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

> District Court, E.D. Louisiana · January 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10187466

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** January 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

GREGORY DUHON, M.D. CIVIL ACTION

VERSUS NO: 20-2022

HEALTHCARE PROFESSIONALS SECTION “H”
FOUNDATION OF LOUISIANA, ET AL.

ORDER AND REASONS
Before the Court is Defendant Erik A. Whitfield, M.D.’s Motion to
Dismiss Plaintiff’s Second Amended Complaint (Doc. 163). For the following
reasons, the Motion is GRANTED.

BACKGROUND
Plaintiff Gregory Duhon, M.D. 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 from Plaintiff’s Second Amended Complaint that are
relevant to the instant Motion and assumed true for purposes of a motion to
dismiss.1
Plaintiff, after completing his residency in internal medicine, contracted
with LSU to participate in its cardiology fellowship program for the 2018–2019
academic year. During the course of the program, Plaintiff alleges that he
began receiving baseless criticisms of his performance and attitude. On May 3,
2019, the cardiology program director, Neeraj Jain, M.D., issued a disciplinary
warning and on May 23 referred Plaintiff to LSU’s Campus Assistance
Program (“CAP”) for a fitness-for-duty evaluation based on alleged behavioral
impairments. Scott Embley, assistant director of CAP, instructed Plaintiff to
submit to an occupationally mandated psychological evaluation (“OMPE”) by
Defendant Dr. Erik Whitfield, a psychiatrist in private practice who performs
evaluations at the request of LSU.
Dr. Whitfield’s OMPE of Plaintiff consisted of four one-hour private
sessions. According to Plaintiff, Dr. Whitfield, upon learning that Plaintiff
collected guns, insisted that he disclose extensive information about his gun
collection and gun licenses. Plaintiff refused, believing that this information
was irrelevant to his fitness to practice medicine. Plaintiff avers that Whitfield
irrationally construed this refusal as a possible personality disorder.
After the four sessions, Dr. Whitfield reported to LSU’s CAP that he was
“unable to decide” whether Plaintiff was fit for duty. Dr. Whitfield further
reported that to be properly “treated,” Plaintiff should register with the

1 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).
Healthcare Professionals’ Foundation of Louisiana (“HPFLA”).2 Dr. Whitfield
had no further involvement in Plaintiff’s case.
In this action, Plaintiff brings claims against a number of Defendants,
including Dr. Whitfield, for violations of procedural and substantive due
process under 42 U.S.C. § 1983 and for intentional infliction of emotional
distress and defamation under Louisiana Civil Code article 2315. Now before
the Court is Dr. Whitfield’s Motion to Dismiss Plaintiff’s claims against him
under Federal Rule of Civil Procedure 12(b)(6).3 Plaintiff opposes.4

LEGAL STANDARD
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.”5 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.”6
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.”7 The court need not, however,
accept as true legal conclusions couched as factual allegations.8 To be legally
sufficient, a complaint must establish more than a “sheer possibility” that the

2 HPFLA is a non-profit corporation created by the Louisiana State Board of Medical
Examiners (“LSBME”) to “oversee the evaluation, treatment, and monitoring of impaired or
potentially impaired physicians.” Doc. 131, ¶ 3.
3 Doc. 163
4 Doc. 169.
5 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp., 550 U.S. 547).
6 Id.
7 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
8 Ashcroft, 556 U.S. at 678.
plaintiff’s claims are true.9 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.10 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.11

LAW AND ANALYSIS
In his Motion to Dismiss, Dr. Whitfield asks the Court to dismiss
Plaintiff’s three claims against him: (1) deprivation of procedural and
substantive due process in violation of § 1983, (2) intentional infliction of
emotional distress, and (3) defamation.12 The Court will discuss each claim in
turn.

I. Deprivation of Substantive and Procedural Due Process Under
42 U.S.C. § 1983 and Ex parte Young
Plaintiff asserts a claim against Dr. Whitfield in his individual and
official capacities for deprivation of procedural and substantive due process
under § 1983 and under the Ex parte Young exception.13 “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,

9 Id.
10 Lormand, 565 F.3d at 255–57.
11 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
12 Doc. 163. See Doc. 131, ¶¶ 59–86 for Plaintiff’s claims.
13 Doc. 131, ¶¶ 60, 64.
and second that the deprivation occurred under color of state law.”14 Here,
Plaintiff alleges that Dr. Whitfield was acting under color of state law when
depriving him of his constitutional right to procedural and substantive due
process under the Fourteenth Amendment.
Dr. Whitfield argues that this due process claim must fail because
Plaintiff has not sufficiently alleged facts indicating that Dr. Whitfield was
acting under color of state law while performing the OMPE of Plaintiff. For a
private actor who is not a state official to act “under color of state law” for the
purposes of § 1983, his conduct must be fairly attributable to the state.15 To
determine whether the actions of a private entity are fairly attributable to the
state, the “inquiry must be whether there is a sufficiently close nexus between
the State and the challenged action of the regulated entity so that the action
of the latter may be fairly treated as that of the State itself.”16 To aid in this
inquiry, the Supreme Court has articulated three tests: (1) the nexus or joint-
action test, (2) the public function test, and (3) the state coercion or
encouragement test.17
“[T]he nexus or state action test finds state action where the state has
‘so far insinuated itself into a position of interdependence with the [private
actor] that it was a joint participant in the enterprise.’”18 Under the public
function test, “a private entity acts under color of state law when the entity

14 Doe v. Rains Cnty. Ind. Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995).
15 Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982).
16 Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344, 1348–49 (5th Cir. 1985) (quoting
Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974) (internal quotation marks omitted)).
17 Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549–50 (5th Cir. 2005) (citations omitted).
18 Richard v. Hoechst Celanese Chem. Grp., Inc., 355 F.3d 345, 352 (5th Cir. 2003) (quoting
Jackson, 419 U.S. at 357–58), cert denied, 543 U.S. 917 (2004).
performs a function which is ‘exclusively reserved to the state.’”19 Finally, the
state coercion or encouragement test “holds the state responsible ‘for a private
decision only when [the state] has exercised coercive power or has provided
significant encouragement, either overt or covert, that the choice must in law
be deemed to be that of the State.”20
In his Motion to Dismiss, Dr. Whitfield argues that he is a private actor.
He avers that he operates a private psychiatric practice in New Orleans, that
Plaintiff—not LSU or another state actor—paid him for the OMPE, and that
he sent his report to LSU with Plaintiff’s consent. Dr. Whitfield denies having
any contract of employment or other legal relationship with a state entity like
LSU. Plaintiff’s allegations do not contradict any of these facts. Private
conduct, no matter how discriminatory or wrongful, falls outside § 1983’s
ambit.21
Plaintiff counters that his Second Amended Complaint alleges that
Whitfield acted on behalf of and in conjunction with LSU in referring Plaintiff
to HPFLA.22 Additionally, Plaintiff argues that Dr. Whitfield became
“interdependent with LSU because he performed fit for duty examinations for
it.”23 In fact, Plaintiff’s allegations paint a different picture. The only
connection alleged between LSU and Dr. Whitfield is CAP’s instruction to
Plaintiff to submit to an OMPE by Dr. Whitfield and the subsequent report

19 Id. (quoting Flagg Bros. v. Brooks, 436 U.S. 149, 157–58 (1978)).
20 Id. (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).
21 Cornish, 402 F.3d at 549 (citing Richard, 355 F.3d at 352).
22 See Doc. 169 at 10 (citing Doc. 131, ¶¶ 20, 50, 55).
23 Id.
relayed to CAP after the conclusion of the four private sessions.24 Further,
Plaintiff alleges that Dr. Whitfield merely recommended he visit HPFLA,
rather than referring him there himself.25 Indeed, Plaintiff later mentions “the
baseless referral to HPFLA by LSU,” not Dr. Whitfield.26
The Court finds that Plaintiff has not sufficiently alleged that Dr.
Whitfield’s conduct was fairly attributable to the state under any of the above
tests. The argument that Dr. Whitfield was “interdependent” with LSU
suggests that Plaintiff believes the nexus or joint-action test applies here.
However, it can hardly be said that LSU was a “joint participant” in the OMPE
of Plaintiff.27 Besides the initial referral, there is no other allegation of LSU’s
involvement with the OMPE. A state entity’s referral alone cannot transform
a private psychiatrist into a state actor.
Given that Plaintiff has failed to plead facts sufficient to show that Dr.
Whitfield’s conduct was fairly attributable to the state, Dr. Whitfield cannot be
liable under § 1983 or Ex parte Young. Therefore, Plaintiff’s due process claim
is dismissed with prejudice. The Court need not consider Plaintiff’s other
allegations of due process deprivations.

II. Intentional Infliction of Emotional Distress
Next, Plaintiff asserts a claim against Dr. Whitfield for intentional
infliction of emotional distress (“IIED”). Specifically, Plaintiff alleges that

24 Doc. 131, ¶¶ 17–23.
25 Id. ¶ 20 (“Whitfield reported . . . that to be properly ‘treated’ Plaintiff would need to register
with HPFLA and follow its instructions for treatment and monitoring.”).
26 Id. ¶ 55 (emphasis added).
27 See Doc. 169 at 10; Richard, 355 F.3d at 352.
“Whitfield’s baseless referral to HPFLA was intended to harass and punish the
Plaintiff,” and that Dr. Whitfield irrationally construed Plaintiff’s refusal to
disclose information about his gun collection as a possible personality
disorder.28 Dr. Whitfield argues that even assuming he behaved as Plaintiff
represents, that conduct does not go beyond all bounds of decency as required
by the standard for IIED claims.29
“[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.”30 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.”31 “Liability does not extend to mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities.”32
This Court finds that Plaintiff has failed to allege sufficient facts to meet
any of the three elements of IIED. First, even assuming Dr. Whitfield
baselessly recommended that Plaintiff see HPFLA and irrationally fixated on
his gun ownership, that conduct is not “atrocious and utterly intolerable in a

28 Doc. 131, ¶¶ 70, 19; see Doc. 169 at 15–16.
29 See Doc. 163-1 at 14–15.
30 White v. Monsanto, 585 So. 2d 1205, 1209 (La. 1991).
31 Id.
32 Id.
civilized community.”33 In support of his IIED claim, Plaintiff quotes the
opinion in Currier v. Entergy Services, Inc., wherein another section of this
Court denied summary judgment on an emotional distress claim after finding
evidence that the defendant’s conduct “did not lead to [the plaintiff’s] loss of
only that one job; it destroyed her career.”34 In Currier, however, the Court
found a genuine issue of material fact as to whether the defendant “concocted
a plan to destroy Currier’s career.”35 Here, the allegations do not reflect that
Dr. Whitfield executed a plan to destroy Plaintiff’s career.
Second, Plaintiff does not present facts that indicate his emotional
distress was severe. It is not sufficient to assert severe emotional distress in a
conclusory fashion without any facts supporting that allegation, as Plaintiff
does.36 Third and finally, Plaintiff’s allegation as to Dr. Whitfield’s intent is
similarly conclusory.37 Thus, this Court finds that Plaintiff has failed to meet
the high bar for IIED claims in Louisiana, and his claim is dismissed.

33 Id.
34 73 F. Supp. 3d 673, 679 (E.D. La. 2014).
35 Id.
36 See Wilson v. Ochsner Clinic Found., No. 19-12314, 2019 WL 5693109, at *7 (E.D. La. Nov.
4, 2019) (“Furthermore, the second element of intentional infliction of emotional distress
requires Plaintiff to prove symptoms of emotional distress like ‘neuroses, psychoses, chronic
depression, phobia, and shock.’ Plaintiff does not plead any facts — visits to health care
providers as result of the emotional stress, physical symptoms resulting from the emotional
distress — that would allow him to prove he suffered actual severe emotional distress.”)
(citations omitted).
37 See Doc. 131, ¶ 75.
III. Defamation
Lastly, Plaintiff brings a claim of defamation against Dr. Whitfield.
Plaintiff alleges that “Whitfield falsely stated he could not conclude Plaintiff
was fit-for-duty” and “knowingly published that false statement to HPFLA.”38
Dr. Whitfield argues that he made no false or defamatory statements about
Plaintiff and that he had no malice toward Plaintiff before or after the
evaluation.39
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.”40 “The [defamation] jurisprudence
often defines the fault requirement as either actual or implied malice.”41
“Malice (or fault), for purposes of the tort of defamation, is a lack of reasonable
belief in the truth of the statement giving rise to the defamation.”42
Here, the Court finds that Plaintiff has failed to sufficiently allege facts
indicating that Dr. Whitfield lacked a reasonable belief in his statement that
he was “‘unable to decide’ whether Plaintiff was fit for duty.”43 Even assuming
that Dr. Whitfield unreasonably obsessed over Plaintiff’s gun ownership and
his refusal to disclose information on that front, it does not follow that Dr.

38 Id. ¶ 64(a).
39 See Doc. 163-1 at 15–17.
40 Bellard v. Gautreaux, 675 F.3d 454, 464 (5th Cir. 2012) (citing Costello v. Hardy, 864 So.
2d 129, 139 (La. 2004)).
41 Meyers v. Siddons-Martin Emergency Group LLC, No. 16-1197, 2016 WL 5337957, at *5
(E.D. La. Sept. 23, 2016) (citing Costello, 864 So. 2d at 130).
42 Costello, 864 So. 2d at 143.
43 Doc. 131, ¶ 20.
Whitfield had no reasonable basis for his ambivalent conclusion. Plaintiff fails
to connect Dr. Whitfield’s irrationality over guns to his conclusion about
Plaintiff. In other words, Dr. Whitfield may have had other, reasonable
erounds for his statement that he could not decide whether Plaintiff was fit for
duty. Accordingly, the Court dismisses Plaintiff's defamation claim.
“[U|nless futile, courts generally allow one chance to amend deficient
pleadings before dismissing with prejudice.”44 Here, Plaintiff has already
amended his Complaint on two separate occasions, and the Court finds that
further amendment would be futile.

CONCLUSION
For the foregoing reasons, Dr. Whitfield’s Motion to Dismiss Plaintiffs
Second Amended Complaint (Doc. 163) is GRANTED.
IT IS ORDERED that all of Plaintiff's claims against Dr. Whitfield are
hereby DISMISSED WITH PREJUDICE.

New Orleans, Louisiana this 28th day of January, 2022.

g TRICHE Lh 3
UNITED STATES DISTRICT JUDGE

44 Buc-ee’s, Ltd. v. Bucks, Inc., 262 F. Supp. 3d 453, 467 .D. Tex. 2017) (citing Great Plains
Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (th Cir. 2002)).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10187466. Public record. Not legal advice.