“Generally, this court has treated dismissals based on state sovereign immunity as jurisdictional under Fed. Rule Civ. Proc. 12(b)(1). Like the Supreme Court itself, however, we recognize the uniquely ambiguous character of Eleventh Amendment immunity.”
How later courts described this case
- “Generally, this court has treated dismissals based on state sovereign immunity as jurisdictional under Fed. Rule Civ. Proc. 12(b)(1). Like the Supreme Court itself, however, we recognize the uniquely ambiguous character of Eleventh Amendment immunity.”
Written by the judges who cited it.
The opinion
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 Lawrence Cresswell’s Motion to Dismiss
Plaintiff’s Second Amended Complaint (Doc. 166). 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.
After conducting the OMPE, Dr. Whitfield created a report that said he
was unable to decide whether Plaintiff was fit for duty. Dr. Whitfield stated
that to be properly treated, Plaintiff should register with Defendant
Healthcare Professionals’ Foundation of Louisiana (“HPFLA”).2 Dr. Whitfield
sent his report to CAP, which then instructed Plaintiff to report to HPFLA.3
Plaintiff did as CAP instructed, and upon registering with HPFLA, it
directed Plaintiff to report to one of three treatment centers to undergo a more
comprehensive psychological exam at Plaintiff’s expense. Of the three options,
1 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).
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 Id. ¶ 22.
Plaintiff chose Defendant Professional Renewal Center (“PRC”) in Lawrence,
Kansas and went there in July 2019. After examining Plaintiff for three days,
PRC rendered an allegedly sham report that diagnosed past ADHD and past
substance abuse disorder, among other allegedly baseless “behavioral traits”
that Plaintiff supposedly needed to address with counseling. PRC’s report
recommended further treatment, which Plaintiff claimed was likely to cost him
more than $50,000.
PRC then sent its report to HPFLA. Despite allegedly knowing of the
borderline fraudulent nature of PRC’s report, HPFLA threatened to report
Plaintiff to LSBME if he did not comply with PRC’s recommendation. Plaintiff
refused to comply because he could not afford the treatment and did not believe
it was medically necessary.
In September 2019, HPFLA reported to LSBME that Plaintiff was not
compliant with its or PRC’s recommendations. In October, Defendant
Lawrence Cresswell, D.O., the Director of Investigations at LSBME, notified
Plaintiff that he was under investigation for possible violations of the
Louisiana Medical Practice Act based on his noncompliance with HPFLA and
PRC’s instructions. Over the course of the next few months, Dr. Cresswell
would repeatedly state that to help resolve the investigation, Plaintiff should
comply with those instructions.
Plaintiff alleges that LSBME opened an indefinite preliminary review of
his case that never proceeded to the next steps, in violation of state law and
regulations. Plaintiff further contends that LSBME held no hearing and gave
no opportunity for Plaintiff to present evidence that he was fit for duty, which
Plaintiff claimed to have in the form of independent psychological
examinations from two retained psychiatrists. Fed up with LSBME and
refusing to undergo more allegedly unjustified exams, Plaintiff let his
Louisiana medical license lapse in July 2020. Afterwards, LSBME, acting at
Dr. Cresswell’s behest, allegedly reported Plaintiff to the National Practitioner
Data Bank (“NPDB”) for surrendering his license during an investigation. Any
institution to which a physician applies for employment queries the NPDB, so
LSBME’s report allegedly hurt Plaintiff’s employment opportunities in other
states.
In this action, Plaintiff brings a claim against Dr. Cresswell in his official
capacity for due process violations under the Fourteenth Amendment. Plaintiff
alleges that due process requires some kind of hearing or opportunity to
present evidence during an investigation such as this, and Plaintiff was given
no such opportunity. Invoking Ex parte Young, Plaintiff seeks injunctive relief
in the form of ordering Dr. Cresswell to “expunge from or seal [his] records to
the extent that they indicate in any way that Plaintiff was subject to any
impairment inquiry.”4 Now before the Court is Dr. Cresswell’s Motion to
4 Id. ¶ 65(A); 209 U.S. 123 (1908).
Dismiss Plaintiff’s claim against him under Federal Rule of Civil Procedure
12(b)(1).5 Plaintiff opposes.6
LEGAL STANDARD
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.”7 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.8 The proponent of federal court jurisdiction—in this case, the Plaintiff—
bears the burden of establishing subject matter jurisdiction.9
LAW AND ANALYSIS
In his Motion to Dismiss, Dr. Cresswell asks the Court to dismiss
Plaintiff’s due process claim against him in his official capacity on the grounds
5 Doc. 166. While Dr. Cresswell does not explicitly mention Rule 12(b)(1) in his Motion to
Dismiss, he does correctly note that if Ex parte Young does not apply, the Court would lack
jurisdiction, meaning dismissal is appropriate under Rule 12(b)(1). The Fifth Circuit
considers dismissals based on state sovereign immunity as jurisdictional under Rule 12(b)(1).
See Cantu Servs., Inc. v. Roberie, 535 Fed. Appx. 342, 346 n.3 (5th Cir. 2013) (“Generally,
this court has treated dismissals based on state sovereign immunity as jurisdictional under
Fed. Rule Civ. Proc. 12(b)(1). Like the Supreme Court itself, however, we recognize the
uniquely ambiguous character of Eleventh Amendment immunity.”) (citations omitted).
6 Doc. 169.
7 Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).
8 Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001).
9 See Physicians Hosps. of Am. v. Sebelius, 691 F.3d 649, 652 (5th Cir. 2012).
that the requirements for Ex parte Young have not been met.10 “The Eleventh
Amendment generally precludes actions against state officers in their official
capacities.”11 However, the Ex parte Young doctrine allows a plaintiff to sue a
state officer in his official capacity for prospective injunctive or declaratory
relief.12 “In determining whether the doctrine of Ex parte Young avoids an
Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward
inquiry into whether [the] complaint alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective.’”13
Here, Plaintiff seeks prospective relief insofar as he asks Dr. Cresswell
to purge his records at some point in the future. However, there is no allegation
of an ongoing violation of federal law. Plaintiff alleges that Dr. Cresswell
denied him due process during his investigation. That investigation has since
ceased. Ex parte Young only applies to “cases in which a violation of federal
law by a state official is ongoing as opposed to cases in which federal law has
been violated at one time or over a period of time in the past.”14 Plaintiff has
not alleged that, after letting his medical license lapse, he has attempted to
reapply for a Louisiana license. There is no reason to believe that the same
10 Doc. 166 at 4–6. Plaintiff amended his Second Amended Complaint so that it was clear that
Dr. Cresswell was sued only in his official capacity and only for injunctive relief. See Doc.
155.
11 Cantu Servs., Inc., 535 Fed. Appx. at 344 (internal quotations omitted).
12 See Fontenot v. McCraw, 777 F.3d 741, 752 (5th Cir. 2015).
13 Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (quoting Idaho v.
Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997) (O’Connor, J., concurring in part and
concurring in judgment)).
14 Papasan v. Allain, 478 U.S. 265, 277–78 (1986).
alleged due process violations that occurred in the past are ongoing or likely to
reoccur anytime soon.
Plaintiff unsuccessfully attempts to respond to this point.15 He claims
that because Dr. Cresswell can retract his report to the NPDB and seal or
expunge certain damaging records, Dr. Cresswell can ameliorate the harm to
Plaintiff’s employment prospects that is allegedly ongoing. This argument
conflates an ongoing constitutional violation with a continued effect or
byproduct of a past violation.16 As the Fifth Circuit has explained,
While “[r]emedies designed to end a continuing violation of federal
law are necessary to vindicate the federal interest in assuring the
supremacy of that law,” the same rationale does not apply to
remediation of a prior violation of federal law. Thus, to comply with
the dictates of Ex parte Young, plaintiffs’ lawsuit must allege that
the defendants’ actions are currently violating federal law.17
This Court notes that the Fourth Circuit reached the same conclusion in
a similar case. In Jemsek v. Rhyne, the plaintiff, a physician licensed in North
Carolina, was sanctioned for misconduct in 2006 by the North Carolina
Medical Board.18 The Board then investigated the plaintiff’s medical practice
two years later and upon completion, informed him that if he allowed his
medical license to lapse, the Board would end the investigation.19 The plaintiff
let his license expire, and the Board issued a “public letter of concern” as to his
15 See Doc. 169 at 7.
16 See Manion v. N.C. Med. Bd., No. 5:16-CV-63, 2016 WL 4523902, at *4 (E.D.N.C. Aug. 22,
2016).
17 Williams On Behalf of J.E. v. Reeves, 954 F.3d 729, 737 (5th Cir. 2020) (quoting Papasan,
478 U.S. at 278) (emphasis in original) (cleaned up).
18 662 Fed. Appx. 206, 208 (4th Cir. 2016).
19 Id.
conduct. Afterwards, the plaintiff filed suit against members of the Board,
invoking Ex parte Young on the grounds that because the sanctions were still
on the record, the violation was ongoing.20
Presented with these facts, the Fourth Circuit concluded that the
Eleventh Amendment barred the plaintiff’s claims against the Board members
and that Ex parte Young did not apply.21 The court reasoned, “[T]he Board is
not continuing to violate Jemsek’s rights.”22 It noted that the plaintiff let his
own license lapse and had not sought reinstatement of it.23 “[E]ven though the
consequences of any past violation may persist, invoking those effects does not
transform past state action into an ongoing violation. Rather, it is an attempt
‘to avoid the obvious fact that the actual violation alleged is a past event that
is not itself continuing.’”24
Although this Court is not bound by the Fourth Circuit’s precedent, its
reasoning is persuasive and applicable to this case. Here, Plaintiff let his
license lapse, and he has not sought to reapply for a Louisiana medical license.
All of the alleged violations occurred in the past, and no violations are alleged
to have continued beyond the context of the investigation into Plaintiff’s fitness
for duty. The consequences of that investigation may continue to reverberate,
but that is immaterial for purposes of Ex parte Young.
20 Id. at 211.
21 Id. at 209.
22 Id. at 211.
23 Id. at 212.
24 Id. at 211 (quoting Republic of Paraguay v. Allen, 134 F.3d 622, 628 (4th Cir. 1998)).
Plaintiff cites the Fifth Circuit case of Nelson v. University of Texas at
Dallas in support of the proposition that “reinstatement is prospective relief.”25
Plaintiff’s argument seems to be that his request for relief from Dr. Cresswell
is akin to a request for reinstatement of employment. In Nelson, the Fifth
Circuit followed its precedent in Warnock v. Pecos County, holding that a
request for reinstatement of employment satisfies the requirements of Ex parte
Young.26 This holding, however, is inapplicable to the instant case for two
reasons. First, Plaintiff’s request for Dr. Cresswell to retract a report and
expunge a record is not comparable to reinstatement. Second, the Fifth Circuit
has since acknowledged that “[t]he special considerations surrounding public
employment, and the holding in Warnock, are not binding” in other contexts
unless Warnock and its progeny have been extended to those settings.27 Here,
Plaintiff cites no cases extending the holdings of Warnock and Nelson to
instances of due process deprivations.
Accordingly, the Court finds that Plaintiff has not satisfied the
requirements of Ex parte Young, and therefore sovereign immunity bars his
claim. “Because sovereign immunity deprives the court of jurisdiction, the
claims barred by sovereign immunity can be dismissed only under Rule
12(b)(1) and not with prejudice.”28 Thus, the Court dismisses without prejudice
Plaintiff’s claim against Dr. Cresswell for injunctive relief.
25 535 F.3d 318 (5th Cir. 2008); Doc. 169 at 7.
26 Nelson, 535 F.3d at 323–24 (citing Warnock v. Pecos Cnty., 88 F.3d 341, 343 (5th Cir.
1996)).
27 Cantu Servs., Inc., 535 Fed. Appx. at 344.
28 Warnock, 88 F.3d at 343.
CONCLUSION
For the foregoing reasons, Dr. Cresswell’s Motion to Dismiss Plaintiffs
Second Amended Complaint (Doc. 166) is GRANTED.
IT IS ORDERED that Plaintiff's only claim against Dr. Cresswell is
hereby DISMISSED WITHOUT PREJUDICE.
New Orleans, Louisiana this 2nd day of February, 2022.
g TRICHE Lh
UNITED STATES DISTRICT JUDGE
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