United States District Court, E.D. Pennsylvania
WILLIAM J. O'BRIEN, III, Plaintiff,
THE UNITED STATES OF AMERICA FEDERAL GOVERNMENT, et al., Defendants.
before the Court is an Amended Complaint filed by Plaintiff
William J. O'Brien, a prisoner incarcerated at
FCI-Hazleton, which raises claims stemming from
O'Brien's arrest and federal prosecution for various
drug crimes and related crimes. For the following reasons,
the Court will dismiss O'Brien's Amended Complaint.
January 20, 2015, O'Brien was indicted in the Eastern
District of Pennsylvania on twenty-six counts of distributing
controlled substances and one count of conspiracy to
distribute controlled substances in connection with his
medical practice. See United States v. O 'Brien,
Crim. A. No. 15-21-1 (E.D. Pa.). He was arrested pursuant to
a bench warrant, and subsequently arraigned on February 3,
2015. Id. at ECF No. 6. On July 14, 2015, he was
charged in a second superseding indictment with additional
charges. Id. at ECF No. 74.
28, 2016, after a nearly six-week jury trial presided over by
the Honorable Nitza I. Quinones Alejandro, O'Brien-who
represented himself at trial-was found guilty of all but four
counts of the 127-count second superseding indictment.
Id. at ECF No. 560. On October 7, 2016, Judge
Quinones sentenced O'Brien to a term of 360 months of
imprisonment, a term of supervised release, and restitution.
Id. at 637. The Third Circuit Court of Appeals
recently affirmed O'Brien's convictions. In its
opinion, the Third Circuit noted that "[a] parade of
witnesses, a confidential informant, videotape evidence, and
expert testimony indicated that O'Brien had prescribed
oxycodone and methadone to numerous individuals, including
[an individual who died], outside the usual course of
professional practice and for no medical purpose."
United States v. O'Brien, Appeal No. 16-3814 (3d
Cir. Jun 19, 2018 Opinion at 4).
Amended Complaint in the instant civil action raises claims
against the following Defendants: (1) The United States of
America; (2) Joshua Gill (Special Agent with the U.S.
Department of Health and Human Services); (3) Ed McClusker
(Special Agent with the U.S. Food & Drug Administration);
(4) Bryan Lacy (Special Agent with the Federal Bureau of
Investigation); (5) Dianna Huffman (Special Agent with the
F.B.I.); (6) Heather Start Whelan Holt (Special Agent with
the F.B.I.); (7) Cathy Carter (Special Agent with the
F.B.I.); (8) Mary Beth Leahy (Assistant U.S. Attorney); (9)
David Troyer (Assistant U.S. Attorney); (10) Kevin Kane
(Retired from the F.B.I.); (11) Maryanne Murphy a/k/a
Maryanne Hart; and (12) the "Eastern State District
Court Federal Building." O'Brien's claims are
all related to the federal criminal investigation and federal
criminal proceedings that led to his convictions and
alleges that he developed a hyperbaric oxygyen therapy (HBOT)
machine in 2006 and holds a patent on that technology. The
HBOT was installed at the Lower Bucks Hospital (LBH) in
Bristol, Pennsylvania and was used to treat patients.
O'Brien claims that the United States Food and Drug
Administration approved the technology for use three times
between 2006 and 2010.
January of 2010, LBH filed for bankruptcy. According to
O'Brien, at that time, the HBOT technology was generating
over $3 million to HyperOx, one of O'Brien's
companies. In November of 2010, WJO Inc., another company
owned by O'Brien filed for bankruptcy even though
O'Brien alleges that the company was generating $6
million in annual income. O'Brien alleges that the
bankruptcy court agreed that he could move the HBOT machine
from LBH to WJO Inc.
September 14, 2011, Agents Gill, McCusker, Carter, and Lacy,
all of whom were apparently part of a Healthcare Fraud
Taskforce investigating O'Brien, seized the HBOT machine
from O'Brien's office. O'Brien notes that the
machine was worth $900, 000. As a result of the seizure, the
bankruptcy court handling WJO's bankruptcy appointed a
trustee who terminated O'Brien in July of 2012. Following
his termination, O'Brien opened a solo practice under the
name Dr. Bill O'Brien L.L.C. Apparently around this time,
Carter retired from the F.B.I, and was replaced on the
Taskforce by Huffman.
to the Amended Complaint, in 2014, the Taskforce hired Murphy
as a confidential informant "to target and infiltrate
[O'Brien's] Family Practice Office." (Am. Compl.
ECF No. 9 at 18, ¶ 34.) O'Brien alleged that Murphy
wore surveillance equipment to his office and was seen
approximately twelve times over the course of a year. Murphy
testified at O'Brien's criminal trial regarding her
visits to his office. Special Agent Whelan-Holt also visited
the office, apparently in an undercover capacity to conduct
surveillance. O'Brien alleges that no warrant was
procured for Murphy or Whelan-Holt's surveillance
activities. O'Brien also alleges that, during one of
Murphy's visits, he informed her that '"the pain
management' part of the practice was being shut down
because it was too demanding," but that this information
was withheld by the Government until after Murphy's
testimony at trial. (Id. ¶ 38.)
Amended Complaint focuses heavily on the grand jury
proceedings that led to his indictment. O'Brien takes
issue with Special Agents Huffman and Gill's testimony
before the grand jury, as he believes that testimony was
misleading and/or inaccurate in various respects, and failed
to mention exculpatory information of which the agents were
aware. One matter that concerns O'Brien is the fact that
Huffman did not bring to the grand jury's attention a DEA
report that he believes exculpates him, and which he received
during the course of trial. He contends that Huffman admitted
at trial that she and the other members of the task force
failed to inform prosecutors of the report.
O'Brien contends that Assistant U.S. Attorney Leahy
suborned perjury in connection with the grand jury
proceedings. He also contends that Leahy improperly denied
him bail, apparently by making false representations to the
court. O'Brien was therefore detained and, accordingly,
had to close his practice and lost income. During the course
of his criminal proceeding, O'Brien successfully moved to
proceed pro se. The Amended Complaint suggests that
O'Brien was unhappy with the fact that Assistant U.S.
Attorneys Leahy and Troyer opposed his motion to represent
himself. The Amended Complaint also suggests that O'Brien
believes witnesses at trial, including Kane, a retired FBI
agent, provided misleading testimony that failed to include
pertinent exculpatory information.
Amended Complaint purports to raise claims based on the above
facts for violation of O'Brien's constitutional
rights pursuant to Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971), the Racketeer
Influenced and Corrupt Organizations Act (RICO), and the
Federal Tort Claims Act (FTCA). With regard to the FTCA
claim, O'Brien alleges that he submitted an
administrative claim form to the U.S. Department of Human
Services, the FDA, the FBI, and the DOJ on May 30, 2017, and
that his claim was denied on October 31, 2017. O'Brien
STANDARD OF REVIEW
O'Brien has paid the filing fee in full, the Court has
the authority to screen his Amended Complaint pursuant to 28
U.S.C. § 1915A. See Shane v. Fauver, 213 F.3d
113, 116 n.2 (3d Cir. 2000) (recognizing that the district
courts have the authority to screen a prisoner complaint
pursuant to § 1915A(b)(1) even if the prisoner is not
proceeding in forma pauperis). Section 1915 A
requires that the Court "review, before docketing, if
feasible or, in any event, as soon as practicable after
docketing, a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or
employee of a governmental entity." 28 U.S.C. §
1915A(a). In doing so, the Court must dismiss a complaint or
any portion thereof that "is frivolous, malicious, or
fails to state a claim upon which relief may be
granted," id. § 1915A(b)(1), or that
"seeks monetary relief from a defendant who is immune
from such relief," id. § 1915A(b)(2).
complaint is frivolous if it "lacks an arguable basis
either in law or in fact." Neitzke v. Williams,490 U.S. 319, 325 (1989). It is legally baseless if
"based on an indisputably meritless legal theory,"
Deutsch v. United States,67 F.3d 1080, 1085 (3d
Cir. 1995), and factually baseless "when the facts
alleged rise to the level of the irrational or the wholly
incredible." Denton v. Hernandez,504 U.S. 25,
33 (1992). Whether a complaint fails to state a claim under
§ 1915A(b)(1) is governed by the same standard
applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). See Neal v. Pa. Bd. of Probation
& Parole, No. 96-7923, 1997 WL 338838, at *1 (E.D.
Pa. June 19, 1997); see also Tourscher v.
McCullough,184 F.3d 236, 240 (3d Cir. 1999).
Accordingly, the Court must determine whether the complaint
contains "sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face." Ashcroft v. Iqbal,556 U.S. 662, 678
(2009) (quotations omitted). The Court may also dismiss
claims based on an affirmative defense if the affirmative
defense is obvious from the face of the complaint. See
Ray v. Kertes,285 F.3d 287, 297 (3d Cir. 2002); see
also McPherson v. UnitedStates, 392 Fed.Appx.
938, 943 (3d Cir. ...