# Payton v. Touro Infirmary Hospital

> District Court, E.D. Louisiana · January 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10186288

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** January 28, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

GAYL THERESE PAYTON, CIVIL ACTION
Plaintiff

VERSUS NO. 20-2659

TOURO INFIRMARY HOSPITAL, ET AL., SECTION: “E”
Defendants

ORDER AND REASONS

Before the Court are two motions to dismiss Plaintiff’s complaint with prejudice as
frivolous filed by Defendant Douglas N. Lurie1 and Defendants Touro Infirmary Hospital
and Touro at Home2 pursuant to 28 U.S.C. § 1915(e). Plaintiff opposed Defendants’
motions.3 For the following reasons, Defendants’ motions are GRANTED.
BACKGROUND
In her complaint, Plaintiff Gayl Therese Payton asserts the basis for this Court’s
jurisdiction is federal question under 28 U.S.C. § 1331, but describes her action as based
on medical “malpractice.”4 Plaintiff alleges Defendants were negligent in treating her
knee on May 25, 2015 and failing to diagnose an infection following her knee replacement
procedure.5 Plaintiff does not identify any federal statute, treaty, or provision of the
United States Constitution on which her action is based.6 On December 9, 2020, Plaintiff
filed an amended complaint containing the same basis of jurisdiction.7

1 R. Doc. 7.
2 R. Doc. 13.
3 R. Doc. 12, 17.
4 Id. at 3.
5 R. Doc. 7-1 at 1-2.
6 Id.
7 R. Doc. 11.
Plaintiff has filed multiple actions in federal court asserting a medical malpractice
claim against the Defendants.8,9 On June 11, 2019, Plaintiff, pro se, filed her first
complaint in federal court,10 which this Court dismissed without prejudice for lack of
subject matter jurisdiction.11 On November 12, 2019, Plaintiff, pro se, filed her second
complaint in federal court under inapplicable state law and statute.12 On March 12, 2020,

Plaintiff amended this second complaint13 in response to Defendants’ motion to dismiss.
The Court dismissed Plaintiff’s claims without prejudice on May 19, 2020.14 On June 4,
2020, Plaintiff filed her third complaint in federal court.15 On August 5, 2020, Plaintiff
amended her third complaint.16 This Court dismissed the complaint without prejudice on
August 5, 2020.17 On September 28, 2020, Plaintiff filed the complaint in the instant
action.18 On December 9, 2020, Plaintiff filed an amended complaint.19 Defendants
moved to dismiss Plaintiff’s fourth complaint based on the same facts as frivolous.20
LAW AND ANALYSIS
“Federal courts are courts of limited jurisdiction; without jurisdiction conferred by
statute, they lack the power to adjudicate claims.”21 Under 28 U.S.C. § 1331, federal

8 R. Doc. 7-1 at 1-2.
9 Prior to filing a complaint in federal court, Plaintiff and her then counsel brought Plaintiff’s malpractice
allegations against Defendants before a medical review panel, as required by the Louisiana Medical
Malpractice Act. See La. R. S. 40:1231.8. The medical review board unanimously found there was no breach
of the standard of care by the Defendants. Gayle Therese Payton v. Touro Infirmary Hospital, et al., E.D.
La., No. 2:20-cv-1618, R. Doc. 7-2.
10 Gayle Therese Payton v. Touro Infirmary Hospital, et al., E. D. La., No. 2:19-cv-11147, R. Doc. 1.
11 Id. at R. Doc. 20, 21.
12 Gayle Therese Payton v. Touro Infirmary Hospital, et al., E.D. La., No. 2:19-cv-13602, R. Doc. 1.
13 Id. at R. Doc. 18
14 Id. at R. Doc. 25.
15 Gayle Therese Payton v. Touro Infirmary Hospital, et al., E.D. La., No. 2:20-cv-1618, R. Doc. 1.
16 Id. at 24.
17 Id. at .25.
18 R. Doc. 1.
19 R. Doc. 11.
20 R. Doc. 7, 13.
21 In re FEMA Trailer Formaldehyde Prods. Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 286 (5th Cir.
2012).
district courts “have original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States.” Section 1331 does not apply, however, in cases in
which the federal question “clearly appears to be immaterial and made solely for the
purpose of obtaining jurisdiction” or “is wholly insubstantial and frivolous.”22 The party
asserting jurisdiction bears the burden of establishing the district court possesses subject-

matter jurisdiction.23
Defendants argue Plaintiff’s complaint should be dismissed with prejudice as
frivolous because she has failed to even attempt to identify any federal question as a basis
for jurisdiction.24 Defendants note the Fifth Circuit, considering the distinct features of in
forma pauperis proceedings en banc, held “dismissals as frivolous or malicious should be
deemed to be dismissed with prejudice unless the district court specifically dismisses
without prejudice.”25 The Court has previously recognized Plaintiff’s attempts to assert
federal jurisdiction were frivolous.26 Defendants argue dismissal with prejudice is
necessary, as Plaintiff has been undeterred by the Court’s prior dismissals.27 Plaintiff
argues she did not submit her claim in bad faith, and has not intended to harass, delay,
or embarrass the Defendants.28 The fact indicate otherwise.

Defendants also point out that, under Louisiana law, Plaintiff’s medical
malpractice action is subject to a prescriptive period of one year from the date of the

22 Bell v. Hood, 327 U.S. 678, 682 (1946); see also Hagans v. Lavine, 415 U.S. 528, 536–37 (1974) (“Over
the years this Court has repeatedly held that the federal courts are without power to entertain claims
otherwise within their jurisdiction if they are ‘so attenuated and unsubstantial as to be absolutely devoid of
merit.’”).
23 Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
24 R. Doc. 7-1 at 4.
25 Marts v. Hines, 117 F.3d 1504, 1506 (5th Cir. 1997).
26 Gayl Therese Payton v. Touro Infirmary Hospital et al., E.D. La., No. 2:20-cv-1618, R. Doc. 25 (E.D. La.
Aug. 5, 2020).
27 R. Doc. 7-1 at 4.
28 R. Doc. 17-1.
alleged malpractice, unless delayed discovery is alleged.29 According to Plaintiff’s
allegations, the alleged malpractice occurred between May 20, 2015 and May 29, 2015.30
Plaintiff did not allege delayed discovery.31 Plaintiff requested a review by the medical
panel on May 17, 2016, and received the review panel’s opinion on March 18, 2019.32
Defendants argue Plaintiff had until June 29, 2019 to file suit in a court of competent

jurisdiction or serve Dr. Lurie with process.33 Plaintiff filed her first complaint in the
Eastern District of Louisiana on June 11, 2019, but failed to file in a court of competent
jurisdiction.34 Dr. Lurie was not served with the complaint until July 2, 2019, after the
prescription on Plaintiff’s claim had already run.35 Defendants argue because Plaintiff’s
claim is time-barred by the applicable prescriptive period under Louisiana law, a
dismissal with prejudice is appropriate.36 Plaintiff does not provide an argument that the
complaint has been filed within the applicable prescriptive period.37
Plaintiff has failed to establish the Court has subject-matter jurisdiction over this
case. In her complaint and amended complaint, Plaintiff fails to identify any federal
question at issue in the case.38 Plaintiff claims the Court may exercise federal question
jurisdiction over this case by citing the legal concepts of medical malpractice and

negligence.39 Because neither legal concept is a federal statue, treaty, or part of the United

29 La. R. S. 9:5628.
30 R. Doc. 1 at 4-5.
31 Id.
32 R. Doc. 7-3.
33 R. Doc. 7-1 at 6.
34 Gayle Therese Payton v. Touro Infirmary Hospital, et al., E. D. La., No. 2:19-cv-11147, R. Doc. 20, 21.
35 Id. at 13.
36 See McClintock v. School Board of East Feliciana Parish, 299 Fed. Appx. 363, 366 (5th Cir. 2008) (the
Fifth Circuit affirmed the district court’s dismissal with prejudice because procedural defects could not be
cured).
37 R. Doc. 12, 17.
38 See R. Doc. 1, 11.
39 R. Doc. 1 at 3.
States Constitution, Plaintiff's references to medical malpractice and negligence “clearly
appear[] to be immaterial and made solely for the purpose of obtaining jurisdiction,” and
“Lare] wholly insubstantial and frivolous.”4° In conclusion, the allegations of Plaintiff's
complaint are frivolous, include procedural defects that cannot be cured, and do not
establish the Court has federal question jurisdiction over this case.
CONCLUSION
Accordingly, Plaintiffs claims against Defendants Douglas N. Lurie, Touro At
Home, and Touro Infirmary Hospital are DISMISSED WITH PREJUDICE.

Clerk to Notify via Mail:
Gayl] Therese Payton
8801 Lake Forest Blvd. Apt. 17502
New Orleans, Louisiana 70128

Clerk to Notify via E-mail:
Gayl] Therese Payton
gaylpayton@mac.com

New Orleans, Louisiana, this 28th day of January, 2021.

SUSIE vioRghn
UNITED STATES DISTRICT JUDGE

4° Bell, 327 U.S. at 682 (internal quotations removed).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10186288. Public record. Not legal advice.