Duhon v. Board of Supervisors for Louisiana State University and Agricultural and Mechanical College

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 the Motion to Dismiss Plaintiff’s Amended Complaint

Under Rules 12(b)(1) and 12(b)(6) field by Defendants Neeraj Jain, M.D.,

Margaret Bishop-Baier, M.D., and the Board of Supervisors of Louisiana State

University and Agricultural and Mechanical College (Doc. 77). The Court

heard oral argument on this Motion on February 17, 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

LSU. On May 23, 2019, Plaintiff was advised by his Program Director, Neeraj

Jain, M.D. (“Dr. Jain”), 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”). Plaintiff alleges

that this action violated the terms of his contract with LSU as the contract only

allowed the Program Director to summarily suspend a fellow without prior

notice “whenever it is in good faith determined that the continued appointment

of [Plaintiff] places the safety or health of patients or University personnel in

jeopardy or to prevent imminent disruption of University Operations.”1 The

contract also provided that, in the event of a suspension, LSU would provide

Plaintiff with written reasons for the action taken and that Plaintiff would

have five days to respond in writing. Plaintiff contends that Dr. Jain’s actions

were not in good faith so as to warrant his immediate suspension and that

neither Dr. Jain nor LSU ever provided him with written reasons.

As part of Plaintiff’s initial evaluation by CAP, Plaintiff was required to

submit to drug-testing and undergo a mental health evaluation. Scott Embley,

the Assistant Director of CAP, was assigned to oversee Plaintiff’s treatment.

Embley, however, had also previously served as Plaintiff’s therapist in several

counseling sessions, wherein Plaintiff divulged that he was treated for

substance abuse disorder in 2011. Plaintiff alleges that, despite Plaintiff’s

negative drug screening and the lack of evidence of relapse, Embley “merged

his sources of data and became fixated on the idea that [he] had relapsed but

was concealing it.”2 Plaintiff contends that it was the Medical Director of CAP,

1 Doc. 55 at 6.

2 Id. at 7.

Dr. Margaret Bishop-Baier, M.D. (“Dr. Bishop-Baier”), who improperly allowed

Embley to serve in this “disciplinary role.”

CAP thereafter instructed Plaintiff to submit to an occupationally

mandated psychological evaluation (“OMPE”) with Dr. Erik Whitfield (“Dr.

Whitfield”), who was ultimately “unable to decide” whether Plaintiff was fit-

for-duty. Plaintiff contends that the scope of Dr. Whitfield’s report was

“boundless,” even though professional standards required him to remain

narrowly focused on the “referral questions” and Plaintiff’s “essential job

functions.” Nevertheless, “CAP and Dr. Bishop-Baier” relied upon Dr.

Whitfield’s report and required that he register with 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.3 After registering with HPFLA,

Plaintiff was instructed to seek inpatient evaluation and treatment, which

Plaintiff did at Professional Renewal Center (“PRC”) in Lawrence, Kansas. By

the time of this inpatient stay, however, Plaintiff was allegedly “forced to

resign from his fellowship position at LSU in order to evade that coercive

force.”4

Following Plaintiff’s time at PRC, HPFLA required that Plaintiff seek

additional, costly inpatient treatment. As further detailed in this Court’s

previous Orders and Reasons, Plaintiff refused to comply with HPFLA’s

directives and HPFLA eventually reported Plaintiff as noncompliant with the

Louisiana State Board of Medical Examiners (“LSBME”). Plaintiff ultimately

allowed his Louisiana medical license to lapse.

3 Doc. 70-1 at 3.

4 Doc. 55 at 9.

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,5 and Title II of the Americans with

Disabilities Act.6 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.”7 Specifically,

Plaintiff alleges that the named defendants perceived him as having substance

abuse disorder.8 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 Defendants Board

of Supervisors of Louisiana State University and Agricultural and Mechanical

College (hereinafter “LSU”), Dr. Jain, and Dr. Bishop-Baier (collectively,

“Defendants”), wherein they ask the Court to dismiss all of Plaintiff’s claims

against them. Plaintiff opposes.

5 29 U.S.C. § 794.

6 42 U.S.C. § 12131, et seq.

7 Doc. 89 at 2.

8 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.”9 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.10 The proponent of federal court jurisdiction—in this case, the Plaintiff—

bears the burden of establishing subject matter jurisdiction.11

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.”12 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.”13

A court must accept the complaint’s factual allegations as true and must “draw

all reasonable inferences in the plaintiff’s favor.”14 The court need not,

however, accept as true legal conclusions couched as factual allegations.15 To

be legally sufficient, a complaint must establish more than a “sheer possibility”

9 Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.

1998).

10 Den Norske Stats Oljesels kap As v. Heere MacVof, 241 F.3d 420, 424 (5th Cir.

2001).

11 See Physicians Hosps. of Am. v. Sebelius, 691 F.3d 649, 652 (5th Cir. 2012).

12 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 547 (2007)).

13 Id.

14 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).

15 Iqbal, 556 U.S. at 678.

that the plaintiff’s claims are true.16 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.17 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.18

LAW AND ANALYSIS

In their Motion to Dismiss, Defendants LSU, Dr. Jain, and Dr. Bishop-

Baier ask that this Court dismiss Plaintiff’s claims against them. Specifically,

LSU asks that the Court dismiss Plaintiff’s claims against it for substantive

and procedural due process violations under the Fourteenth Amendment and

for violation of § 504 of the Rehabilitation Act. Dr. Jain and Dr. Bishop-Baier

(collectively, “the Individual Defendants”) also ask that the Court dismiss

Plaintiff’s claims against them for violations of procedural and substantive due

process under 28 U.S.C. § 1983, disability discrimination under Title II of the

Americans with Disabilities Act, intentional infliction of emotional distress,

and defamation. The Court will discuss the sufficiency of each claim 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 are hereby

dismissed with prejudice.

16 Id.

17 Lormand, 565 F.3d at 255–57.

18 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).

II. Deprivation of Substantive and Procedural Due Process Under

28 U.S.C. § 1983 and Ex parte Young

Counts Three and Four of Plaintiff’s Amended Complaint assert claims

against the Individual Defendants in their individual and official capacities for

deprivation of procedural and substantive due process under § 1983 and under

the Ex Parte Young exception. “The Eleventh Amendment generally precludes

actions against state officers in their official capacities.”19 There are, however,

two exceptions relevant to the § 1983 claims here. First, the Ex parte Young

doctrine allows a plaintiff to sue a state officer in his official capacity for

prospective injunctive or declaratory relief.20 Second, a plaintiff may sue a

state officer in his individual capacity for damages resulting from a deprivation

of the plaintiff’s constitutional rights under color of law.21

As an initial matter, Defendants argue that Plaintiff’s claims against the

Individual Defendants, as pleaded, run afoul of these two exceptions. Indeed,

Plaintiff’s Amended Complaint can be read as seeking monetary damages

against the Individual Defendants in their official capacities and also bringing

individual capacity claims against them under Ex parte Young. At oral

argument, however, counsel for Plaintiff clarified that the only intended claims

are those allowed under the two sovereign immunity exceptions explained

above. Accordingly, the Court will examine Plaintiff’s claims against the

Individual Defendants as those seeking only prospective injunctive relief under

Ex parte Young and monetary damages under § 1983.

19 Cantu Servs., Inc. v. Roberie, 535 F. App’x. 342, 344 (5th Cir. 2013) (internal

quotations omitted).

20 See Fontenot v. McCraw, 777 F.3d 741, 752 (5th Cir. 2015).

21 See Hafer v. Melo, 502 U.S. 21, 30–31 (1991).

A. Official Capacity Claims under Ex Parte Young

Plaintiff alleges that Defendants deprived him of his constitutional

rights 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.”22 “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.”23 “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.24

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.”25 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.”26 In substantive due process cases concerning a plaintiff’s alleged

constitutional right to continued enrollment, the Supreme Court has held that,

assuming such a right exists, there is only a “narrow avenue for judicial

review” and that the plaintiff must show a “substantial departure from

22 U.S. Const. amend. XIV.

23 Zinermon v. Burch, 494 U.S. 113, 125 (1990) (emphasis in original).

24 Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 734 (5th Cir. 2008).

25 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)).

26 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)).

accepted academic norms as to demonstrate that the person or committee

responsible did not actually exercise professional judgment.”27

As described above, a plaintiff asserting violations of his procedural or

substantive due process rights must first demonstrate the existence of a

protectable property interest. In his Amended Complaint, Plaintiff contends

that Defendants deprived him of his protectable property or liberty interests

in: (1) continuing his training in the LSU cardiology fellowship program;

(2) not being subjected to unjustified and coerced psychological examinations;

(3) his Louisiana physicians’ license and its good standing; and (4) his

professional reputation. In their Motion to Dismiss, Defendants argue that

Plaintiff has insufficiently alleged that they deprived him of each of the alleged

interests. The Court will discuss each in turn.

1. Plaintiff’s Alleged Interest in His Continued Training and Not

Being Subjected to Coerced Psychological Examinations

Defendants argue that Plaintiff has not sufficiently alleged a protectable

interest in his continued training and right to be free from coerced

psychological examinations.28 Defendants explain that, under Supreme Court

and Fifth Circuit precedent, LSU’s suspension and alleged termination of

Plaintiff was academic, not disciplinary, in nature and therefore only minimal

process was due to Plaintiff. Defendants also dispute that Plaintiff has

sufficiently alleged that he was constructively terminated.

27 Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 225 (1985).

28 Defendants address Plaintiff’s interest in his continued training and right to be free

from examination together as a single liberty or property interest. Plaintiff also does not

differentiate these interests in his Opposition. Thus, for the limited purpose of this Order

and Reasons, this Court too will address these interests together.

A “student[’s] due process rights are evaluated on a scale commensurate

with the nature of their academic program and the type of discipline

involved.”29 As to medical residency programs, the Fifth Circuit has found that

the program’s “primary purpose . . . is not employment or a stipend, but the

academic training and academic certification for successful completion of the

program.”30 Plaintiff’s claims are therefore governed by Supreme Court and

Fifth Circuit precedent concerning academic dismissals.

When a student is dismissed from an academic program, the dismissal

is characterized as either academic or disciplinary. In Goss v. Lopez, the

Supreme Court held that “due process requires, in connection with the

suspension of a student from public school for disciplinary reasons, ‘that the

student be given oral or written notice of the charges against him and, if he

denies them, an explanation of the evidence the authorities have and an

opportunity to present his side of the story.’”31 Thus, under Goss, a disciplinary

dismissal requires only an “‘informal give-and-take’ between the student and

the administrative body dismissing him that would, at least, give the student

‘the opportunity to characterize his conduct and put it in what he deems the

proper context.’”32 In Board of Curators of University of Missouri v. Horowitz,

the Supreme Court found that academic dismissals, unlike disciplinary

dismissals, rest upon the “academic judgment of school officials,” and such

judgment is “by its nature more subjective and evaluative than the typical

factual questions presented in the average disciplinary decision.”33 In light of

29 Shaboon v. Duncan, 252 F.3d 722, 729 (5th Cir. 2001).

30 Id. (quoting Davis v. Mann, 882 F.2d 967, 974 (5th Cir. 1989)).

31 Bd. of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 85 (1978) (quoting

Goss v. Lopez, 419 U.S. 565, 581 (1975)).

32 Id. at 86 (quoting Goss, 419 U.S. at 584).

33 Id. at 89–90.

the “historic judgment of educators” and the non-adversarial nature of the

educational process, the Supreme Court declined to “formalize the academic

dismissal process by requiring a hearing.”34 Instead, the Supreme Court found

that, assuming the existence of a liberty or property interest, the medical

student was provided all process due to her under the Fourteenth Amendment

where she was “fully informed . . . of the faculty’s dissatisfaction with her

clinical progress and the danger that this posed to timely graduation and

continued enrollment.”35

Defendants argue that, like in Horowitz, LSU’s suspension of Plaintiff

was academic in nature and Plaintiff was provided all process owed to him

under the Fourteenth Amendment. As support, Defendants cite to Shaboon v.

Duncan and Mathai v. Board of Supervisors of Louisiana State University and

Agricultural and Mechanical College.36 In Shaboon, the Fifth Circuit found

that a medical resident’s dismissal was academic where the student was

“dismissed for reasons related to her fitness to perform as a doctor.”37

Specifically, Shaboon was dismissed after she received negative mental health

evaluations, departed from the recommendations of her doctor, was not cleared

to come to work, and missed clinical rotations as a result.38 The Fifth Circuit

thus found that, as a matter of law, Shaboon was not entitled to a hearing and

could not claim that her supervisor violated a liberty interest in her

residency.39

34 Id. at 89.

35 Id. at 85.

36 Shaboon, 252 F.3d 722; Mathai v. Bd. of Sup’rs of Louisiana State Univ. & Agr. &

Mech. Coll., 551 F. App’x 101, 102 (5th Cir. 2013).

37 Shaboon, 252 F.3d at 731.

38 Id. at 731.

39 Id.

Similarly, in Mathai, another section of this Court found that a medical

student’s dismissal for failure to abide by the university-mandated treatment

program was academic in nature.40 Closely tracking the matter at hand, the

medical student in Mathai was referred to CAP on suspicion of substance abuse

and subsequently referred for inpatient treatment.41 Following a three-day

evaluation, the inpatient facility diagnosed Mathai with “polysubstance

dependence and narcissistic traits” and recommended that Mathai enroll in an

additional three-month treatment program.42 Mathai refused, and she was

dismissed from the school for failure to abide by LSU’s “Fitness for Duty

Policy.”43 In evaluating whether Mathai had sufficiently stated an official

capacity claim for procedural due process, Judge Vance found that Shaboon

“compel[led] a conclusion that plaintiff’s dismissal was academic.”44 Further

“[b]ecause plaintiff’s dismissal was academic, rather than disciplinary, the only

procedural safeguards required were ‘ample notice’ of the conditions upon

which her continued enrollment was predicated and ‘warning of the

consequences that would follow h[er] failure to’ abide by those conditions.”45

The court concluded that, between Mathai’s two written warnings and the

terms of the Fitness for Duty contract, Mathai had received all process owed

to her.46

In light of this precedent, this Court too now finds that Plaintiff’s

dismissal was academic in nature. Like the plaintiffs in Shaboon and Mathai,

Plaintiff alleges that he was suspended on suspicion of “mental impairment.”

40 Mathai, 959 F. Supp. 2d at 951.

41 Id. at 934–35.

42 Id. at 955.

43 Id.

44 Id. at 959.

45 Id. (quoting Shaboon, 252 F.3d at 730).

46 Id. at 971.

Plaintiff also alleges that he was forced to resign because of his inability to

obtain a fit-for-duty recommendation. Plaintiff’s suspension and alleged

termination can therefore be characterized as academic “since it implicated

[his] fitness to perform as a doctor.”47 Thus, Plaintiff was entitled only to notice

of the conditions upon which his continued enrollment was predicated and a

warning of the consequences from his failure to abide by those conditions.

Both conditions are satisfied here. Plaintiff’s contract with LSU gave him

notice that he could be suspended immediately whenever his supervisor, in

good faith, believed that his continued appointment risked the safety and

health of patients or the imminent disruption of the normal operations.48 Dr.

Jain also notified Plaintiff that his continued enrollment was contingent upon

his obtaining a fit-for-duty clearance from CAP. Although Plaintiff argues that

his suspension was not “in good faith” as required by his contract, Plaintiff has

not provided this Court with any facts that call Dr. Jain’s actions into question.

Plaintiff has therefore failed to allege that Defendants’ actions deprived him of

due process.49

As to Plaintiff’s substantive due process claim, assuming that such an

interest exists,50 Plaintiff must demonstrate that Defendants’ actions

47 Mathai, 959 F. Supp. 2d at 959.

48 See Doc. 55 at 6.

49 The Court also notes that, although Plaintiff’s contract provided that he receive an

opportunity to respond to the reason for his suspension, the mere breach of contract does not

itself create a valid procedural due process claim. See Burnett v. Coll. of the Mainland, 994

F. Supp. 2d 823, 830 (S.D. Tex. 2014) (“The Court rejected the procedural due process claim

because COM’s informal and formal grade appeal process amounted to more than sufficient

process, and that is the case even if a contractual right required more procedural protections

than merely an interest in public higher education. . . . The possible existence of a contract

therefore does nothing to change the determination that adequate procedure was afforded.”).

50 See Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 223 (1985) (noting that a

court should not “formulate a rule of constitutional law broader than is required by the

precise facts to which it is to be applied” and assuming “the existence of a constitutionally

protectible property right in [Ewing’s] continued enrollment”).

regarding his fellowship were arbitrary and capricious or otherwise devoid of

professional judgment.51 Plaintiff, however, has failed to plead any such facts.

Plaintiff alleges that Dr. Jain suspended him on suspicion of “mental

impairment” and contends that his suspicion was based on Plaintiff’s history

of substance abuse disorder. Yet, Plaintiff has not alleged facts that would

allow this Court to conclude that Dr. Jain’s decision to suspend Plaintiff was

not carefully considered or otherwise devoid of professional judgment. Thus,

without facts explaining the circumstances of his dismissal, Plaintiff’s

allegations are speculative and conclusory. Similarly, Plaintiff’s allegations

against Dr. Bishop-Baier—that she erroneously permitted Embley to counsel

Plaintiff despite their history and referred him for an OMPE—sound in

negligence and do not qualify as arbitrary and capricious conduct. Plaintiff’s

substantive due process claims are accordingly dismissed.

Further, the Court also agrees with Defendants that Plaintiff has failed

to allege that he was “constructively discharged.” “Establishing constructive

discharge generally requires a plaintiff to show that [his] employer made [his]

‘working conditions so intolerable that a reasonable employee would feel

compelled to resign.’”52 Plaintiff’s Amended Complaint states that, “[b]y the

time of his inpatient stay [with PRC], [he] had been forced to resign from his

fellowship position at LSU in order to evade that coercive force.”53 This

statement, unaccompanied by supporting facts, is insufficient to establish a

forced resignation. At the time Plaintiff resigned, he had already committed to

an evaluation by PRC and thus had the possibility of obtaining a fit-for-duty

clearance in the near future. Therefore, without allegations explaining why

51 See id. at 225.

52 LeBeouf v. Manning, 575 F. App’x 374, 376 (5th Cir. 2014) (quoting Finch v. Fort

Bend Indep. Sch. Dist., 333 F.3d 555, 562 (5th Cir. 2003)).

53 Doc. 55 at 9.

Plaintiff would feel “compelled to resign,” Plaintiff’s Amended Complaint fails

to demonstrate that his resignation was anything less than voluntary.

2. Plaintiff’s Alleged Interest in His Medical License and its Good

Standing

Defendants argue that LSU cannot have deprived Plaintiff of his right

in his license as it has no control over the licensure decision. In response,

Plaintiff contends that LSU’s inability to deprive Plaintiff of his license is

irrelevant as the LSBME exhibited “blind deference” to LSU. Plaintiff’s

Amended Complaint, however, demonstrates that the LSBME relied upon the

conclusions of HPFLA, not the LSU-affiliated Defendants. As Plaintiff has not

demonstrated that Defendants’ actions deprived him of his license, Plaintiff’s

related procedural and substantive due process claims are dismissed.54

3. Plaintiff’s Alleged Interest in His Professional Reputation

Plaintiff’s only remaining due process claim against Defendants is for

deprivation of his alleged interest in his professional reputation. “The Supreme

Court has recognized a constitutionally protected interest in ‘a person’s good

name, reputation, honor, or integrity.’”55 Where an individual is deprived of

this interest because of government action, “due process requires that the

54 Plaintiff argues that Defendants need not have the authority to deprive him of his

license in order to interfere in his right to his license. As support, Plaintiff cites to Watson v.

Univ. of Utah Med. Ctr., wherein the Tenth Circuit found a genuine issue of material fact as

to whether the defendants’ interference with the Division of Professional Licensing’s

(“DOPL”) investigation violated the plaintiff’s liberty interests in her reputation and freedom

to take advantage of other employment. 75 F.3d 569, 580–81 (10th Cir. 1996). Unlike in

Watson, however, Plaintiff has not alleged that Defendants interfered in the LSBME’s

investigation. Further, the Watson court also found that the defendants could not deprive the

plaintiff of her alleged due process right in her nursing license as the “DOPL took no action

to revoke or suspend her license.” The Court therefore does not find that Watson supports

Plaintiff’s position.

55 Kovac v. Wray, 363 F. Supp. 3d 721, 753 (N.D. Tex. 2019) (Paul v. Davis, 424 U.S.

693, 711 (1976)).

affected employee be given notice of the charges and an opportunity to clear

his or her name.”56 Plaintiff cites Hughes v. City of Garland for the proposition

that his liberty interest is implicated here because he was “discharged in a

manner that creates a false and defamatory impression about him and thus

stigmatizes him and forecloses him from other opportunities.”57 Specifically,

Plaintiff contends that Dr. Jain suspended him based on false accusations of

mental impairment, that LSU and Dr. Bishop-Baier relied on these

accusations, “creating circumstances in which Plaintiff was effectively

terminated,” and that Plaintiff was denied an employment opportunity as a

result.

As an initial matter, however, Hughes and related Fifth Circuit

precedent address reputational injuries only within the context of public

employment.58 In Shaboon, the Fifth Circuit remarked in a footnote that this

line of cases did not apply as the plaintiff was not a public employee and, “in

any event, [the plaintiff] never requested a name-clearing hearing.”59

Accordingly, the Court does not find that Plaintiff’s alleged injury to his

reputation entitles him to any procedures separate and apart from those

discussed in relation to his academic dismissal.60 Regardless, like in Shaboon,

56 Hughes v. City of Garland, 204 F.3d 223, 226 (5th Cir. 2000).

57 Id.

58 See generally, id; Rosenstein v. City of Dallas, Tex., 876 F.2d 392, 395 (5th Cir.

1989), opinion reinstated in part, 901 F.2d 61 (5th Cir. 1990).

59 Shaboon, 252 F.3d at 730 n. 3.

60 See Horowitz, 435 U.S. at 98 (discussing the plaintiff’s alleged injury to her

reputation and finding that the plaintiff was provided all due process owed to her even

assuming that such an interest exists); Smith v. Davis, 507 F. App’x 359, 362 (5th Cir. 2013)

(addressing simultaneously the plaintiff’s alleged interest in his continued education and

reputation); Swift v. Siesel, No. CIV.A. 01-2691, 2002 WL 1585617, at *8 (E.D. La. July 15,

2002) (“Just as in the employment context, the liberty interest arising from the State’s

establishment of a public education system is a liberty interest in one’s reputation.” (citing

Goss, 419 U.S. at 576)).

Plaintiff did not request a name-clearing hearing and therefore could not

recover under Hughes even if it applied.

B. Personal Capacity Claims Against the Individual

Defendants

As to Plaintiff’s claims against the Individual Defendants in their

personal capacities, Defendants argue that they are entitled

to qualified immunity. “The doctrine of qualified immunity protects

government officials from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.”61 “To overcome the immunity defense,

the complaint must allege facts that, if proven, would demonstrate that [the

Individual Defendants] violated clearly established statutory or constitutional

rights.”62 “Heightened pleading demands more than bald allegations and

conclusionary statements.”63 Instead, Plaintiff “must allege facts specifically

focusing on the conduct of [the Individual Defendants] which caused his

injury.”64

As explained above, Plaintiff has failed to allege a constitutional

violation; thus, the Individual Defendants are entitled to qualified immunity.

Nevertheless, assuming that Plaintiff is able to sufficiently amend his

Complaint to state a claim for deprivation of his interest in his continued

enrollment, the Court does not find that this right is clearly established.

In all binding precedent addressing the existence of this right, courts

have adhered to the practice of “constitutional avoidance, comporting with the

61 Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016) (internal quotation omitted).

62 Wicks v. Mississippi State Employment Servs., 41 F.3d 991, 995 (5th Cir. 1995).

63 Id.

64 Id.

‘usual reluctance to decide constitutional questions unnecessarily.’”65 The

Supreme Court and the Fifth Circuit have thus addressed due process claims

concerning academic suspensions and dismissals by assuming the existence of

such a right without holding that such a right exists.66 Moreover, neither Court

has yet been forced to address whether such a right exists, as each Court has

repeatedly found that, in light of the deference owed to academic

decisionmakers, no violation was found. This Court thus cannot conclude that,

in light of the minimal case law, a reasonable government agent would know

that the alleged actions of the Individual Defendants would violate

constitutional due process rights.67 As Plaintiff’s substantive due process right

in his continued enrollment at LSU was not established “beyond debate,” the

Individual Defendants are entitled to qualified immunity.68

III. Title II of the Americans with Disabilities Act and § 504 of the

Rehabilitation Act.

Plaintiff brings his claims under Title II of the Americans with

Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act (“RA”) pursuant to

§ 1983. “[W]here a statutory regime already provides a comprehensive set of

65 Smith, 507 F. App’x at 363 (quoting Reichle v. Howards, 566 U.S. 658 at 664 (2012))

(citing Ewing, 474 U.S. 214, 223 (1985); Davis v. Mann, 882 F.2d 967, 973 (5th Cir. 1989);

Mahavongsanan v. Hall, 529 F.2d 448, 449–50 (5th Cir. 1976)).

66 See Horowitz, 435 U.S. at 91–92 (assuming without deciding that courts can review

academic decisions under a substantive due process standard); Ewing, 474 U.S. at 512 (“We

therefore accept the University’s invitation to ‘assume the existence of a constitutionally

protectible property right in [Ewing’s] continued enrollment,’ and hold that even if Ewing’s

assumed property interest gave rise to a substantive right under the Due Process Clause to

continued enrollment free from arbitrary state action, the facts of record disclose no such

action.”); Davis v. Mann, 882 F.2d 967, 973 (5th Cir. 1989) (“Like the Supreme Court in Board

of Curators of Missouri v. Horowitz, we need not decide what type of interest Davis had in

the GPR program, because even ‘assuming the existence of a liberty or property interest,’

Davis received all the process he was entitled to under the Fourteenth Amendment in respect

to his interest in the GPR program.”).

67 See Smith, 507 F. App’x at 363 (5th Cir. 2013).

68 See id.

remedies for its enforcement, there is a presumption against the availability of

the more general remedial measures of § 1983. This principle renders further

discussion of the intricacies of § 1983 unnecessary.”69 Accordingly, the Court

will not consider Plaintiff’s claims under § 1983 but will rather proceed to an

analysis of Plaintiff’s claim against the Defendants under the ADA and the RA.

Moreover, “The language of Title II generally tracks the language of Section

504 of the Rehabilitation Act of 1973. . . . Jurisprudence interpreting either

section is applicable to both.”70 The Court will therefore refer to the standards

under each Act interchangeably.

A. The Rehabilitation Act

Section 504 of the Rehabilitation Act provides:

No otherwise qualified individual with a disability in the United

States . . . shall, solely by reason of her or his disability, be excluded

from the participation in, be denied the benefits of, or be subjected

to discrimination under any program or activity receiving Federal

financial assistance or under any program or activity conducted by

any Executive agency or by the United States Postal Service.71

To state a claim under § 504, 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 the public entity; and (3) that such discrimination is

by reason of his disability.”72 Additionally, under § 504, the plaintiff must also

69 See id. (citing Lollar v. Baker, 196 F.3d 603, 609 (5th Cir. 1999)).

70 Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000).

71 29 U.S.C. § 794.

72 Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011).

“allege that the specific program or activity with which he or she was involved

receives or directly benefits from federal financial assistance.”73

Plaintiff alleges that LSU violated § 504 when Dr. Jain suspended him

based on his “perceived disability” of substance abuse disorder and when

Embley, with the permission of Dr. Bishop-Baier, used Plaintiff’s old treatment

records to support a diagnosis of substance abuse disorder. Plaintiff also argues

that the actions of several other defendants can be imputed to LSU as its

“agents.” As Plaintiff has not presented any facts or law to support this alleged

agency relationship, however, the Court considers only the sufficiency of

Plaintiff’s allegations concerning Dr. Jain, Dr. Bishop-Baier, and Embley in

relation to his § 504 claim.

Defendants first argue that Plaintiff’s § 504 claim must fail because

Plaintiff has not sufficiently alleged that he has a qualifying disability that

substantially limits one or more life activities. A qualifying disability under

the ADA or § 504 includes: “(A) a physical or mental impairment that

substantially limits one or more major life activities of such individual; (B) a

record of such an impairment; or (C) being regarded as having such an

impairment[.]”74 A person is regarded as having a qualified disability “if the

individual establishes that he or she has been subjected to an action prohibited

under [the ADA] because of an actual or perceived physical or mental

impairment whether or not the impairment limits or is perceived to limit a

major life activity.”75 Here, Plaintiff alleges that he has a qualifying disability

of substance abuse disorder in remission, was regarded by Dr. Jain, Dr. Bishop-

73 Block v. Texas Bd. of L. Examiners, 952 F.3d 613, 619 (5th Cir. 2020) (quoting Miller

v. Tex. Tech Univ. Health Scis. Ctr., 421 F.3d 342, 345 (5th Cir. 2005) (en banc) (internal

quotations omitted)).

74 42 U.S.C. § 12102(1)(A–C) (emphasis added).

75 42 U.S.C. § 12102(3)(A).

Baier, and Embley as being currently impaired by his substance abuse

disorder, and discriminated against by them because of his disability. The

Court thus finds that he has sufficiently alleged a qualifying disability.

Next, Defendants argue that Plaintiff has failed to demonstrate that he

was denied the benefits, services, programs, or activities for which LSU is

responsible because of the alleged discrimination. The Court agrees. Plaintiff

alleges that Dr. Jain suspended him from LSU on suspicion of mental

impairment and that the suspected mental impairment was substance abuse

disorder. Other than the alleged fact that Dr. Jain had access to his medical

records, however, Plaintiff has not alleged any facts indicating that Dr. Jain’s

actions were taken because of Plaintiff’s “perceived disability.” Plaintiff also

alleges that Dr. Bishop-Baier and Embley, because of Plaintiff’s history,

improperly regarded Plaintiff as having substance abuse disorder and

consequently referred him to seek further psychological treatment without

evidence to support their suspicion that he was presently mentally impaired.

Like the allegations against Dr. Jain, however, the only alleged evidence of

discrimination is the fact that CAP had access to his file. The Court thus finds

that Plaintiff has failed to allege discrimination under § 504.

B. Title II of the ADA

“The ADA forbids discrimination against disabled individuals in major

areas of public life, among them employment (Title I of the Act), public services

(Title II), and public accommodations (Title III).”76 Like § 504 of the RA, Title

II of the ADA 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

76 PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001) (citing 42 U.S.C. §§ 12111–12117;

12131–12165; 12181–12189).

subjected to discrimination by any such entity.”77 Here, Plaintiff brings suit

against the Individual Defendants under Title II of the ADA in their official

and personal capacities.

As explained above, “[t]he remedies, procedures, and rights available

under the Rehabilitation Act parallel those available under the ADA.”78 Thus,

for the same reasons addressed above in relation to Plaintiff’s § 504 claims, the

Court finds that Plaintiff has failed to state a claim against the Individual

Defendants for ADA violations in their official capacities.79

Plaintiff’s individual capacity claims against the Individual Defendants

also cannot stand. In Lollar v. Baker, the Fifth Circuit held that § 1983 did not

provide a remedy for the plaintiff’s alleged violations of the Rehabilitation Act

against state officials in their individual capacities.80 Following Lollar, courts

within the Fifth Circuit have found individual capacity claims under Title II

improper.81 This Court too now finds that Plaintiff cannot utilize § 1983 to

establish individual liability under Title II. Plaintiff’s Title II claims against

the Individual Defendants in their individual capacities are accordingly

dismissed.

77 42 U.S.C. § 12132 (emphasis added).

78 Cadena v. El Paso Cty., 946 F.3d 717, 723 (5th Cir. 2020) (citing Delano-Pyle v.

Victoria Cty., 302 F.3d 567, 574 (5th Cir. 2002)).

79 The Fifth Circuit has not yet “had the occasion” to determine whether a plaintiff

may bring a § 1983 suit against a state official in his official capacity “in order to vindicate

or enforce rights guaranteed to him by Title II of the ADA.” Cooper v. Hung, 485 Fed. App’x

680, 685 (5th Cir. 2012).

80 See Lollar, 196 F.3d at 608–610 (“In sum, because the Rehabilitation Act by its

express terms provides comprehensive enforcement and remedial measures for violations of

its provisions, we hold that section 1983 cannot be used as an alternative method for the

enforcement of those rights.”); Cole v. Velasquez, 67 F. App’x 252 n.11 (5th Cir. 2003).

81 See Pena v. Bexar Cty., Texas, 726 F. Supp. 2d 675, 689–90 (W.D. Tex. 2010)

(collecting cases) (“Based on the weight of authority and holdings of the Fifth Circuit, the

Court concludes that Pena’s § 1983 claims against the Individual Defendants in their

individual capacities for violations of Title II are not permitted.”).

IV. Intentional Infliction of Emotional Distress

“[T]o recover for intentional infliction of emotional distress, a plaintiff

must establish that: (1) the conduct of the defendant was extreme and

outrageous; (2) the emotional distress suffered by the plaintiff was severe; and

(3) the defendant desired to inflict severe emotional distress or knew that

severe emotional distress would be certain or substantially certain to result

from his conduct.”82 To succeed on this claim, “[t]he conduct must be so

outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious and utterly intolerable in a

civilized community.”83 “Liability does not extend to mere insults, indignities,

threats, annoyances, petty oppressions, or other trivialities.”84

Plaintiff alleges that the defendants in this case are liable for the tort of

intentional infliction of emotional distress by their dissemination of false

information about him, which allegedly “establishes a pattern [of] deliberate,

repeated harassment over a period of time.”85 As to the Individual Defendants,

Plaintiff contends that they engaged in “outrageous conduct” when they

“knowingly made false accusations regarding Plaintiff’s fitness to practice

medicine, unlawfully used private information divulged in confidence against

Plaintiff to manufacture justification for Plaintiff’s suspension, and adhered to

their original accusations despite negative drug screens.”86 This conduct,

however, fails to meet the high standard for intentional infliction of emotional

distress claims in Louisiana.87 Additionally, Plaintiff has not alleged any facts

82 White v. Monsanto, 585 So.2d 1205, 1209 (La. 1991).

83 Id.

84 Id.

85 Doc. 89 at 34.

86 Id.

87 See Currier v. Entergy Servs., Inc., 73 F. Supp. 3d 673, 678 (E.D. La. 2014); Shaboon,

252 F.3d at 734 (finding that, under Texas law, the defendant’s “alleged efforts ‘to obtain and

to support his assertion that the Individual Defendants “desired to inflict

severe emotional distress or knew that severe emotional distress would be

certain or substantially certain to result.”88 Plaintiff’s claims for intentional

infliction of emotional distress are thus dismissed.

V. Defamation

Plaintiff also brings claims against the Individual Defendants for

defamation. Under Louisiana law, the elements of a defamation claim include:

“(1) a false and defamatory statement concerning another; (2) an unprivileged

publication to a third party; (3) fault (negligence or greater) on the part of

the publisher; and (4) resulting injury.”89 Plaintiff alleges that Dr. Jain

defamed him when he “accused Plaintiff of impairment falsely, [and]

knowingly published that false statement to HPFL[A] and PRC.”90 Plaintiff

similarly alleges Dr. Bishop-Baier that is liable for defamation as she

“knowingly published false statements to HPFL[A], PRC, and LSBME.”91

Defendants argue that Plaintiff’s defamation claims must fail as Plaintiff

has not alleged that either Defendant published the alleged false statement—

that Plaintiff was mentally impaired—to any third party. Indeed, although

Plaintiff alleges in a conclusory fashion that Drs. Jain and Bishop-Baier

disseminated these false statements to various codefendants, he does not

allege any facts that would make this assertion plausible. Indeed, Plaintiff does

not include any facts demonstrating that communication between Drs. Jain

keep information to himself’ about Shaboon’s illness, ‘manufacture a diagnosis[,’] and

‘seclude’ Shaboon suggest at most a propensity to terminate her residency unfairly. Such ill-

motivated actions do not constitute legally actionable infliction of emotional distress.”).

88 White, 585 So.2d at 1209.

89 Lewis v. M7 Prods., LLC, 427 F. Supp. 3d 705, 723–24 (M.D. La. 2019) (internal

quotations and citations omitted).

90 Doc. 55 at 21.

91 Id.

and Bishop-Baier and any of the codefendants took place. Plaintiff alleges that

the Individual Defendants referred Plaintiff to various entities, and the

Amended Complaint is devoid of facts that would allow this Court to conclude

that there were false statements in those referrals.

Even if this Court were to assume that Plaintiff had sufficiently alleged

that Dr. Jain communicated false statements to CAP, the Court finds that

these statements would not constitute a publication to a third party. Under

Louisiana law, statements made by employees acting within the course and

scope of their employment to others within the same organization are not

“‘publicized’ statements to third persons so as to constitute publication in a

defamation claim.”92 Plaintiff contends that Dr. Jain’s actions were not in the

course and scope of his employment because he did not follow LSU’s procedures

in suspending Plaintiff or referring him to CAP. Plaintiff, however, has not

alleged any facts suggesting that Dr. Jain acted in bad faith so as to remove

his actions from the course and scope of his employment. Further, Plaintiff has

not provided this Court with any legal support for his assertion that Dr. Jain’s

failure to follow internal procedures renders the “intra-corporate

communication” doctrine inapplicable.93 Plaintiff has thus failed to state a

claim for defamation.

92 Ioppolo v. Rumana, 581 F. App’x 321, 329 (5th Cir. 2014) (citing See, e.g., Bell v.

Rogers, 698 So.2d 749 (La. App. 2 Cir. 1997)).

93 The one case Plaintiff cites in support is actually contrary to his position. Doe v.

Grant, 839 So. 2d 408, 416 (La. App. 4 Cir. 2003), writ denied, 842 So. 2d 1102 (La. 2003).

(“Clearly, what Dr. Zamanian cites as incidences of publication, are in actuality

communications between employees of the hospital during the course and scope of their

employment. The disclosures regarding the summary suspension were the direct outcome of

the peer review process, and necessary to ensure not only the safety of patients at the

hospital, but to ensure that the doctors and nurses on Mercy’s staff were aware that Dr.

Zamanian’s privileges had been suspended.”).

CONCLUSION

For the foregoing reasons, the Motion is GRANTED.

IT IS ORDERED that Plaintiff’s claims against LSU for violations of

substantive and procedural due process are hereby DISMISSED WITH

PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff’s claim against LSU under

§ 504 of the RA is DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff’s official capacity claims

against Drs. Jain and Bishop-Baier for violations of his substantive due process

rights related to his continued enrollment are DISMISSED WITHOUT

PREJUDICE. All other official capacity due process claims against the

Individual Defendants are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff’s individual capacity claims

against Drs. Jain and Bishop-Baier for violations of procedural and

substantive due process and Title II of the ADA are DISMISSED WITH

PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff’s claims against Drs. Jain

and Bishop-Baier in their official capacities under Title II of the ADA are

DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff’s claims against Drs. Jain

and Bishop-Baier for intentional infliction of emotional distress and

defamation are DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff has 15 days from the date

of this Order to amend his Complaint and remedy all claims dismissed without

prejudice.

New Orleans, Louisiana this 20th day of August, 2021.

g TRICHE hy □

UNITED STATES DISTRICT JUDGE

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