DOCTOR JOSEPH A. ZADEH; JANE DOE, Patient, Plaintiffs - Appellants
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
Appeals from the United States District Court for the Western
District of Texas
JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.
PETITION FOR REHEARING EN BANC
H. SOUTHWICK, CIRCUIT JUDGE:
member of the panel nor judge in regular active service
requested that the court be polled on rehearing en banc. The
petition for rehearing en banc is therefore DENIED.
See Fed. R. App. P. and 5th Cir. R. 35. Treating the
petition for rehearing en banc as a petition for panel
rehearing, the petition is GRANTED. We withdraw our prior
opinion, Zadeh v. Robinson, 902 F.3d 483 (5th Cir.
2018), and substitute the following.
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.
AND PROCEDURAL BACKGROUND
Dr. 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.
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
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.
district court found the "facts surrounding the
execution of the subpoena" to be "largely
undisputed." Dr. Zadeh was not present when the
investigators arrived. The subpoena was handed to the
doctor's assistant. The investigators sat in the medical
office waiting room to give the doctor time to appear. While
they waited, the assistant spoke on the phone with Dr. Zadeh,
his lawyer, and his brother who also is a lawyer. The
assistant testified that after these calls had occurred but
no permission to proceed had been given, the investigators
told her they would suspend Dr. Zadeh's license if the
records they sought were not produced. The investigators
admit something was said that was akin to a promise of some
vague "disciplinary action." What was said at that
point is at least unclear. The assistant 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 conference room,
the investigators also approached the medical assistant to
ask for help while she was in exam rooms and later in a
result of that search, 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 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.
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
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.
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).
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.
Grant of qualified immunity
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)).
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
plaintiffs argue the Board violated the Fourth Amendment when
it demanded immediate compliance with its administrative
subpoena. We have previously considered a challenge to a
subpoena instanter executed by the Texas Medical Board.
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)).
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 was
entitled to an opportunity to obtain review of the
administrative subpoena before a neutral decisionmaker."
Id. at 358 (citing See v. City of Seattle,
387 U.S. 541, 545 (1967); Donovan v. Lone Steer,
Inc., 464 U.S. 408, 415 (1984)). Similarly, the demand
to turn over Dr. Zadeh's medical records immediately did
not provide an opportunity for precompliance review. We
agree, then, that a requirement of precompliance review in
many, if not most, administrative searches had been clearly
established by Supreme Court precedent prior to the search
defendants acknowledge this law but maintain there was no
constitutional violation because this search fell into an
exception to the general rule requiring precompliance review.
We next examine that argument.
Closely regulated industry
opportunity for precompliance review is needed for
administrative searches of industries that "have such a
history of government oversight that no reasonable
expectation of privacy" exists for individuals engaging
in that industry. Marshall v. Barlow's, Inc.,
436 U.S. 307, 313 (1978). Even so, warrantless inspections in
closely regulated industries must still satisfy three
criteria: (1) a substantial government interest, (2) a
regulatory scheme that requires warrantless searches to
further the government interest, and (3) "a
constitutionally adequate substitute for a warrant."
New York v. Burger, 482 U.S. 691, 702-03 (1987)
(quoting Donovan v. Dewey, 452 U.S. 594, 603
did not resolve whether the Board's use of administrative
subpoenas satisfied the Burger criteria because the
issue was not raised until oral argument. Cotropia,
721 Fed.Appx. at 360 & n.6. As a result, the panel's
holding was expressly limited to concluding that the
Board's demand for immediate compliance with the subpoena
did not satisfy the general administrative exception to the
warrant requirement. The argument has timely been raised
here, though. Thus, we must discuss whether the
Burger exception permitted the Board's
administrative subpoena and whether that law was clearly
established at the time of its execution.
categorize industries under Burger, courts consider
the history of warrantless searches in the industry, how
extensive the regulatory scheme is, whether other states have
similar schemes, and whether the industry would pose a threat
to the public welfare if left unregulated. See
Burger, 482 U.S. at 704; Patel, 135 S.Ct. at
2454. The defendants characterize the relevant industry in
two different ways. We evaluate first whether the practice of
medicine is a closely regulated industry and then whether the
practice of prescribing controlled substances is closely
that the medical profession is subject to close oversight,
the district court emphasized the absence of a history of
warrantless inspections to conclude that the medical
profession was not a closely regulated industry. Important to
its conclusion was the confidential nature of the
doctor-patient relationship: "It strains credibility to
suggest that doctors and their patients have no reasonable
expectation of privacy." On appeal, the defendants all
but concede that there is not a lengthy history of
warrantless searches. They instead emphasize the extensive
regulatory scheme governing the practice of medicine and the
risk that the industry could pose to the public welfare.
is no doubt that the medical profession is extensively
regulated and has licensure requirements. Satisfying the
Burger doctrine requires more. The Supreme Court
instructs "that the doctrine is essentially defined by
'the pervasiveness and regularity of the federal
regulation' and the effect of such regulation upon an
owner's expectation of privacy." Burger,
482 U.S. at 701 (quoting Dewey, 452 U.S. at 605-06).
Another key factor is "the duration of a particular
regulatory scheme." Id. (quoting
Dewey, 452 U.S. at 606).
Board cites several laws or regulations governing the
behavior of doctors. Outside of citing Texas's licensure
requirement for physicians, the regulations the Board cites
do not apply to the entire medical profession. Instead, they
target the practice of prescribing controlled substances. As
examples, the Board states that doctors must register with
the DEA to prescribe controlled substances, Tex. Health &
Safety Code § 481.061; that prescriptions of controlled
substances are monitored by several law enforcement agencies,
id. §§ 481.067, 481.075, 481.076; and that
pain management clinics must register as such, which allows
the Board to inspect them from time to time, Tex. Occ. Code
§§ 168.101, 168.052; 37 Tex. Reg. 10079, 10079-80
(2012), adopted 38 Tex. Reg. 1876, 1876-77 (2013),
amended 39 Tex. Reg. 297, 297-98 (2014) (former 22
Tex. Admin. Code § 195.2); 35 Tex. Reg. 1924, 1925-26
(2010), adopted 35 Tex. Reg. 3281, 3281-82 (2010),
amended 43 Tex. Reg. 768, 768-74 (2018) (former 22
Tex. Admin. Code § 195.3). The Board also refers us to
laws and regulations that similarly regulate anesthesia.
These, though, do not amount to pervasiveness and regularity
of regulation over the medical industry as a whole as
Burger requires. Instead, only specific groups of
doctors may have been put on notice that the Board may
perform some inspections.
do not see in the medical profession an entrenched history of
warrantless searches. Its absence is relevant, though not
dispositive, to our issue. Burger, 482 U.S. at 701.
For example, when the Court held that the liquor industry was
closely regulated, it mentioned that English commissioners
could inspect brewing houses on demand in the 1660s, and that
Massachusetts passed a similar law in 1692. Colonnade
Catering Corp. v. United States, 397 U.S. 72, 75 (1970).
It then referred to a 1791 federal law that has continued in
various forms, permitting federal officers to perform
warrantless searches of distilleries and imposing an excise
tax on distilled liquor. Id. Because the focus there
was "the liquor industry long subject to close
supervision and inspection," the Court concluded that
the Fourth Amendment did not prohibit the warrantless
searches authorized by Congress. Id. at 77. Here,
there is no such history.
considering the reasonable expectation of privacy, we also
consider the sensitive nature of medical records. The Ninth
Circuit explained that "the theory behind the closely
regulated industry exception is that persons engaging in such
industries, and persons present in those workplaces, have a
diminished expectation of privacy." Tucson
Woman's Clinic v. Eden, 379 F.3d 531, 550 (9th Cir.
2004). We agree with that court's observation that in
medical contexts, the expectation of privacy likely is
federal regulations do exempt the Board from the privacy
requirements of the Health Insurance Portability and
Accountability Act ("HIPAA"). 45 C.F.R. §
164.512. Further, the Board cites Texas laws providing that
where the Board does obtain information, it is subject to
confidentiality requirements. See Tex. Occ. Code
§§ 159.002; 159.003(a)(5); 164.007(c). That HIPAA
permits disclosure to the Board and that the regulations
governing the Board continue to protect that information from
disclosure does not mean that the Board is entitled to access
to that information through an administrative search without
allowing an opportunity for precompliance review.
conclude, then, that the medical industry as a whole is not a
closely regulated industry for purposes of Burger.
Still, even if the medical profession at large cannot be said
to fall within these Burger factors, it is possible
that a subset, such as those who prescribe controlled
substances, would do so. Because the parties focus their
analysis of whether there is a closely regulated industry on
the medical profession as a whole and not on pain management
clinics, we assume only for purposes of our analysis today
that pain management clinics are part of a closely regulated
industry and that Dr. Zadeh was operating such a clinic even
if his clinic was not certified as one. Such assumptions are
appropriate in this case because ultimately our resolution
turns on whether the relevant law was clearly established. At
this point, we can at least say that the law was not clearly
established whether pain management clinics are part of a
closely regulated industry. The remaining relevant law,
established with clarity or not, is analyzed below.
Burger exception requirements
were we to accept the defendants' argument that doctors
prescribing controlled substances are engaging in a closely
regulated industry with less reasonable expectations of
privacy, administrative searches of such industries still
must satisfy the three Burger criteria. There is no
meaningful dispute in this case as to the first two factors,
namely, that the State has a substantial interest in
regulating the prescription of controlled substances and that
the inspection of a doctor's records would aid the
Government in regulating the industry. We thus analyze only
whether the statutory scheme is a proper substitute for a
search warrant. The Board relies on its authority to issues
subpoenas and to inspect pain management clinics. The
principal response from plaintiffs is that neither provides a
constitutionally adequate substitute for a warrant.
order for a warrant substitute authorized by statute to be
constitutionally adequate, "the regulatory statute must
perform the two basic functions of a warrant: it must advise
the owner of the commercial premises that the search is being
made pursuant to the law and has a properly defined scope,
and it must limit the discretion of the inspecting
officers." Burger, 482 U.S. at 703. The
relevant statute provides: "The board may issue a
subpoena or a subpoena duces tecum to compel the attendance
of a witness and the production of books, records, and
documents." Tex. Occ. Code. § 153.007(a). The Board
argues that the statute, when considered with the following
regulation, limits the discretion of the officials. The
regulation provides that after a "request by the board
or board representatives, a licensee shall furnish to the
board copies of medical records or the original records
within a reasonable time period, as prescribed at the time of
the request." 22 Tex. Admin. Code § 179.4(a). The
regulation defines "reasonable time" as
"fourteen calendar days or a shorter time if required by
the urgency of the situation or the possibility that the
records may be lost, damaged, or destroyed."
district court held that a search using the Board's
subpoena authority did not satisfy the third factor of the
Burger test as it was "purely
discretionary," allowing the Board "to choose which
doctors to subpoena and to do so at a frequency it
determines." To evaluate that holding, we consider the
limits that do exist: only licensees are subject to the
subpoena; only medical records must be produced; and it is
the Board or its representatives who will be asking for the
records. As the district court stated, though, there is no
identifiable limit on whose records can properly be
inspections of pain management clinics, the Board argues that
some limits to its authority are set by the statute
permitting it to inspect pain management clinics.
Specifically, the statute allows it to examine "the
documents of a physician practicing at the clinic, as
necessary to ensure compliance with this chapter." Tex.
Occ. Code. § 168.052(a). Providing more specific
guidance, the regulation in effect at the time provided:
The board may conduct inspections to enforce these rules,
including inspections of a pain management clinic and of
documents of a physician's practice. The board may
contract with another state agency or qualified person to
conduct these inspections.
35 Tex. Reg. 1925, 1925-26 (2010), adopted 35 Tex.
Reg. 3281, 3281-82 (2010), amended 43 Tex. Reg. 768,
768-74 (2018) (former 22 Tex. Admin. Code § 195.3).
district court found this inspection authority, like the
subpoena authority, to be "purely discretionary."
The governing criteria for an inspection is that the target
be a pain management clinic, that the Board performs the
inspection, and that the purpose for the search be to
determine compliance with pain management rules. We agree
with the district court, though, that these requirements
suffered from the same fatal Burger ¶aw as the
subpoena authority: they did not limit how the clinics
inspected are chosen.
summary, there are insufficient limits on the discretion of
the Board to satisfy the Burger requirements,
whether considering the medical profession in general or as
to pain management clinics. What is left is the question of
whether the law on these points was clearly established and,
regardless, whether the search was invalid as pretextual.
Clearly established law for qualified immunity
summarize, we have concluded there was a violation of Dr.
Zadeh's constitutional rights. That is true even with our
twin assumptions that pain management clinics are part of a
closely regulated industry and that Dr. Zadeh operated a pain
management clinic. Nonetheless, the defendants are entitled
to qualified immunity unless the constitutional requirements
they violated were clearly established at the time of their
actions. Reichle, 566 U.S. at 664. We hold that it
was clearly established at the time of this search that the
medical profession as a whole is not a closely regulated
industry, meaning that governmental agents violate the
Constitution when they search clinics that are not pain
management clinics without providing an opportunity for
precompliance review. We also hold, even assuming that pain
management clinics are part of a closely regulated industry,
that on-demand searches of those clinics violate the
constitution when the statutory scheme authorizing the search
fails to provide sufficient constraints on the discretion of
the inspecting officers. We need to analyze, though, whether
that last statement of law was clearly established when this
analysis of the clarity of relevant law is objective, meaning
it does not focus on the specific defendants' knowledge.
"The touchstone of this inquiry is whether a reasonable
person would have believed that his conduct conformed to the
constitutional standard in light of the information available
to him and the clearly established law." Goodson v.
City of Corpus Christi, 202 F.3d 730, 736 (5th Cir.
2000). "[E]ven law enforcement officials who
'reasonably but mistakenly [commit a constitutional
violation]' are entitled to immunity." Glenn v.
City of Tyler, 242 F.3d 307, 312-13 (5th Cir. 2001)
(quoting Goodson, 202 F.3d at 736). For the law to
be clearly established, there must be a close congruence of
the facts in the precedent and those in the case before us.
Wesby, 138 S.Ct. at 589-90. "The
precedent must be clear enough that every reasonable official
would interpret it to establish the particular rule the
plaintiffs seek to apply." Id. at 590.
rely on one of our precedents that reviewed an administrative
search of a dentist's office by agents of the Texas State
Board of Dental Examiners, accompanied by Department of
Public Safety officials. Beck v. Tex. State Bd. of Dental
Exam'rs, 204 F.3d 629, 632 (5th Cir. 2000).
Dentist Beck was a target because of complaints filed against
him for prescribing controlled substances. Id. We
concluded that the search did not violate the plaintiff's
clearly established rights. Id. at 638-39. We
applied the Burger exception and determined there
was a significant state interest in regulating dentists'
use of controlled substances; the search was conducted
pursuant to two regulatory schemes; and there was an adequate
substitute for a warrant where the statute permitted the
official to conduct inspections during "reasonable
times" after "stating his purpose" and
presenting his credentials to the owner. Id. at
638-39. In light of Beck, the Board argues that
reasonable investigators could have believed the
Burger exception permitted the execution of the
subpoena as they too were investigating prescriptions of
controlled substances within the medical industry.
plaintiffs insist that Beck is "patently
distinguishable" for the same reason argued in the
separate opinion here. The clarity of any possible
distinction, though, must be viewed through the lens that the
law, including a distinction, must be "sufficiently
clear that every reasonable official would understand that
what he is doing is unlawful" at that time.
Wesby, 138 S.Ct. at 589 (quotation marks omitted).
That means "existing law must have placed the
constitutionality of the officer's conduct 'beyond
debate." Id. Perhaps most relevant, the
"legal principle [must] clearly prohibit the
officer's conduct in the particular circumstances
before him. The rule's contours must be so well
defined that it is 'clear to a reasonable officer that
his conduct was unlawful in the situation he
confronted.'" Id. at 590 (emphasis added).
claimed sufficient distinction here is that the regulations
and statutes under which the investigators in Beck
acted explicitly permitted inspections without prior notice.
See Beck, 204 F.3d at 639. The Beck court
discussed that point at the end of the opinion, as it
addressed several questions regarding whether what occurred
was a valid administrative search of a closely regulated
industry. Id. The final subject the court discussed
was that one of the statutes under which the inspection was
conducted did not require that prior notice be given.
Id. (quoting Section 5.01(c) of the Texas Controlled
Substances Act.) That is no small distinction, and we
conclude today that absent similar statutory or perhaps
regulatory authority that dispenses with prior notice, a
search such as occurred here cannot be conducted without
prior notice. The issue for us, though, is whether that law
was clearly established at the time of the search we are
already stated, the right is not clearly established unless
it is beyond debate using an objective test. We have
discussed the intricacies of New York v. Burger,
which permit warrantless searches when they satisfy a
three-factor test. Our Beck decision held that the
search there was of a closely regulated industry, and
therefore went through the three Burger factors. The
discussion of the specific statutory authorization for
no-notice inspections was to show that the third
Burger factor was satisfied, which is that an
adequate substitute for a warrant existed. We did not say in
Beck that the only sufficient substitute under
Burger was a statute authorizing no-notice searches.
We did hold that "under these circumstances, Beck does
not show a violation of a clearly established constitutional
right." Beck, 204 F.3d at 639.
of clearly establishing the principle that prior notice of a
regulatory search must be given unless the authorizing
statute explicitly announces it is unnecessary, Beck
applied the general Burger principle to the facts of
that case that a warrant substitute authorized by a
"regulatory statute must perform the two basic functions
of a warrant: it must advise the owner of the commercial
premises that the search is being made pursuant to the law
and has a properly defined scope, and it must limit the
discretion of the inspecting officers." Burger,
482 U.S. at 703. In the Beck situation, that factor
was satisfied with the statutory language already discussed.
We cannot see, though, that every reasonable official prior
to conducting a search under the circumstances of this case
would know this Burger factor was not satisfied. We
think some, even many, reasonable officers would believe
under the third Burger factor that the owner of the
premises was charged with knowledge that a statute authorized
the search, and the officers would reasonably believe the
scope of the search and the discretion of the officials was
validly limited. We have held that the statute fails this
standard, but we do not hold that all reasonable officers
would have known that, until now.
although Beck does not control the constitutionality
of the Board's actions in this case, it does weigh in
favor of the defendants' receiving qualified immunity. We
find more guidance from cases where a statute did not clearly
limit the official's discretion in selecting who would be
subject to an administrative search. In one, we held that the
statute provided a constitutionally adequate substitute for a
warrant where the statute provided:
The licensing agency shall make or cause to be made
inspections relative to compliance with the laws and
regulations governing the licensure of child care facilities.
Such inspections shall be made at least once a year but
additional inspections may be made as often as deemed
necessary by the licensing agency.
See Ellis v. Miss. Dep't of Health, 344
Fed.Appx. 43 (5th Cir. 2009) (citing Miss. Code. Ann. §
43-20-15). Though that opinion is not precedential, we agree
with its reasoning.
upheld an administrative search where, despite limits on the
conduct of an officer after a traffic stop, there were not
clear limits on an officer's discretion as to whom to
stop. See United States v. Fort, 248 F.3d 475, 482
(5th Cir. 2001). Because we have not so far required there to
be a clear limit on determining whom officials select for an
administrative search, the defendants reasonably could have
believed that the administrative scheme here provided a
constitutionally adequate substitute for a warrant.
the plaintiffs argue that even if qualified immunity might
apply to defendants who conducted a proper search, the
defendants did not follow the statutory scheme. Therefore,
they assert, caselaw in which the legal requirements for the
search were followed is inapplicable. The claims of
overstepping authority, though, are minor. First, while the
medical assistant was waiting for Dr. Zadeh to appear, there
is evidence one of the investigators approached the assistant
at her desk, then followed her into two exam rooms. While in
one of the rooms, the investigator asked if controlled
substances were kept in the room. Second, there is evidence
this same investigator also approached the assistant while
the latter was in a storage room and asked if the
investigators could use the medical office's copy
machine. The district court said there was no evidence the
investigator ever looked at any files or went somewhere in
the medical office without the assistant. Finally, as soon as
the investigators were asked to leave the office, they did
so. We agree with the district court that there is "no
support in the record" to sustain the allegation the
investigators did a "thorough search and
inspection." The factual basis for deviations from
search protocols is insubstantial.
conclusion, the unlawfulness of the defendants' conduct
was not clearly established at the time of the search.