Zadeh v. Robinson, 083118 FED5, 17-50518

Docket Nº:17-50518
Opinion Judge:LESLIE H. SOUTHWICK, CIRCUIT JUDGE.
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, concurring dubitante:
Case Date:August 31, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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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

No. 17-50518

United States Court of Appeals, Fifth Circuit

August 31, 2018

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

Before JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.

LESLIE H. SOUTHWICK, CIRCUIT JUDGE.

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.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff 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.

Dr. Zadeh was not at his office when the investigators arrived, so the investigators presented the subpoena to his medical assistant. According to the plaintiffs, the medical assistant requested time to seek advice from legal counsel, but the investigators told her that failure to turn the records over immediately could result in the loss of Dr. Zadeh's medical license. She 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 the 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.

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 plaintiffs' 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.

DISCUSSION

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 been faced with a challenge to a subpoena instanter executed by the Texas Medical Board before. See Cotropia v. Chapman, 721 Fed.Appx. 354 (5th Cir. 2018). In that nonprecedential opinion, we held: “Absent consent, exigent circumstances, or the like, in order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” Id. at 358 (quoting City of Los Angeles v. Patel, 135 S.Ct. 2243, 2452 (2015)).

In that case, the physician at the center of a Board investigation pled sufficient facts to overcome qualified immunity. Id. at 361. The doctor alleged that a Board member “violated the clearly established right to an opportunity to obtain precompliance review of an administrative subpoena before a neutral decisionmaker” when he took documents from the physician's office over objections from the office receptionist. Id. at 357. Relying on Supreme Court precedent, we held that it was clear at the time that “prior to compliance, Cotropia...

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