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Tislow v. Whisenand

United States District Court, S.D. Indiana, Indianapolis Division

March 8, 2019

DEREK S. TISLOW, ANDREW J. DOLLARD, YVONNE S. MORGAN, CASSY L. BRATCHER, JOSEPH A. MACKEY, JESSICA CALLAHAN, ERIC W. LEY, and FELICIA REID, Plaintiffs,
v.
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,
v.
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

         In 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.

         Now in 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.

         I. Background

         A. Dr. Ley and the DORN Clinic

         This 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).[1] 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, [2]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).

         A few 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).

         Several 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).

         B. Controlled Substance Laws

         The 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).

         Indiana 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 2-6-4(a).

         The 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).

         C. The Investigation

         In 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).

         Both 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).

         The 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).

         Around 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 - 23).

         Whisenand 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 prescription.”

(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).

         Several 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]harmacist[]s, on Wednesday nights, people “were lined up down the street” to obtain their prescriptions. Additionally, Walgreen's ...

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