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 Professional Renewal Center, P.A.’s Motion to Sever

and Transfer Venue Pursuant to 28 U.S.C. § 1404(a) and Federal Rule of Civil

Procedure 21 or in the Alternative Motion to Dismiss (Doc. 63). For the

following reasons, the Motion is DENIED IN PART and GRANTED IN

PART.

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. (“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”). 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. Plaintiff alleges that HPFLA acknowledged that the PRC report was

inaccurate but nevertheless required that Plaintiff comply with PRC’s

recommendation and seek additional, costly inpatient treatment. When

Plaintiff refused, the HPFLA reported Plaintiff to the Louisiana State Board

of Medical Examiners (“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

1 Doc. 70-1 at 3.

cooperate with HPFLA and PRC’s recommendations. 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 a

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

medical license, and more than $50,000 in unnecessary treatment.

Now before the Court is Defendant PRC’s Motion to Sever and Transfer

Venue Pursuant to 28 U.S.C. § 1404(a) and Federal Rule of Civil Procedure 21,

or in the alternative, Motion to Dismiss. In the Motion, PRC first asks the

Court to enforce the forum selection clause found in PRC’s Participation

Agreement, to sever Plaintiff’s claims against it, and to transfer Plaintiff’s

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.

action against PRC to the United States District Court for the Southern

District of Kansas. Alternatively, should this Court decline to transfer the

PRC-related claims, PRC argues that Plaintiff has failed to state a viable claim

against it and that Plaintiff’s claims should be dismissed under Federal Rule

of Civil Procedure 12(b)(6). Plaintiff opposes.

LEGAL STANDARD

I. Motion to Transfer Venue

“For the convenience of parties and witnesses, in the interest of justice,

a district court may transfer any civil action to any other district or division

where it might have been brought or to any district or division to which all

parties have consented.”6 District courts possess broad discretion when

deciding whether to order a transfer of venue.7 The Fifth Circuit has held that

in the interest of respecting forum choices by plaintiffs, a party moving for

transfer must show “good cause.”8 “When the movant demonstrates that the

transferee venue is clearly more convenient . . . it has shown good cause and

the district court should therefore grant the transfer.”9

II. Motion to Sever

Federal Rule of Civil Procedure 21 provides that, “[o]n motion or on its

own, the court may at any time, on just terms, add or drop a party. The court

may also sever any claim against a party.” “Severance under Rule 21 . . .

occasionally is appropriate in action in which venue is improper to some but

6 28 U.S.C. § 1404(a).

7 In re Volkswagen of Am., Inc., 545 F.3d 304, 311 (5th Cir. 2008) (“There can be no

question but that the district courts have ‘broad discretion in deciding whether to order a

transfer.’” (quoting Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir. 1998))).

8 Id. at 315.

9 Id.

not all defendants. If the claims are separable, the court may cure the venue

defect by severing the claims against those parties who raise valid venue

defenses.”10 The court may refuse severance, however, where it “only will result

in delay, inconvenience, or added expense.”11 In all cases, the court “has wide

discretion to sever a claim.”12

III. 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.”13 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.”14

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

all reasonable inferences in the plaintiff’s favor.”15 The court need not,

however, accept as true legal conclusions couched as factual allegations.16 To

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

that the plaintiff’s claims are true.17 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.18 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.19

10 7 FED. PRAC. & PROC. § 1689, Westlaw (database updated April 2021). See also In

re Rolls Royce Corp., 775 F.3d 671, 680 n.40 (5th Cir. 2014).

11 7 FED. PRAC. & PROC. § 1689, Westlaw (database updated April 2021).

12 In re Rolls Royce Corp., 775 F.3d 671, 680 (5th Cir. 2014).

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

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

14 Id.

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

16 Iqbal, 556 U.S. at 678.

17 Id.

18 Lormand, 565 F.3d at 255–57.

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

LAW AND ANALYSIS

I. Motion to Sever and Transfer

In its Motion, PRC requests that this Court sever Plaintiff’s claims

against it and transfer the matter to the United States District Court for the

Southern District of Kansas. PRC argues that such action is proper pursuant

to a forum selection clause found within the Participation Agreement that

Plaintiff signed prior to his evaluation with PRC on July 23, 2019.20 The

relevant provision of the Participation Agreement states:

I agree that any dispute arising between Professional Renewal

Center® and me shall be determined solely by the District Court

of Douglas County, Kansas or the United States District Court for

the District of Kansas, and shall be construed in accordance with

the law of the State of Kansas.

Plaintiff signed the Participation Agreement and wrote his initials next to the

forum selection clause.

In Atlantic Marine Cons. Co., Inc. v. U.S. Dist. Court for Western Dist. of

Texas, the Supreme Court held that “the appropriate way to enforce a forum-

selection clause pointing to a state or foreign forum is through the doctrine of

forum non conveniens.”21 As § 1404(a) “is merely a codification of the doctrine

of forum non conveniens for the subset of cases in which the transferee forum

is within the federal court system[,]” § 1404(a) is the appropriate provision to

enforce a clause like the one at issue directing transfer to a different federal

district court.22 Ordinarily, a court weighing transfer considers a variety of

private and public-interest factors and gives deference to the plaintiff’s choice

of forum.23 The Supreme Court in Atlantic Marine, however, held that the

20 See Doc. 63-3 (the Participation Agreement).

21 Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 60 (2013).

22 Id. at 580–81.

23 Barnett v. DynCorp Int’l, L.L.C., 831 F.3d 296, 300 (5th Cir. 2016).

presence of a forum selection clause alters the balancing test in two ways.

“‘First, the plaintiff’s choice of forum merits no weight’ because, by contracting

for a specific forum, ‘the plaintiff has effectively exercised its ‘venue privilege’

before a dispute arises.’”24 Second, because the parties to the forum selection

clause have waived the right to challenge the preselected forum as

inconvenient, “the private-interest factors weigh entirely in favor of the

preselected forum.”25 Thus, the “district court may consider arguments about

public-interest factors only.”26

Under the Atlantic Marine balancing test, a valid forum selection clause

will warrant transfer or dismissal “absent unusual circumstances.”27 In cases

where not all parties are bound by the forum selection clause, however, “the

need—rooted in in the valued public interest in judicial economy—to pursue

the same claims in a single action in a single court can trump a forum-selection

clause.”28 To govern such situations, the Fifth Circuit in In re Rolls Royce

Corporation, provided the following test:

First, pursuant to Atlantic Marine, the private factors of the

parties who have signed a forum agreement must, as matter of law,

cut in favor of severance and transfer to the contracted for forum.

Second, the district court must consider the private factors of the

parties who have not signed a forum selection agreement as it

would under a Rule 21 severance and section 1404 transfer

analysis. Finally, it must ask whether this preliminary weighing

is outweighed by the judicial economy considerations of having all

claims determined in a single lawsuit. In so determining, the

24 Id. (quoting Atl. Marine, 571 U.S. at 63).

25 Atl. Marine, 571 U.S. at 64.

26 Id.

27 Barnett, 831 F.3d at 302.

28 In re Rolls Royce Corp., 775 F.3d at 679.

district court should consider whether there are procedural

mechanisms that can reduce the costs of severance . . .29

The Fifth Circuit further explained that “this is a fact-sensitive analysis, and

while we agree that Atlantic Marine informs the analysis, we cannot conclude

that it categorically requires severance-and-transfer in all situations.”30

As a preliminary matter, the Court notes that the Atlantic Marine

transfer analysis presupposes the existence of a valid and enforceable forum

selection clause, and Plaintiff has argued extensively against the clause’s

validity and enforceability.31 Even assuming that the clause is valid and

enforceable, however, this Court still finds that the weighing of relevant

interests requires denying transfer in this case. Accordingly, the Court declines

to analyze the clause’s validity and enforceability at this time and instead

proceeds to the In re Rolls Royce balancing test.

1. Private Interest Factors

In analyzing a § 1404(a) motion to transfer, the court is to consider the

private interests of the litigants as it pertains to the costs and ease of

litigation.32 Such considerations or factors include:

relative ease of access to sources of proof; availability of

compulsory process for attendance of unwilling, and the cost of

obtaining attendance of willing, witnesses; possibility of view of

premises, if view would be appropriate to the action; and all other

practical problems that make trial of a case easy, expeditious and

inexpensive.33

29 Id. at 681.

30 Id.

31 Barnett, 831 F.3d at 301.

32 See id. at 678 (citing Atl. Marine, 571 U.S. at 62 n.6).

33 Atl. Marine, 571 U.S. at 62 n.6 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235,

241 n.6 (1981) (internal quotation marks omitted)).

The Court first finds that these factors necessarily weigh in favor of

transfer as it pertains to Plaintiff and PRC as the parties to the forum selection

clause. As to the remaining parties, however, the private interest factors weigh

in favor of denying PRC’s Motion to Sever and Transfer. Most of the defendants

in this action are Louisiana entities or affiliated with Louisiana entities; thus,

those defendants have a strong interest in having this matter litigated in this

forum. Further, as explained more fully below, the validity of PRC’s report is

a significant issue in this matter and an issue that will likely be highly relevant

to Plaintiff’s claims against many of the other defendants as well. The Court

thus finds that the private interest factors, as they pertain to the non-PRC

defendants, weigh in favor of litigating Plaintiff’s case in this forum.

2. Public Interest Factors and Judicial Economy

The public interest factors to be considered by the Court include (1) “the

administrative difficulties flowing from court congestion”; (2) “the local interest

in having localized controversies decided at home”; (3) “[and] the interest in

having the trial of a diversity case in a forum that is at home with the law.”34

Although these factors will rarely defeat a transfer motion, in a case such as

this where enforcement of the forum selection clause would result in the

transfer of only some of Plaintiff’s claims, the interests of judicial economy play

a “cardinal role” in the analysis.35

In applying the public interest factors to this case and considering the

impact upon judicial economy, the Court finds that this is not a “usual case” in

which the forum selection clause should control. In so finding, the Court notes

that Plaintiff’s claims against PRC are highly connected to Plaintiff’s claims

against the other defendants. Plaintiff’s claims against HPFLA, in part,

34 Id.

35 Id. at 582.

concern HPFLA’s reliance upon the PRC report. In the PRC report, the report’s

authors indicate that at least three other defendants in this matter were used

as “collateral sources” to inform their evaluation of Plaintiff. The success of

Plaintiff’s claims against PRC and many of the named defendants will thus

likely require litigating the same issues surrounding the legitimacy of the PRC

report. Moreover, Plaintiff has separately alleged claims against PRC’s

Clinical Director, Betsy Williams, PhD (“Williams”), in both her individual and

official capacities. To reach the validity of Plaintiff’s claims against Williams,

the Court will likely need to reach the merits of Plaintiff’s claims against PRC

in many respects.36

In sum, the Court finds that severance and transfer in this case will

undoubtedly result in parallel litigation and consequently result in a

significant waste of judicial resources. Further, because of Plaintiff’s existing

claims against Williams, the difficulties associated with transfer are more than

“the run-of-the-mill difficulties which will always exist in such scenarios.”37 For

these reasons, the Court denies PRC’s Motion to Sever and Transfer.

II. Motion to Dismiss

In the alternative, PRC asks this Court to dismiss Plaintiff’s claims

against it under Federal Rule of Civil Procedure 12(b)(6). In Plaintiff’s

Amended Complaint, he asserts claims against PRC for deprivation of

36 The Court notes that there is currently a pending Motion to Dismiss filed by

Williams in this case. This Court, however, issued an Order requiring the parties to conduct

discovery on the issue of whether this Court has personal jurisdiction over Williams. Until

the matter is again before this Court, the Court must assume that it has jurisdiction over

Williams for the purposes of this Motion.

37 Ha Thi Le v. Lease Fin. Grp., LLC, No. CV 16-14867, 2017 WL 2915488, at *8 (E.D.

La. May 9, 2017) (Africk, J.) (quoting Royal Smit Transformers BV v. HC BEA-LUNA M/V,

No. 16-14647, 2017 WL 819243, at *8 (E.D. La. Mar. 2, 2017)) (denying severance and

transfer where the plaintiffs “allege[d] that the several defendants collectively formed a

single fraudulent enterprise, the purpose of which was to work together to defraud small

businesses”).

substantive and procedural due process under 28 U.S.C. § 1983, discrimination

in violation of Title II of the Americans with Disabilities Act, discrimination in

violation of § 504 of the Rehabilitation Act, and for intentional infliction of

emotional distress and defamation in violation of Louisiana Civil Code article

2315. The Court will discuss the validity of each of these claims in turn.

A. Deprivation of Substantive and Procedural Due Process

Under 28 U.S.C. § 1983

“To state a claim under § 1983, plaintiffs must allege two elements: first

that they were deprived of a right or interest secured by the Constitution and

laws of the United States, and second that the deprivation occurred under color

of state law.”38 Here, Plaintiff alleges that the constitutional right of which he

was deprived is his 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.”39 “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.”40 “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.”41

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

38 Doe v. Rains County Ind. School Dist., 66 F.3d 1402, 1406 (5th Cir. 1995).

39 U.S. Const. amend. XIV.

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

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

oppressive purposes.”42 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.”43 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

accepted academic norms as to demonstrate that the person or committee

responsible did not actually exercise professional judgment.”44

In PRC’s Motion to Dismiss, PRC first asserts that Plaintiff has failed to

sufficiently allege that PRC deprived Plaintiff of a constitutional right.

Alternatively, PRC argues that it is a private entity and thus not a state actor

as required under § 1983. As the Court finds that Plaintiff has not sufficiently

alleged the deprivation of a constitutional right, the Court does not address

whether PRC’s actions are fairly attributable to the state.

In his Amended Complaint, Plaintiff contends that the Defendants

deprived 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

physicians’ license and its good standing; and (4) his professional reputation.

In its Motion to Dismiss, PRC argues that Plaintiff has not sufficiently alleged

that PRC is responsible for any of these alleged deprivations.

42 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)).

43 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)).

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

As to Plaintiff’s alleged interests in his fellowship, his freedom from

coerced examination, and his physician’s license, Plaintiff has not sufficiently

alleged that it was PRC who deprived him of these interests. Regarding his

enrollment, Plaintiff alleges that he was “forced to resign from his fellowship”

by the time of his inpatient stay with PRC.45 PRC’s actions, therefore, cannot

have contributed to the loss of Plaintiff’s right to his fellowship. Similarly, as

to Plaintiff’s freedom from coerced examination, Plaintiff alleges that it was

HPFLA, not PRC, that compelled Plaintiff to undergo various psychological

examinations. Finally, regarding Plaintiff’s license, Plaintiff does not allege

that any actor other the LSBME and its members had the authority to deprive

Plaintiff of his physician’s license. The Court thus finds that Plaintiff has failed

to state a claim against PRC for deprivation of his alleged property or liberty

interests in his fellowship, freedom from examination, and physician’s license.

Plaintiff’s related procedural and substantive due process claims are

accordingly dismissed.

The only due process claim Plaintiff alleges against PRC is that related

to 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.’”46 To demonstrate the deprivation of this

interest, however, plaintiffs must show that: “(1) they suffered a stigma from

governmental action; plus (2) they experienced an alteration or

extinguishment of ‘a right or status previously recognized by state law.”47

Although Plaintiff alleges that PRC falsely stated that he was not fit-for-

45 Doc. 55 at 9.

46 Kovac v. Wray, 363 F. Supp. 3d 721, 753 (N.D. Tex. 2019) (quoting Paul v. Davis,

424 U.S. 693, 711 (1976)).

47 Id. (quoting San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 701 (5th Cir. 1991)

(internal quotations omitted)).

duty and knowingly published this false statement to LSU, HPFLA, and the

LSBME, Plaintiff does not specifically plead that this action stigmatized him

or altered a previously recognized status. Rather, in both his Amended

Complaint and his Opposition, Plaintiff alleges that it was LSU and the

LSBME that “falsely stigmatized Plaintiff and his professional reputation.”48

Even assuming that Plaintiff had pleaded facts sufficient to meet the “stigma

plus” standard, Plaintiff does not state what process he was due from PRC—a

critical flaw in his due process claims. The Fifth Circuit has stated that “the

fourteenth amendment provides only procedural protection against injury

inflicted by state officers to the interest state employees have in their

reputation.”49 Thus, “reputation per se is not a property interest protected

against state infringement; what is protected is the maligned employee’s right

to a procedure that will afford him a chance to refute unfounded charges.”50

Plaintiff alleges that any opportunity to refute PRC’s report was owed to him

by HPFLA and the LSBME—not PRC. Accordingly, Plaintiff’s substantive and

procedural due process claims against PRC must fail.

B. Title II of the Americans with Disabilities Act and Section

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 (“the RA”)

pursuant to § 1983. As previously stated, a plaintiff may bring a claim under

§ 1983 when he has been deprived of federal rights under the color of state

48 Doc. 55 at 20.

49 In re Selcraig, 705 F.2d 789, 797 (5th Cir. 1983).

50 Id. See also Cooper v. Benavides, No. 416CV00860ALMCAN, 2017 WL 9285512, at

*9 (E.D. Tex. July 3, 2017), report and recommendation adopted in part, No. 4:16-CV-860,

2017 WL 4968643 (E.D. Tex. Nov. 2, 2017).

law.51 “However where a statutory regime already provides a comprehensive

set of 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.”52

Accordingly, the Court will not consider Plaintiff’s claims under § 1983 but will

rather proceed to an analysis of Plaintiff’s claims under Title II of the ADA and

§ 504 of the RA.

1. 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).”53 Here, Plaintiff brings suit

against PRC 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.”54 The

ADA defines a “public entity” as “(A) any State or local government; (B) any

department, agency, special purpose district, or other instrumentality of a

State or States or local government; and (C) the National Railroad Passenger

Corporation, and any commuter authority.”55

At the outset, PRC argues that, as an alleged “private professional

association,” it is not a public entity subject to claims under Title II. In

response, Plaintiff argues that PRC is subject to Title II as its actions are

51 See D.A. ex rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 456 (5th Cir.

2010).

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

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

12131–12165; 12181–12189).

54 42 U.S.C. § 12132 (emphasis added).

55 42 U.S.C. § 12131.

“fairly attributable to the state” under § 1983. Plaintiff, however, provides no

legal support for this assertion. Indeed, the Fifth Circuit has differentiated

between liability under § 1983 and under the ADA and RA in certain respects,

emphasizing the comprehensiveness of the remedial framework under both

statutes.56 Thus, while the actions of a private entity may be fairly attributable

to the state under § 1983, it does not necessarily follow that the same entity

may be considered public under the ADA.57 PRC therefore cannot be found to

be a public entity under Title II.58

Even assuming arguendo that PRC was subject to suit under Title II,

however, for the reasons more fully discussed below in relation to Plaintiff’s

RA claim, the Court does not find that Plaintiff has sufficiently stated a claim

for discrimination.59

56 See Loller, 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); Pena

v. Bexar Cty., Texas, 726 F. Supp. 2d 675, 689 (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.”).

57 The Court also notes that the ADA itself provides a remedy for suits against private

entities under Title III, which prohibits discrimination by places of “public accommodation.”

See 42 U.S.C. § 12182 (“No individual shall be discriminated against on the basis of disability

in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or

accommodations of any place of public accommodation by any person who owns, leases (or

leases to), or operates a place of public accommodation.”).

58 See Esparza v. Univ. Med. Ctr. Mgmt. Corp., No. CV 17-4803, 2017 WL 4791185,

at *11 (E.D. La. Oct. 24, 2017) (Africk, J.) (explaining the relationship between Title II and

Title III).

59 As “[t]he language of Title II generally tracks the language of Section 504 of the

Rehabilitation Act of 1973[,] . . . [j]urisprudence interpreting either section is applicable to

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

2. The Rehabilitation Act

Section 504 of the RA 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.60

To state a claim under § 504 of the RA, 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.”61 Under § 504, the plaintiff must also “allege that

the specific program or activity with which he or she was involved receives or

directly benefits from federal financial assistance.”62

A qualifying disability 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[.]”63 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 or RA] 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.”64 Here, Plaintiff alleges that he has the disability of

60 29 U.S.C. § 794.

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

62 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)).

63 42 U.S.C. § 12102(1)(A–C).

64 42 U.S.C. § 12102(3)(A).

substance abuse disorder in remission, that PRC regarded him as being

currently impaired by his substance abuse disorder, and that PRC

discriminated against him because of this perceived disability. The Court thus

finds that he has sufficiently alleged a qualifying disability.

At issue is whether Plaintiff sufficiently alleged that PRC did in fact

discriminate against him. Plaintiff alleges that HPFLA and LSU referred him

to PRC because of his perceived disability of substance abuse disorder and that

PRC thereafter issued a “sham evaluation that resulted in a meandering and

incomprehensible ‘diagnosis.’”65 These facts, however, do not identify how PRC

allegedly discriminated against him because of that disability. In Plaintiff’s

Complaint, he alleges that he later declined treatment from a local substance

abuse treatment center, noting that “even the PRC report (in addition to the

two independent psychiatrists) had ruled out such an issue.”66 Thus, Plaintiff

alleges vaguely that PRC discriminated against him because of his perceived

disability of substance abuse disorder but later alleges that PRC concluded

that he had no such disability.67 The Court therefore finds that Plaintiff has

failed to sufficiently allege facts supporting a claim for disability

discrimination under Title II or § 504 against PRC. For these reasons, the

claim is dismissed.

C. Tort Claims under Louisiana Civil Code article 2315

Lastly, Plaintiff brings claims against PRC for intentional infliction of

emotional distress and defamation under Louisiana Civil Code article 2315. As

a threshold matter, PRC argues that the choice of law clause in the

65 Doc. 55 at 9–11.

66 Id. at 12.

67 Indeed, the PRC report concludes that Plaintiff is in “sustained remission” from

severe alcohol and tobacco use disorder. Doc. 96-1 at 25. The report also finds that Plaintiff

is in sustained remission from mild to moderate cannabis use disorder. Id.

Participation Agreement, requiring application of Kansas law, necessitates

dismissal of Plaintiff’s Louisiana tort claims. First, the Court notes that PRC

has not presented this Court with a choice of law analysis separate and apart

from its forum selection clause analysis; thus, this Court does not at this time

decide the applicability of the at-issue clause. Second, even if Kansas law were

to apply, PRC has not cited to any law demonstrating that the clause

necessarily requires the dismissal of Plaintiff’s Louisiana claims. Accordingly,

the Court will consider whether Plaintiff has sufficiently stated a claim against

PRC under Louisiana law.

1. Intentional Infliction of Emotional Distress

A plaintiff seeking recovery for intentional infliction of emotional

distress under Louisiana law must show 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.”68 To succeed, “[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.”69 “Liability does not extend to mere insults, indignities,

threats, annoyances, petty oppressions, or other trivialities.”70

Plaintiff alleges that Defendants are liable for the tort of intentional

infliction of emotional distress because of their dissemination of false

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

repeated harassment over a period of time.”71 As to PRC, Plaintiff contends

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

69 Id.

70 Id.

71 Doc. 89 at 34.

that “PRC participated in the pattern by insisting on evaluations despite its

inconclusive, even fraudulent, report from its initial evaluation.”72

The alleged actions of PRC do not amount to intentional infliction of

emotional distress under Louisiana law. Plaintiff alleges in a conclusory

fashion that PRC’s report was a “sham” and “meandering and

incomprehensible.” At no point, however, does Plaintiff provide facts

explaining how or why he believes the report is a “sham” or allege that the

flaws in the report were intentional. Rather, the alleged actions of PRC are

more aptly characterized as malpractice or negligence—not outrageous and

extreme behavior intended or likely to inflict severe emotional distress.73

Plaintiff’s claim for intentional infliction of emotional distress is accordingly

dismissed.

2. 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.”74

In his Amended Compliant, Plaintiff alleges that “PRC and Williams

falsely stated that they could not conclude Plaintiff was fit-for-duty . . .

knowingly published false statements to LSU, HPFLA, and LSBME, and

knowingly created the false and fraudulent PRC report.”75 Plaintiff alleges that

72 Id. at 35.

73 See Shaboon, 252 F.3d at 734 (applying Texas law) (“[The defendant’s] alleged

efforts ‘to obtain and 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.”).

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

quotations and citations omitted).

75 Doc. 55 at 21–22.

the report itself was negligently or “fraudulently” created and that impacted

his ability to retain his Louisiana physician’s license.

The Court finds that Plaintiff has failed to sufficiently allege facts

indicating that PRC made an unprivileged publication to a third party. In his

Amended Complaint, Plaintiff alleges that he consented to PRC’s disclosure of

the report to HPFLA. Plaintiff also alleges, in a conclusory fashion, that PRC

published false statements to LSU and the LSBME but includes no supporting

facts that would make this publication plausible. Plaintiff has thus failed to

state a claim against PRC for defamation.

When granting a motion to dismiss, a district court should freely grant

leave to amend the complaint unless amendment would be futile.76 Here, the

Court finds that amendment may cure the deficiencies in Plaintiff’s claims

against PRC for intentional infliction of emotional distress and defamation.

Accordingly, Plaintiff’s claims against PRC for intentional infliction of

emotional distress are dismissed without prejudice. All other claims are

dismissed with prejudice.

CONCLUSION

For the foregoing reasons, PRC’s Motion is GRANTED IN PART and

DENIED IN PART as explained herein.

IT IS ORDERED that PRC’s request to sever and transfer the case is

DENIED.

IT IS FURTHER ORDERED that Plaintiff’s claims against PRC for

deprivation of substantive and procedural due process, violations of Title II of

the ADA, and § 504 of the RA are hereby DISMISSED WITH PREJUDICE.

76 See, e.g., United States ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 270

(5th Cir. 2010).

IT IS FURTHER ORDERED that Plaintiffs claim against PRC for

intentional infliction of emotional distress and defamation are DISMISSED

WITHOUT PREJUDICE. Plaintiff is hereby granted leave to amend his

Complaint within 15 days of this Order.

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

G TRICHE ML

UNITED STATES DISTRICT JUDGE

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