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

HEALTHCARE PROFESSIONALS’ SECTION “H”

FOUNDATION OF LOUISIANA, ET AL.

ORDER AND REASONS

Before the Court is Defendant Healthcare Professionals’ Foundation of

Louisiana’s Third Motion to Dismiss Pursuant to Federal Rule of Civil

Procedure Rule 12(b)(6) (Doc. 160). 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. After the four sessions, Dr. Whitfield issued a report that said he was

unable to decide whether Plaintiff was fit for duty. Dr. Whitfield stated that to

be properly evaluated and treated, Plaintiff would need to register with

Defendant Healthcare Professionals’ Foundation of Louisiana (“HPFLA”), a

non-profit corporation created by the Louisiana State Board of Medical

Examiners (“LSBME”) for the sole purpose of “oversee[ing] the evaluation,

treatment, and monitoring of impaired or potentially impaired physicians.”2

1 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).

2 Doc. 131, ¶ 3.

Dr. Whitfield sent his report to CAP, who then instructed Plaintiff to report to

HPFLA.3

Plaintiff did as CAP instructed, and upon registering with HPFLA, the

case manager there, Felix Vanderlick, directed Plaintiff to report to one of

three treatment centers to undergo a more comprehensive psychological exam

at Plaintiff’s expense. HPFLA told Plaintiff that it would report him to LSBME

if he failed to comply with these instructions and that as a result, he could lose

his Louisiana medical license. Of the three options, 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 baseless “behavioral traits” that Plaintiff apparently needed to

address with counseling. PRC’s report recommended further treatment, which

Plaintiff claimed was likely to cost him more than $50,000.

PRC sent its report to HPFLA, and HPFLA’s employee, Mr. Vanderlick,

purportedly told Plaintiff “that PRC’s report was incorrect, was a sham and

possibly even fraudulent because Plaintiff had no mental illness and told

Plaintiff that if he just went to his friend’s shop, [The Renewal Center (“TRC”)]

in Baton Rouge, Louisiana, a substance abuse treatment facility, that HPFLA

would report him as being compliant.”4 Despite allegedly knowing of the

unreliability of PRC’s report, HPFLA threatened to report Plaintiff to LSBME

3 Id. ¶ 22.

4 Id. ¶ 31.

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. That same month, Plaintiff

sought and obtained his own private psychological examinations from two

psychiatrists who identified flaws in the PRC report and expressed full

confidence that Plaintiff was fit to practice medicine. HPFLA refused to

consider the results of these examinations or their criticisms of the PRC report.

In a final effort to satisfy HPFLA and LSBME, Plaintiff met with TRC, but

TRC also refused to review Plaintiff’s expert reports, leading him to decline

any further treatment. On February 20, 2020, Plaintiff’s attorneys wrote to

HPFLA demanding it close Plaintiff’s file and advise LSBME that there was

no basis for further review of or action against his medical license. HPFLA

never responded to this letter. In July 2020, rather than undergo further

treatment that he did not deem necessary or cost efficient, Plaintiff allowed his

medical license to expire.

In this action, Plaintiff brings claims against a number of Defendants,

including HPFLA, for violations of procedural and substantive due process

under 42 U.S.C. § 1983 and for intentional infliction of emotional distress and

defamation. Now before the Court is HPFLA’s Third Motion to Dismiss all of

Plaintiff’s claims against it under Federal Rule of Civil Procedure 12(b)(6).5

Plaintiff opposes.6

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.”7 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.”8

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

all reasonable inferences in the plaintiff’s favor.”9 The court need not, however,

accept as true legal conclusions couched as factual allegations.10 To be legally

sufficient, a complaint must establish more than a “sheer possibility” that the

plaintiff’s claims are true.11 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.12 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.13

5 Doc. 160.

6 Doc. 169.

7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp., 550 U.S. at 547).

8 Id.

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

10 Ashcroft, 556 U.S. at 678.

11 Id.

12 Lormand, 565 F.3d at 255–57.

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

LAW AND ANALYSIS

In its Motion to Dismiss, HPFLA asks the Court to dismiss Plaintiff’s

three claims: (1) deprivation of procedural and substantive due process in

violation of § 1983, (2) intentional infliction of emotional distress, and (3)

defamation.14 The Court will discuss each claim in turn.

I. Deprivation of Substantive and Procedural Due Process Under

42 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.”15 Here, Plaintiff alleges that HPFLA was acting under color of

state law when depriving him of his constitutional right to due process under

the Fourteenth Amendment.

HPFLA argues that Plaintiff fails to allege sufficient facts to meet either

element of a § 1983 claim.16 First, HPFLA contends that it is a private, non-

profit corporation that is not a state actor for purposes of § 1983. Alternatively,

HPFLA avers that even if it is a state actor, it is entitled to qualified immunity.

Second, HPFLA argues that it did not deprive Plaintiff of any interests

protected by statutes or the Constitution.

This Court has previously declined to dismiss HPFLA on the grounds

that it is a private entity immune to § 1983 liability.17 HPFLA, a non-profit

14 Doc. 160. See Doc. 131, ¶¶ 59–86 for Plaintiff’s claims.

15 Doe v. Rains Cnty. Indep. Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995).

16 See Doc. 160-1 at 9–25.

17 See Doc. 123 at 11 (“The Court finds that Plaintiff has sufficiently alleged that HPFLA is

fairly attributable to the state . . . .”).

private entity, was created by LSBME, a state entity, for the sole purpose of

overseeing the evaluation, monitoring, and treatment of impaired or

potentially impaired physicians. Whether HPFLA is a state actor is a close call.

Assuming arguendo that it is, this Court nonetheless finds dismissal

appropriate on the grounds of qualified immunity. The Court first considers

the threshold question of whether HPFLA can assert qualified immunity, and,

finding it able to do so, the Court subsequently analyzes whether Plaintiff can

defeat this immunity.

A. Whether HPFLA Is Entitled to Raise Qualified Immunity

“Private actors may, under some circumstances, be liable under § 1983,

but it does not necessarily follow that they may assert qualified immunity.”18

Notwithstanding that neither party addresses the issue, the Court cannot

ignore that “[t]he law is not established in this circuit, however, as to whether

private entities . . . are entitled to the protections of qualified immunity.”19

While it is clear that, under certain circumstances, employees of private

entities acting under color of state law are eligible to raise qualified immunity,

there is a circuit split as to whether the private entities themselves are so

eligible.20 The Fifth Circuit has not weighed in on this dispute.

18 Perniciaro v. Lea, 901 F.3d 241, 251 (5th Cir. 2018) (citing West v. Atkins, 487 U.S. 42, 54–

57 (1988); Wyatt v. Cole, 504 U.S. 158, 168–69 (1992)).

19 Walter v. Horseshoe Ent., 483 Fed. Appx. 884, 886 n.3 (5th Cir. 2012) (emphasis added);

see also May v. Strain, 55 F. Supp. 3d 885, 900 (E.D. La. 2014).

20 See United Pet Supply, Inc. v. City of Chattanooga, 786 F.3d 464, 484 n.3 (6th Cir. 2014),

cert denied, 575 U.S. 1046 (2015).

The Second, Third, Seventh, and Tenth Circuits have at least allowed

private entities to raise qualified immunity on some occasions.21 Their

rationale seems to be that the reasons for extending qualified immunity to

private employees under certain conditions should also apply to private

employers under those same conditions. As the Tenth Circuit noted in

DeVargas v. Mason & Hanger-Silas Mason Co., “A nonimmune contractor

defendant would be required to bear the total cost of plaintiff’s injury,

regardless of the objective reasonableness of its acts. In addition, denying

immunity would make contractor defendants—whether individual or

corporate—more timid in carrying out their duties and less likely to undertake

government service.”22

By contrast, the Sixth, Ninth, and Eleventh Circuits have determined

that private entities are generally unable to assert qualified immunity.23 Their

21 See Fabrikant v. French, 691 F.3d 193 (2d Cir. 2012) (allowing a non-profit, private animal-

rescue organization to raise qualified immunity); Shipley v. First Fed. Sav. Bank & Loan

Ass’n of Del., 877 F.2d 57 (3d Cir. 1989) (Table) (affirming district court’s holding that a

private bank, even if found to be a state actor, “would still be entitled to assert a defense of

qualified immunity”); Sherman v. Four Cnty. Couns. Ctr., 987 F.2d 397 (7th Cir. 1993)

(finding “no persuasive reason to distinguish between a private corporation and a private

individual” with respect to an analysis of qualified immunity); Rosewood Servs. Inc. v.

Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1166 (10th Cir. 2005) (citing DeVargas v.

Mason & Hanger-Silas Mason Co., 844 F.2d 714, 723 (10th Cir. 1988)) (reiterating the rule

from DeVargas that “there is no bar against a private corporation claiming qualified

immunity”); Weigan v. Spadt, 317 F. Supp. 2d 1129 (D. Neb. 2004) (allowing for the possibility

that Emergency Medical Services, Inc. is entitled to qualified immunity).

22 DeVargas, 844 F.2d at 723.

23 See United Pet Supply, Inc., 768 F.3d 464 (comparing private, non-profit corporation to

municipality and prohibiting it from asserting qualified immunity); Halvorsen v. Baird, 146

F.3d 680 (9th Cir. 1998) (finding private, non-profit detoxification organization not entitled

to qualified immunity); Swann v. S. Health Partners, Inc., 388 F.3d 834 (11th Cir. 2004) (a

private entity contracting with the state could not raise qualified immunity). The Court uses

the word “generally” on purpose because no case from any of these three circuits has

rationale rests on an analogy between private entities and municipalities.24 As

one district court explained, “Private corporations that enter contracts to

provide traditionally public services are functionally equivalent to

municipalities for purposes of § 1983 suits and, like municipalities, they are

not entitled to claim qualified immunity.”25

This Court decides that, only with respect to the facts before it, there is

no reason to distinguish between HPFLA employees and the entity itself.26

This conclusion is supported by the fact that any analogy between a

municipality and HPFLA is tenuous at best. Courts that have equated private

corporations with municipalities did so because of the former’s provision of

“traditionally public services.”27 By contrast, HPFLA only contracts with

LSBME to provide a highly specific, discrete function—monitoring potentially

impaired physicians—which is not traditionally an exclusively public service.28

Moreover, unlike a municipality, HPFLA, a small non-profit, cannot draw from

definitively stated that private entities cannot raise the defense of qualified immunity simply

by virtue of being entities rather than individuals.

24 See United Pet Supply, Inc., 768 F.3d at 483–84.

25 Ray v. Jud. Corr. Servs., Inc., 270 F. Supp. 3d 1262, 1291 (N.D. Ala. 2017) (citation omitted)

(citing Swann, 388 F.3d at 837).

26 At least one other court reached a similar conclusion about members of the North Carolina

Physician Health Program. See Manion v. N.C. Med. Bd., No. 5:16-CV-63, 2016 WL 4523902,

at *6 (E.D.N.C. Aug., 22, 2016) (“The members of the PHP and the Medical Board are also

protected by qualified immunity.”) For greater justification for the similarity between

HPFLA and its employees, see the Court’s discussion in Section I.A.ii below.

27 Ray, 270 F. Supp. 3d at 1291.

28 HPFLA’s function, namely, monitoring the treatment of physicians suspected of being

impaired, is not one that historically was exclusively reserved to the state. See Gary D. Carr

et al., Physician Health Programs: The US Model, in PHYSICIAN MENTAL HEALTH AND WELL-

BEING: RESEARCH AND PRACTICE 265, 267 (Kirk J. Brower & Michelle B. Riba eds., 2017)

(“Early [physician health programs] were volunteer groups of ‘physicians helping physicians’

who limited their work to physicians with [substance abuse disorders].”)

a public treasury to pay judgments. This Court, therefore, finds the rationale

in DeVargas persuasive as it relates to this case and adopts the same here.

Importantly, the Court notes that its conclusion may well be different when

presented with an alternative set of facts.

Having concluded that there is no principled reason to prevent HPFLA

from raising qualified immunity by virtue of its status as an entity, the Court

must now determine whether it passes muster under the usual test for whether

private actors are eligible to raise qualified immunity. Whether a private actor

can do so depends on two factors: “(1) principles of tort immunities and

defenses applicable at common law around the time of § 1983’s enactment in

1871 and (2) the purposes served by granting immunity.”29 Although Plaintiff

raises no argument as to why HPFLA should not be entitled to assert qualified

immunity,30 the Court must still determine whether the common law

principles of 1871 or the policy considerations behind qualified immunity

justify allowing HPFLA to assert the defense.

i. Immunities and Defenses at Common Law in 1871

HPFLA is an organization that assists with Louisiana’s “physician

health program,” or PHP. “Physician health programs are resources for

physicians, other health care professionals, and those in medical training who

suffer from potentially impairing conditions, ranging from [substance abuse

disorders] to a wide range of medical, behavioral, and psychiatric problems.”31

29 Perniciaro, 901 F.3d at 251 (citing Filarsky v. Delia, 566 U.S. 377, 383–84 (2012);

Richardson v. McKnight, 521 U.S. 399, 403–04 (1997)).

30 See Doc. 175 at 8.

31 Robert L. DuPont & Lisa J. Merlo, Physician Health Programs: A Model for Treating

Substance Use Disorders, 57.1 JUDGES’ J. 32, 33 (2018).

The first PHPs in America surfaced in the 1970s and 1980s.32 Since PHPs did

not exist in 1871, there was no “‘firmly rooted’ tradition of immunity” for

organizations similarly situated to HPFLA when § 1983 was enacted. This

finding counsels against allowing HPFLA to assert qualified immunity.33 The

Court now turns to the second factor, the purposes behind qualified immunity.

ii. The Purposes Served by Granting Qualified Immunity

Here,

The Supreme Court has identified three purposes served by

qualified immunity: (1) preventing unwarranted timidity in the

exercise of official duties; (2) ensuring that highly skilled and

qualified candidates are not deterred from public service by the

threat of liability; and (3) protecting public employees—and their

work—from all of the distraction that litigation entails.34

HPFLA argues that allowing it to assert qualified immunity would serve each

of these three purposes.35 First, HPFLA notes that it is not a large, for-profit

entity with competition from other firms offering similar services. As a result,

there are no “ordinary marketplace pressures” that “suffice to incentivize

32 See Gary D. Carr et al., Physician Health Programs: The US Model, in PHYSICIAN MENTAL

HEALTH AND WELL-BEING: RESEARCH AND PRACTICE 265, 266–68 (Kirk J. Brower & Michelle

B. Riba eds., 2017).

33 The most faithful interpretation of relevant precedent from the U.S. Supreme Court and

the Fifth Circuit dictates that the history and policy factors need not both weigh in favor of

immunity in order to allow the private defendant to assert qualified immunity. See

Richardson, 521 U.S. at 407 (analyzing policy concerns even after concluding that “history

[did] not provide significant support for the [defendants’] immunity claim”); Sanchez v.

Oliver, 995 F.3d 461, 469 (5th Cir. 2021) (applying the policy purposes behind qualified

immunity to the case at hand despite finding “no sufficient historical traditional of immunity

at common law”).

34 Perniciaro, 901 F.3d at 253.

35 See Doc. 160-1 at 26–28.

vigorous performance and prevent unwarranted timidity.”36 Second, HPFLA

notes that qualified candidates would be discouraged from working there

without qualified immunity, especially when working in close proximity to

LSBME employees who receive the benefit of immunity. Third, HPFLA argues

that because its employees work alongside LSBME’s public employees,

litigation against the former necessarily affects the latter to some extent as

well. Plaintiff fails to respond to these arguments.

This Court believes that allowing HPFLA to assert qualified immunity

advances the doctrine’s three purposes. First, with respect to preventing

unwarranted timidity—“the most important special government immunity-

producing concern”—courts focus on the presence or absence of market forces.37

In Richardson v. McKnight, the Supreme Court held that prison guards

employed by a large, private prison-management firm are not entitled to assert

qualified immunity.38 There, the Court found that the firm was “systematically

organized to perform a major administrative task for profit,” it did so

“independently, with relatively less ongoing direct state supervision,” and it

“face[d] threats of replacement by other firms” with better performance

records.39 These features made the firm susceptible to market pressures that

allowed it to combat unwarranted timidity in a way that a public employer,

36 Perniciaro, 901 F.3d at 253.

37 Richardson, 521 U.S. at 409.

38 Id. at 403–04; see also Sanchez, 995 F.3d at 467–72 (holding that private social worker

employed by organization systematically arranged to provide medical services in a

correctional setting was ineligible to assert qualified immunity).

39 Id. at 409.

constrained by “institutional rules and regulations,” could not without the

benefit of qualified immunity.40

Those market forces are not at play here. HPFLA, a non-profit

corporation, has been the only entity to provide monitoring services for the

LSBME for more than 20 years.41 Indeed, HPFLA was created by LSBME for

this specific purpose, and there are no other organizations competing with

HPFLA for its privileged status.42 HPFLA indicates—and Plaintiff’s

allegations confirm—that it hardly works “independently” from LSBME;

instead, the two operate in concert. HPFLA does not at all resemble the large,

for-profit, sophisticated firm in Richardson that is especially well-suited to

discourage overly timid work without the assistance of qualified immunity.

The threat of bearing the cost of plaintiffs’ injuries, regardless of the objective

reasonableness of HPFLA’s conduct, would no doubt make the organization

more timid in exercising its official duties.

Second, as for minimizing deterrence of talented candidates towards

public service, HPFLA is likely to have difficulty doing so without qualified

immunity. Filarksy v. Delia is illustrative on this point.43 There, the Supreme

Court held that a private attorney retained by a city to conduct an internal

affairs investigation could seek the protection of qualified immunity.44

Discussing this second policy consideration, the Court explained that the

concern over deterrence is especially acute where private employees work

40 Perniciaro, 901 F.3d at 253.

41 See Doc. 160-1 at 26–27.

42 Id.

43 566 U.S. 377 (2012).

44 Id. at 394.

closely with public employees.45 In those cases, “[b]ecause government

employees will often be protected from suit by some form of immunity, those

working alongside them could be left holding the bag—facing full liability for

actions taken in conjunction with government employees who enjoy immunity

for the same activity.”46

According to Plaintiff’s allegations, HPFLA was in close contact with

LSBME throughout the period of investigation. Talented individuals trained

in facilitating treatment for substance abuse disorders and other impairments

may take their professional skills elsewhere if LSBME and its employees enjoy

an immunity that HPFLA does not. The prospect of HPFLA being liable for

costly money judgments would no doubt dampen its ability to attract promising

candidates considering working there. HPFLA’s resources would be drained

paying judgments and the costs of litigation instead of salaries and benefits

that attract candidates. Private firms “can offset the risk of litigation and

liability with higher pay or better benefits.”47 As a small, non-profit

corporation, HPFLA cannot do the same without qualified immunity.

Third and finally, immunity for HPFLA would protect public employees

at LSBME from the distractions of litigation. As explained in Filarsky, “the

distraction of a lawsuit against a private individual will ‘often also affect public

employees with whom they work by embroiling those employees in

litigation.’”48 This case illustrates as much. Without qualified immunity, suits

45 Id. at 391.

46 Id.

47 Perniciaro, 901 F.3d at 254 (citing Richardson, 521 U.S. at 411).

48 Id. (quoting Filarsky, 566 U.S. at 391).

against HPFLA are likely to embroil LSBME employees in the litigation

because of the close working relationship between the two organizations.

Given the above policy considerations and Plaintiff’s failure to dispute

their application in HPFLA’s favor, the Court finds that HPFLA is entitled to

assert the defense of qualified immunity.49 The burden therefore shifts to

Plaintiff to overcome this immunity.

B. Whether Plaintiff Can Overcome Qualified Immunity

“The doctrine of qualified immunity shields officials from civil liability so

long as their conduct ‘does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’”50 “Once

invoked, a plaintiff bears the burden of rebutting qualified immunity by

showing two things: (1) that the officials violated a statutory or constitutional

right and (2) that the right was ‘clearly established at the time of the

challenged conduct.’”51 “Law is ‘clearly established’ for these purposes only if

‘the contours of the right [were] sufficiently clear that a reasonable official

would understand that what he [was] doing violate[d] that right.’”52

Ultimately, a plaintiff must show that “no reasonable officer would have

believed his actions were proper.”53

49 See supra note 17.

50 Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231

(2009) (internal quotations omitted)).

51 Perniciaro, 901 F.3d at 255 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal

quotations omitted)).

52 Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

53 Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).

HPFLA argues that Plaintiff cannot show any violation of a clearly

established statutory or constitutional right.54 Plaintiff responds that he has

carried his burden to overcome qualified immunity because “the case law

was . . . clearly established at all relevant times that a medical license is a

property interest under the constitution [sic] that cannot be taken without due

process.”55 Plaintiff notes his Complaint charges HPFLA with constructively

terminating his license by effectively forcing him to surrender it through its

unreasonable demands for compliance. Drawing on the employment-law

doctrine of constructive discharge, Plaintiff’s theory analogizes HPFLA’s

conduct to an employer whose actions are so hostile towards an employee that

she is forced to resign.56 HPFLA counters that Plaintiff is unable to cite a single

case in which constructive termination applies to a professional license.57

Plaintiff misapprehends the relevant inquiry and argues that to

overcome qualified immunity, he need only allege a deprivation of a right that

is clearly established under the Constitution. “The dispositive question is

‘whether the violative nature of particular conduct is clearly established.’”58

The Supreme Court has “repeatedly told courts . . . not to define clearly

established law at a high level of generality.”59 The question here, then, is

whether it is clearly established that a PHP reporting a physician’s non-

compliant behavior and requiring additional psychological treatment such that

54 See Doc. 160-1 at 28.

55 Doc. 169 at 11.

56 See id. at 4–5.

57 See Doc. 175 at 8–9.

58 Mullenix, 577 U.S. at 12 (quoting al-Kidd, 563 U.S. at 742) (emphasis added); see also

Perniciaro, 901 F.3d at 256.

59 al-Kidd, 563 U.S. at 742.

the physician allows his license to lapse violates a constitutional right. Plaintiff

cites no case law to this effect. Without more, the Court cannot say that the

violative nature of HPFLA’s conduct is clearly established. The Court,

therefore, finds that HPFLA is entitled to qualified immunity.

II. Intentional Infliction of Emotional Distress

Plaintiff next asserts a claim against HPFLA for intentional infliction of

emotional distress (“IIED”). Specifically, Plaintiff alleges that the following

actions by HPFLA caused him emotional distress: (1) “being coerced repeatedly

to undergo further psychological examinations even though a) PRC’s exam was

acknowledged as being unreliable even by the HPFLA, and b) Plaintiff’s

independent examiners found him fit for duty” and (2) “HPFLA’s reports to the

LSBME that Plaintiff was ‘noncompliant’ and its threats to report him as

noncompliant in order to coerce further psychological examinations.”60

“[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.”61 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

60 Doc. 131, ¶¶ 68, 71. Plaintiff also alleges that “having his medical license threatened in

Louisiana, and denied in Mississippi” constituted IIED by HPFLA. Id. ¶ 68. These allegations

do not apply to HPFLA, however; only LSBME and its Mississippi equivalent can take action

as to a medical license in Louisiana or Mississippi respectively.

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

civilized community.”62 “Liability does not extend to mere insults, indignities,

threats, annoyances, petty oppressions, or other trivialities.”63

HPFLA argues that Plaintiff’s allegations do not satisfy any element of

an IIED claim.64 First, HPFLA contends that its conduct was not extreme or

outrageous because it had legitimate reason for concern based on Dr.

Whitfield’s report. Second, HPFLA notes that Plaintiff only alleges that his

distress was “severe” and “extreme,” without any facts to support those

conclusions. Third, HPFLA identifies Plaintiff’s allegations as to its intent as

similarly conclusory.

This Court finds that Plaintiff has failed to allege sufficient facts to meet

the second and third elements of IIED. 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.65 Plaintiff’s allegation as to HPFLA’s intent to

inflict emotional distress is similarly conclusory.66 Thus, this Court finds that

Plaintiff has failed to meet the high bar for IIED claims in Louisiana, and his

claim is dismissed.

62 Id.

63 Id.

64 See Doc. 160-1 at 31–35.

65 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.”).

66 See Doc. 131, ¶ 75.

III. Defamation

Lastly, Plaintiff brings a claim of defamation against HPFLA.

Specifically, Plaintiff alleges that “HPFLA’s statements to the LSBME that the

Plaintiff was ‘noncompliant’ were false.”67 HPFLA responds that this

statement was not false and therefore not defamatory.68

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.”69 This Court agrees with HPFLA that

its statement about Plaintiff’s noncompliance was not false. Even taking all of

Plaintiff’s allegations as true, HPFLA’s statement appears true. Nowhere does

Plaintiff allege that he complied with PRC or HPFLA’s recommendations. In

fact, he admits that he did not comply.70 Thus, Plaintiff has not alleged a false

statement on HPFLA’s part, and the Court must dismiss Plaintiff’s defamation

claim.

67 Id. ¶ 81. Another allegation warrants attention here. Plaintiff alleges, “Upon information

and belief, [the suspension of the processing of Plaintiff’s application for a Mississippi medical

license] was the result of a defamatory false report to the Mississippi board by the LSBME,

Cresswell and/or by HPFLA based on the false record created by Defendants.” Id. ¶ 48. This

allegation fails to satisfy the requirement that “[a] petitioner alleging a cause of action for

defamation must set forth in the petition with reasonable specificity the defamatory

statements allegedly published by the defendant.” Lusich v. Capital One, ACP, LLC, 198 So.

3d 1272, 1277 (La. App. 4th Cir. 2016) (quoting Fitzgerald v. Tucker, 737 So. 2d 706, 713 (La.

1999) (internal quotations omitted)). Although the exact words are not required, Plaintiff has

not even provided “reasonable specificity.” Badeaux v. Sw. Comput. Bureau, Inc., 929 So. 2d

1211, 1218 (La. 2006).

68 See Doc. 160-1 at 35–38.

69 Bellard v. Gautreaux, 675 F.3d 454, 464 (5th Cir. 2012) (citing Costello v. Hardy, 864 So.

2d 129, 139 (La. 2004)).

70 See Doc. 131, ¶¶ 44–49.

“TU]nless futile, courts generally allow one chance to amend deficient

pleadings before dismissing with prejudice.””! 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, HPFLA’s Third Motion to Dismiss Pursuant

to Federal Rule of Civil Procedure Rule 12(b)(6) (Doc. 160) is GRANTED.

IT IS ORDERED that all of Plaintiffs claims against HPFLA are

hereby DISMISSED WITH PREJUDICE.

New Orleans, Louisiana this 12th day of April, 2022.

g, TRICHE

UNITED STATES DISTRICT JUDGE

71 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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