The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GREGORY DUHON, M.D. CIVIL ACTION
VERSUS NO: 20-2022
THE BOARD OF SUPERVISORS SECTION “H”
OF LOUISIANA STATE UNIVERSITY
& AGRICULTURAL & MECHANICAL
COLLEGE, ET AL.
ORDER AND REASONS
Before the Court is Defendants Louisiana State Board of Medical
Examiners (“LSBME”) and Lawrence Cresswell, D.O.’s (“Dr. Cresswell”)
Motion to Dismiss (Doc. 72). The Court heard oral argument on this Motion on
February 18, 2021 and took the matter under advisement. For the following
reasons, the Motion is GRANTED.
BACKGROUND
Plaintiff Gregory Duhon, M.D. (“Duhon”), brings this action against
multiple defendants for damages and injunctive relief arising from his
suspension and termination from the cardiology fellowship program at
Louisiana State University (“LSU”) and the subsequent loss of his Louisiana
medical license. Below are the facts relevant only to the instant Motion.
Plaintiff was enrolled in the 2018–2019 cardiology fellowship program at
Louisiana State University. On May 23, 2019, Plaintiff was advised by its
Program Director, Neeraj Jain, M.D., that he was being suspended effective
immediately on suspicion of being mentally impaired and that he must obtain
a fit-for-duty clearance from LSU’s Campus Assistance Program (“CAP”). After
conducting an occupationally mandated psychological evaluation (“OMPE”),
CAP directed Plaintiff to register with the Health Care Professionals
Foundation of Louisiana (“HPFLA”), a “private not-for-profit corporation that
offers assistance to health care professionals who may be suffering from mental
health issues” by referring the professionals for evaluations and monitoring
their treatment plans where appropriate.1 Plaintiff registered with HPFLA as
instructed, and HPFLA, in turn, directed Plaintiff to submit to a three-day
comprehensive psychological exam at one of three HPFLA-approved facilities.
Plaintiff chose to undergo the required evaluation at Professional
Renewal Center (“PRC”) in Lawrence, Kansas, which ultimately concluded
that Plaintiff required 60–90 days of inpatient treatment. To counter PRC’s
findings, Plaintiff obtained evaluations from two independent psychiatrists
who found that the PRC report was flawed and that Plaintiff was indeed fit for
duty. When Plaintiff refused to comply with PRC’s recommendation, HPFLA
reported Plaintiff to the LSBME as noncompliant and otherwise impaired in
his ability to practice medicine.
On October 4, 2019, Plaintiff received a notice from the LSBME
informing him that his license was under investigation and directing him to
cooperate with HPFLA and PRC’s recommendations. According to Plaintiff,
the LSBME threatened on multiple occasions to suspend his license on an
1 Doc. 70-1 at 3.
emergency basis if he failed to enroll in a costly inpatient treatment program.
Plaintiff, through his attorneys, petitioned HPFLA and the LSBME to allow
him to forego the additional inpatient treatment but to no avail. Plaintiff
ultimately allowed his license to lapse in July of 2020.
In this action, Plaintiff brings claims against a long list of defendants—
including LSU, the LSBME, and the organizations and providers to which and
to whom he was referred—for violations of procedural and substantive due
process, § 504 of the Rehabilitation Act,2 and Title II of the Americans with
Disabilities Act.3 Plaintiff also brings state tort claims for intentional infliction
of emotional distress and defamation under Louisiana Civil Code article 2315.
Plaintiff contends that, at each step of the way, he was discriminated against
“on the basis of a perceived disability and denied any notice or hearing on the
actions taken against him and their supposed justification.”4 Specifically,
Plaintiff alleges that the named defendants perceived him as having substance
abuse disorder.5 Plaintiff contends that the alleged discrimination cost him his
fellowship position, his chance to transfer or become board-certified in
cardiology, his reputation, the good standing of his Louisiana physicians
license, and more than $50,000 in unnecessary treatment.
Now before the Court is a Motion to Dismiss filed by the LSBME and its
Director of Investigations, Dr. Cresswell (collectively, “Defendants”), wherein
they ask the Court to dismiss Plaintiff’s claims against them under Federal
Rule of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff opposes.
2 29 U.S.C. § 794.
3 42 U.S.C. § 12131, et seq.
4 Doc. 89 at 2.
5 Plaintiff alleges that he received treatment for substance abuse disorder in 2011 and
has since been in remission.
LEGAL STANDARD
I. Rule 12(b)(1) Motion to Dismiss
A Rule 12(b)(1) motion challenges the subject matter jurisdiction of a
federal district court. “A case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or constitutional power to
adjudicate the case.”6 In ruling on a Rule 12(b)(1) motion to dismiss, the court
may rely on (1) the complaint alone, presuming the allegations to be true,
(2) the complaint supplemented by undisputed facts, or (3) the complaint
supplemented by undisputed facts and by the court’s resolution of disputed
facts.7 The proponent of federal court jurisdiction—in this case, the Plaintiff—
bears the burden of establishing subject matter jurisdiction.8
II. Rule 12(b)(6) Motion to Dismiss
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts “to state a claim for relief that is plausible on its face.”9 A claim is
“plausible on its face” when the pleaded facts allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”10
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.”11 The court need not,
however, accept as true Plaintiff’s legal conclusions couched as factual
allegations.12 To be legally sufficient, a complaint must establish more than a
6 Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
1998).
7 Den Norske Stats Oljesels kap As v. Heere MacVof, 241 F.3d 420, 424 (5th Cir. 2001).
8 See Physicians Hosps. of Am. v. Sebelius, 691 F.3d 649, 652 (5th Cir. 2012).
9 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 547 (2007)).
10 Id.
11 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
12 Iqbal, 556 U.S. at 678.
“sheer possibility” that the plaintiff’s claims are true.13 If it is apparent from
the face of the complaint that an insurmountable bar to relief exists and the
plaintiff is not entitled to relief, the court must dismiss the claim.14 The court’s
review is limited to the complaint and any documents attached to the motion
to dismiss that are central to the claim and referenced by the complaint.15
LAW AND ANALYSIS
Defendants LSBME and Dr. Cresswell ask that this Court dismiss
Plaintiff’s claims against them. As to the LSBME, Plaintiff brings claims
against it for substantive and procedural due process violations under the
Fourteenth Amendment. As to Dr. Cresswell, Plaintiff brings claims against
him for: (1) violations of procedural and substantive due process under § 1983
in his individual and official capacities; (2) discrimination under Title II of the
Americans with Disabilities Act in his individual and official capacities; (3)
intentional infliction of emotional distress; and (4) defamation. The Court will
address the sufficiency of each of these claims in turn.
I. Claims Brought Directly Under the Fourteenth Amendment
Counts One and Two of Plaintiff’s Amended Complaint assert claims
against LSU and the LSBME directly under the Due Process Clause of the
Fourteenth Amendment, alleging violations of procedural and substantive due
process. At oral argument, however, counsel for Plaintiff asked that these
claims be voluntarily dismissed. Accordingly, these claims against the LSBME
are hereby dismissed with prejudice.
13 Id.
14 Lormand, 565 F.3d at 255–57.
15 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
II. Claims Against Dr. Cresswell Individually
Having thoroughly reviewed the allegations in Plaintiff’s Amended
Complaint, the Court does not find that Plaintiff has stated a claim against
Dr. Cresswell in his individual capacity under § 1983 or against him personally
for defamation or intentional infliction of emotional distress. Plaintiff’s sole
factual allegation pertaining to Dr. Cresswell states:
Cresswell falsely stated that he could not conclude Plaintiff was
fit-for-duty, attempted to conceal Plaintiff’s coerced activities as
“voluntary,” knowingly disregarded Plaintiff’s legitimate fit-for-
duty reports, knowingly accepted and endorsed the false and
fraudulent PRC report, and in other respects did not comply with
applicable legal or professional standards.16
Plaintiff’s Amended Complaint, however, is devoid of any facts that would
support these conclusory statements. Indeed, Plaintiff does not allege that he
had any interaction with Dr. Cresswell or that Dr. Cresswell was the
individual taking actions on behalf of the LSBME. Thus, as Plaintiff has failed
to allege any facts that could possibly support a claim against Dr. Cresswell,
all of Plaintiff’s individual capacity claims against him are hereby dismissed.
III. Official Capacity Claims against Cresswell
Plaintiff’s only remaining claims against Defendants are those brought
against Dr. Cresswell in his official capacity for violations of his substantive
and procedural due process rights and Title II of the ADA pursuant to § 1983.
In their Motion to Dismiss, Defendants argue that these claims should be
dismissed because: (1) Plaintiff’s official capacity claims against Dr. Cresswell
are barred by sovereign immunity; (2) Younger abstention precludes further
litigation of Plaintiff’s claims; and, alternatively, (3) Plaintiff has failed to state
a claim against Dr. Cresswell under Federal Rule of Civil Procedure 12(b)(6).
16 Doc. 55 at 22.
A. Official Capacity Claims and Sovereign Immunity
Defendants first argue that Plaintiff’s official capacity claims are barred
by the Eleventh Amendment’s grant of sovereign immunity. “The Eleventh
Amendment generally precludes actions against state officers in their official
capacities.”17 The Ex parte Young doctrine, however, allows a plaintiff to sue a
state officer in his official capacity for prospective injunctive or declaratory
relief.18 At oral argument, counsel for Plaintiff clarified that, as to the asserted
official capacity claims, Plaintiff seeks only the prospective injunctive relief
permissible under the Ex parte Young exception. Accordingly, as Plaintiff does
not seek monetary damages in connection with his official capacity claims, the
Court finds that Plaintiff’s pleaded claims against Dr. Cresswell are
permissible under Ex parte Young.
B. Younger Abstention
In Younger v. Harris, the Supreme Court articulated a doctrine
of abstention when the exercise of federal jurisdiction would interfere with
ongoing state criminal proceedings.19 The Supreme Court has since expanded
Younger to include “civil enforcement proceedings” and “civil proceedings
involving certain orders that are uniquely in furtherance of the state courts’
ability to perform their judicial function.”20 Younger abstention applies only if:
(1) the exercise of federal jurisdiction will interfere with an ongoing state
judicial proceeding; (2) the state proceeding implicates important state
interests; and (3) the state proceeding affords an adequate opportunity to raise
17 Cantu Servs., Inc. v. Roberie, 535 Fed. Appx. 342, 344 (5th Cir. 2013) (internal
quotations omitted).
18 See Fontenot v. McCraw, 777 F.3d 741, 752 (5th Cir. 2015).
19 401 U.S. 37 (1971).
20 Id. at 73.
constitutional challenges.21 Defendants argue that the LSBME’s investigation
into Plaintiff satisfies all three Younger criteria and that abstention is thus
appropriate.
The Court agrees with Defendants that the LSBME’s investigation into
Plaintiff constituted a state proceeding subject to Younger. Indeed, the Fifth
Circuit in Thomas v. Texas State Bd. of Med. Examiners noted that, “[a]lthough
the proceeding for revocation of a doctor’s license is civil, it is coercive and the
state, through its Board of Medical Examiners, possesses a great interest in
the outcome of the litigation, for it seeks to assure the competency of physicians
who practice in its borders.”22 The Court also finds that, had Plaintiff
proceeded with the LSBME process, he would have had an opportunity to raise
his constitutional challenges through judicial review of the LSBME’s final
decision.23 At issue, however, is whether the LSBME’s investigation into
Plaintiff’s fitness is sufficiently “ongoing” so as to warrant abstention.24 The
Court finds that it is not.
Plaintiff alleges that the LSBME began investigating him on October 4,
2019 and instructed him to comply with the recommendations of HPFLA and
PRC to avoid immediate suspension. Instead of complying with LSBME’s
instruction, Plaintiff allowed his licenses to lapse in July of 2020. Although
Plaintiff does not allege that the LSBME reached a final decision, this Court
has no allegations or evidence upon which to conclude that the investigation
21 Perez v. Texas Med. Bd., 556 F. App’x 341, 342 (5th Cir. 2014).
22 Thomas v. Texas State Bd. of Med. Examiners, 807 F.2d 453, 455 (5th Cir. 1987).
23 Afzal v. Mouton, No. CIV.A. 14-2786, 2015 WL 2169529, at *4 (E.D. La. May 8, 2015)
(“[P]ursuant to LSA–R.S. 49:964, a physician who has been disciplined by the LSBME has
the right to seek judicial review of that decision[.]”).
24 See Ford v. Louisiana State Bd. of Med. Examiners, No. CV 18-4149, 2018 WL
5016220, at *5 (E.D. La. Oct. 16, 2018) (“Initially, the investigations conducted by the Board
constituted state administrative proceedings or “civil enforcement proceedings;” however,
currently Dr. Ford does not have any pending proceedings conducted by the Board.).
remains pending. Indeed, Plaintiff alleges that he allowed his license to lapse
intentionally to avoid compliance with the LSBME investigation.
Without evidence of an ongoing proceeding, this Court does not find that
continued litigation of Plaintiff’s claims in this matter implicates the equity,
comity, and federalism concerns of Younger.25 There will be no duplicative
proceedings, and Plaintiff no longer has an alternate forum wherein to raise
his constitutional concerns. At oral argument, counsel for Defendants argued
that Plaintiff’s ability to bring suit in federal court after allowing his license to
lapse and “opting out” of the state administrative process raises “floodgate”
concerns and runs counter to Younger. The Fifth Circuit, however, addressed
this issue in Thomas, explaining:
Thomas did invoke state judicial relief, but he dismissed that suit
before filing this federal action. A litigant who initiates state court
review of a state administrative decision and then changes his
mind and voluntarily dismisses the suit is not irrevocably bound
either to continue his action in state court or to forfeit his right to
vindicate his constitutional rights in a federal court. When no state
proceedings are pending, a federal action does not interfere with
or insult state processes and “the policies on which
the Younger doctrine is premised ‘have little force. . . . ’”26
Although the state proceeding at issue in Thomas was a state court’s judicial
review of a final administrative decision, this Court finds the reasoning of
Thomas applicable here. Where the state administrative suit is no longer
25 See generally, Sprint, 571 U.S. at 77. The Younger court reasoned that “[a]bstention
was in order . . . under the ‘basic doctrine of equity jurisprudence that courts of equity should
not act . . . to restrain a criminal prosecution, when the moving party has an adequate remedy
at law and will not suffer irreparabl[e] injury if denied equitable relief.’” Id. (quoting Younger,
401 U.S. at 43–44). The Court further explained that abstention would “prevent erosion of
the role of the jury and avoid a duplication of legal proceedings and legal sanctions where a
single suit would be adequate to protect the rights asserted.” Younger, 401 U.S. at 44.
26 Thomas, 807 F.2d at 454.
pending, Younger abstention is no longer appropriate. The Court thus declines
Defendants’ request to abstain.
C. Defendants’ Motion to Dismiss for Failure to State a Claim
1. Due Process Claims
Plaintiff alleges that he was deprived of his constitutional right to
procedural and substantive due process under the Fourteenth Amendment.
The Due Process Clause of the Fourteenth Amendment declares that no state
shall “deprive any person of life, liberty, or property, without due process of
law.”27
“In procedural due process claims, the deprivation by state action of a
constitutionally protected interest in ‘life, liberty, or property’ is not in itself
unconstitutional; what is unconstitutional is the deprivation of such an
interest without due process of law.”28 “To prevail on a [procedural] due process
claim, plaintiffs must [therefore] show that: (1) they possess a property interest
that is protected by the due process clause, and (2) [the defendant’s] procedures
are constitutionally inadequate.”29
Substantive due process, on the other hand “ensures that, regardless of
the fairness of the procedures used, the government does not use its power for
oppressive purposes.”30 Thus, “substantive due process requires only that
public officials exercise professional judgment, in a nonarbitrary and
noncapricious manner, when depriving an individual of a protected property
interest.”31
27 U.S. Const. amend. XIV.
28 Zinermon v. Burch, 494 U.S. 113, 125 (1990) (emphasis in original).
29 Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 734 (5th Cir. 2008).
30 Patterson v. Def. POW/MIA Acct. Agency, 343 F. Supp. 3d 637, 646 (W.D. Tex. 2018)
(citing Daniels v. Williams, 474 U.S. 327, 331 (1986)).
31 Lewis v. Univ. of Texas Med. Branch at Galveston, 665 F.3d 625, 631 (5th Cir. 2011)
(citing Texas v. Walker, 142 F.3d 813, 819 (5th Cir. 1998)).
Plaintiff contends that Defendants deprived of him of his protectable
property or liberty interest in: (1) continuing his training in the LSU cardiology
fellowship program; (2) not being subjected to unjustified and coerced
psychological examinations; (3) his Louisiana physician’s license and its good
standing; and (4) his professional reputation. In their Motion to Dismiss,
Defendants now argue that Plaintiff’s due process claims must fail because he
has not sufficiently alleged that the LSBME’s actions deprived him of any of
these alleged interests.
In the section of Plaintiff’s Amended Complaint wherein he asserts his
due process claims, Plaintiff states that the LSBME deprived him of his right
to be free from unjustified and coerced psychological examinations by:
coercing him to submit to the OMPEs by Whitfield, and later PRC,
. . . . [without] giv[ing] any reasonable notice of why the OMPEs
were necessary; nor any opportunity to review or contest the
supposed basis for such demands by LSU and LSBME; nor present
his own fit-for-duty reports and other evidence.32
As to Plaintiff’s alleged interest in his license and his professional reputation,
Plaintiff alleges that the LSBME deprived him of these interests by failing “to
give any reasonable notice of why the false accusations against him persisted,
nor any reasonable hearing by which he could clear himself through his
rebuttal fit-for-duty reports and other evidence.”33
The Court finds these allegations insufficient to support Plaintiff’s
procedural due process claims. First, the statements quoted above are wholly
inconsistent with Plaintiff’s Statement of Facts wherein he alleges that he had
no contact with the LSBME until after his time at PRC. The LSBME, therefore,
could not have coerced him into evaluations with Whitfield or PRC.
32 Doc. 55 at 20.
33 Id. at 21.
Additionally, the allegations that LSBME failed to give Plaintiff reasonable
notice and hearing are too vague and conclusory to support his claim. This is
particularly true as Plaintiff allowed his license to lapse before the LSBME
deprived of him of his license. Although due process requires “an opportunity
for a hearing before . . . [the deprivation] of any significant property interest,”34
Plaintiff’s allegations do not clearly state what pre-deprivation process he was
owed. Further, it is unclear from Plaintiff’s allegations as to whether he would
have been afforded sufficient process had he not allowed his license to lapse.
For these reasons, Plaintiff’s procedural due process claims are dismissed.
The Court also finds that Plaintiff has failed to sufficiently allege claims
for violations of his substantive due process rights. Plaintiff has not alleged
any facts that would allow this Court to conclude that the LSBME’s actions
were arbitrary and capricious. Plaintiffs substantive due process claims are
accordingly dismissed.
2. Title II of the ADA
Plaintiff brings suit against Dr. Cresswell in his official capacity under
Title II of the ADA, which provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.”35 To state a claim
under Title II, a plaintiff must allege: “(1) that he has a qualifying disability;
(2) that he is being denied the benefits of services, programs, or activities for
which the public entity is responsible, or is otherwise discriminated against by
34 Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542 (1985) (internal
quotation marks omitted).
35 42 U.S.C. § 12132.
the public entity; and (3) that such discrimination is by reason of his
disability.”36
As discussed in this Court’s previous Orders and Reasons in this matter,
Plaintiff alleges that the various defendants in this matter regarded him as
having substance abuse disorder and discriminated against him on that basis.
Plaintiff, however, has not alleged any facts evincing that the LSBME took any
discriminatory actions against him. Rather, the only relevant allegation is
found in Plaintiff’s Opposition, where he argues that the LSBME
discriminated against him when it “initat[ed] an enforcement action against
[him] based on the unjustified accusations of the other defendants that he had
a substance abuse problem and/or mental health problem, despite 2
contradictory fitness for duty evaluations conducted by reputable
psychiatrists.”37 Contrary to this assertion, however, Plaintiff alleges in his
Complaint that the LSBME relied, in part, upon PRC’s report in initiating the
investigation against him and that PRC report concluded that Plaintiff did not
have a current substance abuse problem.38 Further, even if this Court were to
accept Plaintiff’s conclusory and unsupported allegations as true, the Court
does not find that the LSBME was discriminatory or otherwise unreasonable
in opening an investigation after receiving HPFLA’s report of Plaintiff’s alleged
substance abuse problem. For these reasons, Plaintiff’s Title II claim is hereby
dismissed.
CONCLUSION
For the foregoing reasons, the Motion is GRANTED.
36 Hale v. King, 642 F.3d 492, 498 (5th Cir. 2011).
37 Doc. 89 at 32.
38 See Doc. 55 at 12.
IT IS ORDERED that Plaintiffs claims against the LSBME are
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiffs claims against Dr.
Cresswell in his individual capacity for violations of due process and Title II of
the ADA, intentional infliction of emotional distress, and defamation are
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiffs claims against Dr.
Cresswell in his official capacity for violations of Plaintiffs substantive due
process rights and Title II of the ADA are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff's claim against Dr.
Cresswell in his in official capacity for violations of Plaintiffs right to
procedural due process is DISMISSED WITHOUT PREJUDICE. Plaintiff
has 15 days from the date of this Order to amend his Complaint to remedy the
deficiencies in his procedural due process claim.
New Orleans, Louisiana this 20th day of August, 2021.
UNITED STATES DISTRICT JUDGE
14