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O'Brien v. The United States of America Federal Government

United States District Court, E.D. Pennsylvania

July 31, 2018

WILLIAM J. O'BRIEN, III, Plaintiff,
v.
THE UNITED STATES OF AMERICA FEDERAL GOVERNMENT, et al., Defendants.

          MEMORANDUM

          WENDY BEETLESTONE, J.

         Currently 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.

         I. FACTS[1]

         On 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.

         On June 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[2]-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).

         O'Brien's 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 incarceration.

         O'Brien 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.

         In 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.

         On 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.

         According 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.)[3] 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.)

         O'Brien's 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.

         Relatedly, 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.

         The 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 seeks damages.

         II. STANDARD OF REVIEW

         Although 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).

         A 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. ...


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