Mothe et al v. Louisiana State Board of Embalmers and Funeral Directors et al, No. 2:2019cv09073 - Document 13 (E.D. La. 2019)
Court Description: ORDER AND REASONS - IT IS ORDERED that the 3 motion to dismiss, filed by Defendants Louisiana State Board of Embalmers and Funeral Directors, Kim Michel, S.J. Brasseaux, and Dianne Alexander, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on sovereign immunity grounds and pursuant to Rule 12(b)(6) on absolute immunity grounds and alternatively on qualified immunity grounds, be and hereby is GRANTED. IT IS FURTHER ORDERED that Plaintiffs' claims under 42 U.S.C. § 1 983 and under state law against Defendant Louisiana State Board of Embalmers and Funeral Directors and against Defendants Kim Michel, S.J. Brasseaux, and Dianne Alexander, in their official capacities, be and hereby are DISMISSED WITHOUT PREJUDICE on sovereign immunity grounds. IT IS FURTHER ORDERED Plaintiffs' claims under 42 U.S.C. § 1983 against Defendants Kim Michel, S.J. Brasseaux, and Dianne Alexander, in their individual capacities, are DISMISSED WITH PREJUDICE on absolute immunity grounds. IT IS FURTHER ORDERED that Plaintiffs' state law claims against Defendants Kim Michel, S.J. Brasseaux, and Dianne Alexander, in their individual capacities, are DISMISSED WITHOUT PREJUDICE. Signed by Judge Susie Morgan. (bwn)
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Mothe et al v. Louisiana State Board of Embalmers and Funeral Directors et al Doc. 13 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A BOYD L. MOTH E, J R., ET AL., Plain tiffs CIVIL ACTION VERSU S N O. 19 -9 0 73 LOU ISIAN A STATE BOARD OF EMBALMERS AN D FU N ERAL D IRECTORS, ET AL., D e fe n d an ts SECTION : “E” ORD ER AN D REAS ON S Before the Court is a m otion to dism iss, filed by Defendants, Louisiana State Board of Em balm ers and Funeral Directors, Kim Michel, S.J . Brasseaux, and Dianne Alexander, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. 1 Plaintiffs, Boyd L. Mothe, J r. (“Mothe”) and Mothe Funeral Hom es, L.L.C. (“MFH”), oppose. 2 For the reasons that follow, the Court GRAN TS the m otion. BACKGROU N D Plaintiffs allege that, in October 20 18, the Louisiana State Board of Em balm ers and Funeral Directors (“the Board”) advised them that the yearly em balm er and funeral director license renewal fee for MFH’s em ployee, Alvaro J . Berrios, had not been received. 3 Plaintiffs allege that, on or about October 18, 20 18 , the Board issued a subpoena duces tecum to MFH to produce docum ents regarding the em balm ing activities of Berrios. 4 Plaintiffs allege that, on October 30 , 20 18 , the Board issued a subpoena to Mothe com pelling his attendance at a hearing on J anuary 8 , 20 19 before the Board. 5 The subpoena identified two alleged violations Plaintiffs had com m itted under LA. R EV. STAT. 1 R. Doc. 3-1. R. Doc. 8. 3 R. Doc. 1 at 7. 4 Id. at 3. 5 Id. 2 1 Dockets.Justia.com 37:8 48 (A) and 37:848(D) by allowing Berrios to perform num erous em balm ing procedures without a license. 6 Plaintiffs allege the Board m ailed a notice of delinquency to Berrios at the wrong address. 7 Plaintiffs allege that, during the hearing on J anuary 8, 20 19, the Board voted to dism iss the com plaint against Mothe and MFH. 8 Plaintiffs filed their com plaint on April 5, 20 19 bringing claim s under 42 U.S.C. § 198 3 and Louisiana state law. 9 They bring suit against the Board; Brasseaux, in his individual capacity and in his official capacity as President of the Board; Michel, in her individual capacity and in her official capacity as Executive Director of the Board; an d Alexander, in her individual capacity and in her official capacity as General Counsel for the Board. 10 Michel and Alexander are em ployees of the Board, not m em bers of the Board. On May 16, 20 19, Defendants filed this m otion to dism iss, arguing Plaintiffs’ claim s against the Board an d the individual Defendants, in their official capacities, are barred by sovereign im m unity and Plaintiffs’ claim s against the individual Defendants, in their individual capacities, are barred by absolute im m unity and qualified im m unity. Plaintiffs filed a m em orandum in opposition to Defendants’ m otion to dism iss on J une 18, 20 19. 11 LEGAL STAN D ARD I. Ru le 12 ( b) ( 1) Stan dard “Federal courts are courts of lim ited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claim s.”12 A m otion to dism iss under Federal 6 Id. at 3– 4. Id. at 6, 8 . 8 Id. at 12. 9 Id. 10 Id. at 2; R. Doc. 3-1 at 5. 11 R. Doc. 8. 12 In re FEMA Trailer Form aldehy de Products Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 286 (5th Cir. 20 12). 7 2 Rules of Civil Procedure 12(b)(1) challenges a federal court’s subject-m atter jurisdiction. 13 Under Rule 12(b)(1), “[a] case is properly dism issed for lack of subject m atter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.”14 “Lack of subject-m atter jurisdiction m ay be found in the com plaint alone, the com plaint supplem ented by the undisputed facts as evidenced in the record, or the com plaint supplem ented by the undisputed facts plus the court’s resolution of the disputed facts.”15 “When, as here, grounds for dism issal m ay exist under both Rule 12(b)(1) and Rule 12(b)(6), the Court should, if necessary, dism iss only under the form er without reaching the question of failure to state a claim .”16 II. Ru le 12 ( b) ( 6 ) Stan dard Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court m ay dism iss a com plaint, or any part of it, for failure to state a claim upon which relief m ay be granted if the plaintiff has not set forth factual allegations in support of his claim that would entitle him to relief. 17 “To survive a m otion to dism iss, a com plaint m ust contain sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”18 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defen dant is liable for the misconduct alleged.”19 The court, however, does not accept as true legal con clusions or m ere conclusory statem ents, and “conclusory allegations or legal conclusions m asquerading as factual 13 F ED. R. CIV. P. 12(b)(1). Hom e Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 10 0 6, 10 10 (5th Cir. 1998) (internal quotation m arks and citation om itted). 15 In re FEMA, 668 F.3d at 287. 16 Valdery v . Louisiana W orkforce Com m ’n, No. CIV.A. 15-0 1547, 20 15 WL 530 7390 , at *1 (E.D. La. Sept. 10 , 20 15). 17 Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 555 (20 0 7); Cuvillier v. Tay lor, 50 3 F.3d 397, 40 1 (5th Cir. 20 0 7). 18 Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quotin g Tw om bly , 550 U.S. at 570 ). 19 Id. 14 3 conclusions will not suffice to prevent a m otion to dism iss.”20 “[T]hreadbare recitals of elem ents of a cause of action, supported by m ere conclusory statem ents” or “naked assertion[s] devoid of further factual enhancem ent” are not sufficient. 21 In sum m ary, “[f]actual allegations m ust be enough to raise a right to relief above the speculative level.”22 “[W]here the well-pleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged—but it has not show[n]’—that the pleader is entitled to relief.”23 “Dism issal is appropriate when the com plaint on its face show[s] a bar to relief.”24 AN ALYSIS I. Plain tiffs ’ claim s aga in s t th e Lo u is ian a State Bo ard o f Em balm e rs an d Fu n e ral D ire cto rs an d th e in d ivid u al D e fe n d an ts , in th e ir o fficial cap acitie s , are barre d by s o ve re ign im m u n ity. The Eleventh Am en dm ent provides, “The judicial power of the United States shall not be construed to extend to any suit in law or in equity, com m enced or prosecuted against on e of the United States by Citizens or Subjects of any Foreign State.”25 “The ultim ate guarantee of the Eleventh Am en dm ent is that nonconsenting states m ay not be sued by private individuals in federal court,” including by its own citizens. 26 The Fifth Circuit has held that, “[a]bsent a waiver or consent by the state or an express negation of im m unity by act of Congress, the eleventh am endm ent prohibits a federal court from awarding either legal or equitable relief against the state.”27 Although Louisiana has 20 S. Christian Leadership Conference v. Suprem e Court of the State of La., 252 F.3d 781, 78 6 (5th Cir. 20 0 1) (citing Fernandez-M ontes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)). 21 Iqbal, 556 U.S. at 663, 678 (citations om itted). 22 Tw om bly , 550 U.S. at 555. 23 Id. (quotin g F ED . R. CIV. P. 8(a)(2)). 24 Cutrer v. McMillan, 30 8 F. App’x 819, 8 20 (5th Cir. 20 0 9) (per curiam ) (citation om itted). 25 U.S. CONST. am end. XI. 26 Board of Trustees of the Univ. of Alabam a v. Garrett, 531 U.S. 356, 363 (20 0 1). 27 N euw irth v. Louisiana State Bd. of Dentistry , 845 F.2d 553, 555 (5th Cir. 1988 ). 4 waived its Eleventh Am endm ent sovereign im m unity against tort claim s brought in state court, 28 it has not waived its sovereign im m unity from suits in federal court. 29 The Fifth Circuit has laid out six factors to be considered in determ ining whether a state entity or an official of the entity sued in his or her official capacity, is entitled to Eleventh Am endm ent sovereign im m unity: 1. Whether the state statutes and case law view the agency as an arm of the state; 2. The source of the entity's funding; 3. The entity's degree of local autonom y; 4. Whether the entity is concerned prim arily with local as opposed to statewide problem s; 5. Whether the entity has the authority to sue and be sued in its own nam e; and 6. Whether the entity has the right to hold and use property. 30 These factors were first enum erated by the Fifth Circuit in Clark v. Tarrant County and are frequently referred to as the Clark factors. 31 Not all Clark factors are given the sam e weight, and a defendant is not required to satisfy each factor to benefit from Eleventh Am endm ent sovereign im m unity. 32 The second factor is the m ost im portant because “an im portant goal of the Eleventh Am endm ent is the protection of state treasuries.”33 Courts “typically deal with the last two factors in a fairly brief fashion.”34 These factors help the courts “balance the equities and determ ine as a gen eral m atter ‘whether the suit is in reality a suit against the state itself.’”35 28 LA. R EV. STAT. § 13:510 6. See id.; Mathai v. Bd. of Sup'rs of Louisiana State Univ. & Agr. & Mech. Coll., 959 F. Supp. 2d 951, 957 (E.D. La.), aff'd, 551 F. App'x 10 1 (5th Cir. 20 13). 30 Hudson v. City of N ew Orleans, 174 F.3d 677, 681 (5th Cir. 1999). 31 See Clark v. Tarrant County , 798 F.2d 736, 744– 45 (5th Cir. 198 6); W illiam s v. Dallas Area Rapid Transit, 242 F.3d 315, 319 (5th Cir. 20 0 1). 32 Hudson, 174 F.3d at 681– 8 2. 33 Delahoussay e v. City of N ew Iberia, 937 F.2d 144, 147– 48 (5th Cir. 1991); see also id. at 682. 34 Hudson, 174 F.3d at 68 2. 35 Id. (quotin g Laje v . R.E. Thom ason General Hosp., 665 F.2d 724, 727 (5th Cir.1982)). 29 5 With respect to first Clark factor, whether the state statutes and case law view the agency as an arm of the state, the Fifth Circuit has stated, if “[t]he Departm ent was created by the state legislature, [then] Louisiana courts would view the Departm ent as part of the state.”36 The Fifth Circuit has stated, “[i]n every recent case in which a Louisiana political entity has been held to be an ‘arm of the state,’ the state agency being sued was part of a departm ent within the executive branch.”37 In Earles v. State Board of Certified Public Accountants of Louisiana, the Fifth Circuit found that Louisiana would consider the Louisiana Board of Certified Public Accountants to be an arm of the state because it is a state agen cy within the Departm ent of Econom ic Developm ent, which is a departm ent of the executive branch of Louisiana governm ent. 38 Sim ilarly, in this case, the Board is a state licensing agency within the Louisiana Departm ent of Health, 39 which is a departm ent of the executive branch of Louisiana governm ent. 40 Accordingly, the Court finds that Louisiana would view the Board as an arm of the state. Turning to the second Clark factor, the Court exam ines the source of the Board’s funding “to determ in e whether a judgm ent against it will be paid with state funds.”41 The Louisiana Constitution provides, “[n]o judgm ent against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision again st which the judgm ent is 36 Voisin's Oy ster House, Inc. v. Guidry , 799 F.2d 183, 18 6 (5th Cir. 1986). Vogt v. Bd. of Com m 'rs of Orleans Levee Dist., 294 F.3d 684, 692 (5th Cir. 20 0 2) (citations om itted). 38 139 F.3d 10 33, 10 37 (5th Cir. 1998). The Fifth Circuit found the State Board of Certified Public Accountants of Louisiana to be entitled to sovereign im m unity. 39 LA. R EV. STAT. § 37:832 (creates the Louisiana State Board of Em balm ers and Funeral Directors within the Louisiana Departm ent of Health and subjects the Board to the provisions set forth in LA. R EV. STAT. § 36:80 3, which provides the guidelin es to be followed by state licensin g agencies). 40 See LA. R EV. STAT. § 36:4. 41 Hudson, 174 F.3d at 686. 37 6 rendered.”42 The Fifth Circuit has held that “judgm ents against state agencies or departm ents within the executive branch are treated as liabilities of the state itself.”43 In Darlak v. Bobear, the Fifth Circuit found the source of funding for the Louisiana Departm ent of Health and Hum an Resources (“DHHR”) and Charity Hospital of Louisiana at New Orleans (“Charity”) to weigh in favor of finding Eleventh Am en dm ent im m unity for both DHHR and Charity. 44 The Fifth Circuit reasoned that “[a]s executive departm ents, DHHR and Charity receive their funding from the State of Louisiana, [and] any judgm ent against either DHHR or Charity would be paid from state funds appropriated for that purpose.”45 Although Defendants in this case adm it the Board relies prim arily on selfgenerated fees, Defendants allege the Board, as a state agency, is covered by the Office of Risk Managem ent (“ORM”), and any judgm ent against the Board is statutorily m andated to be paid by state funds. 46 The Court takes judicial notice of the Financial Statem ent Audit of the Board for the year ending on J une 30 , 20 16, issued by the Louisian a Legislative Auditor. 47 According to the Audit, “[l]osses of the Board arising from judgm ents, claim s, and sim ilar contingencies are paid through the state’s self-insurance fund operated by the Office of Risk Managem ent, the agency responsible for the state’s risk m an agem ent program , or by appropriation from the state’s General Fund.”48 Sim ilar 42 LA. CONST. art 12, § 10 (C). Vogt, 294 F.3d at 693. 44 814 F.2d 10 55, 10 59 (5th Cir. 1987). 45 Id. 46 R. Doc. 3-1 at 11. 47 See F ED . R. E VID . 20 1(b)(2) (“The court m ay judicially n otice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determ in ed from sources whose accuracy cannot reasonably be question ed.”); see also Tu N guy en v. Bank of Am ., N .A., 728 F. App’x 387, 38 8 (5th Cir. 20 18) (“Because the proposed docum ents are highly indisputable public records, we take judicial notice of them .”). 48 D ARYL G. P URPERA, LOUISIANA LEGISLATIVE AUDITOR , LOUISIANA STATE BOARD OF EMBALMERS AND FUNERAL DIRECTORS, LOUISIANA DEPARTMENT OF HEALTH , A COMPONENT U NIT OF THE STATE OF LOUISIANA, F INANCIAL STATEMENT AUDIT FOR THE YEAR E NDED J UNE 30 , 20 16 32 (20 16) (“20 16 LSBEFD LEGISLATIVE AUDIT”). 43 7 to a judgm ent against the DHHR or Charity, a judgm ent against the Board would be paid from state funds appropriated for that purpose. 49 The second Clark factor leans in favor of finding Eleventh Am endm ent sovereign im m unity. Turning to the third Clark factor, the Court m ust determ ine the Board’s level of local autonom y. 50 The Fifth Circuit has stated that, when the m em bers of a state agency serve at the governor’s pleasure, “the vulnerability of the [defendants] to the governor's pleasure m ilitates against a finding of local autonom y.”51 In Voisin's Oy ster House, Inc. v. Guidry , the Fifth Circuit found the Louisiana Departm ent of Wildlife and Fisheries (“the Departm ent”) and the Louisiana Wildlife and Fisheries Com m ission (“the Com m ission”) to have little local autonom y because the Departm ent is headed by a secretary who functions under the control and supervision of the governor and serves at the governor's pleasure, an d m em bers of the Com m ission are appointed by the governor and are confirm ed by the state sen ate for one six-year term . 52 Sim ilar to the Departm ent and Com m ission in Voisin’s, the Board in this case is com posed of nine m em bers, all of whom are appointed by the Governor, subject to Senate confirm ation, and serve at the pleasure of the governor for term s of four years. 53 Eight of the Board m em bers are required to be residents of particular districts com prised of several parishes in each geographical region of the state. 54 The Board is subject to budgetary review by the undersecretary of the Louisiana Departm ent of Health and is required to com ply with the Louisiana Licensing Agency Budget Act. 55 Plaintiffs argue the 49 See id. Hudson, 174 F.3d at 681. 51 Jacintoport Corp. v . Greater Baton Rouge Port Com m ission, 762 F.2d 435, 442 (5th Cir. 1985). 52 799 F.2d 183, 187 (5th Cir. 1986). 53 LA. R EV. STAT. § 37:832. 54 Id. 55 LA. R EV. STAT. § 36:80 3. 50 8 Board’s “rulings on m atters of licensing and operations of em balm ers, funeral directors and related professions and businesses are not subject to review by any oversight board or other entity.”56 However, decisions by the Board m ay be contested by seeking judicial review in the district court in which the agency is located. 57 The third Clark factor weighs in favor of finding that the Board has little local autonom y. With respect to the fourth Clark factor, the Court m ust determ ine whether the Board is concerned prim arily with local, as opposed to statewide, problem s. 58 The relevant test used by the Fifth Circuit requires the Court to determ ine “whether the entity acts for the benefit and welfare of the state as a whole or for the special advantage of local inhabitants.”59 In Earles, the Fifth Circuit found the fourth Clark factor favored sovereign im m unity for the State Board of Certified Public Accountants of Louisiana because that board was concerned with regulating the practice of public accounting on a statewide, rather than local, scale. 60 In this case, Defen dants allege, and Plaintiffs do not dispute, that “the Board’s powers an d duties encom pass the licensing and regulation of the practice of em balm ing and funeral directing throughout the entire state of Louisiana.”61 Accordingly, the fourth Clark factor favors sovereign im m unity for the Board. In regard to the fifth and sixth Clark factors, the Court m ust determ ine whether the Board has the authority to sue and be sued in its own nam e, an d whether the Board has the right to hold and use property. 62 LA. R EV. STAT. § 37:849 states, “[t]he [B]oard m ay bring legal proceedings to enjoin a person or establishm ent violating the provisions 56 R. Doc. 8 at 11. LA. R EV. STAT. § 49:964; see also LA. R EV. STAT. § 37:8 46. 58 Hudson, 174 F.3d at 681. 59 Pendergrass v. Greater N ew Orleans Expressw ay Com m 'n, 144 F.3d 342, 347 (5th Cir. 1998) (citing Jacintoport, 762 F.2d at 443). 60 139 F.3d at 10 38. 61 R. Doc. 3-1 at 11. 62 Hudson, 174 F.3d at 681. 57 9 of this Chapter.”63 The Board’s creating and enabling statutes provide that it m ay be sued in the Parish of Orleans and m ay “establish its office in the Metropolitan New Orleans area.”64 As indicated in the statutory text, the Board has the authority to sue and be sued in its own nam e, and has the right to hold and use property. Accordingly, the fifth and sixth Clark factors weigh against the Board’s entitlem ent to Eleventh Am endm ent sovereign im m unity. However, the Fifth Circuit has not found the fifth and sixth Clark factors to be controlling when the other factors point to a finding of Eleventh Am endm ent im m unity. 65 In sim ilar situations, the Fifth Circuit has found licensing boards created within the Louisiana Departm ent of Health to be im m une from suit based on Eleventh Am endm ent sovereign im m unity. Specifically, the Fifth Circuit has determ ined the Louisiana State Board of Medical Exam iners, the Louisiana State Board of Dentistry, and the Louisiana State Board of Nursing, are state agencies entitled to Eleventh Am endm ent sovereign im m unity. 66 . The Court finds the Board to be an arm of the state of Louisiana entitled to sovereign im m unity under the Eleventh Am endm ent. Section 1983 authorizes suit against a “person who, under color of [law], subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or im m unities secured by the Constitution and laws.”67 “[N]either a State nor its officials acting in their official 63 LA. R EV. STAT. § 37:849. LA. R EV. STAT. § 37:833. 65 Darlak v. Bobear, 814 F.2d 10 55, 10 60 (5th Cir. 1987). 66 See Rodgers v. State Bd. of N ursing, 665 F. App'x 326, 330 (5th Cir. 20 16) (confirm ing the Louisiana State Board of Nursing is entitled to sovereign im m unity); Fairley v. Louisiana, 254 F. App'x 275, 277 (5th Cir. 20 0 7) (findin g the Louisiana State Board of Medical Exam iners is entitled to sovereign im m un ity); N euw irth v. La. State Bd. of Dentistry , 845 F.2d 553, 556 (5th Cir. 198 8) (finding the Louisiana State Board of Dentistry is entitled to sovereign im m unity). 67 42 U.S.C. § 1983. 64 10 capacities are ‘persons’ under § 1983.”68 Accordingly, Eleventh Am endm ent sovereign im m unity bars Plaintiffs from bringing suit against the Board and the individual Defendants in their official capacities. The Court dism isses without prejudice Plaintiffs’ § 198 3 claim s against the Board and the individual Defendants in their official capacities. 69 Plaintiffs’ state law claim s against the Board and individual Defendants in their official capacities also are barred by Eleven th Am endm ent sovereign im m unity. The Suprem e Court has held that “a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Am endm ent.”70 Moreover, the Fifth Circuit has held that “sovereign im m unity [bars] federal courts from hearing state law claim s brought in federal court against state entities and state officers sued in their official capacities.”71 The Court dism isses without prejudice Plaintiffs’ state law claim s against the Board and the in dividual Defen dants in their official capacities. II. Plain tiffs ’ § 19 8 3 claim s a gain s t th e in d ivid u al D e fe n d an ts in th e ir in d ivid u a l ca p acitie s are barre d by abs o lu te im m u n ity. In the instant m otion, Defendants argue the individual Defendants, sued in their individual capacities, are entitled to absolute im m unity from liability on Plaintiffs’ § 1983 claim against them . 72 “Absolute im m unity den ies a person whose federal rights have been 68 Fairley v . Stalder, 294 F. App’x 80 5, 80 8 (5th Cir. 20 0 8) (un published) (quoting W ill v. Mich. Dept. of State Police, 491 U.S. 58 , 71 (1989)). 69 See W arnock v. Pecos Cty ., Tex., 8 8 F.3d 341, 343 (5th Cir. 1996) (“Because sovereign im m unity deprives the court of jurisdiction, the claim s barred by sovereign im m unity can be dism issed only under Rule 12(b)(1) and not with prejudice.”). 70 Pennhurst State Sch. & Hosp. v. Halderm an , 465 U.S. 89 (1984). 71 Kerm ode v. Univ. of Mississippi Med. Ctr., 496 F. App'x 483, 490 (5th Cir. 20 12). 72 Plaintiffs correctly argue that the individual Defen dants are not entitled to Eleventh Am endm ent sovereign im m unity on the claim s against them in their individual capacities. R. Doc. 8 at 14– 17. However, Defendants m otion to dism iss the individual-capacity claim s against them is based solely on absolute and qualified im m unity, not sovereign im m un ity. R. Doc. 3-1 at 13– 24. 11 violated by a governm ent official any type of rem edy, regardless of the conduct.”73 The Fifth Circuit has explained: Although the Suprem e Court has been rather conservative in its grants of absolute im m unity, it has recognized that there are som e officials whose duties require a full exem ption from liability. Such officials include judges perform ing judicial acts within their jurisdiction, prosecutors in the perform ance of their official functions, and certain “quasi-judicial” agency officials who, irrespective of their title, perform functions essentially sim ilar to those of judges or prosecutors, in a setting sim ilar to that of a court. 74 The Court notes that Defendant Brasseaux is a m em ber of the Board, Michel is Executive Director of the Board, an d Alexander is general counsel for the Board. 75 In determ ining whether a governm ent official is absolutely im m une from suit, the Fifth Circuit has held that “the proper focus should not be the identity of the party claim ing the im m unity, but rather his “role in the context of the case.”76 In short, “im m unity attaches to particular official functions, not to particular offices.”77 The Fifth Circuit has found governm ent officials to be entitled to sovereign im m unity when they perform quasijudicial or quasi-prosecutorial roles, regardless of whether they are m em bers or em ployees of a board or agency. 78 In Butz v. Econom ou, the Suprem e Court set forth a “non-exhaustive list of factors to determ ine whether an agen cy and its m em bers perform quasi-judicial functions,” which the Fifth Circuit has rephrased as follows: 79 73 Kerm ode, 496 F. App'x at 490 (internal quotation m arks om itted). Id. (citing Butz v. Econom ou, 438 U.S. 478, 511– 17 (1978)) (internal citations om itted). 75 Id. at 2; R. Doc. 3-1 at 5. 76 Id. (quotin g May s v . Sudderth, 97 F.3d 10 7, 110 (5th Cir.1996)). 77 Id. 78 See Di Ruzzo v. Tabaracci, 480 F. App'x 796, 797 (5th Cir. 20 12); Austin Mun . Sec., Inc. v. N at'l Ass'n of Sec. Dealers, Inc., 757 F.2d 676, 692– 93 (5th Cir. 1985). 79 Beck v. Texas State Bd. of Dental Exam iners, 20 4 F.3d 629, 634 (5th Cir. 20 0 0 ) (citing Butz, 438 U.S. at 512). 74 12 1. the need to assure that the individual can perform his functions without harassm ent or intim idation; 2. the presence of safeguards that reduce the need for private dam ages actions as a m eans of controlling unconstitutional conduct; 3. insulation from political influence; 4. the im portance of precedent; 5. the adversary nature of the process; an d 6. the correctability of error on appeal. 80 “No one factor is controlling and the list of considerations is not intended to be exclusive.”81 The Fifth Circuit also applies these factors to determ ine whether officials perform ed quasi-prosecutorial functions. 82 Applying the first Butz factor, the Court m ust determ ine whether the Board requires freedom from the threat of personal harassm ent or intim idation to perform its functions. 83 In Beck v. Texas State Board of Dental Exam iners, the Fifth Circuit held that, because m em bers of the Texas State Board of Dental Exam iners (“TSBDE”) were statutorily em powered to revoke, suspend and deny licenses, they m ust be able to m ake such decisions free from the threat of in curring personal liability. 84 In O’N eal v. Mississippi Board of N ursing, the Fifth Circuit found the Mississippi Board of Nursing (“the MBN”) needed freedom from harassm ent or intim idation in perform ing its duties because the MBN is “em powered to m ake difficult and controversial decisions . . . which m ay n egatively affect an individual's life.”85 Sim ilar to the TSBDE in Beck, the Board in this case “m ay refuse to grant, refuse to renew, suspend, or revoke any license, or im pose a sanction or fine on any licen see found guilty of any statutorily prohibited act or 80 Id. 81 O’N eal, 113 F.3d at 65. See Disraeli v. Rotunda, 489 F.3d 628 , 632 (5th Cir. 20 0 7); see also Butz, 438 U.S. at 515 (“We also believe that agency officials perform in g certain function s analogous to those of a prosecutor should be able to claim absolute im m un ity with respect to such acts.”). 83 Beck, 20 4 F.3d at 634. 84 Id. at 636. 85 O’N eal, 113 F.3d at 66. 82 13 om ission.”86 These are difficult and possibly controversial decisions which m ay n egatively affect an individual’s life. Accordingly, the Court finds the perform ance of such functions requires freedom from the threat of personal harassm ent and intim idation. The first Butz factor weighs in favor of absolute im m unity. Applying the second Butz factor, the Court m ust determ ine whether procedural safeguards, which reduce the need for private dam ages actions, are in place as a m eans of controlling unconstitutional conduct. 87 The Fifth Circuit has held that “[b]oard m em bers are entitled to absolute im m unity ‘from liability for [their] judicial acts even if [their] exercise of authority is flawed by the com m ission of grave procedural error.’”88 Accordingly, under the second Butz factor, “the inquiry is not whether the defendants com m itted error while executing the safeguards, but whether adequate safeguards existed.”89 In Thom as v. City of Dallas, the Fifth Circuit found the proceedings held by the Urban Rehabilitation Standards Board (“URSB”) to have sufficient procedural safeguards because the “City Code provides that property owners have a right: to receive notice of URSB hearings; to present and cross-exam in e witnesses; to request that a case be reheard; and to appeal an adverse decision to state district court.”90 In O’N eal, the Fifth Circuit determ ined the second Butz factor was satisfied because the following procedural safeguards were m ade available to any person charged by the MBN: “the right to counsel, adequate notice of a hearing, and the opportunity to present and cross-exam ine witnesses.”91 86 LA. R EV. STAT. § 37:846. Beck, 20 4 F.3d at 634. 88 Id. at 635 (quotin g Stum p v. Sparkm an, 435 U.S. 349, 359 (1978)). 89 Id. at 636. 90 175 F.3d at 363 (internal citations om itted). 91 O’N eal, 113 F.3d at 66. 87 14 In this case, the procedural safeguards available to any individual facing a petition for revocation or suspension of a licen se or registration are provided by LA. R EV. STAT. § 37:8 46 as follows: [The petition] shall state the charges with reasonable definiteness. Notice of not less than fifteen days will be given licensee and a hearing set. Com plainant and licensee m ay have ben efit of counsel, and shall have the right to offer evidence and cross-exam ine witnesses. Strict rules of evidence need not be com plied with, but no evidence shall be received unless given by witnesses present. Upon due hearing, board m ay enter its findings of record. Appeal from any board decision or order shall be filed in a court of com petent jurisdiction within fifteen days from board's decision, otherwise board's fin dings will be final. In this case, m ore procedural safeguards exist than existed in O’N eal. Accordingly, the Court finds there are adequate procedural safeguards in place which reduce the need for private dam ages. Turning to the third Butz factor, the Court must determ ine whether the Board is insulated from political influence. 92 In O’N eal, the Fifth Circuit found that m em bers of the MBN were insulated from political influence because m em bers are appointed by the Governor for staggered term s for four years and no m em ber m ay serve m ore than two consecutive term s. 93 In Thom as, the Fifth Circuit held the fact the m em bers of the URSB are not elected, but rather appointed by m em bers of the city council, was sufficient to find the URSB is shielded from political influence for purposes of the third Butz factor. 94 In this case, the Board m em bers are appointed by the Governor, subject to senate confirm ation, for term s of four years and m ay not serve m ore than two consecutive term s, without at least one year elapsing between the expiration of a m em ber's secon d 92 Beck, 20 4 F.3d at 634. O’N eal, 113 F.3d at 66. 94 Thom as, 175 F.3d at 363. 93 15 consecutive term and his appointm ent to a subsequent term . 95 Accordingly, the Court finds the Board is insulated from political influence. Applying the fourth Butz factor, the Court m ust determ ine the role of precedent in the Board’s decisions. 96 It is not uncom m on for the parties to be unaware of, or fail to address, the role of precedent in a board’s decisions, and the Fifth Circuit has m ade it clear that this factor is not dispositive, especially when the other five Butz factors are satisfied. 97 In the instant m otion, Defendants adm it “the record is unclear as to how often the Board relies upon its prior precedent in deciding issues.”98 This factor neither weighs in favor of or against a finding of absolute im m unity. However, based on Fifth Circuit precedent, the Court finds this factor is not dispositive. Applying the fifth Butz factor, the Court exam ines whether the Board’s proceedings are adversarial in nature. 99 In Beck, the Fifth Circuit found the TSBDE’s proceedings were adversarial because the dentist had the right to be represented by counsel, the right to present evidence to defend against the charges, and “[t]he hearings were conducted by a presiding officer who adm inistered oaths to witnesses and m ade evidentiary rulings.”10 0 In O’N eal, the Fifth Circuit found that the MBN’s proceedings seem ed inherently adversarial because “the parties have a right to counsel, are able to present witnesses, and [are able to] cross-exam ine adverse witnesses.”10 1 In this case, when a hearing is set to 95 LA. R EV. STAT. § 37:832. Beck, 20 4 F.3d at 634. 97 See id. at 636 (holding that uncertainty as to whether the board abided by precedent is not dispositive); O’N eal, 113 F.3d at 66 (stating, “while the record is unclear as to whether the board was bound by precedent, we nevertheless feel that this one factor is not controlling and is greatly overshadowed by the convincing nature of the five other variables.”); Disraeli, 489 F.3d at 633 (findin g that despite the plaintiff’s failure to address whether the Board adhered to precedent, “there is no reason for the court to conclude that the Board would be unlikely to follow its own precedent.”). 98 R. Doc. 3-1 at 17. 99 Beck, 20 4 F.3d at 634. 10 0 Id. at 636. 10 1 See O’N eal, 113 F.3d at 66. 96 16 address a petition for the revocation or suspension of a license or registration certificate, “[c]om plainant and licensee m ay have benefit of counsel, and shall have the right to offer eviden ce and cross-exam ine witnesses. Strict rules of evidence need n ot be com plied with, but no evidence shall be received unless given by witnesses present.”10 2 Because the guidelines in place in this case are sim ilar to or greater than those identified in Beck and O’N eal that satisfied the fifth Butz factor, the Court finds the Board’s proceedings to be adversarial in n ature. Applying the sixth Butz factor, the Court must determ ine whether the Board’s errors are correctable on appeal. 10 3 The Fifth Circuit has held that the sixth Butz factor is satisfied if a board’s errors m ay be corrected on appeal by the state district court. 10 4 In this case, LA. R EV. STAT. § 37:846(B), in the chapter of the Revised Statutes on the Board, provides that “[a]ppeal from any board decision or order shall be filed in a court of com petent jurisdiction within fifteen days from board's decision, otherwise board's findings will be final.” Further, LA. R EV. STAT. § 49:964(A)(1) provides: A person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review [regardless of] whether or not he has applied to the agen cy for rehearing, without lim iting, however, utilization of or the scope of judicial review available under other m eans of review, redress, relief, or trial de novo provided by law. A prelim inary, procedural, or interm ediate agency action or ruling is im m ediately reviewable if review of the final agency decision would not provide an adequate rem edy and would inflict irreparable injury. . . Proceedings for review m ay be instituted by filing a petition in the district court of the parish in which the agency is located within thirty days after the transm ittal of notice of the final decision by the agency. 10 5 10 2 LA. R EV. STAT. § 37:846(B). Beck, 20 4 F.3d at 634. 10 4 See id. at 636; Thom as, 175 F.3d at 363. 10 5 LA. R EV. STAT. § 49:964(A)(1). This provision is foun d in the Louisiana Adm inistrative Procedure Act (“APA”), LA. R EV. STAT. §§ 49:950 et seq. The APA provides, “When the grant, denial, or renewal of a license is required to be preceded by notice and opportun ity for hearin g, the provisions of this Chapter concerning 10 3 17 As expressly stated in the statutory text, the Court finds that errors com m itted by the Board m ay be corrected on appeal. In O’N eal, the Fifth Circuit held that m em bers of the MBN are absolutely im m une from suit based on its finding that “five out of the six [Butz] factors [were] sufficiently satisfied, with the one exception being m erely questionable.”10 6 In this case, the Court faces a situation identical to that in O’N eal because five out of the six Butz factors are satisfied. Although the fourth factor is not satisfied, that factor is not dispositive. 10 7 Accordingly, Defendants are perform ing quasi-judicial or quasi-prosecutorial actions when they conduct hearings relating to licensing. The Court proceeds to analyze whether Defendants’ actions which are alleged to have caused dam ages in this particular case are quasi-judicial or quasi-prosecutorial in nature. 10 8 The Fifth Circuit has held that “if the job enjoys absolute im m unity, the inquiry into liability narrows to whether the official was about his work when engaged in the accused conduct. Failure . . . to apply the rules correctly does not leave an official unsheltered from liability—indeed, that is the protection afforded by absolute im m unity.”10 9 Plaintiffs argue Defendants are not entitled to qualified im m unity because their actions fell outside the scope of their official duties (1) when Defendants Brasseaux, Michel, and Alexander “unilaterally usurped the [Board’s] prosecutorial powers and adjudication shall apply.” LA. R EV. STAT. § 49:961(A). LA. R EV. STAT. § 37:846(B), which governs the Board’s hearings related to licensing, requires notice and opportun ity for hearing. As a result, the APA’s requirem ents apply to hearings by the Board. 10 6 113 F.3d 62 at 66. 10 7 See O’N eal, 113 F.3d at 66 (stating, “while the record is unclear as to whether the board was bound by precedent, we nevertheless feel that this one factor is not controlling and is greatly overshadowed by the convincing nature of the five other variables.”). 10 8 See Thom as v. City of Dallas, 175 F.3d 358, 363 (5th Cir. 1999) (analyzing defendants’ actions in particular case after Butz factors); Disraeli, 489 F.3d at 633– 34 (sam e). 10 9 Thom as, 175 F.3d at 362. 18 caused a form al hearing to be set” before the Board without a m ajority vote, 110 despite the provision in LA. R EV. STAT. § 37:847 requiring a m ajority vote of the Board to call for a form al hearing, and (2) when Defendant Michel alleged at the hearing that Plaintiffs acted in violation of the licensing statutes. 111 With respect to Defendants’ initiation of the form al hearing, LA. R EV. STAT. § 37:8 47 provides it is the duty of the Board m em bers to decide whether to hold a form al hearing or dism iss the com plaint. 112 In Butz, the Suprem e Court stated: [a]gency officials perform ing certain functions analogous to those of a prosecutor should be able to claim absolute im m unity with respect to such acts. The decision to initiate adm inistrative proceedings against an individual or corporation is very m uch like the prosecutor's decision to initiate or m ove forward with a crim inal prosecution. An agency official, like a prosecutor, m ay have broad discretion in deciding whether a proceeding should be brought and what sanctions should be sought. 113 In this case, Defendants’ decision to hold a form al hearing regarding the alleged violations was m uch like a prosecutor's decision to initiate or m ove forward with a crim inal prosecution. Although Plaintiffs allege Defendants did not com ply with the procedural requirem ent that a form al hearing be held only after a m ajority vote of the Board, “Board m em bers are entitled to absolute im m unity ‘from liability for [their] judicial acts even if [their] exercise of authority is flawed by the com m ission of grave procedural error’” so long as the statute provides sufficient procedural safeguards. 114 The Court finds the individual Defendants, in their individual capacities, are entitled to absolute im m unity 110 R. Doc. 8 at 6, 17. Doc. 1 at 11. 112 See LA. R EV. STAT. § 37:8 47 (“The board m ay, by m ajority vote, dism iss the com plaint or call for a form al hearing.”). 113 438 U.S. 478 at 515. 114 See Beck, 20 4 F.3d at 635 (quoting Stum p, 435 U.S. at 359). 111 R. 19 for their role in initiating the form al hearing because they were perform ing functions that were quasi-prosecutorial in nature, and the statute provides sufficient procedural safeguards. 115 Plaintiffs also allege Michel “m ade unsupported allegations that Mothe and/ or MFH violated La. R.S. 37:848 by em ploying Berrios to perform 70 em balm ing procedures while em ployed by MFH.”116 Plaintiffs argue Michel is not entitled to absolute im m unity with respect to her statem ents during the form al hearing. 117 The parties do not clarify whether Michel m ade allegations at the hearing in a quasi-prosecutorial role or as a witness. To the extent Michel’s allegations were quasi-prosecutorial, she is entitled to absolute im m unity, as discussed above. To the extent her allegations were m ade as a witness, she also is en titled to absolute im m unity, consistent with the Suprem e Court’s holding in Cleavinger v. Saxner that “[w]itnesses are integral parts of the judicial process and, accordingly, are shielded by absolute im m unity.”118 As a result, the Court finds Defendant Michel, in her individual capacity, is entitled to absolute im m unity in connection with her statem ents at the hearin g. Plaintiffs argue Defendants are not entitled to absolute im m unity because they perform ed investigative functions. 119 “If a prosecutor engages in activities ‘akin to those of an adm in istrative or investigative officer, rather than to those of an advocate,’ the 115 Plaintiffs cite Lew is v . Brautigam , 227 F.2d 124, 129 (5th Cir. 1955), in support of the proposition that Defendants are not shielded by absolute im m unity because they acted outside the scope of their jurisdiction. R. Doc. 8 at 17– 18. In Lew is, the Fifth Circuit stated that “a quasi-judicial officer, such as a prosecuting attorney, who acts outside the scope of his jurisdiction and without authorization of law, cannot shelter him self from liability by the plea that he is actin g under color of office.” 227 F.2d at 129. In Marrero v . City of Hialeah, 625 F.2d 499, 50 4 n.4 (5th Cir. 198 0 ), the Fifth Circuit rejected the Lew is approach, instead using the fram ework laid out by the Suprem e Court in Butz and Im bler v. Pachtm an, 424 U.S. 40 9 (1976). 116 R. Doc. 1 at 11. 117 R. Doc. 8 at 14– 15. 118 474 U.S. 193, 20 0 (1985) (internal quotations om itted). 119 R. Doc. 8 at 20 – 21. 20 prosecutor is no longer entitled to absolute im m unity.”120 However, the Com plaint contains no allegations regarding investigative functions perform ed by any of the individual Defendants. The Court finds the individual Defendants are entitled to absolute im m unity with respect to all of the claim s based on the factual allegations in the Com plaint. “[A] dism issal based on absolute im m unity should generally be w ith prejudice.”121 The Court dism isses with prejudice Plaintiffs’ § 1983 claim s against Defendants Brasseaux, Michel, an d Alexander, in their in dividual capacities. III. Th e Co u rt d is m is s e s w ith o u t p re ju d ice Plain tiffs ’ s tate la w cla im s again s t th e in d ivid u al D e fe n d an ts in th e ir in d ivid u al ca p acitie s . Plaintiffs also bring several state law claim s against the individual Defendants, in their individual capacities. Specifically, Plain tiffs bring claim s against Defendants for abuse of process, defam ation, m alicious prosecution, and violation of the Louisian a Constitution. 122 Under 28 U.S.C. § 1367(c), a district court m ay declin e to exercise supplem ental jurisdiction over state law claim s if it “has dism issed all claim s over which it has original jurisdiction.”123 The Fifth Circuit has held that, after a district court dism isses a plaintiff’s § 1983 claim s, “[w]hether to refuse, or to retain, supplem ental jurisdiction over a pendent state-law claim is com m itted to a district court’s ‘wide discretion.’”124 In determ ining whether to exercise supplem ental jurisdiction, the district court weighs traditional “com m on law factors of judicial econom y, convenience, fairness, 120 Disraeli, 489 F.3d at 635 (quoting Geter v. Fortenberry , 849 F.2d 1550 , 1553 (5th Cir. 198 8)). v. Rodriguez, 73 F. App’x 768 , 770 (5th Cir. 20 0 3) (citing Boy d v . Biggers, 31 F.3d 279, 285 (5th Cir. 1994)) (em phasis in original). 122 R. Doc. 1. 123 28 U.S.C. § 1367(c). 124 Moon v. City of El Paso, 90 6 F.3d 352, 360 (5th Cir. 20 18) (quoting N oble v. W hite, 996 F.2d 797, 799 (5th Cir. 1993)). 121 Hunter 21 and com ity.”125 In Enochs v. Lam pasas County , the Fifth Circuit weighed these com m on law factors and found exercising supplem ental jurisdiction was not appropriate for the following reasons: [the case] was still in its infancy (less than three m onths old), no discovery had occurred, no hearings or trial dates had been scheduled, the district court was not even m oderately fam iliar with any of the Texas state law issues, no financial or other inconvenience would have occurred, and no prejudice would have arisen. 126 In this case, Plaintiffs filed suit on April 5, 20 19, approxim ately four m onths ago. 127 As of J uly 25, 20 19, the parties had not com pleted initial disclosures. 128 Although a trial date has been set for J une 8, 20 20 , no hearings have been conducted. 129 The Court’s consideration of the instant m otion did not require any analysis of the m erits of Plaintiffs’ state law claim s. Accordingly, dism issing the state law claim s would not be a waste of judicial resources. Further, there is no indication that the Court is intim ately fam iliar with the state law claim s at this stage of the litigation. As a result, the Court dism isses without prejudice Plaintiffs’ state law claim s against the individual Defendants in their individual capacities. 130 CON CLU SION For the foregoing reasons, IT IS ORD ERED that the m otion to dism iss, filed by Defendants Louisiana State Board of Em balm ers and Funeral Directors, Kim Michel, S.J . Brasseaux, and Dianne Alexander, pursuant to Rule 12(b)(1) of the Federal Rules of Civil 125 Id. at 361 (quotin g Enochs v. Lam pasas Cty ., 641 F.3d 155, 159 (5th Cir. 20 11)). 641 F.3d at 162. 127 R. Doc. 1. 128 R. Doc. 12 at 2. 129 Id. at 12. 130 Brow n v. Mississippi Valley State Univ., 311 F.3d 328 , 334 n.6 (5th Cir. 20 0 2) (stating “unadjudicated pend[ent] state law claim s m ust be dism issed without prejudice to allow the plain tiff to refile in state court when a district court dism isses the federal claim s serving as the basis for its jurisdiction and elects not to exercise supplem ental jurisdiction over the state law claim s.”). 126 22 Procedure on sovereign im m unity grounds and pursuant to Rule 12(b)(6) on absolute im m unity grounds and alternatively on qualified im m unity grounds, be and hereby is GRAN TED . 131 IT IS FU RTH ER ORD ERED that Plaintiffs’ claim s under 42 U.S.C. § 1983 and under state law against Defendant Louisiana State Board of Em balm ers and Funeral Directors and against Defendants Kim Michel, S.J . Brasseaux, and Dianne Alexander, in their official capacities, be and hereby are D ISMISSED W ITH OU T PREJU D ICE on sovereign im m unity grounds. IT IS FU RTH ER ORD ERED Plaintiffs’ claim s under 42 U.S.C. § 198 3 against Defendants Kim Michel, S.J . Brasseaux, and Dianne Alexander, in their individual capacities, are D ISMISSED W ITH PREJU D ICE on absolute im m unity grounds. IT IS FU RTH ER ORD ERED that Plaintiffs’ state law claim s against Defendants Kim Michel, S.J . Brasseaux, and Dianne Alexander, in their individual capacities, are D ISMISSED W ITH OU T PREJU D ICE. N e w Orle a n s , Lo u is ian a, th is 8 th d ay o f Au gu s t, 2 0 19 . SU SIE MORGAN U N ITED STATES D ISTRICT JU D GE 131 R. Doc. 3-1. 23
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