Niewenhous v. Burns
| Decision Date | 31 March 2021 |
| Docket Number | Case No.: DLB-20-231,Case No.: DLB-20-232 |
| Parties | LAURA NIEWENHOUS, Plaintiff, v. NATHANIEL BURNS, et al., Defendants. RICHARD DELAVEGA, Plaintiff, v. NATHANIEL BURNS, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
Richard Delavega, the owner of Mid Atlantic Wellness Pain Management Center ("Mid Atlantic Wellness"), and Laura Niewenhous, a certified registered nurse practitioner he employed, were arrested for keeping a common nuisance, based on the alleged unlawful distribution of oxycodone1 and other Schedule II controlled dangerous substances at Mid Atlantic Wellness, an alleged "cash for prescription operation." After the criminal charges against them were dismissed for lack of probable cause by a state court judge at a preliminary hearing, plaintiffs filed lawsuitsagainst the lead investigator, Detective Steven Gore, and other members of the Queen Anne's County Sheriff Deputies and the Maryland State Police. They claim that the defendants fabricated probable cause to falsely and illegally obtain the arrest warrants and that their arrests without probable cause violated their Fourth Amendment rights, their state constitutional rights, and Maryland common law.
The cases were consolidated for pretrial purposes, and defendants filed motions to dismiss both complaints on various grounds or alternatively, for summary judgment. The Court will treat defendants' motions as motions for summary judgment. Because the undisputed facts establish that defendants had probable cause for plaintiffs' arrest and are entitled to qualified immunity from the federal claims, the Court will grant summary judgment in defendants' favor as to the federal claims and dismiss the state claims for lack of jurisdiction.
The investigation into Mid Atlantic Wellness began in the Spring of 2016. At that time, "numerous pharmacies in Chester and Stevensville Maryland" contacted Detective Gore, a member of the Queen Anne's County Drug Task Force, "in reference to patients attempting to fill prescriptions written from Mid Atlantic Wellness," a pain management clinic. Gore Decl. & Report, ECF 27-3, at 8. The pharmacists stated that "the patients were from out of state and always seemed to be in a hurry, more so than average customers," and the pharmacists questioned whether "Mid Atlantic Wellness was a legitimate business or a pill mill."3 Id. The pharmacists "[a]ll . . .advised [Gore] that they would not be filling the prescriptions from Mid Atlantic Wellness at th[at] time due to their concerns." Id. Additionally, other tenants in the building where Mid Atlantic Wellness was located had complained that "persons who were visiting Mid Atlantic Wellness were sleeping, urinating, fighting and creating disturbances in the parking lot, bathrooms and hallways shared with other tenants." App. for Stmt. of Charges 2, ECF 27-2.
Detective Gore learned through DEA investigators that, before opening Mid Atlantic Wellness, Richard Delavega "was a 'recruiter' for [a] 'pill mill' in Salisbury." Report, ECF 27-3, at 10. Delavega "had operated several other pain management clinics," including one in Salisbury that "was shut down by the DEA in 2015 for illegally selling prescription pain pills." Id. at 12. After the DEA closed that clinic, Delavega "moved his pain management operation to Queen Anne's County Maryland" and "lure[d] [the Salisbury clinic patients] into his new location," which "was only open on weekends." Id. He then closed that clinic and opened Mid Atlantic Wellness at 101 Log Canoe Circle, Suite E in Stevensville, Maryland. Id. at 13.
In July 2016, Detective Gore began an investigation into Mid Atlantic Wellness for the Queen Anne's County Drug Task Force. App. for Stmt. of Charges 2. He consulted with the State's Attorney's Office throughout the investigation. Gore Decl. ¶ 5, ECF 27-3. Mid Atlantic Wellness's office at 101 Log Canoe Circle was "on the second floor of an office building in a business park." App. for Stmt. of Charges 2. It "share[d] stairwells, entry lobbies, restrooms and parking" with the other businesses in the building. Id. Detective Gore determined that "Mid Atlantic Wellness was not a registered business in Maryland" and appeared to be operating "without the appropriate and required business licenses for the State of Maryland." Report, ECF 27-3, at 7.
Detective Gore conducted surveillance and "immediately observed multiple vehicle[s] with out of state license plates in the parking lot" and "persons sitting in their vehicles for hours on end, persons sleeping in their vehicles and persons milling around the parking lot and common areas, all of whom were waiting to be seen by Mid Atlantic Wellness." App. for Stmt. of Charges 2. Detective Gore stated that he "contacted a patrol officer to make contact with one of the persons sitting in their car and this drew an immediate and hostile reaction from employees working at Mid Atlantic Wellness, who immediately began threatening physical harm to neighboring tenants and management for the business park." Id.
Detective Gore continued the surveillance and investigation from July through December 2016. Id. at 3. During the investigation, it was observed that Mid Atlantic Wellness often "was not open during the[] normal business hours [of 9 a.m. to 5 p.m.] and not open all five business days," but rather "would open at random times of the day and evening." Report, ECF 27-3, at 8; see also id. at 13.
Detective Gore "interviewed management for the building and other tenants" and learned that "the patients waiting to be seen had been causing multiple disturbances ever since the clinic had opened"; the other tenants' complaints continued throughout the surveillance period. App. for Stmt. of Charges 2-3. When management informed "persons working for Mid Atlantic Wellness" of the other tenants' complaints, they responded "with hostility and threats of lawsuits for harassment." Id. at 2.
Id. Clinic records showed that appointments were with "Rick" or "Laura Niewenhous." Report, ECF 27-3, at 34-36.
As part of the investigation, an undercover investigator ("UI") "made several visits to the clinic." App. for Stmt. of Charges 3. The UI scheduled an initial appointment with Niewenhous for July 13, 2016. Report, ECF 27-3, at 18. Mid Atlantic Wellness requested that he bring an MRI, which he did. Id. at 17-18. The DEA had manufactured the MRI to reflect that the patient "was a healthy male with normal wear on his body for a 35-40 year old male." Id. at 17. Niewenhous examined the UI and wrote a prescription for 15 mg oxycodone twice per day plus 10 mg oxycontin twice per day, along with a prescription for naloxone in case of overdose. Id. at 19-21. She noted that 30 mg was "a high dose" and "a red flag" for the DEA. Id. at 20-21.
On August 9, 2016, the UI returned and after "very brief" consultation, Niewenhous wrote the same prescription. Report, ECF 27-3, at 22. On September 6, 2016, the UI had his next appointment. Id. at 23. He was directed to take his own blood pressure. Id. He did not receive a physical examination, and Niewenhous wrote him the same prescription. She stated that she would increase it if he obtained laboratory results showing his liver was handling the medication. Id.
On October 4, 2016, the UI visited the clinic again and once again took his own blood pressure. Id. at 27. He informed Niewenhous that he needed more medication and stated that he was taking additional pain medication that he received "from friends." Id. at 29. Niewenhous cautioned him that it was "a violation of [his] pain contract" to take medication not prescribed to him. Id. Even so, she increased his oxycontin prescription from 10 mg to 15 mg pills per day. Id. at 30.
On November 2, 2016 the UI returned to Mid Atlantic Wellness and once again took his own blood pressure. Report, ECF 27-3, at 36. The receptionist, Saldana, stated that Niewenhous was "legit with her shit" and that was "how [the clinic] stay[ed] open." Id. at 37. Niewenhous gave the UI a physical examination and increased his prescription to three 15 mg oxycodone pill per day, plus two 15 mg oxycontin pills per day. Id. at 37-39. On December 7, 2016, the UI had his last appointment with Niewenhous. Id. at 39. She again prescribed three 15 mg oxycodone pill per day, plus two 15 mg oxycontin pills per day. Id. at 42.
On January 26, 2017, Detective Gore submitted an application for statement of charges against Niewenhous and Delavega. The State's Attorney's Office reviewed and approved the application before he submitted it. Gore Decl. ¶ 5. He described Mid Atlantic Wellness's operations, which involved cash payments, word of mouth referrals, appointments scheduled on Facebook with Delavega as an option even though he could not prescribe medication, limited hours, and no legitimate phone number. App. for Stmt. of Charges 2. He summarized his six months of surveillance, including the out-of-state patients waiting for hours in the parking lot for appointments at the...
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