# Mothe v. Louisiana State Board of Embalmers and Funeral Directors

> District Court, E.D. Louisiana · August 8, 2019

URL: https://www.frixlaw.com/law-library/cases/10184736

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** August 8, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10184736

## How later opinions describe it (automated extraction)

- finding the Louisiana State Board of Medical Examiners is entitled to sovereign immunity
- finding 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.”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BOYD L. MOTHE, JR., ET AL., CIVIL ACTION
Plaintiffs

VERSUS NO. 19-9073

LOUISIANA STATE BOARD OF EMBALMERS SECTION: “E”
AND FUNERAL DIRECTORS, ET AL.,
Defendants

ORDER AND REASONS
Before the Court is a motion to dismiss, filed by Defendants, Louisiana State Board
of Embalmers 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, Jr. (“Mothe”) and Mothe Funeral Homes, L.L.C. (“MFH”), oppose.2 For
the reasons that follow, the Court GRANTS the motion.
BACKGROUND
Plaintiffs allege that, in October 2018, the Louisiana State Board of Embalmers and
Funeral Directors (“the Board”) advised them that the yearly embalmer and funeral
director license renewal fee for MFH’s employee, Alvaro J. Berrios, had not been
received.3 Plaintiffs allege that, on or about October 18, 2018, the Board issued a
subpoena duces tecum to MFH to produce documents regarding the embalming activities
of Berrios.4 Plaintiffs allege that, on October 30, 2018, the Board issued a subpoena to
Mothe compelling his attendance at a hearing on January 8, 2019 before the Board.5 The
subpoena identified two alleged violations Plaintiffs had committed under LA. REV. STAT.

1 R. Doc. 3-1.
2 R. Doc. 8.
3 R. Doc. 1 at 7.
4 Id. at 3.
5 Id.
37:848(A) and 37:848(D) by allowing Berrios to perform numerous embalming
procedures without a license.6 Plaintiffs allege the Board mailed a notice of delinquency
to Berrios at the wrong address.7 Plaintiffs allege that, during the hearing on January 8,
2019, the Board voted to dismiss the complaint against Mothe and MFH.8
Plaintiffs filed their complaint on April 5, 2019 bringing claims under 42 U.S.C. §

1983 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; and
Alexander, in her individual capacity and in her official capacity as General Counsel for
the Board.10 Michel and Alexander are employees of the Board, not members of the Board.
On May 16, 2019, Defendants filed this motion to dismiss, arguing Plaintiffs’ claims
against the Board and the individual Defendants, in their official capacities, are barred by
sovereign immunity and Plaintiffs’ claims against the individual Defendants, in their
individual capacities, are barred by absolute immunity and qualified immunity. Plaintiffs
filed a memorandum in opposition to Defendants’ motion to dismiss on June 18, 2019.11
LEGAL STANDARD

I. Rule 12(b)(1) Standard
“Federal courts are courts of limited jurisdiction; without jurisdiction conferred by
statute, they lack the power to adjudicate claims.”12 A motion to dismiss under Federal

6 Id. at 3–4.
7 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 Formaldehyde Products Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 286 (5th
Cir. 2012).
Rules of Civil Procedure 12(b)(1) challenges a federal court’s subject-matter jurisdiction.13
Under Rule 12(b)(1), “[a] case is properly dismissed for lack of subject matter jurisdiction
when the court lacks the statutory or constitutional power to adjudicate the case.”14 “Lack
of subject-matter jurisdiction may be found in the complaint alone, the complaint
supplemented by the undisputed facts as evidenced in the record, or the complaint

supplemented by the undisputed facts plus the court’s resolution of the disputed facts.”15
“When, as here, grounds for dismissal may exist under both Rule 12(b)(1) and Rule
12(b)(6), the Court should, if necessary, dismiss only under the former without reaching
the question of failure to state a claim.”16
II. Rule 12(b)(6) Standard
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss
a complaint, or any part of it, for failure to state a claim upon which relief may 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 motion to dismiss, a complaint must contain sufficient factual
matter, 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 defendant is liable for the misconduct alleged.”19
The court, however, does not accept as true legal conclusions or mere conclusory
statements, and “conclusory allegations or legal conclusions masquerading as factual

13 FED. R. CIV. P. 12(b)(1).
14 Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal
quotation marks and citation omitted).
15 In re FEMA, 668 F.3d at 287.
16 Valdery v. Louisiana Workforce Comm’n, No. CIV.A. 15-01547, 2015 WL 5307390, at *1 (E.D. La. Sept.
10, 2015).
17 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007).
18 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
19 Id.
conclusions will not suffice to prevent a motion to dismiss.”20 “[T]hreadbare recitals of
elements of a cause of action, supported by mere conclusory statements” or “naked
assertion[s] devoid of further factual enhancement” are not sufficient.21
In summary, “[f]actual allegations must be enough to raise a right to relief above
the speculative level.”22 “[W]here the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has alleged—but it has not
show[n]’—that the pleader is entitled to relief.”23 “Dismissal is appropriate when the
complaint on its face show[s] a bar to relief.”24
ANALYSIS
I. Plaintiffs’ claims against the Louisiana State Board of Embalmers
and Funeral Directors and the individual Defendants, in their
official capacities, are barred by sovereign immunity.
The Eleventh Amendment provides, “The judicial power of the United States shall
not be construed to extend to any suit in law or in equity, commenced or prosecuted
against one of the United States by Citizens or Subjects of any Foreign State.”25 “The
ultimate guarantee of the Eleventh Amendment is that nonconsenting states may 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
immunity by act of Congress, the eleventh amendment prohibits a federal court from
awarding either legal or equitable relief against the state.”27 Although Louisiana has

20 S. Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir.
2001) (citing Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
21 Iqbal, 556 U.S. at 663, 678 (citations omitted).
22 Twombly, 550 U.S. at 555.
23 Id. (quoting FED. R. CIV. P. 8(a)(2)).
24 Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) (citation omitted).
25 U.S. CONST. amend. XI.
26 Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001).
27 Neuwirth v. Louisiana State Bd. of Dentistry, 845 F.2d 553, 555 (5th Cir. 1988).
waived its Eleventh Amendment sovereign immunity against tort claims brought in state
court,28 it has not waived its sovereign immunity from suits in federal court.29
The Fifth Circuit has laid out six factors to be considered in determining whether
a state entity or an official of the entity sued in his or her official capacity, is entitled to
Eleventh Amendment sovereign immunity:

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 autonomy;
4. Whether the entity is concerned primarily with local as
opposed to statewide problems;
5. Whether the entity has the authority to sue and be sued in its
own name; and
6. Whether the entity has the right to hold and use property.30

These factors were first enumerated 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 same
weight, and a defendant is not required to satisfy each factor to benefit from Eleventh
Amendment sovereign immunity.32 The second factor is the most important because “an
important goal of the Eleventh Amendment 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 determine as a general matter ‘whether the suit is in
reality a suit against the state itself.’”35

28 LA. REV. STAT. § 13:5106.
29 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 101 (5th Cir. 2013).
30 Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th Cir. 1999).
31 See Clark v. Tarrant County, 798 F.2d 736, 744–45 (5th Cir. 1986); Williams v. Dallas Area Rapid
Transit, 242 F.3d 315, 319 (5th Cir. 2001).
32 Hudson, 174 F.3d at 681–82.
33 Delahoussaye v. City of New Iberia, 937 F.2d 144, 147–48 (5th Cir. 1991); see also id. at 682.
34 Hudson, 174 F.3d at 682.
35 Id. (quoting Laje v. R.E. Thomason General Hosp., 665 F.2d 724, 727 (5th Cir.1982)).
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 Department was created
by the state legislature, [then] Louisiana courts would view the Department 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

department 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 agency within the Department
of Economic Development, which is a department of the executive branch of Louisiana
government.38 Similarly, in this case, the Board is a state licensing agency within the
Louisiana Department of Health,39 which is a department of the executive branch of
Louisiana government.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 examines the source of the Board’s
funding “to determine whether a judgment against it will be paid with state funds.”41 The

Louisiana Constitution provides, “[n]o judgment 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 against which the judgment is

36 Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 186 (5th Cir. 1986).
37 Vogt v. Bd. of Comm'rs of Orleans Levee Dist., 294 F.3d 684, 692 (5th Cir. 2002) (citations omitted).
38 139 F.3d 1033, 1037 (5th Cir. 1998). The Fifth Circuit found the State Board of Certified Public
Accountants of Louisiana to be entitled to sovereign immunity.
39 LA. REV. STAT. § 37:832 (creates the Louisiana State Board of Embalmers and Funeral Directors within
the Louisiana Department of Health and subjects the Board to the provisions set forth in LA. REV. STAT.
§ 36:803, which provides the guidelines to be followed by state licensing agencies).
40 See LA. REV. STAT. § 36:4.
41 Hudson, 174 F.3d at 686.
rendered.”42 The Fifth Circuit has held that “judgments against state agencies or
departments 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
Department of Health and Human Resources (“DHHR”) and Charity Hospital of
Louisiana at New Orleans (“Charity”) to weigh in favor of finding Eleventh Amendment

immunity for both DHHR and Charity.44 The Fifth Circuit reasoned that “[a]s executive
departments, DHHR and Charity receive their funding from the State of Louisiana, [and]
any judgment against either DHHR or Charity would be paid from state funds
appropriated for that purpose.”45
Although Defendants in this case admit the Board relies primarily on self-
generated fees, Defendants allege the Board, as a state agency, is covered by the Office of
Risk Management (“ORM”), and any judgment against the Board is statutorily mandated
to be paid by state funds.46 The Court takes judicial notice of the Financial Statement
Audit of the Board for the year ending on June 30, 2016, issued by the Louisiana
Legislative Auditor.47 According to the Audit, “[l]osses of the Board arising from
judgments, claims, and similar contingencies are paid through the state’s self-insurance

fund operated by the Office of Risk Management, the agency responsible for the state’s
risk management program, or by appropriation from the state’s General Fund.”48 Similar

42 LA. CONST. art 12, § 10(C).
43 Vogt, 294 F.3d at 693.
44 814 F.2d 1055, 1059 (5th Cir. 1987).
45 Id.
46 R. Doc. 3-1 at 11.
47 See FED. R. EVID. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute
because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.”); see also Tu Nguyen v. Bank of Am., N.A., 728 F. App’x 387, 388 (5th Cir. 2018) (“Because
the proposed documents are highly indisputable public records, we take judicial notice of them.”).
48 DARYL G. PURPERA, LOUISIANA LEGISLATIVE AUDITOR, LOUISIANA STATE BOARD OF EMBALMERS AND FUNERAL
DIRECTORS, LOUISIANA DEPARTMENT OF HEALTH, A COMPONENT UNIT OF THE STATE OF LOUISIANA, FINANCIAL
STATEMENT AUDIT FOR THE YEAR ENDED JUNE 30, 2016 32 (2016) (“2016 LSBEFD LEGISLATIVE AUDIT”).
to a judgment against the DHHR or Charity, a judgment against the Board would be paid
from state funds appropriated for that purpose.49 The second Clark factor leans in favor
of finding Eleventh Amendment sovereign immunity.
Turning to the third Clark factor, the Court must determine the Board’s level of
local autonomy.50 The Fifth Circuit has stated that, when the members of a state agency

serve at the governor’s pleasure, “the vulnerability of the [defendants] to the governor's
pleasure militates against a finding of local autonomy.”51 In Voisin's Oyster House, Inc.
v. Guidry, the Fifth Circuit found the Louisiana Department of Wildlife and Fisheries
(“the Department”) and the Louisiana Wildlife and Fisheries Commission (“the
Commission”) to have little local autonomy because the Department is headed by a
secretary who functions under the control and supervision of the governor and serves at
the governor's pleasure, and members of the Commission are appointed by the governor
and are confirmed by the state senate for one six-year term.52
Similar to the Department and Commission in Voisin’s, the Board in this case is
composed of nine members, all of whom are appointed by the Governor, subject to Senate
confirmation, and serve at the pleasure of the governor for terms of four years.53 Eight of

the Board members are required to be residents of particular districts comprised of
several parishes in each geographical region of the state.54 The Board is subject to
budgetary review by the undersecretary of the Louisiana Department of Health and is
required to comply with the Louisiana Licensing Agency Budget Act.55 Plaintiffs argue the

49 See id.
50 Hudson, 174 F.3d at 681.
51 Jacintoport Corp. v. Greater Baton Rouge Port Commission, 762 F.2d 435, 442 (5th Cir. 1985).
52 799 F.2d 183, 187 (5th Cir. 1986).
53 LA. REV. STAT. § 37:832.
54 Id.
55 LA. REV. STAT. § 36:803.
Board’s “rulings on matters of licensing and operations of embalmers, 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 may 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 autonomy.

With respect to the fourth Clark factor, the Court must determine whether the
Board is concerned primarily with local, as opposed to statewide, problems.58 The
relevant test used by the Fifth Circuit requires the Court to determine “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
immunity 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, Defendants allege, and Plaintiffs do not dispute,
that “the Board’s powers and duties encompass the licensing and regulation of the
practice of embalming and funeral directing throughout the entire state of Louisiana.”61
Accordingly, the fourth Clark factor favors sovereign immunity for the Board.

In regard to the fifth and sixth Clark factors, the Court must determine whether
the Board has the authority to sue and be sued in its own name, and whether the Board
has the right to hold and use property.62 LA. REV. STAT. § 37:849 states, “[t]he [B]oard
may bring legal proceedings to enjoin a person or establishment violating the provisions

56 R. Doc. 8 at 11.
57 LA. REV. STAT. § 49:964; see also LA. REV. STAT. § 37:846.
58 Hudson, 174 F.3d at 681.
59 Pendergrass v. Greater New Orleans Expressway Comm'n, 144 F.3d 342, 347 (5th Cir. 1998) (citing
Jacintoport, 762 F.2d at 443).
60 139 F.3d at 1038.
61 R. Doc. 3-1 at 11.
62 Hudson, 174 F.3d at 681.
of this Chapter.”63 The Board’s creating and enabling statutes provide that it may be sued
in the Parish of Orleans and may “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 name, and has the right to hold and use property. Accordingly, the fifth and
sixth Clark factors weigh against the Board’s entitlement to Eleventh Amendment

sovereign immunity. 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 Amendment
immunity.65
In similar situations, the Fifth Circuit has found licensing boards created within
the Louisiana Department of Health to be immune from suit based on Eleventh
Amendment sovereign immunity. Specifically, the Fifth Circuit has determined the
Louisiana State Board of Medical Examiners, the Louisiana State Board of Dentistry, and
the Louisiana State Board of Nursing, are state agencies entitled to Eleventh Amendment
sovereign immunity.66. The Court finds the Board to be an arm of the state of Louisiana
entitled to sovereign immunity under the Eleventh Amendment.
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 immunities secured by
the Constitution and laws.”67 “[N]either a State nor its officials acting in their official

63 LA. REV. STAT. § 37:849.
64 LA. REV. STAT. § 37:833.
65 Darlak v. Bobear, 814 F.2d 1055, 1060 (5th Cir. 1987).
66 See Rodgers v. State Bd. of Nursing, 665 F. App'x 326, 330 (5th Cir. 2016) (confirming the Louisiana
State Board of Nursing is entitled to sovereign immunity); Fairley v. Louisiana, 254 F. App'x 275, 277 (5th
Cir. 2007) (finding the Louisiana State Board of Medical Examiners is entitled to sovereign immunity);
Neuwirth v. La. State Bd. of Dentistry, 845 F.2d 553, 556 (5th Cir. 1988) (finding the Louisiana State Board
of Dentistry is entitled to sovereign immunity).
67 42 U.S.C. § 1983.
capacities are ‘persons’ under § 1983.”68 Accordingly, Eleventh Amendment sovereign
immunity bars Plaintiffs from bringing suit against the Board and the individual
Defendants in their official capacities. The Court dismisses without prejudice Plaintiffs’ §
1983 claims against the Board and the individual Defendants in their official capacities.69
Plaintiffs’ state law claims against the Board and individual Defendants in their

official capacities also are barred by Eleventh Amendment sovereign immunity. The
Supreme 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
Amendment.”70 Moreover, the Fifth Circuit has held that “sovereign immunity [bars]
federal courts from hearing state law claims brought in federal court against state entities
and state officers sued in their official capacities.”71 The Court dismisses without prejudice
Plaintiffs’ state law claims against the Board and the individual Defendants in their official
capacities.
II. Plaintiffs’ § 1983 claims against the individual Defendants in their
individual capacities are barred by absolute immunity.
In the instant motion, Defendants argue the individual Defendants, sued in their
individual capacities, are entitled to absolute immunity from liability on Plaintiffs’ § 1983
claim against them.72 “Absolute immunity denies a person whose federal rights have been

68 Fairley v. Stalder, 294 F. App’x 805, 808 (5th Cir. 2008) (unpublished) (quoting Will v. Mich. Dept. of
State Police, 491 U.S. 58, 71 (1989)).
69 See Warnock v. Pecos Cty., Tex., 88 F.3d 341, 343 (5th Cir. 1996) (“Because sovereign immunity deprives
the court of jurisdiction, the claims barred by sovereign immunity can be dismissed only under Rule
12(b)(1) and not with prejudice.”).
70 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984).
71 Kermode v. Univ. of Mississippi Med. Ctr., 496 F. App'x 483, 490 (5th Cir. 2012).
72 Plaintiffs correctly argue that the individual Defendants are not entitled to Eleventh Amendment
sovereign immunity on the claims against them in their individual capacities. R. Doc. 8 at 14–17. However,
Defendants motion to dismiss the individual-capacity claims against them is based solely on absolute and
qualified immunity, not sovereign immunity. R. Doc. 3-1 at 13–24.
violated by a government official any type of remedy, regardless of the conduct.”73 The
Fifth Circuit has explained:
Although the Supreme Court has been rather conservative in
its grants of absolute immunity, it has recognized that there
are some officials whose duties require a full exemption from
liability. Such officials include judges performing judicial acts
within their jurisdiction, prosecutors in the performance of
their official functions, and certain “quasi-judicial” agency
officials who, irrespective of their title, perform functions
essentially similar to those of judges or prosecutors, in a
setting similar to that of a court.74

The Court notes that Defendant Brasseaux is a member of the Board, Michel is
Executive Director of the Board, and Alexander is general counsel for the Board.75 In
determining whether a government official is absolutely immune from suit, the Fifth
Circuit has held that “the proper focus should not be the identity of the party claiming the
immunity, but rather his “role in the context of the case.”76 In short, “immunity attaches
to particular official functions, not to particular offices.”77 The Fifth Circuit has found
government officials to be entitled to sovereign immunity when they perform quasi-
judicial or quasi-prosecutorial roles, regardless of whether they are members or
employees of a board or agency.78
In Butz v. Economou, the Supreme Court set forth a “non-exhaustive list of factors
to determine whether an agency and its members perform quasi-judicial functions,”
which the Fifth Circuit has rephrased as follows:79

73 Kermode, 496 F. App'x at 490 (internal quotation marks omitted).
74 Id. (citing Butz v. Economou, 438 U.S. 478, 511–17 (1978)) (internal citations omitted).
75 Id. at 2; R. Doc. 3-1 at 5.
76 Id. (quoting Mays v. Sudderth, 97 F.3d 107, 110 (5th Cir.1996)).
77 Id.
78 See Di Ruzzo v. Tabaracci, 480 F. App'x 796, 797 (5th Cir. 2012); Austin Mun. Sec., Inc. v. Nat'l Ass'n of
Sec. Dealers, Inc., 757 F.2d 676, 692–93 (5th Cir. 1985).
79 Beck v. Texas State Bd. of Dental Examiners, 204 F.3d 629, 634 (5th Cir. 2000) (citing Butz, 438 U.S. at
512).
1. the need to assure that the individual can perform his
functions without harassment or intimidation;
2. the presence of safeguards that reduce the need for private
damages actions as a means of controlling unconstitutional
conduct;
3. insulation from political influence;
4. the importance of precedent;
5. the adversary nature of the process; and
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 determine whether officials
performed quasi-prosecutorial functions.82
Applying the first Butz factor, the Court must determine whether the Board
requires freedom from the threat of personal harassment or intimidation to perform its
functions.83 In Beck v. Texas State Board of Dental Examiners, the Fifth Circuit held that,
because members of the Texas State Board of Dental Examiners (“TSBDE”) were
statutorily empowered to revoke, suspend and deny licenses, they must be able to make
such decisions free from the threat of incurring personal liability.84 In O’Neal v.
Mississippi Board of Nursing, the Fifth Circuit found the Mississippi Board of Nursing
(“the MBN”) needed freedom from harassment or intimidation in performing its duties
because the MBN is “empowered to make difficult and controversial decisions . . . which
may negatively affect an individual's life.”85 Similar to the TSBDE in Beck, the Board in
this case “may refuse to grant, refuse to renew, suspend, or revoke any license, or impose
a sanction or fine on any licensee found guilty of any statutorily prohibited act or

80 Id.
81 O’Neal, 113 F.3d at 65.
82 See Disraeli v. Rotunda, 489 F.3d 628, 632 (5th Cir. 2007); see also Butz, 438 U.S. at 515 (“We also
believe that agency officials performing certain functions analogous to those of a prosecutor should be able
to claim absolute immunity with respect to such acts.”).
83 Beck, 204 F.3d at 634.
84 Id. at 636.
85 O’Neal, 113 F.3d at 66.
omission.”86 These are difficult and possibly controversial decisions which may negatively
affect an individual’s life. Accordingly, the Court finds the performance of such functions
requires freedom from the threat of personal harassment and intimidation. The first Butz
factor weighs in favor of absolute immunity.
Applying the second Butz factor, the Court must determine whether procedural

safeguards, which reduce the need for private damages actions, are in place as a means of
controlling unconstitutional conduct.87 The Fifth Circuit has held that “[b]oard members
are entitled to absolute immunity ‘from liability for [their] judicial acts even if [their]
exercise of authority is flawed by the commission of grave procedural error.’”88
Accordingly, under the second Butz factor, “the inquiry is not whether the defendants
committed error while executing the safeguards, but whether adequate safeguards
existed.”89 In Thomas 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-examine witnesses; to request that a case
be reheard; and to appeal an adverse decision to state district court.”90 In O’Neal, the Fifth

Circuit determined the second Butz factor was satisfied because the following procedural
safeguards were made available to any person charged by the MBN: “the right to counsel,
adequate notice of a hearing, and the opportunity to present and cross-examine
witnesses.”91

86 LA. REV. STAT. § 37:846.
87 Beck, 204 F.3d at 634.
88 Id. at 635 (quoting Stump v. Sparkman, 435 U.S. 349, 359 (1978)).
89 Id. at 636.
90 175 F.3d at 363 (internal citations omitted).
91 O’Neal, 113 F.3d at 66.
In this case, the procedural safeguards available to any individual facing a petition
for revocation or suspension of a license or registration are provided by LA. REV. STAT.
§ 37:846 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. Complainant and licensee may
have benefit of counsel, and shall have the right to offer
evidence and cross-examine witnesses. Strict rules of evidence
need not be complied with, but no evidence shall be received
unless given by witnesses present. Upon due hearing, board
may enter its findings of record. Appeal from any board
decision or order shall be filed in a court of competent
jurisdiction within fifteen days from board's decision,
otherwise board's findings will be final.

In this case, more procedural safeguards exist than existed in O’Neal. Accordingly, the
Court finds there are adequate procedural safeguards in place which reduce the need for
private damages.
Turning to the third Butz factor, the Court must determine whether the Board is
insulated from political influence.92 In O’Neal, the Fifth Circuit found that members of
the MBN were insulated from political influence because members are appointed by the
Governor for staggered terms for four years and no member may serve more than two
consecutive terms.93 In Thomas, the Fifth Circuit held the fact the members of the URSB
are not elected, but rather appointed by members 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 members are appointed by the Governor, subject to senate
confirmation, for terms of four years and may not serve more than two consecutive terms,
without at least one year elapsing between the expiration of a member's second

92 Beck, 204 F.3d at 634.
93 O’Neal, 113 F.3d at 66.
94 Thomas, 175 F.3d at 363.
consecutive term and his appointment to a subsequent term.95 Accordingly, the Court
finds the Board is insulated from political influence.
Applying the fourth Butz factor, the Court must determine the role of precedent in
the Board’s decisions.96 It is not uncommon 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 made it

clear that this factor is not dispositive, especially when the other five Butz factors are
satisfied.97 In the instant motion, Defendants admit “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 immunity. However, based on Fifth Circuit
precedent, the Court finds this factor is not dispositive.
Applying the fifth Butz factor, the Court examines 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 administered oaths to witnesses and made evidentiary rulings.”100
In O’Neal, the Fifth Circuit found that the MBN’s proceedings seemed inherently

adversarial because “the parties have a right to counsel, are able to present witnesses, and
[are able to] cross-examine adverse witnesses.”101 In this case, when a hearing is set to

95 LA. REV. STAT. § 37:832.
96 Beck, 204 F.3d at 634.
97 See id. at 636 (holding that uncertainty as to whether the board abided by precedent is not dispositive);
O’Neal, 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 (finding 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, 204 F.3d at 634.
100 Id. at 636.
101 See O’Neal, 113 F.3d at 66.
address a petition for the revocation or suspension of a license or registration certificate,
“[c]omplainant and licensee may have benefit of counsel, and shall have the right to offer
evidence and cross-examine witnesses. Strict rules of evidence need not be complied with,
but no evidence shall be received unless given by witnesses present.”102 Because the
guidelines in place in this case are similar to or greater than those identified in Beck and

O’Neal that satisfied the fifth Butz factor, the Court finds the Board’s proceedings to be
adversarial in nature.
Applying the sixth Butz factor, the Court must determine whether the Board’s
errors are correctable on appeal.103 The Fifth Circuit has held that the sixth Butz factor is
satisfied if a board’s errors may be corrected on appeal by the state district court.104 In
this case, LA. REV. 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
competent jurisdiction within fifteen days from board's decision, otherwise board's
findings will be final.” Further, LA. REV. 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 agency for
rehearing, without limiting, however, utilization of or the
scope of judicial review available under other means of review,
redress, relief, or trial de novo provided by law. A preliminary,
procedural, or intermediate agency action or ruling is
immediately reviewable if review of the final agency decision
would not provide an adequate remedy and would inflict
irreparable injury. . . Proceedings for review may be instituted
by filing a petition in the district court of the parish in which
the agency is located within thirty days after the transmittal of
notice of the final decision by the agency.105

102 LA. REV. STAT. § 37:846(B).
103 Beck, 204 F.3d at 634.
104 See id. at 636; Thomas, 175 F.3d at 363.
105 LA. REV. STAT. § 49:964(A)(1). This provision is found in the Louisiana Administrative Procedure Act
(“APA”), LA. REV. 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 opportunity for hearing, the provisions of this Chapter concerning
As expressly stated in the statutory text, the Court finds that errors committed by the
Board may be corrected on appeal.
In O’Neal, the Fifth Circuit held that members of the MBN are absolutely immune
from suit based on its finding that “five out of the six [Butz] factors [were] sufficiently
satisfied, with the one exception being merely questionable.”106 In this case, the Court
faces a situation identical to that in O’Neal because five out of the six Butz factors are
satisfied. Although the fourth factor is not satisfied, that factor is not dispositive.107
Accordingly, Defendants are performing 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 damages in this particular case are quasi-judicial or quasi-prosecutorial in
nature.108 The Fifth Circuit has held that “if the job enjoys absolute immunity, 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
immunity.”109 Plaintiffs argue Defendants are not entitled to qualified immunity 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. REV. STAT. § 49:961(A). LA. REV. STAT. § 37:846(B), which governs the Board’s
hearings related to licensing, requires notice and opportunity for hearing. As a result, the APA’s
requirements apply to hearings by the Board.
106 113 F.3d 62 at 66.
107 See O’Neal, 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.”).
108 See Thomas 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 (same).
109 Thomas, 175 F.3d at 362.
caused a formal hearing to be set” before the Board without a majority vote,110 despite
the provision in LA. REV. STAT. § 37:847 requiring a majority vote of the Board to call for
a formal 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 formal hearing, LA. REV. STAT.

§ 37:847 provides it is the duty of the Board members to decide whether to hold a formal
hearing or dismiss the complaint.112 In Butz, the Supreme Court stated:
[a]gency officials performing certain functions analogous to
those of a prosecutor should be able to claim absolute
immunity with respect to such acts. The decision to initiate
administrative proceedings against an individual or
corporation is very much like the prosecutor's decision to
initiate or move forward with a criminal prosecution. An
agency official, like a prosecutor, may 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 formal hearing regarding the alleged violations
was much like a prosecutor's decision to initiate or move forward with a criminal
prosecution. Although Plaintiffs allege Defendants did not comply with the procedural
requirement that a formal hearing be held only after a majority vote of the Board, “Board
members are entitled to absolute immunity ‘from liability for [their] judicial acts even if
[their] exercise of authority is flawed by the commission 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 immunity

110 R. Doc. 8 at 6, 17.
111 R. Doc. 1 at 11.
112 See LA. REV. STAT. § 37:847 (“The board may, by majority vote, dismiss the complaint or call for a formal
hearing.”).
113 438 U.S. 478 at 515.
114 See Beck, 204 F.3d at 635 (quoting Stump, 435 U.S. at 359).
for their role in initiating the formal hearing because they were performing functions that
were quasi-prosecutorial in nature, and the statute provides sufficient procedural
safeguards. 115
Plaintiffs also allege Michel “made unsupported allegations that Mothe and/or
MFH violated La. R.S. 37:848 by employing Berrios to perform 70 embalming procedures

while employed by MFH.”116 Plaintiffs argue Michel is not entitled to absolute immunity
with respect to her statements during the formal hearing.117 The parties do not clarify
whether Michel made 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 immunity, as discussed above. To the extent her allegations were made as a
witness, she also is entitled to absolute immunity, consistent with the Supreme Court’s
holding in Cleavinger v. Saxner that “[w]itnesses are integral parts of the judicial process
and, accordingly, are shielded by absolute immunity.”118 As a result, the Court finds
Defendant Michel, in her individual capacity, is entitled to absolute immunity in
connection with her statements at the hearing.
Plaintiffs argue Defendants are not entitled to absolute immunity because they

performed investigative functions.119 “If a prosecutor engages in activities ‘akin to those of
an administrative or investigative officer, rather than to those of an advocate,’ the

115 Plaintiffs cite Lewis v. Brautigam, 227 F.2d 124, 129 (5th Cir. 1955), in support of the proposition that
Defendants are not shielded by absolute immunity because they acted outside the scope of their jurisdiction.
R. Doc. 8 at 17–18. In Lewis, 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
himself from liability by the plea that he is acting under color of office.” 227 F.2d at 129. In Marrero v. City
of Hialeah, 625 F.2d 499, 504 n.4 (5th Cir. 1980), the Fifth Circuit rejected the Lewis approach, instead
using the framework laid out by the Supreme Court in Butz and Imbler v. Pachtman, 424 U.S. 409 (1976).
116 R. Doc. 1 at 11.
117 R. Doc. 8 at 14–15.
118 474 U.S. 193, 200 (1985) (internal quotations omitted).
119 R. Doc. 8 at 20–21.
prosecutor is no longer entitled to absolute immunity.”120 However, the Complaint
contains no allegations regarding investigative functions performed by any of the
individual Defendants. The Court finds the individual Defendants are entitled to absolute
immunity with respect to all of the claims based on the factual allegations in the
Complaint.

“[A] dismissal based on absolute immunity should generally be with prejudice.”121
The Court dismisses with prejudice Plaintiffs’ § 1983 claims against Defendants
Brasseaux, Michel, and Alexander, in their individual capacities.
III. The Court dismisses without prejudice Plaintiffs’ state law claims
against the individual Defendants in their individual capacities.
Plaintiffs also bring several state law claims against the individual Defendants, in
their individual capacities. Specifically, Plaintiffs bring claims against Defendants for
abuse of process, defamation, malicious prosecution, and violation of the Louisiana
Constitution.122 Under 28 U.S.C. § 1367(c), a district court may decline to exercise
supplemental jurisdiction over state law claims if it “has dismissed all claims over which
it has original jurisdiction.”123 The Fifth Circuit has held that, after a district court
dismisses a plaintiff’s § 1983 claims, “[w]hether to refuse, or to retain, supplemental
jurisdiction over a pendent state-law claim is committed to a district court’s ‘wide
discretion.’”124 In determining whether to exercise supplemental jurisdiction, the district
court weighs traditional “common law factors of judicial economy, convenience, fairness,

120 Disraeli, 489 F.3d at 635 (quoting Geter v. Fortenberry, 849 F.2d 1550, 1553 (5th Cir. 1988)).
121 Hunter v. Rodriguez, 73 F. App’x 768, 770 (5th Cir. 2003) (citing Boyd v. Biggers, 31 F.3d 279, 285 (5th
Cir. 1994)) (emphasis in original).
122 R. Doc. 1.
123 28 U.S.C. § 1367(c).
124 Moon v. City of El Paso, 906 F.3d 352, 360 (5th Cir. 2018) (quoting Noble v. White, 996 F.2d 797, 799
(5th Cir. 1993)).
and comity.”125 In Enochs v. Lampasas County, the Fifth Circuit weighed these common
law factors and found exercising supplemental jurisdiction was not appropriate for the
following reasons:
[the case] was still in its infancy (less than three months old),
no discovery had occurred, no hearings or trial dates had been
scheduled, the district court was not even moderately familiar
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, 2019, approximately four months ago.127
As of July 25, 2019, the parties had not completed initial disclosures.128 Although a trial
date has been set for June 8, 2020, no hearings have been conducted.129 The Court’s
consideration of the instant motion did not require any analysis of the merits of Plaintiffs’
state law claims. Accordingly, dismissing the state law claims would not be a waste of
judicial resources. Further, there is no indication that the Court is intimately familiar with
the state law claims at this stage of the litigation. As a result, the Court dismisses without
prejudice Plaintiffs’ state law claims against the individual Defendants in their individual
capacities.130
CONCLUSION
For the foregoing reasons, IT IS ORDERED that the 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

125 Id. at 361 (quoting Enochs v. Lampasas Cty., 641 F.3d 155, 159 (5th Cir. 2011)).
126 641 F.3d at 162.
127 R. Doc. 1.
128 R. Doc. 12 at 2.
129 Id. at 12.
130 Brown v. Mississippi Valley State Univ., 311 F.3d 328, 334 n.6 (5th Cir. 2002) (stating “unadjudicated
pend[ent] state law claims must be dismissed without prejudice to allow the plaintiff to refile in state court
when a district court dismisses the federal claims serving as the basis for its jurisdiction and elects not to
exercise supplemental jurisdiction over the state law claims.”).
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. § 1983 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.
□□ □□□ 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.
New Orleans, Louisiana, this 8th day of August, 2019.

UNITED STATES DISTRICT JUDGE

131 R. Doc. 3-1.
23

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10184736. Public record. Not legal advice.