at ¶¶ 34, 45). Morgan alleges that Chapman deliberately falsified information in this report. (Id. at ¶¶ 66-70). After receiving the documents seized and the investigative report, the State of Texas indicted Morgan for violating Section 162.152 of the Texas Occupations Code (Non-certification of a Pain Management Clinic). (Id. at ¶ 49). Morgan was arrested and prosecuted in Texas state court. (Id. at ¶ 50). Morgan moved to suppress the evidence seized from his facilities. (Id. at ¶ 51). The Texas state court granted the motion to suppress and made findings that were critical of the Medical Board's search of Morgan's facilities and Chapman's testimony. (Id. at ¶¶ 57-59).

With this evidence suppressed, the prosecutors filed a motion to dismiss the charge due to insufficient evidence. (Id. at ¶ 61). The Texas state court granted the prosecution's motion and dismissed the charge against Morgan.^[1] (Id. at ¶ 62).

One year later, Morgan initiated this case by filing an eleven-count Complaint. (Dkt. No. 1). The Original Complaint listed three plaintiffs-Morgan, Drive Thru, and Hop Medical-and three Defendants-Scott Freshour, ^[2] Chapman, and Kopacz. (Id. at

2

¶¶ 4-10). In the Original Complaint, the Plaintiffs alleged that the Defendants violated their Fourth Amendment right to be free from unreasonable searches and seizures. (Id. at ¶¶ 70-134). They also alleged under two separate counts that Kopacz is liable to Morgan for malicious prosecution. (Id. at ¶¶ 43-69). The three Defendants moved to dismiss the Original Complaint. (Dkt. No. 33); (Dkt. No. 35).

In response, Morgan filed his First Amended Complaint. (Dkt. No. 39). In the First Amended Complaint, Drive Thru and Hop Medical removed themselves as Plaintiffs and Morgan removed Freshour as a Defendant. (Id. ¶¶ 4-7). Morgan brought just two counts in his First Amended Complaint, as compared to the eleven counts in his Original Complaint. Compare (Id. at ¶¶ 54-95) with (Dkt. No. 1 at ¶¶ 43-134). In these two counts, Morgan alleged that Kopacz and Chapman are liable to him under 42 U.S.C. § 1983 for malicious prosecution. (Dkt. No. 39 at ¶¶ 54-95).

Kopacz and Chapman moved to dismiss Morgan's First Amended Complaint. (Dkt. No. 40); (Dkt. No. 42). Morgan opposed dismissal and subsequently moved for leave to amend. (Dkt. No. 44); (Dkt. No. 45); (Dkt. No. 61). The district court granted Morgan's motion for leave, (Dkt. No. 62), and Morgan filed his Second Amended Complaint. (Dkt. No. 63).

In his Second Amended Complaint, Morgan retains the two counts for malicious prosecution and adds a third count alleging that Chapman is liable to him under 42 U.S.C. § 1983 for abuse of process. (Id. at ¶¶ 71-121). Kopacz and Chapman moved to dismiss the Second Amended Complaint, which Morgan opposed. (Dkt. No. 64); (Dkt. No. 65); (Dkt. No. 66); (Dkt. No. 68). The Court denied these motions concluding that Morgan

3

articulated plausible claims for malicious prosecution and abuse of process and that the claims were not barred by absolute prosecutorial immunity or qualified immunity. (Dkt. No. 75 at 8-9). Kopacz and Morgan appealed this decision to the Fifth Circuit. (Dkt. No. 78).

The Fifth Circuit reversed the district court's denial of Kopacz and Morgan's motions to dismiss. Morgan v. Chapman, 969 F.3d 238, 241 (5th Cir. 2020). In its opinion, the Fifth Circuit agreed with the district court's finding regarding absolute prosecutorial immunity, id. at 244, but disagreed with respect to qualified immunity because “malicious prosecution and abuse of process are not viable theories of constitutional injury.” Id. at 241. Accordingly, the Fifth Circuit vacated the judgment. Id. at 251.

Notably, the Fifth Circuit, also concluded that “[i]t would not be futile on the merits for Morgan to pursue an unreasonable search, unreasonable seizure, or due process claim.” Id. at 250 (emphasis added). The court then “remand[ed] for the district court to consider amendment and, if necessary, issues of waiver and forfeiture.” Id.

Following the Fifth Circuit's decision, Morgan moved for leave to amend his Second Amended Complaint and attached a five-count Proposed Third Amended Complaint (“Proposed Complaint”). (Dkt. No. 98); (Dkt. No. 98-1). In his Proposed Complaint, Morgan removed the malicious prosecution and abuse of process claims. (Dkt. No. 98-1). He replaced those claims with unreasonable search, unreasonable seizure, and due process claims-claims the Fifth Circuit found not to be futile. (Id. at ¶¶ 74-138). In Counts One and Three of his Proposed Complaint, Morgan seeks to allege that Kopacz and Chapman are liable to him under 42 U.S.C. § 1983 for violating his Fourth

4

Amendment right to be free from unreasonable searches. (Id. ¶¶ 74-82, 96-110). In Counts Two and Four, Morgan seeks to allege that Kopacz and Chapman are liable to him under Section 1983 for violating his Fourth Amendment right to be free from unreasonable seizures. (Id. ¶¶ 83-95, 111-23). Morgan states that each of these claims is analogous to the malicious prosecution claims alleged in his Second Amended Complaint.^[3] (Id. at 17, 23). Finally, in Count Five, Morgan seeks to allege that Chapman is liable to him under Section 1983 for violating his Fourteenth Amendment due process rights. (Id. ¶¶ 124-38). Kopacz and Chapman oppose Morgan's motion for leave to amend for a third time, for the reasons set forth in their separate Responses. (Dkt. Nos. 101, 102). Morgan filed Replies to each. (Dkt. No. 105); (Dkt. No. 106).

5

II. DISCUSSION

A. Waiver and Forfeiture of Fourth Amendment Claims

The Court first addresses Chapman's argument that Morgan waived or, in the alternative, forfeited the Fourth Amendment unreasonable search and seizure claims raised in his Proposed Complaint. Chapman does not direct this Court to any legal authority to support her assertion.^[4] (Dkt. No. 102 at 2-3). Instead, Chapman points to statements made by Morgan and the district court to support her waiver argument.^[5] (Id. at 2). In support of her forfeiture argument, Chapman points out that Morgan, in his First and Second Amended Complaints, did not include the...