The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
YORI HENRY FAIRLEY CIVIL ACTION
VERSUS NO: 20-1097
VINCENT A. CULOTTA, JR., M.D. SECTION: "A" (3)
ORDER AND REASONS
The following motion is before the Court: Motion to Dismiss (Rec. Doc. 20) filed
by the defendant, Vincent A. Culotta, Jr. The plaintiff, Yori Henry Fairley, opposes the
motion. The motion, submitted for consideration on September 30, 2020, is before the
Court on the briefs without oral argument.
I. Background
This action is the third civil action that the plaintiff, Ms. Yori Fairley, has filed in
this district in connection with the death of her two-year old son, Dion Henry, in 2005.
On September 20, 2005, Ms. Fairley arrived at the Ochsner Hospital with her two year
old son and shortly thereafter he died. (Rec. Doc. 1-4 at 2). Ms. Fairley believes that her
son’s death resulted from a lethal combination of drugs administered by the treating
physicians at Ochsner. Ms. Fairley is convinced that the Ochsner physicians
intentionally killed her child in order to harvest his organs and then attempted to cover
up the murder by lying about the events leading up to his death.
Ms. Fairley has persevered over the years in pursuing her theory that her child
was murdered. As part of her efforts, in 2005/2006 she filed a complaint against the
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treating physicians with the State Board of Medical Examiners. In July 2006, that body
communicated to Ms. Fairley that it had found no impropriety with the treatment
rendered at Ochsner. In prior litigation, Ms. Fairley sued the then Executive Director of
the Louisiana State Board of Medical Examiners questioning the efficacy of the
investigation that had occurred in response to her complaint. That litigation did not
terminate favorably to Ms. Fairley.1
Ms. Fairley filed the instant complaint on March 25, 2020, against the current
Executive Director of the Louisiana State Board of Medical Examiners (“the Board”), Dr.
Vincent Culotta, Jr. Plaintiff is not represented by counsel. It is the Court’s
understanding that this action derives from Ms. Fairley’s attempt in 2019 to obtain the
records of the Board’s 2005/2006 investigation of her complaint against the Ochsner
physicians. (Rec. Doc. 1-4, Exhibit 2). Ms. Fairley has sued Dr. Culotta pursuant to 42
U.S.C. § 1983 contending that he has conspired with the Ochsner defendants to cover
up a scheme to kill black children in order to harvest their organs. Dr. Culotta has been
sued in both his official and individual capacities. Plaintiff is not seeking monetary relief
from Dr. Culotta. (Rec. Doc. 1, Complaint at 14). Although she does not expressly say
1 Plaintiff initiated EDLA Civil Action 06-6046 in state court against the Ochsner Clinic
Foundation and both of the Ochsner physicians that treated her son prior to his death. Plaintiff
was not represented by counsel. Judge Lemmon determined sua sponte that the case had been
removed improperly and she remanded it to state court.
While that matter was still pending in this district, Plaintiff filed another action in the
Eastern District of Louisiana, EDLA Civil Action 06-6064. Plaintiff was not represented by
counsel. The defendants in that matter were all officials of the State of Louisiana, including the
then Executive Director of the Louisiana State Board of Medical Examiners. Judge Barbier
dismissed all claims as either being barred by the Eleventh Amendment or otherwise legally
defective. That ruling was affirmed on appeal. Fairley v. State of Louisiana, 254 Fed. Appx. 275
(5th Cir. 2007) (unpublished).
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so in her prayer for relief, the Court assumes that the specific relief Ms. Fairley hopes to
obtain is an order compelling Dr. Culotta to produce the investigative file pertaining to
the treatment of her son.2
Prior to service on the defendant, the plaintiff filed several motions, which the
Court reviewed and construed as an attempt to have the defendant charged with federal
criminal violations. The Court denied those motions because this is a civil case and this
Court does not serve in a prosecutorial role. (Rec. Doc. 7, Order 5/4/20).
The defendant now moves to dismiss the complaint in its entirety.
II. Discussion
Governing Standards
In the context of a motion to dismiss the Court must accept all factual allegations
in the complaint as true and draw all reasonable inferences in the plaintiff=s favor.
Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citing Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); Scheuer v. Rhodes, 416 U.S. 232,
236 (1974); Lovick v. Ritemoney, Ltd., 378 F.3d 433, 437 (5th Cir. 2004)). However, the
foregoing tenet is inapplicable to legal conclusions. Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009). Thread-bare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice. Id. (citing Bell Atlantic Corp. v. Twombly,
550, U.S. 544, 555 (2007)).
2 In her opposition the plaintiff likewise declines to specifically identify the relief that she seeks in
this lawsuit instead couching the relief sought in broad, general terms such as truth and justice.
She does state expressly, however, that she is seeking injunctive relief. (Rec. Doc. 21,
Opposition at 2). The Court therefore assumes that the specific relief sought is coercive
injunctive relief to force Dr. Culotta to produce the Board’s investigative materials related to her
2005-2006 complaint against the Ochsner physicians that treated her son.
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The central issue in a Rule 12(b)(6) motion to dismiss is whether, in the light most
favorable to the plaintiff, the complaint states a valid claim for relief. Gentilello v. Rege,
627 F.3d 540, 544 (5th Cir. 2010) (quoting Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th
Cir. 2008)). To avoid dismissal, a plaintiff must plead sufficient facts to Astate a claim for
relief that is plausible on its face.@ Id. (quoting Iqbal, 129 S. Ct. at 1949). AA 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. The
Court does not accept as true Aconclusory allegations, unwarranted factual inferences,
or legal conclusions.@ Id. (quoting Plotkin v. IP Axess, Inc., 407 F.3d 690, 696 (5th Cir.
2005)). Legal conclusions must be supported by factual allegations. Id. (quoting Iqbal,
129 S. Ct. at 1950).
A motion filed pursuant to Rule 12(b)(1) raises the defense of lack of subject
matter jurisdiction. Fed. R. Civ Pro. 12(b)(1). The defense of state sovereign immunity
pursuant to the Eleventh Amendment is properly raised pursuant to Rule 12(b)(1). See
Warnock v. Pecos County, 88 F.3d 341, 343 (5th Cir. 1996). Except where waived, the
Eleventh Amendment to the United States Constitution bars suits in federal court by
citizens of a state against the state or its agencies. Voisin's Oyster House, Inc. v.
Guidry, 799 F.2d 183, 185 (5th Cir. 1986) (citing Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89 (1984)); U.S. Const. Amend. XI. Section 1983 does not
override or waive the Eleventh Amendment bar. Id. (citing Quern v. Jordan, 440 U.S.
332 (1979)). Moreover, the well-settled law is that the states are not “persons” under §
1983. See Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989).
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To state a § 1983 claim the plaintiff must allege a violation of a right secured by
the Constitution or laws of the United States and demonstrate that the alleged
deprivation was committed by a person acting under color of state law. James v. Tex.
Collin Cnty., 535 F.3d 365, 373 (5th Cir. 2008) (citing Moore v. Willis Indep. Sch. Dist.,
233 F.3d 871, 874 (5th Cir. 2000)). The plaintiff may bring claims against an official in his
personal or official capacities or both capacities for the same allegedly wrongful
conduct. The difference between personal and official capacity claims pertains to who
gets cast in judgment for any damages awarded, the legal standards that govern
liability, and whether certain immunity defenses are available.
Personal capacity suits seek to impose personal liability upon a governmental
official for actions that he takes under color of state law. Kentucky v. Graham, 473 U.S.
159, 165 (1985). An award of damages against an official in his personal capacity can
be executed only against the official’s personal assets. Id. To establish personal liability
in a § 1983 action it is enough to show that the official, acting under color of state law,
caused the deprivation of a federal right. Id. (citing Monroe v. Pape, 365 U.S. 167
(1961)).
To prevail in an official capacity action, however, it is not enough to show that a
governmental official, acting under color of state law, caused the deprivation of a federal
right because for a governmental entity to be liable under § 1983 for that violation the
entity itself must be a “moving force” behind the deprivation. Id. (citing Polk Cnty. v.
Dodson, 454 U.S. 312, 326 (1981)). Thus, in an official capacity suit the entity’s policy or
custom must have played a part in the violation of federal law—in other words execution
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of the entity’s official policy must have inflicted the right-depriving injury. Id. & n.12
(citing quoting Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). The
doctrine of respondeat superior plays no role in holding the government liable under §
1983.
Official capacity suits “generally represent only another way of pleading an action
against an entity of which the official is an agent.” Graham, 473 U.S. at 165 (quoting
Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). As long as the
government entity receives notice and an opportunity to respond, an official capacity suit
is, in all respects other than name, to be treated as a suit against the entity. Id. (citing
Brandon v. Holt, 469 U.S. 464, 471-72 (1985)). A plaintiff seeking to recover on a
damages judgment in an official capacity suit must look to the governmental entity itself.
Id.
Analysis
Ms. Fairley has always believed that the treating physicians at Ochsner murdered
her son in 2005, and that the Board as constituted in 2005-2006 conspired with Ochsner
by falsifying its investigation into the child’s death. On July 17, 2006, the Board notified
Ms. Fairley that her complaint against the Ochsner physicians had been fully
investigated but that the Board did not find that their actions violated the Louisiana
Medical Malpractice Act. (Rec. Docs. 1-8 & 1-9). In March 2019, Ms. Fairley requested
the investigative file pertaining to her son’s death; the impetus for the civil action sub
judice that Ms. Fairley filed earlier this year was the Board’s denial of her request. In his
capacity as Executive Director of the Board, Dr. Culotta signed the March 28, 2019
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letter that communicated the Board’s formal denial of the plaintiff’s request.3 (Rec .Doc.
1-5, Exhibit 3). Although Plaintiff concedes that the alleged conspiracy between
Ochsner and the Board predates Dr. Culotta’s tenure as Executive Director, (Rec. Doc.
1, Complaint ¶ 11), Plaintiff’s theory is that Dr. Culotta, being aware of what occurred in
2005 and 2006, has joined the conspiracy and that he has used his position as
Executive Director to fraudulently conceal evidence (the investigative file) in order to
intentionally deny her justice. (Id. ¶ C(2)). Plaintiff contends that by doing so Dr. Culotta
has interfered with her due process and equal protection rights and that he has done so
because she is black. (Id. ¶ 5).
Plaintiff’s official capacity and personal capacity claims fail for the same reason—
she does not allege facts sufficient to support a violation of a right secured by the
Constitution or laws of the United States.4 Federal law does not give Plaintiff the right to
3 The Court has no way of knowing whether Plaintiff pursued legal action under the Louisiana
public records law in state court in order to obtain the investigative records. Given that the
plaintiff objected (in her correspondence with the Board) to the Board’s characterization of her
request as a public records request, the Court doubts that Plaintiff pursued any remedies under
state law. Of course the success of an appeal in state court of the denial of the request would
have likely been unsuccessful. The Board’s denial letter to the plaintiff provides a detailed and
thorough explanation of why state law protects from production the records Plaintiff is seeking.
Plaintiff has not suggested that the Board’s denial of her request was not carried out in
compliance with state law.
4 The defendant has taken the position that the Eleventh Amendment bars the claims against
Dr. Culotta in his official capacity. Clearly, this would be true if Plaintiff was seeking damages.
But she seeks only injunctive relief under the auspices of Ex Parte Young, 209 U.S. 123 (1908).
Pursuant to the Ex Parte Young exception, the Eleventh Amendment is not a bar to suits for
prospective relief against a state employee acting in his official capacity. Nelson v. Unv. Of Tex.,
535 F.3d 318, 321 (5th Cir. 2008) (citing Stroman Realty, Inc. v. Wercinski, 513 F.3d 476, 482
(5th Cir. 2008)). The Court is persuaded that if refusing to produce the Board’s investigative file
to the plaintiff was and is a violation of federal law, which it was not and is not, then a coercive
injunction against Dr. Culotta in his official capacity ordering him to produce the file would fall
under the Ex Parte Young exception. Thus, the problem with the official capacity claims lies not
with the Eleventh Amendment but rather with the same deficit that plagues the personal
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have the Board’s investigative file. Although her desire to obtain the file is certainly
understandable, state law confers no protectable property interest in the file so as to
support a federal due process claim. And as for an equal protection violation, Plaintiff
fails to allege how she was intentionally treated differently from other similarly situated
citizens who requested confidential investigatory files.
In short, the complaint fails to state any claim upon which relief can be granted as
to Dr. Culotta.®
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 20) filed by the
defendant, Vincent A. Culotta, Jr. is GRANTED. The complaint filed by Yori Henry
Fairley is DISMISSED WITH PREJUDICE.
October 8, 2020 C )
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ED SVATESDISTRICT JUDGE
capacity claims: Dr. Culotta’s action on behalf of the Board did not violate any federal right.
5 The complaint references numerous federal criminal statutes, as well as 42 U.S.C. § 1985(3)
and 42 U.S.C. § 1986. These claims are legally frivolous insofar as Dr. Culotta is concerned
because the sole allegedly wrongful act that he engaged in was signing a letter in his capacity
as executive director informing the plaintiff of the Board’s denial of her document request. Most
of the facts alleged in the complaint pertain to what occurred in 2005 and 2006 and none of
those facts involved Dr. Culotta, whose sole act occurred in 2019. The accusation that in 2019
Dr. Culotta conspired with the actors involved in the 2005 and 2006 events is facially implausible
in light of the lack of factual support for this assertion.
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