Zadeh v. Robinson, 070219 FED5, 17-50518

Docket Nº:17-50518
Party Name:DOCTOR JOSEPH A. ZADEH; JANE DOE, Patient, Plaintiffs - Appellants v. MARI ROBINSON, in her individual capacity and in her official capacity; SHARON PEASE, in her individual capacity; KARA KIRBY, in her individual capacity, Defendants - Appellees
Judge Panel:Before JOLLY, SOUTHWICK, and WILLETT, Circuit Judges. DON R. WILLETT, Circuit Judge,
Case Date:July 02, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

DOCTOR JOSEPH A. ZADEH; JANE DOE, Patient, Plaintiffs - Appellants


MARI ROBINSON, in her individual capacity and in her official capacity; SHARON PEASE, in her individual capacity; KARA KIRBY, in her individual capacity, Defendants - Appellees

No. 17-50518

United States Court of Appeals, Fifth Circuit

July 2, 2019

Appeals from the United States District Court for the Western District of Texas

Before JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.



No member of the panel nor judge in regular active service requested that the court be polled on rehearing en banc. The petition for rehearing en banc is therefore DENIED.

See Fed. R. App. P. and 5th Cir. R. 35. Treating the petition for rehearing en banc as a petition for panel rehearing, the petition is GRANTED. We withdraw our prior opinion, Zadeh v. Robinson, 902 F.3d 483 (5th Cir. 2018), and substitute the following.

The Texas Medical Board executed an administrative subpoena on Dr. Joseph Zadeh's medical office. Thereafter, Dr. Zadeh and one of his patients sued several Board members under 42 U.S.C. § 1983, claiming that the Board's actions violated the Fourth Amendment. The district court partially granted the defendants' motion to dismiss and later granted their motion for summary judgment rejecting all remaining claims. We AFFIRM.


Plaintiff Dr. Joseph Zadeh appeals the dismissal of his Section 1983 claim against several members of the Texas Medical Board who he claims violated his constitutional rights through a warrantless search of his office and medical records. Dr. Zadeh, an internal medicine doctor, owns and operates a medical practice in Euless, Texas. One of his patients, Jane Doe, is also a plaintiff-appellant in this case.

Dr. Zadeh was the subject of an administrative proceeding before the State Office of Administrative Hearings ("SOAH") for violations of the Board's regulations. The Drug Enforcement Agency ("DEA") also was investigating him. Indeed, it appears the Board first learned about allegations against Dr. Zadeh when the DEA filed a complaint with the Board about his prescribing practices in September 2013. The DEA investigator emailed a representative of the Board, stating, "I'm at a point in the criminal case that I need to interview Dr. Zadeh and review his patient files." The Board then initiated an investigation.

As part of this investigation, Defendants Sharon Pease and Kara Kirby, who were investigators with the Board, served an administrative subpoena on Dr. Zadeh on October 22, 2013. The subpoena had the electronic signature of Defendant Mari Robinson, who was the Executive Director of the Board. The subpoena was for the immediate production of the medical records of sixteen of Dr. Zadeh's patients. Two DEA agents who were investigating related criminal allegations accompanied Kirby and Pease.

The district court found the "facts surrounding the execution of the subpoena" to be "largely undisputed." Dr. Zadeh was not present when the investigators arrived. The subpoena was handed to the doctor's assistant. The investigators sat in the medical office waiting room to give the doctor time to appear. While they waited, the assistant spoke on the phone with Dr. Zadeh, his lawyer, and his brother who also is a lawyer. The assistant testified that after these calls had occurred but no permission to proceed had been given, the investigators told her they would suspend Dr. Zadeh's license if the records they sought were not produced. The investigators admit something was said that was akin to a promise of some vague "disciplinary action." What was said at that point is at least unclear. The assistant eventually complied, taking the defendants into a conference room and delivering the requested records to them. Although most of their time was spent inside the public waiting area or conference room, the investigators also approached the medical assistant to ask for help while she was in exam rooms and later in a storage room.

As a result of that search, Dr. Zadeh and his patient, Jane Doe, sued Robinson, Pease, and Kirby in their individual capacities and Robinson in her official capacity in the United States District Court for the Western District of Texas. They alleged the defendants' actions violated their Fourth Amendment, due process, and privacy rights. The plaintiffs sought monetary damages under 42 U.S.C. § 1983 as well as declaratory relief. The defendants moved to dismiss the claims on these grounds: (1) the plaintiffs lacked standing; (2) the Younger abstention doctrine barred the requests for declaratory relief; (3) the claim against Robinson in her official capacity was barred by the doctrine of sovereign immunity; (4) the doctrine of qualified immunity applied to the claims against the defendants in their individual capacities.

In ruling on the motion to dismiss, the district court held Dr. Zadeh had standing to pursue declaratory relief, but Jane Doe did not. Nonetheless, the district court concluded that "the Younger abstention doctrine require[d] [it] to abstain from adjudicating Plaintiff Zadeh's claims for declaratory relief." The district court also held that sovereign immunity barred the plaintiffs' claims for monetary damages against Robinson in her official capacity. Finally, the court concluded that the defendants were entitled to qualified immunity for the privacy and due process claims. The only part of the suit left, then, was Dr. Zadeh's claim that the defendants violated his clearly established Fourth Amendment rights during the search of his office.

The defendants moved for summary judgment on "whether Defendants exceeded their statutory subpoena authority by searching and inspecting Plaintiff's office and records." Although the plaintiffs alleged that the investigators performed a thorough search of Dr. Zadeh's office, the district court found that the record did not support this allegation. Instead, the district court determined that the "Defendants' presence at Plaintiff's office was solely to execute the subpoena instanter." The district court also held that Robinson was not liable as she neither affirmatively participated in the alleged search nor implemented unconstitutional policies that caused the alleged constitutional deprivation. Further, there was "no evidence Defendants Pease and Kirby inspected Plaintiff's office or searched his records." The plaintiffs timely appealed.


The plaintiffs appeal both the order granting the motion to dismiss in part and the order granting the motion for summary judgment. Although we review both de novo, a different legal standard applies to each: In the former, the central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief. In the latter, we go beyond the pleadings to determine whether there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.

St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 n.8 (5th Cir. 2000) (citations omitted).

We first address the plaintiffs' challenge to the district court's grant of qualified immunity, evaluating whether clearly established law prohibited the defendants' conduct. Next, we discuss whether the district court erred in abstaining from deciding the plaintiffs' claims for declaratory judgment. Finally, we analyze whether Robinson was liable in her supervisory capacity.

I. Grant of qualified immunity

"The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be legal." Morgan v. Swanson, 659 F.3d 359, 370-71 (5th Cir. 2011). Officials are entitled to qualified immunity "unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was 'clearly established at the time.'" District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).

Using this framework, we analyze the plaintiffs' arguments that clearly established law prohibited the defendants' execution of the subpoena instanter. The plaintiffs offer two theories for why the defendants' conduct was unconstitutional. First, they argue it was a warrantless search that did not satisfy the administrative exception. Second, they argue it was a pretextual search and thus unconstitutional.

a. Warrantless search

The plaintiffs argue the Board violated the Fourth Amendment when it demanded immediate compliance with its administrative subpoena. We have previously considered a challenge to a subpoena instanter executed by the Texas Medical Board. See Cotropia v. Chapman, 721 Fed.Appx. 354 (5th Cir...

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