“[T]he Eleventh Amendment will bar a suit if the defendant state agency is so closely connected to the State that the State itself is ‘the real, substantial party in interest.’” (quoting Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th Cir. 1999))
How later courts described this case
- “[T]he Eleventh Amendment will bar a suit if the defendant state agency is so closely connected to the State that the State itself is ‘the real, substantial party in interest.’” (quoting Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th Cir. 1999))
- “By statute, Louisiana has refused any such waiver of its Eleventh Amendment sovereign immunity regarding suits in federal courts.” (citing La. Rev. Stat. § 13:5106(A))
- “While Louisiana may have waived sovereign immunity with respect to some claims, La. Const. art. 1 § 26 makes it clear the State has not waived its sovereignty within the federal system.”
- stating that state- law claim is barred where “the plaintiff’s claim was against the State of Louisiana and not the named defendant acting in his individual capacity”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
STANLEY PRICE CIVIL ACTION
VERSUS NO. 19-11451
PAULETTE RILEY IRONS, ET AL. SECTION “R” (2)
ORDER AND REASONS
The Court has received a motion to dismiss from defendants the
Louisiana Office of Disciplinary Counsel and Susan Kalmbach.1 Because
there is no basis for the Court to entertain claims against defendants, the
Court grants the motion.
I. BACKGROUND
This case arises from allegations of impropriety associated with legal
proceedings initiated in state court by plaintiff Stanley Price.2 In his federal
complaint, plaintiff indicates that he previously filed suit in state court
against attorney Quiana Hunt.3 Hunt was represented by Sharon Hunter.4
1 R. Doc. 8.
2 See generally R. Doc. 1.
3 See id. at 4.
4 See id. at 6.
Plaintiff accuses Hunt’s law firm of “deny[ing] his compensation for
paralegal services rendered.”5
Plaintiff also avers that the ODC “received several complaints against
[Hunt] from clients, who believes she failed to properly represent their
cases.”6 According to plaintiff, defendant Kalmbach, as Deputy Disciplinary
Counsel,7 was assigned to investigate these complaints.8 Plaintiff alleges that
Kalmbach improperly conducted this investigation, “us[ing] her office and
power to assign credibility to [Hunt].”9 Plaintiff further alleges that in
conducting her investigation, Kalmbach also investigated plaintiff’s
“associations and business affairs based on false reports of [Hunt].”10
Plaintiff claims that these “inquiries were unreasonable based on false
accusations,”11 and that they “interfered with his reputation as a paralegal
with business associates which called into question his integrity and
jeopardizing his livelihood.”12
5 See id. at 5.
6 R. Doc. 1 at 11.
7 See id. at 3, 11.
8 See id. at 11.
9 See id.
10 See R. Doc. 1 at 11.
11 See id. at 12.
12 See id. at 11.
More broadly, plaintiff alleges that “[a]ll state defendants adopted the
disposition of Hunt and Hunter in their acts/omissions acted as co-
conspirators to the deceitful and illegal practices to deprive plaintiff of his
legal and state and federal constitutional rights.”13 Similarly, plaintiff
contends that “[a]ll state defendants acted in concert to promote and support
judicial corruption . . . to aid and abet illicit actions of defendants Hunt and
Hunter,”14 and that defendants “failed to observe . . . their duty and
responsibility owed as public servants.”15 Plaintiff’s complaint requests
“compensatory and punitive damages against defendants for their
misconduct.”16
The ODC and Kalmbach now move to dismiss plaintiff’s claims against
them.17
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court’s
subject matter jurisdiction. “A case is properly dismissed for lack of subject
13 See R. Doc. 1 at 14.
14 See id.
15 See id. at 15.
16 See id. at 18.
17 R. Doc. 8.
matter jurisdiction when the court lacks the statutory or constitutional
power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v.
Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)).
Because a 12(b)(1) motion is jurisdictional, a court considers such a motion
“before addressing any attack on the merits,” see In re FEMA Trailer
Formaldehyde Prod. Liab. Litig. (Miss. Plaintiffs), 668 F.3d 281, 286 (5th
Cir. 2012), in order to “prevent[] a court without jurisdiction from
prematurely dismissing a case with prejudice,” id. at 286-87 (quoting
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)). Nevertheless,
a court uses “the same standard” when analyzing a Rule 12(b)(1) motion as
it would a Rule 12(b)(6) motion. See Dooley v. Principi, 250 F. App’x 114,
115-16 (5th Cir. 2007) (per curiam).
In assessing a challenge to its subject matter jurisdiction, a court “may
dismiss . . . on any one of three different bases: (1) the complaint alone;
(2) the complaint supplemented by undisputed facts in the record; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.” Clark v. Tarrant Cty., 798 F.2d 736, 741 (5th Cir. 1986)
(citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
Furthermore, plaintiff has the burden of demonstrating that subject matter
jurisdiction exists. See Celestine v. TransWood, Inc., 467 F. App’x 317, 318
(5th Cir. 2012) (per curiam) (citing Ramming, 281 F.3d at 161).
B. Federal Rule of Civil Procedure 12(b)(6)
To overcome a Rule 12(b)(6) motion, a party must plead “sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). “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.”
Id. A court must “accept all factual allegations in the complaint as true” and
“must also draw all reasonable inferences in the plaintiff’s favor.” Lormand
v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
A legally sufficient complaint must establish more than a “sheer
possibility” that the party’s claim is true. See Iqbal, 556 U.S. at 678. It need
not contain “‘detailed factual allegations,’” but it must go beyond “‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’”
See id. (quoting Twombly, 550 U.S. at 555). In other words, “[t]he complaint
(1) on its face (2) must contain enough factual matter (taken as true) (3) to
raise a reasonable hope or expectation (4) that discovery will reveal relevant
evidence of each element of a claim.” Lormand, 565 F.3d at 257 (citations
omitted). The claim must be dismissed if there are insufficient factual
allegations “to raise a right to relief above the speculative level,” Twombly,
550 U.S. at 555, or if it is apparent from the face of the complaint that there
is an insuperable bar to relief, see Jones v. Bock, 549 U.S. 199, 215 (2007).
“In considering a motion to dismiss for failure to state a claim, a district
court must limit itself to the contents of the pleadings, including attachments
thereto.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th
Cir. 2000). “The court may also consider documents attached to either a
motion to dismiss or an opposition to that motion when the documents are
referred to in the pleadings and are central to a plaintiff's claims.” Brand
Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir.
2014). Otherwise, if “matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary
judgment under Rule 56.” Fed. R. Civ. P. 12(d).
III. DISCUSSION
A. ODC
The ODC argues that plaintiff’s suit against it is barred by the Eleventh
Amendment.18 Because this argument is jurisdictional, the Court considers
18 See R. Doc. 8-1 at 7-8.
it under Rule 12(b)(1), and considers it first. See Jefferson v. La. State
Supreme Court, 46 F. App’x 732, 2002 WL 1973897, at *1 (5th Cir. 2002)
(per curiam) (“[E]leventh amendment immunity . . . deprives the court of
subject matter jurisdiction of the action.” (first alteration in original)
(quoting McDonald v. Bd. of Miss. Levee Comm’rs, 832 F.2d 901, 906 (5th
Cir. 1987))); Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325, 1336 (5th Cir.
1994) (“[T]he Eleventh Amendment operates as a jurisdictional bar.”).
Under the Eleventh Amendment, “an unconsenting State is immune
from suits brought in federal courts by her own citizens.” Edelman v.
Jordan, 415 U.S. 651, 663 (1974). Louisiana has not consented to this suit.19
See Cozzo v. Tangipahoa Par. Council-President Gov’t, 279 F.3d 273, 281
(5th Cir. 2002) (“By statute, Louisiana has refused any such waiver of its
Eleventh Amendment sovereign immunity regarding suits in federal courts.”
(citing La. Rev. Stat. § 13:5106(A))); see also Holliday v. Bd. of Supervisors
of LSU Agr. & Mech. Coll., 149 So. 3d 227, 229 (La. 2014) (“While Louisiana
may have waived sovereign immunity with respect to some claims, La. Const.
art. 1 § 26 makes it clear the State has not waived its sovereignty within the
federal system.”).
19 See R. Doc. 8-1 at 8 (“The State of Louisiana has not waived its Eleventh
Amendment immunity for claims against it in federal court, and does not do
so now.” (citation omitted)).
Generally, therefore, Louisiana enjoys immunity against suits brought
in federal court. This immunity extends to suits brought under state law. See
Richardson v. S. Univ., 118 F.3d 450, 453 (5th Cir. 1997) (stating that state-
law claim is barred where “the plaintiff’s claim was against the State of
Louisiana and not the named defendant acting in his individual capacity”).
It also applies to suits under Section 1983. See Cozzo, 279 F.3d at 281 (“[I]n
enacting § 1983, Congress did ‘not explicitly and by clear language indicate
on its face an intent to sweep away the immunity of the States.’” (quoting
Quern v. Jordan, 440 U.S. 332, 345 (1979))); see also Richardson, 118 F.3d
at 452-53 (finding that the Eleventh Amendment barred both “federal and
state-law claims”).
Furthermore, this immunity can extend not only to suits against
Louisiana itself, but also to state agencies. Vogt v. Bd. of Comm’rs of Orleans
Levee Dist., 294 F.3d 684, 689 (5th Cir. 2002) (“[T]he Eleventh Amendment
will bar a suit if the defendant state agency is so closely connected to the State
that the State itself is ‘the real, substantial party in interest.’” (quoting
Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th Cir. 1999))).
Specifically, “the State’s Eleventh Amendment immunity will extend to any
state agency or other political entity that is deemed the ‘alter ego’ or an ‘arm’
of the State.” Id. (quoting Regents of the Univ. of Cal. v. Doe, 519 U.S. 425,
429 (1997)).
Here, plaintiff himself acknowledges that the “Louisiana Office of
Disciplinary Council is a[n] alter ego of the state of Louisiana.”20 And in any
event, the Fifth Circuit has affirmed the proposition that the Louisiana
Disciplinary Board—a “unitary entity” that includes the ODC as one of its
component parts21—has Eleventh Amendment immunity. In Zohdy v.
Platsmier, 192 F. App’x 313 (5th Cir. 2006) (per curiam), the Fifth Circuit
upheld a decision finding that the Disciplinary Board had Eleventh
Amendment immunity. See id.; see also Atkins v. La. Attorney Disciplinary
Bd., No. 09-6471, 2010 WL 420558, at *1 (E.D. La. Jan. 29, 2010) (same).
The Eleventh Amendment, therefore, precludes this suit. Dismissal under
Rule 12(b)(1) is required.
Given that the Court does not have jurisdiction over plaintiff’s claims
against the ODC, the Court does not address defendant’s argument that it
does not have the capacity to be sued,22 and that it is not a “person” for the
purposes of Section 1983.23
20 See R. Doc. 1 at 2.
21 See La. Sup. Ct. R. XIX, § 2(A).
22 See R. Doc. 8-1 at 5-7.
23 See id. at 8-9.
B. Kalmbach
1. Official Capacity
Kalmbach argues that insofar as plaintiff sues her in her official
capacity, she—like the ODC itself—enjoys Eleventh Amendment immunity.24
The Court considers this argument under Rule 12(b)(1).
Plaintiff’s complaint seeks “compensatory and punitive damages
against defendants.”25 But “a suit against a state official in his official
capacity for monetary damages is treated as a suit against the state and is
therefore barred by the Eleventh Amendment.” Chaney v. La. Work Force
Comm’n, 560 F. App’x 417, 418 (5th Cir. 2014) (per curiam) (citing Hafer v.
Melo, 502 U.S. 21, 25 (1991)).26 Thus, dismissal under Rule 12(b)(1) is
appropriate.
Given that the Court does not have jurisdiction over plaintiff’s claims
against Kalmbach in her official capacity, the Court does not address
24 See R. Doc. 8-1 at 8.
25 See R. Doc. 1 at 18.
26 Again, this conclusion applies equally to both federal and state-law
claims against Kalmbach in her official capacity. See Fairley v. Stalder, 294
F. App’x 805, 809 (5th Cir. 2008) (per curiam) (“The claims asserted against
[a state official in his official capacity] in federal court on state law grounds
for money damages . . . must still overcome Louisiana’s Eleventh
Amendment immunity.”).
defendant’s argument that she is not a “person” for the purposes of Section
1983.27
2. Individual Capacity
Kalmbach argues that plaintiff’s claims against her in her individual
capacity are barred by the doctrine of absolute immunity.28 The Court
considers these arguments under Rule 12(b)(6). See Nguyen v. La. State Bd.
of Cosmetology, No. CIV.A. 14-00080-BAJ, 2015 WL 1281959, at *1 (M.D.
La. Mar. 20, 2015) (“Claims of absolute and qualified immunity may . . . be
raised in a Rule 12(b)(6) motion to dismiss.” (citing Morales v. Louisiana,
74 F.3d 1236 (5th Cir. 1995))).
Plaintiff brings claims against Kalmbach in her individual capacity
under state law.29 The Court finds that Kalmbach has absolute immunity
from these claims. The Court applies Louisiana’s immunity laws regarding
plaintiff’s state law claims. See Brown v. Miller, 519 F.3d 231, 239 (5th Cir.
2008) (“In evaluating a motion to dismiss a state claim on the grounds of
qualified immunity, federal courts must apply the state’s substantive law of
qualified immunity.”). And the Louisiana Supreme Court Rules state that
27 See R. Doc. 8-1 at 8-9.
28 See R. Doc. 8-1 at 9-12.
29 See R. Doc. 1 at 9-12 (describing Kalmbach’s alleged conduct under a
cause of action based on the Louisiana Governmental Claims Act, La. R.S.
§ 13:5101).
“disciplinary counsel . . . shall be immune from suit for any conduct in the
course of their official duties or reasonably related to their official duties.”
La. Sup. Ct. R. XIX, § 12(A). Plaintiff’s allegations against Kalmbach relate
to the performance of her official duties as she investigated complaints
against the lawyer Hunt.30 Consequently, state law provides immunity to
Kalmbach.
Insofar as plaintiff brings a Section 1983 claim against Kalmbach in her
individual capacity, the Court finds that Kalmbach has absolute immunity.
The Fifth Circuit has extended absolute immunity to deputy counsel for
attorney disciplinary boards when determining whether to file and
prosecuting disciplinary charges. See Forman v. Ours, 996 F.2d 306 (5th
Cir. 1993) (per curiam); see also Haney v. Schwab, No. 19-10620, 2019 WL
6330795, at *4 (E.D. La. Nov. 5, 2019) (“[T]he Fifth Circuit has held that
deputy counsel for the [Louisiana Attorney Disciplinary Board] . . . are
entitled to absolute immunity from damages lawsuits.”), report and
recommendation adopted, No. 19-10620, 2019 WL 6330167 (E.D. La. Nov.
26, 2019); Nalls v. Plattsmeir, No. 10-450, 2010 WL 1462272, at *2 (E.D. La.
Apr. 7, 2010) (“The United States Court of Appeals for the Fifth Circuit
extends absolute immunity to members of administrative boards that
30 See R. Doc. 1 at 11.
regulate lawyers. The absolute immunity includes persons who act as
disciplinary counsel . . . .” (citation omitted)), aff’d sub nom. Nalls v.
Plattsmiere, 394 F. App’x 90 (5th Cir. 2010) (per curiam). Plaintiff
complains about Kalmbach’s conduct for these very activities.31 As such, she
is entitled to absolute immunity from these claims.
Given that the Court has found Kalmbach to have absolute immunity,
the Court does not proceed to consider her argument in the alternative that
she also has qualified immunity.32
C. Leave to Amend
Ordinarily, “a court should grant a pro se party every reasonable
opportunity to amend,” Hale v. King, 642 F.3d 492, 503 n.36 (5th Cir. 2011)
(quoting Peña v. United States, 157 F.3d 984, 987 n.3 (5th Cir. 1998)),
“unless it is obvious from the record that the plaintiff has pled his best case,”
id. at 503. Plaintiff’s opposition does “seek[] authorization to file an
amended and supplemental complaint to cure defects.”33 But plaintiff has
not given any indication as to how he would—or could—fix these defects in
his complaint. Plaintiff does state a desire to add the Louisiana Disciplinary
31 See R. Doc. 1 at 11.
32 See R. Doc. 8-1 at 12-15.
33 See R. Doc. 16 at 2.
Board as a party.34 Butas discussed above, such an amendment would be
futile, as the Disciplinary Board is immune to suit.
Inasmuch as plaintiff has sought damages against the ODC and
Kalmbach who are immune as a matter of law, any amendments to these
claims would be futile. Leave to amend is therefore denied. See Stripling v.
Jordan Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir. 2000) (“It is within
the district court’s discretion to deny a motion to amend if it is futile.”).
IV. CONCLUSION
For the foregoing reasons, the Court DISMISSES plaintiffs claims
against the ODC and Kalmbach in her official capacity WITHOUT
PREJUDICE. The Court DISMISSES plaintiffs claims against Kalmbach in
her individual capacity WITH PREJUDICE.
New Orleans, Louisiana, this 8th _ day of June, 2020.
prenk Varee
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
34 See id. at 7.
14