Andrew J. Dollard, et al., Plaintiffs-Appellants,
Gary Whisenand, et al., Defendants-Appellees.
November 5, 2019
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division. Nos.
16-cv-01721 & 16-cv-01908 - Richard L. Young, Judge.
Flaum, Rovner, and Hamilton, Circuit Judges.
2013, the Drug Enforcement Administration (DEA) began
investigating Dr. Larry Ley and his opioid addiction
treatment company, Drug Opiate Recovery Network, Inc. (DORN),
for dealing a controlled substance. After conducting
undercover surveillance, lead agent Gary Whisenand decided
Dr. Ley did not have a legitimate medical purpose in
prescribing Suboxone, a drug used to treat opioid addiction.
finding probable cause, two Indiana courts issued a series of
warrants that culminated in twelve separate arrests of five
medical providers (four physicians and one nurse) and seven
non-provider DORN employees. In the ensuing prosecution, the
Indiana courts quickly dismissed the charges against all the
non-providers and the nurse. The State eventually proceeded
to a bench trial against Dr. Ley, where an Indiana court
ultimately acquitted him. Following this acquittal, the State
dismissed the rest of the charges against the three remaining
DORN's providers and non-provider employees sued the DEA
agent and others in federal court alleging false arrest,
malicious prosecution, and civil conspiracy. The district
court entered summary judgment for the defendants on all
claims, holding probable cause supported the warrants used to
arrest the plaintiffs. We affirm the district court's
judgment as to every plaintiff except Joseph Mackey. With
respect to Mackey, we reverse and remand the judgment because
the undisputed facts at the summary judgment stage do not
establish that officers had probable cause to arrest Mackey
or even that reasonable officers could believe probable cause
Ley graduated from medical school in 1971 and has worked in a
variety of medical positions across central Indiana since. He
is board-certified in addiction medicine by the American
Society of Addiction Medicine. In 2002, he founded Living
Life, an alcohol abuse treatment company. Dr. Ley ran Living
Life out of four offices in central Indiana: Centerville,
Noblesville, Muncie, and Kokomo.
after starting Living Life, Dr. Ley began prescribing
Suboxone, a drug commonly used to treat opioid addictions. In
2007, Dr. Ley expanded his practice and renamed it
"DORN." He opened a new office in Carmel, and
continued operations at the four existing satellite offices.
Dr. Ley saw all his patients for their initial consultations
at the Carmel location. He primarily worked out of that
office, but he also spent time in Noblesville and
follow-up appointments, patients went to the office closest
to their homes. Other physicians staffed these satellite
offices, including Dr. Ronald Vierk in Centerville, Dr.
Luella Bangura in Kokomo, and Dr. George Agapios in Carmel.
Yvonne Morgan is a registered nurse who directed the
Centerville clinic and assisted the Muncie and Carmel
clinics. She completed mostly clerical tasks for DORN, like
answering the phone, conducting drug screens, and handing
patients their prescriptions.
non-provider employees worked at the DORN clinics, too:
• Derek Tislow was a part-time office assistant in
• Eric Ley-Dr. Ley's son-was a part-time office
assistant in Carmel and Kokomo.
• Felicia Reid was a receptionist in Carmel.
• Joseph Mackey was a part-time parking lot attendant in
• Jessica Callahan was the part-time office manager in
• Cassy Bratcher was the Carmel office manager.
• Andrew Dollard is an attorney and was the part-time
Noblesville office manager.
Controlled Substance Laws
like all other states, criminalizes dealing a controlled
substance. Ind. Code § 35-48-4-2. Under state 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 controlled substance. Indiana additionally
proscribes conspiracies, id. § 35-41-5-2, and
corrupt business influence, id. § 35-45-6-2.
practitioners may prescribe controlled substances, such as
buprenorphine, but their authority is limited: They must have
a legitimate medical purpose to issue a reasonable quantity
in the usual course of business. 856 Ind. Admin. Code
2-6-3(a). Those who prescribe controlled substances outside
the scope of their practice or without a legitimate purpose
are subject to sanction under Indiana criminal law. Id.;
see also Alarcon v. State, 573 N.E.2d 477, 480
(Ind.Ct.App. 1991) (holding Indiana's controlled
substance laws apply to licensed physicians who issue invalid
medical doctors may not prescribe controlled substances to a
person whom they have never physically examined in person and
diagnosed, unless it is a cross-coverage situation (or
another exception applies) where multiple professionals may
see a patient during her treatment by a practice group. 844
Ind. Admin. Code 5-4-l(a). Doctors must also ordinarily sign
and date prescriptions on the day they issue them. 856 Ind.
Admin. Code 2-6-4(a). To be sure, a secretary (or another
authorized agent) may prepare and communicate prescriptions,
leaving the practitioner responsible- indeed, liable-if the
prescription does not conform to law or regulation.
Id. 2-6-4(b); Id. 2-6-2(b); see
also Ind. Code § 16-42-19-20(b). That is, unless
the secretary (or other agent) knows the prescription is
invalid; then they could be culpable too. 856 Ind. Admin.
United States also regulates a physician's ability to
prescribe controlled substances. Specifically, the Drug
Addiction Treatment Act of 2000 (DATA) caps the number of
patients a physician may treat with buprenorphine for
addiction. See generally 21 U.S.C. §
823(g)(2)(B)(iii). In the beginning, newly certified
providers may treat thirty patients; after one year,
providers may treat up to 100 patients. Id. If a
practitioner meets certain requirements, the number is 275.
Id. § 823(g)(2)(B)(iii)(II)(dd). This maximum
number of patients, however, only applies in the addiction
context, meaning those receiving treatment for an off-label
use, like pain, do not count toward the 100. See id.
2013, the Madison County Deputy Coroner contacted Officer
Aaron Dietz of the Carmel Police Department to discuss the
death of one of Dr. Ley's former patients. Officer Dierz
put the Deputy Coroner in touch with a sergeant, Marc Klein,
who learned that the deceased's family expressed concerns
about the care Dr. Ley once provided to the deceased. The
Deputy Coroner also reached out to Adam Deirz, the director
of the Hamilton and Boone County Drug Task Force, regarding
officers began investigating Dr. Ley and DORN based on this
information, leading to an interview with the deceased's
family. In the interview, the family explained that Dr. Ley
treated the deceased for addiction over six years. They
identified the following concerns they had with Dr. Ley's
medical care: The deceased rarely went into the doctor's
office; Dr. Ley was not personally seeing him; other family
members would pick up prescriptions for him; and he always
paid in cash.
this time, the DEA began receiving complaints about DORN,
which focused on the lack of medical care at the clinics and
the ease with which patients could procure prescriptions for
Suboxone without being seen by a physician. Based on these
complaints and the interview with the deceased's family,
the DEA opened an investigation into Dr. Ley and DORN, which
was assigned to Agent Gary Whisenand.
Whisenand began his inquiry by looking into past complaints
about DORN from practitioners, pharmacists, and former
patients. Most of the complaints criticized Dr.
Ley and DORN for not providing any medical treatment to their
patients and simply handing out prescriptions for Suboxone.
The principal concern was that Dr. Ley was admitting people
into his program without first conducting a full medical
evaluation. The accusations related not only to Dr. Ley but
also to DORN's satellite offices and other
complaints led Agent Whisenand to research DORN on INSPECT,
an online database that allows law enforcement to monitor
controlled substance prescriptions. The data showed that each
DORN physician issued a high number of Suboxone prescriptions
in 2011, 2012, and 2013. Agent Whisenand consequently
interviewed patients and surveilled all four DORN offices.
One then-current DORN patient described the Kokomo clinic
parking lot as a place where people conducted drug deals and
talked about how they planned to sell their medications. The
patient also noted how no doctors saw any addicts; instead,
patients obtained pre-signed prescriptions from the front
desk. DEA surveillance confirmed that no doctors administered
any physical exams at the clinics.
Undercover Agents and Experts
state prosecutor assigned to the investigation, Andre Miksha,
recommended Agent Whisenand enlist undercover officers to
provide a firsthand account from the insides of the clinics.
On March 25, 2014, two DEA special agents posed as new
patients at the Carmel clinic. Cassy Bratcher, the office
manager, greeted the agents and instructed them to fill out
some paperwork. She then showed the agents into a
conference room where they met with Dr. Ley and discussed
addiction treatment for about one hour.
for another hour, Dr. Ley questioned the prospective patients
about what types of drugs they were taking, in what doses,
and whether they had any conditions causing pain. At the end
of the second hour, Dr. Ley prescribed Suboxone for
"chronic pain/pain management" and directed the
agents to the front to pick up their prescriptions. DORN
ultimately charged the agents a $300 program fee at their
initial sessions. Dr. Ley gave them the contact number for
"Andrew" and assigned the agents to the Noblesville
office for all future appointments.
of undercover agents for initial visits continued at the
Carmel clinic, following the pattern set by the first: Dr.
Ley led a two-hour group discussion; he did not conduct a
physical or meet with any patient one-on-one; and each
patient left the clinic with a prescription of Suboxone after
paying a $300 program fee. Each of the agents'
prescriptions (and corresponding taper schedules) were
different and individualized to them, based on their reported
undercover agents reported to the various clinics for their
follow-up appointments and corroborated many of their earlier
findings: The appointments generally lasted a few minutes;
the agents received their Suboxone prescriptions without a
doctor assessing them (they submitted to urine
screening); and many prescriptions were
pre-signed because there was often no doctor present at the
facility. On the prescriptions, the reasons for
additional medication often changed without explanation; so,
one agent received a Suboxone prescription for
"dependency" even though his initial prescription
was for "pain management."
retained two medical doctors to opine on Dr. Ley and DORN.
First, Dr. Tim E. King, a pain expert and practicing
anesthesiologist, stated that it was unrealistic for a
physician to treat 80-100 patients in a three-hour period and
highly unconventional to assume that one person could perform
an initial pain or addiction evaluation (not in any actual
examination room) and then assign the patient to another
provider for exclusive treatment. Dr. King felt like Dr. Ley
was running DORN as a "pill mill" because Dr. King
thought Dr. Ley was not issuing prescriptions for controlled
substances in the usual course of practice or for a
legitimate medical purpose.
Dr. R. Andrew Chambers, an associate professor of psychiatry
at Indiana University School of Medicine and a practicing
addiction treatment doctor, echoed Dr. King. Dr. Chambers
believed it was unusual for Dr. Ley to care for that many
patients in that short of time. Dr. Chambers, like Dr. King,
found it abnormal for one doctor to conduct an initial
examination and then "farm out" the subsequent
ones. Dr. Chambers ultimately shared Dr. King's
conclusion that DORN was an illegal dealing operation and the
physicians involved "conspired to use their professional
authorities and reputations, and the cover of medical
practice an authority to maximize financial gains at the
expense of clinical standards."
Probable Cause Affidavit and Arrests
Whisenand prepared a probable cause affidavit to support the
arrests of all DORN staff and the search and seizure of
certain property. Relevant here, the allegations
against the non-provider employees were:
• Two undercover agents and one former patient received
suspected pre-signed prescriptions (suspected because the
patients did not observe doctors on the premises) for
continued treatment from Jessica Callahan at the Muncie
office on at least three separate occasions. Two
investigators surveilled Callahan at the Muncie office two
• Investigators surveilled Eric Ley or his vehicle at
the Carmel and Kokomo offices eight different times. They
also observed him printing prescriptions for Dr. Agapios to
sign in person those days, without first seeing the actual
patients on four separate occasions. The officers confirmed
Ley resided with his father, Dr. Larry Ley, in Noblesville.
• Investigators and agents observed Felicia Reid or her
vehicle at the Kokomo office four times. In one instance, an
undercover agent received a Suboxone prescription from Reid
signed by Dr. Bangura, who was in the office but did not meet
with the agent. Reid also ...