CA5: Forthwith SDT of doctor’s office could state 4A claim

A forthwith subpoena duces tecum to gather medical records in a doctor’s office by the Texas Medical Board with the DEA in tow appears to state a Fourth Amendment claim here for the subpoena being used for criminal investigative purposes, and plaintiff is permitted to attempt to amend his complaint to add that claim on remand. [The court notes the same investigator was involved in another overseizure of medical records they reviewed.] Morgan v. Chapman, 2020 U.S. App. LEXIS 25000 (5th Cir. Aug. 7, 2020):

A freestanding Fourth Amendment unreasonable search claim under these facts would look familiar. This court has recently decided a number of cases involving the Texas Medical Board’s unconstitutional use of instanter subpoenas. In the unpublished Cotropia v. Chapman, we denied qualified immunity where Mary Chapman (the same investigator named in this case) searched and seized patient medical records over a physician’s objection. See 721 Fed. App’x 354, 357, 361 (5th Cir. 2018). We held that the plaintiff plausibly alleged that Chapman “violated the clearly established right to an opportunity to obtain precompliance review of an administrative subpoena before a neutral decisionmaker.” Id. at 357.

In a more recent published decision, we held that a TMB investigator violated a physician’s Fourth Amendment rights by executing an instanter subpoena without precompliance review, even though we concluded that the investigator was entitled to qualified immunity. See Zadeh v. Robinson, 928 F.3d 457, 464 (5th Cir. 2019). The Zadeh defendants argued that the instanter subpoenas complied with the Fourth Amendment because they fell into the “closely regulated industry” exception to the general rule that administrative subpoenas require precompliance review. Id. at 464. We held that the medical industry as a whole is not a closely regulated industry. Id. at 466. But we assumed without deciding that pain management clinics were closely regulated and that the plaintiff was operating such a clinic. Id. We then held that the statutory scheme of the TMB’s inspection authority lacked sufficient limits on the discretion of the Board and was therefore not a proper substitute for a warrant. Id. at 468.

The Zadeh search violated the Fourth Amendment even if pain management clinics were a closely regulated industry, we explained. Nonetheless, we concluded that the law was not clearly established at the time, because “the defendants reasonably could have believed that the administrative scheme here provided a constitutionally adequate substitute for a warrant.” Id. at 470.

. . .

A Fourth Amendment unreasonable seizure claim arising from Morgan’s arrest on false charges would also be familiar. We recently concluded that an unlawful seizure claim was cognizable and qualified immunity did not apply where a plaintiff “was wrongfully arrested due to the knowing or reckless misstatements and omissions” in a law enforcement officer’s affidavits. See Winfrey v. Rogers, 901 F.3d 483, 492 (5th Cir. 2018), cert denied sub nom. Johnson v. Winfrey, 139 S. Ct. 1549 (2019). In that case, the plaintiff framed his claim as a “Fourth Amendment federal malicious-prosecution claim.” Id. at 491. Relying on Castellano, we rejected that theory. See id. (citing Castellano, 352 F.3d at 945, 953). Nonetheless, we explained that where facts that follow the state tort of malicious prosecution also constitute an illegal seizure, a “claim fits the Fourth Amendment, and the Fourth Amendment fits the plaintiff’s claim, as hand in glove.” Id. at 492 (quoting Manuel v. City ofJoliet, 137 S. Ct. 911, 917 (2017)) (alteration omitted).

Winfrey continued to analyze the statute of limitations issue, which is outside of the scope of this appeal. The court explained that the accrual date of a § 1983 action tracks the state law of torts. Winfrey, 901 F.3d at 492. The issue was whether the plaintiff’s claim was more analogous to the tort of false imprisonment (which accrues at the time the plaintiff is detained) or to malicious prosecution (which accrues when the prosecution ends). Id. We concluded that the claim was closer to malicious prosecution-“an unlawful arrest pursuant to a warrant[,] instead of a detention with no legal process.” Id. at 493. We recognized this unconstitutional seizure claim even though we rejected the plaintiff’s “constitutional” malicious-prosecution theory.

Accordingly, a Fourth Amendment unreasonable seizure claim would not be futile.

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