United States District Court, S.D. Indiana, Indianapolis Division
DEREK S. TISLOW, ANDREW J. DOLLARD, YVONNE S. MORGAN, CASSY L. BRATCHER, JOSEPH A. MACKEY, JESSICA CALLAHAN, ERIC W. LEY, and FELICIA REID, Plaintiffs,
GARY WHISENAND, CITY OF CARMEL, AARON DIETZ, and THE UNITED STATES, Acting by and through its Drug Enforcement Administration, Defendants. HAMILTON COUNTY PROSECUTOR'S OFFICE, Interested Party. LARRY LEY, RONALD VIERK, GEORGE AGAPIOS, and LUELLA BANGURA, Plaintiffs,
GARY WHISENAND, CITY OF CARMEL, AARON DIETZ, and UNITED STATES, Acting by and through its Drug Enforcement Administration, Defendants. HAMILTON COUNTY PROSECUTOR'S OFFICE, Interested Party.
ENTRY ON MOTIONS FOR SUMMARY JUDGMENT
RICHARD L. YOUNG, JUDGE
August of 2013, law enforcement officials began investigating
Dr. Larry Ley and his two addiction treatment companies,
Living Life Clean, LLC (“Living Life”) and Drug
Opiate Recovery Network, Inc. (“DORN”), after the
death of one of his patients. The investigation uncovered
several complaints related to Dr. Ley's treatment and
prescribing of Suboxone, a drug used to treat opiate
addictions. The investigation eventually culminated into
twelve separate arrests and a media firestorm. As successful
as the investigation was for law enforcement, the ensuing
prosecution was anything but: several of the charges were
dismissed early on and then the state trial court acquitted
Dr. Ley of all charges. In the face of these results, the
prosecutor dismissed the remaining charges against the rest
of the defendants.
this court, Dr. Ley and his former staff seek redress for the
government's failed prosecution. They allege law
enforcement falsely arrested and maliciously prosecuted them
resulting in the destruction of their careers and
reputations. Gary Whisenand, Aaron Dietz, the City of Carmel,
and the United States (collectively “Defendants”)
have all moved for summary judgment. As will be explained
below, probable cause supports the warrants used in
connection with Plaintiffs' arrests. Defendants therefore
are entitled to summary judgment.
Dr. Ley and the DORN Clinic
case primarily concerns Dr. Ley's treatment of opiate
addicts. Dr. Ley graduated from medical school in 1971 and
has worked in a variety of medical capacities around central
Indiana. (Filing No. 184-30, Deposition of Larry Ley
(“Ley Dep.”) at 9:21 - 10:24). He is board
certified in addiction medicine by the American Society of
Addiction Medicine. (Id. at 12:20 - 13:6; 14:5 - 8).
In 2002, he founded Living Life, a company dedicated to
treating alcohol abuse. (Id. at 14:21 - 24; 15:12 -
15). Dr. Ley operated Living Life out of four offices located
throughout central Indiana: Centerville, Noblesville,
Muncie, and Kokomo. (Id. at 14:9 - 13). Shortly
after creating Living Life, Dr. Ley began prescribing
Suboxone, which is a drug used to treat opiate addictions.
(Id. at 15:23 - 25; see also Filing No.
184-1, National Drug Intelligence Center Bulletin at 1 - 2).
years later, Dr. Ley decided to expand his practice. In 2007,
Dr. Ley changed the name of Living Life to DORN. (Ley Dep. at
16:14 - 22). He opened an office in Carmel, Indiana, and he
continued operations at the four other satellite offices
throughout the state. (Id. at 16:13 - 15; 18:11 -
14). Dr. Ley would see all patients for their initial
consultation at the Carmel office. (Id. at 18:22 -
25). For follow up appointments, patients were then assigned
to the office located closest to their home. (Id. at
14:14 - 20; 19:1 - 9). Dr. Ley primarily worked at the
offices located in Carmel, Noblesville, and Muncie.
(Id. at 20:23 - 21:3). Other physicians staffed the
satellite offices: Dr. Ronald Vierk worked at the Centerville
location; Dr. Luella Bangura worked at the Kokomo location;
and Dr. George Agapios worked at the Carmel location on
Saturdays. (Id. at 20:14 - 22).
support staff assisted the DORN clinics. Yvonne Morgan
assisted at the Muncie and Carmel clinics and directed the
Centerville clinic. (Filing No. 159-41, Deposition of Yvonne
Morgan at 16:25 - 17:6). She performed clerical work for
DORN: answered the phone, conducted drug screens, and handed
patients their prescriptions. (Id. at 18:4 - 14).
Derek Tislow worked at the Noblesville, Carmel, and Kokomo
offices. (Filing No. 159-46, Deposition of Derek Tislow at
49:2 - 5). He conducted urine screens, handed out
prescriptions, and took cash. (Id. at 50:10 - 22).
Eric Ley helped manage the Carmel and Kokomo offices. (Filing
No. 159-47, Deposition of Eric Ley at 23:24 - 24:4). Felicia
Reid assisted at the Kokomo office by seeing patients for
their biweekly appointments on Wednesdays, and Joseph Mackey
helped by monitoring the crowds in the parking lot. (Filing
No. 159-40, Deposition of Felicia Reid at 15:11 - 23; Filing
No. 159-42, Deposition of Joseph Mackey at 10:3 - 21).
Jessica Callahan managed the Muncie office, and Cassy
Bratcher managed the Carmel office. (Filing No. 159-43,
Deposition of Jessica Callahan at 13:4 - 12; Filing No.
159-45, Deposition of Cassy Bratcher at 17:21 - 22). Andrew
Dollard managed the Noblesville office. (Filing No. 159-44,
Deposition of Andrew Dollard at 20:9 - 12). Part of his tasks
included handing out prescriptions even when no doctors were
present. (Id. at 26:12 - 15).
Controlled Substance Laws
state of Indiana, like the rest of states, criminalizes
dealing in a controlled substance. See Ind. Code
§ 35-48-4-2. Under Indiana law, any “person who:
(1) knowingly or intentionally . . . (C) delivers; or (D)
finances the delivery of; a controlled substance . . .
classified in schedule I, II, or III . . . commits dealing .
. . a level 6 felony.” Id. Buprenorphine, the
primary drug component in Suboxone, is a Schedule III drug.
Ind. Code § 35-48-2-8(e)(7). Indiana law proscribes
unlawful conspiracies and corrupt business influence.
See Ind. Code § 35-41-5-2 (conspiracy statute);
see Ind. Code § 35-45-6-2 (RICO statute).
also limits the prescribing authority of medical
practitioners in several ways. Medical practitioners must
have a legitimate medical purpose when issuing prescriptions
for controlled substances. 856 Ind. Admin. Code 2-6-3(a).
They must issue only a quantity that is necessary and must
also be acting in the usual course of their professional
practice. Id. Practitioners that issue prescriptions
for controlled substances outside the scope of their
professional practice or without a legitimate medical purpose
are subject to the state's criminal laws related to
controlled substances. Id.; see also Alarcon v.
State, 573 N.E.2d 477, 480 (Ind.Ct.App. 1991) (holding
Indiana's dealing statutes apply to licensed physicians
who issue unlawful prescriptions). Additionally, physicians
may not provide controlled substances to a person whom they
have never personally examined or diagnosed subject to a few
exceptions. See 844 Ind. Admin. Code 5-4-1(a).
Prescriptions for controlled substances must ordinarily be
signed and dated on the day when issued. 856 Ind. Admin. Code
federal government also regulates a physician's
prescribing of controlled substances. The Drug Addiction
Treatment Act of 2000 (“DATA”) limits the number
of patients a physician may treat with buprenorphine for
addiction. See Drug Addiction Treatment Act of 2000,
Pub. L. No. 106-310, 114 Stat. 1222 (codified in 21 U.S.C.
§ 823(g)). During the relevant time frame, newly
certified providers could treat thirty patients, and after
one year, providers could treat up to one-hundred patients.
Id.; see also Alan Gordon & Alexandra
A. Gordon, Does it Fit?-A Look at Addiction,
Buprenorphine, and the Legislation Trying to Make It
Work, 12 J. Health & Biomedical L. 1, 15 - 17 (2016)
(discussing DATA's physician requirements and
regulations). The cap only applies to addiction patients:
those being treated for an off-label use, such as pain, are
not counted towards the one-hundred patient limit.
(See Filing No. 153-2, Probable Cause Affidavit
(“PC Aff.”) at ¶ 25(b); see also
Ley Dep. 26:10 - 17; 51:6 - 52:3).
August of 2013, the Madison County Deputy Coroner contacted
the Carmel Police Department to discuss the death of one of
Dr. Ley's patients. (Filing No. 159-35, Deposition of
Sergeant Marc Klein (“Klein Dep.”) at 15:19 -
21). The Coroner informed Sergeant Marc Klein that the
Deceased's family expressed concerns about the care that
Dr. Ley provided to the Deceased. (Klein Dep. at 16:5 - 17;
see also Filing No. 159-37, Deposition of Gary
Whisenand (“Whisenand Dep.”) at 18:5 - 17). The
Madison County Deputy Coroner also contacted Adam Deitz
regarding the death. (Filing No. 159-36, Deposition of Adam
Deitz (“Deitz Dep.”) at 13:20 - 14:7). At the
time, Deitz oversaw special investigations and worked as the
director of the Hamilton/Boone County Drug Task Force.
(Id. at 9:17 - 20).
Deitz and Klein began investigating Dr. Ley and DORN based on
the information from the Deceased's family. Deitz
coordinated information between Carmel Police Department and
the Drug Enforcement Administration (“DEA”).
(Id. at 15:1 - 4). Eventually, Sergeant Klein and
DEA Agent Dan Gillen scheduled an interview with the
Deceased's family. (Id. at 17:9 - 16).
family explained that the Deceased had gone to Dr. Ley's
office for six years to try and get help for his addiction
problems. (Id. at 19:2 - 6). The family further
explained that they had some concerns with Dr. Ley's
treatment of the Deceased: he rarely went into the office, he
wasn't being seen by Dr. Ley, other family members would
pick up prescriptions for him, and he always paid in cash.
(Id. at 20:1 - 7).
the same time as the interview, DEA began receiving
complaints about DORN's practice. The complaints focused
on the lack of medical care provided to patients and the ease
with which patients could receive prescriptions for Suboxone
without being seen by a DORN physician. (Filing No. 159-2,
Nov. 15, 2013 Report of Investigation (“ROI”) at
1). Based on the interview and complaints, on November 15,
2013, DEA opened an investigation into Dr. Ley and DORN.
(Id.). The case was assigned to Gary Whisenand, a
diversion investigator within DEA. (Whisenand Dep. at 25:18 -
began investigating past complaints about DORN from
practitioners, pharmacists, and former patients.
(See Filing No. 159-3, Nov. 26, 2013 ROI at 1;
see also Filing No. 159-6, Dec. 2, 2013
ROI). Many, if not all, of the complaints criticized Dr. Ley
and DORN for not providing any medical treatment and simply
writing prescriptions for Suboxone. (See Nov. 26,
2013 ROI at 1 - 4). One complaint alleged that Dr. Ley and
DORN prescribed Suboxone without a full medical evaluation:
[Patient Jane Doe] claimed that on her initial visit, she and
a few others received a few papers and a 15-minute group
lecture from Dr. Ley. During the lecture, Ley asked each
person what drug they were currently abusing. After paying
$300 cash, Dr. Ley issued [Doe] a Suboxone prescription. Per
[Doe], Ley did not conduct an exam nor was a urinalysis
administered. Afterwards, [Doe] was scheduled to go to the
DORN clinic in Centerville, Indiana, for a refill. [Doe]
wrote “I think Dr. Ley should not be prescribing
Suboxone! I would like to have the $300 back that I had to
pay for him to do nothing more than give me a
(Id. at 3 (citing Indiana Attorney General Consumer
Complaint Form date 12/14/11). Physicians too expressed
concern about Dr. Ley's practice:
The physicians expressed concern to Investigators about the
lack of medical care that Dr. Ley appeared to provide to
addiction treatment patients. One physician noted that Dr.
Ley operated carelessly as he did not usually conduct
in-person follow-up visits with his chemically dependent
patients. Another physician associated Dr. Ley with not
providing adequate patient care and being more focused on
profits rather than his patient's well-being.
(Id. at 1).
complaints also targeted Dr. Ley's satellite offices and
the other practitioners. (See e.g. Filing No. 159-4,
Dec. 18, 2013 ROI at 1). For example, law enforcement
interviewed several Walgreen's pharmacists practicing in
Kokomo, Indiana and heard similar complaints about DORN:
Pharmacists advised that a large number of Suboxone
prescriptions originated from Dr. Ley's Kokomo practice
every other Wednesday night. Per [p]harmacists, on
Wednesday nights, people “were lined up down the
street” to obtain their prescriptions. Additionally,