Case 7:08-cv-00353 Document 1 Filed in TXSD on 12/04/08 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION

JESUS RODRIGUEZ-AGUERO, M.D.

Plaintiff,

v.

THE TEXAS MEDICAL BOARD,

ROBERTA M. KALAFUT, D.O.,
INDIVIDUALLY AND IN HER OFFICIAL CIVIL ACTION NO. _______________
CAPACITY, DONALD PATRICK, M.D.,
J.D., INDIVIDUALLY AND IN HIS JURY DEMANDED
OFFICIAL CAPACITY, MARI
ROBINSON, J.D., INDIVIDUALLY AND
IN HER OFFICIAL CAPACITY, MANUEL
GUAJARDO, M.D., INDIVIDUALLY AND
IN HIS OFFICIAL CAPACITY, JOHN
DOES 1-3 AND JANE DOES 1-3

Defendants

PLAINTIFF’S ORIGINAL COMPLAINT

TO THE HONORABLE UNITED STATES DISTRICT JUDGE:

COMES NOW Plaintiff JESUS RODRIGUEZ-AGUERO, M.D. , hereinafter at times

referred to as "Plaintiff", complaining of Defendants TEXAS MEDICAL BOARD, ROBERTA

KALAFUT, D.O., DONALD PATRICK, M.D., J.D., MARI ROBINSON, J.D., MANUEL

GUAJARDO, M.D., JOHN DOES 1-3 AND JANE DOES 1-3, hereinafter at times referred

to collectively as “Defendants”, in their individual and official capacities, and allege as

follows:
 Case 7:08-cv-00353 Document 1 Filed in TXSD on 12/04/08 Page 2 of 10

I.

JURISDICTION AND VENUE

1. This Court has jurisdiction of the claims asserted herein pursuant to 28 U.S.C.

§1331, 28 U.S.C. §2201 and pursuant to 42 U.S.C. §1983. Venue of this civil action is

proper in the Southern District of Texas pursuant to §1391(b).

II.

PARTIES

Plaintiff

2. Plaintiff Jesus Rodriguez-Aguero, M.D., hereinafter at times referred to as “Plaintiff”

or “Dr. Rodriguez”, is a natural person who is a resident of the Southern District of Texas.

Defendants

3. Defendant Texas Medical Board, hereinafter at times referred to as “Defendant

TMB,” or “the Board” is a state agency mandated to regulate the practice of medicine,

located within the Western District of Texas. Defendant TMB may be served with

summons by serving its Interim Executive Director, Mari Robinson, Texas Medical Board,

333 Guadalupe Tower 3, Suite 610, Austin, Texas, 78701.

4. Defendant Roberta Kalafut, D.O., hereinafter at times referred to as “Defendant

Kalafut,” is a natural person who is a resident of the Eastern District of Texas and was,

during all relevant periods of time, President of the Texas Medical Board. Dr. Kalafut is

being sued in her official and in her individual capacities, and may be served with

summons at 1888 Antilley Rd., Abilene, Texas, 79606.

5. Defendant Donald Patrick, M.D., hereinafter at times referred to as “Defendant

Patrick,” is a natural person who is a resident of the Western District of Texas and was,

PLAINTIFF’S ORIGINAL COMPLAINT - PAGE 2 OF 10

 Case 7:08-cv-00353 Document 1 Filed in TXSD on 12/04/08 Page 3 of 10

during all relevant periods of time, the executive director of the Texas Medical Board. Dr.

Patrick is being sued in his official and in his individual capacities, and may be served with

summons at the Texas Medical Board, 333 Guadalupe Tower 3, Suite 610, Austin, Texas,

78701.

6. Defendant Mari Robinson, hereinafter at times referred to as “Defendant Robinson,”

is a natural person who is a resident of the Western District of Texas and was, during all

relevant periods of time, the interim executive director of the Texas Medical Board. Ms.

Robinson is being sued in her official and in her individual capacities, and may be served

with summons at the Texas Medical Board, 333 Guadalupe Tower 3, Suite 610, Austin,

Texas, 78701.

7. Defendant Manuel Guajardo, M.D., hereinafter at times referred to as “Defendant

Guajardo,” is a natural person who is a resident of the Southern District of Texas and was,

during all relevant periods of time, a member of the Texas Medical Board. Dr. Guajardo

is being sued in his official and in his individual capacities, and may be served with

summons at 300 Lorenaly Drive, Brownsville, Texas, 78526.

8. Defendant John Does 1-3 are members, employees, and/or agents of the Texas

Medical Board who have violated the constitutional rights of Plaintiff Jesus Rodriguez-

Aguero, M.D.

9. Defendant Jane Does 1-3 are members, employees, and/or agents of the Texas

Medical Board who have violated the constitutional rights of Plaintiff Jesus Rodriguez-

Aguero, M.D.

PLAINTIFF’S ORIGINAL COMPLAINT - PAGE 3 OF 10

 Case 7:08-cv-00353 Document 1 Filed in TXSD on 12/04/08 Page 4 of 10

III.

FACTUAL BACKGROUND

10. Plaintiff is, and was at all relevant time periods, a physician in good standing with

the Texas Medical Board. Plaintiff has liberty interests in his reputation, his good name

and his chosen profession. Such liberty interests are protected and guaranteed to Plaintiff

by the Fourteenth Amendment to the United States Constitution.

11. Beginning in December 2006 and continuing through the present date, Defendant

Kalafut, in her individual and/or official capacities, initiated, conducted and/or directly

oversaw an investigation and disciplinary process into allegations that Plaintiff failed to

meet the standard of care by his treatment and management of a patient, E.R. and also

failed to meet the standard of care for maintaining adequate medical records in connection

with his care and treatment of E.R. During such investigation and disciplinary process, with

the full knowledge and participation of Defendant Kalafut, Plaintiff’s rights under the United

States Constitution were violated, causing Plaintiff to suffer damages and also leaving

Plaintiff with doubts and uncertainties as to his rights and legal relations with the Texas

Medical Board under the Texas Medical Practice Act, the Texas Administrative Code and

the Texas Medical Board Rules.

12. Beginning in December 2006 and continuing through the present date, Defendant

Patrick, in his individual and/or official capacities, initiated, conducted and/or directly

oversaw an investigation and disciplinary process into allegations that Plaintiff failed to

meet the standard of care by his treatment and management of a patient, E.R. and also

failed to meet the standard of care for maintaining adequate medical records in connection

with his care and treatment of E.R. During such investigation and disciplinary process, with

PLAINTIFF’S ORIGINAL COMPLAINT - PAGE 4 OF 10

 Case 7:08-cv-00353 Document 1 Filed in TXSD on 12/04/08 Page 5 of 10

the full knowledge and participation of Defendant Patrick, Plaintiff’s rights under the United

States Constitution were violated, causing Plaintiff to suffer damages and also leaving

Plaintiff with doubts and uncertainties as to his rights and legal relations with the Texas

Medical Board under the Texas Medical Practice Act, the Texas Administrative Code and

the Texas Medical Board Rules.

13. Beginning in December 2006 and continuing through the present date, Defendant

Robinson, in her individual and/or official capacities, initiated, conducted and/or directly

oversaw and/or participated in an investigation and disciplinary process into allegations that

Plaintiff failed to meet the standard of care by his treatment and management of a patient,

E.R. and also failed to meet the standard of care for maintaining adequate medical records

in connection with his care and treatment of E.R. During such investigation and

disciplinary process, with the full knowledge and participation of Defendant Robinson,

Plaintiff’s rights under the United States Constitution were violated, causing Plaintiff to

suffer damages and also leaving Plaintiff with doubts and uncertainties as to his rights and

legal relations with the Texas Medical Board under the Texas Medical Practice Act, the

Texas Administrative Code and the Texas Medical Board Rules.

14. Beginning in December 2006 and continuing through the present date, Defendant

Guajardo, in his individual and/or official capacities, initiated, conducted and/or directly

participated in an investigation and disciplinary process into allegations that Plaintiff failed

to meet the standard of care by his treatment and management of a patient, E.R. and also

failed to meet the standard of care for maintaining adequate medical records in connection

with his care and treatment of E.R. During such investigation and disciplinary process, with

the full knowledge and participation of Defendant Guajardo, Plaintiff’s rights under the

PLAINTIFF’S ORIGINAL COMPLAINT - PAGE 5 OF 10

 Case 7:08-cv-00353 Document 1 Filed in TXSD on 12/04/08 Page 6 of 10

United States Constitution were violated, causing Plaintiff to suffer damages and also

leaving Plaintiff with doubts and uncertainties as to his rights and legal relations with the

Texas Medical Board under the Texas Medical Practice Act, the Texas Administrative

Code and the Texas Medical Board Rules.

15. Beginning in December 2006 and continuing through the present date, Defendants

John Doe 1-3 and Jane Doe 1-3, in their individual and/or official capacities, initiated,

conducted and/or directly oversaw and/or participated in an investigation and disciplinary

process into allegations that Plaintiff failed to meet the standard of care by his treatment

and management of a patient, E.R. and also failed to meet the standard of care for

maintaining adequate medical records in connection with his care and treatment of E.R.

During such investigation and disciplinary process, with the full knowledge and participation

of Defendants Doe, Plaintiff’s rights under the United States Constitution were violated,

causing Plaintiff to suffer damages and also leaving Plaintiff with doubts and uncertainties

as to his rights and legal relations with the Texas Medical Board under the Texas Medical

Practice Act, the Texas Administrative Code and the Texas Medical Board Rules.

16. During and after December 2006, Defendants began an organized and concerted

effort to punish Plaintiff for his decision to avail himself of his due process guarantees, as

well as his rights pursuant to the Texas Medical Practices Act, the Texas Administrative

Code and the Texas Medical Board Rules. Such proceedings were conducted in violation

of the Texas Administrative Code and the Texas Medical Board Rules, in violation of

Plaintiff’s substantive and the clearly established due process rights guaranteed to Plaintiff

by the Fourteenth Amendment to the United States Constitution.

PLAINTIFF’S ORIGINAL COMPLAINT - PAGE 6 OF 10

 Case 7:08-cv-00353 Document 1 Filed in TXSD on 12/04/08 Page 7 of 10

17. During the investigation and disciplinary process, Plaintiff’s rights, privileges and/or

immunities secured by the Constitution or laws of the United States, were violated by

Defendants as follows:

A. Defendants predetermined the general range of sanctions that

Plaintiff would receive;

B. Plaintiff was not given an opportunity to review all of the evidence

against him, including but not limited to the names of the Board’s
experts and the unredacted expert reports;

C. Defendants did not advise Plaintiff of the anonymous complainants,

which violates the Confrontation Clause of the Sixth Amendment of
the United States Constitution;

D. Plaintiff was limited in the witnesses and evidence that he could utilize
at his hearings, including but not limited to the testimony and expert
report of Dr. Homer S. Arnold;

E. Plaintiff was prohibited from utilizing the witnesses and evidence

provided to the Texas Medical Board’s Disciplinary Process Review
Committee in its determination of dismissal;

F. Defendants shifted the burden of proof to Plaintiff in the disciplinary

proceedings;

G. Defendants utilized threatening measures by informing Plaintiff that

the Board would “seek any and all sanctions up to revocation,
including monetary administrative penalties” and that although the
SOAH was the finder of fact in connection with his hearing, “the Board
determines sanctions” in an attempt to coerce Plaintiff into falsely
admitting to a violation of the Texas Medical Practice Act and in an
attempt to improperly coerce settlement;

H. In its determination of sanctions, the Texas Medical Board is allowed

to ignore the recommendations of the Administrative Law Judge and
impose its own sanctions on Plaintiff;

I. Defendants utilized the Texas Medical Board disciplinary process to

re-litigate issues that Plaintiff had already successfully defended in a
medical negligence lawsuit in District Court in Hidalgo County;

J. Defendants imposed illogical sanctions;

PLAINTIFF’S ORIGINAL COMPLAINT - PAGE 7 OF 10

 Case 7:08-cv-00353 Document 1 Filed in TXSD on 12/04/08 Page 8 of 10

K. Defendants improperly published sanctions prior to final resolution of

the disciplinary process, subjecting Plaintiff to negative reporting to
insurance companies and loss of financial contracts; and

L. Other specific violations of the Texas Medical Board Rules and other
violations of clearly established statutory or constitutional rights of
which a reasonable person would have known.

IV.

FIRST CAUSE OF ACTION

18. Pursuant to 42 U.S.C. §1983, Plaintiff hereby sues for injunctive relief. Plaintiff

would show that Defendants, in their official capacities, will continue to violate Plaintiff’s

constitutional rights if Defendants are not enjoined by this Court. Accordingly, Plaintiff

hereby requests this Court to issue an order to enjoin any ongoing violations of Plaintiff’s

constitutional rights and stay any current state court proceedings until this suit has been

resolved.

V.

SECOND CAUSE OF ACTION

19. Pursuant to 42 U.S.C. §1983, Plaintiff hereby sues Defendants Kalafut, Patrick,

Robinson, Guajardo and Does in their individual capacities for compensatory damages.

As a result of the conduct of Defendants Kalafut, Patrick, Robinson, Guajardo and Does

acting under color of state law, Plaintiff was deprived of rights, privileges or immunities

secured by the Constitution or laws of the United States. Such actions by Defendants, as

noted above, violated clearly established statutory or constitutional rights of which a

reasonable person would have known.

20. As a result of Defendants’ conduct and actions, Plaintiff suffered damages. Such

damages include the administrative penalty assessed by Defendant Texas Medical Board;

PLAINTIFF’S ORIGINAL COMPLAINT - PAGE 8 OF 10

 Case 7:08-cv-00353 Document 1 Filed in TXSD on 12/04/08 Page 9 of 10

the attorneys’ fees and expenses that were incurred by Plaintiff to protect his constitutional

rights; and damages to his reputation and standing in the community. Plaintiff now seeks

to recover his compensatory damages, for which he hereby sues.

VI.

THIRD CAUSE OF ACTION

21. Pursuant to 28 U.S.C. §2201, Plaintiff hereby sues for declaratory relief to determine

the rights and other legal relations between Plaintiff and Defendant Texas Medical Board.

Plaintiff, as a licensed physician in the state of Texas, has substantial doubts and

uncertainties as to his rights and legal relations with the Texas Medical Board under the

Texas Administrative Code, the Texas Medical Practices Act, and the Texas Medical Board

Rules.

22. Plaintiff seeks a declaratory judgment that Chapters 151-165 of the Texas

Occupations Code is overly broad and unconstitutionally vague, as written or as applied,

thereby failing to provide Plaintiff with knowledge of what conduct is or is not acceptable.

Additionally, Plaintiff seeks a declaratory judgment that the disciplinary process utilized by

the Texas Medical Board is constitutionally defective in that it does not provide physicians

with clearly established due process, when the range of sanctions includes revocation of

a physician’s license to practice medicine.

VII.

ATTORNEYS’ FEES, COSTS & INTEREST

23. As a result of Defendants’ conduct and actions, the undersigned attorneys have

been retained by Plaintiff to prosecute this civil action and protect his constitutional rights.

PLAINTIFF’S ORIGINAL COMPLAINT - PAGE 9 OF 10

 Case 7:08-cv-00353 Document 1 Filed in TXSD on 12/04/08 Page 10 of 10

Accordingly, Plaintiff hereby sues for the recovery of his reasonable attorneys’ fees, costs

of court and pre- and post-judgment interest at the highest rates to which he is entitled.

VIII.

PRAYER

24. WHEREFORE PREMISES CONSIDERED, Plaintiff hereby prays that Defendants

be served with summons; be cited to appear and answer herein; and that after a trial of this

matter that Plaintiff obtain an order enjoining Defendants (in their official capacities) from

violating his Constitutional rights; and/or declaring that the disciplinary procedures utilized

by Defendant Texas Medical Board is unconstitutional; and order that Defendants (in their

individual capacities) pay to Plaintiff his compensatory damages, attorneys’ fees, costs of

court and pre-judgment and post-judgment interest at the highest rates to which he is

entitled to receive; and for such other proper relief to which Plaintiff is entitled.

Respectfully submitted,

Ronald G. Hole
ATTORNEY IN CHARGE FOR PLAINTIFF
State Bar I.D. 09834200
P. O. Box 720547
McAllen, Texas 78504
Telephone: (956) 631-2891
Telecopier: (956) 631-2415

OF COUNSEL:

HOLE & ALVAREZ, L.L.P.

Water Tower Centre
612 W. Nolana, Suite 370
P. O. Box 720547
McAllen, Texas 78504
Telephone: (956) 631-2891
Telecopier: (956) 631-2415

PLAINTIFF’S ORIGINAL COMPLAINT - PAGE 10 OF 10