Odynocki v. Southern University at New Orleans

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DR. BORIS ODYNOCKI CIVIL ACTION

VERSUS NUMBER: 22-209

STATE OF LOUISIANA, ET AL. SECTION: “J” (5)

ORDER

Before the Court are Defendants’ 12(b)(1), 12(b)(6) Motion to Dismiss and, in the

Alternative, 12(e) Motion for a More Definite Statement. (Rec. doc. 7). Plaintiff opposes the

motion. (Rec. doc. 20). Also before the Court are Plaintiff’s Motion to Amend Complaint

(Rec. doc. 12) and Plaintiff’s Motion for Leave to Amend Complaint. (Rec. doc. 18).

Defendants oppose both motions to amend. (Rec. docs. 16, 22). Having reviewed the

pI.l eadinFgasc, tthuea lo Bppacoksigtrioonusn, dand the case law, the Court rules as follows.

Plaintiff, Dr. Boris Odynocki, is a “white American citizen of Russian Origin” who is

81 years old, a resident of St. Tammany Parish, and a tenured professor of sociology at

Southern Universitpyr oo f sNe ew Orleans (“SUNO”). (Rec. doc. 1 at ¶ 7). On January 31, 2022,

Plaintiff filed this lawsuit in this Court due to events surrounding his sIuds.pension

with pay from SUNO and his alleged eventual removal from the SUNO payroll. ( at p. 1).

In his complaint, Plaintiff named as Defendants SUNO, Dr. Ray L. Belton, Dr. James Ammons,

and Dr. Gregory Ford. Defendant Belton is the President-Chancellor of the Southern

University System. Defendant Ammons is the Chancellor of SUNO, and Defendant Ford is

the Vice-Chancellor for Academic Affairs for SUNO.

Plaintiff alleges that on November 11, 2021I, dh.e received notice from Ford that he

assignments for the spring of 2022 were also cancelled, and that these actions were

spurred by the opening of an investigIda.tion into Plaintiff following complaints from

numerous staff members and students. ( at ¶¶ 10-14). In reference to these complaints,

PlaintiffI dc.ites (and attaches to his complaint) a grievance filed by a student on October 21,

2021. ( Ex. 2). The grievance filed by the female student alleges that Plaintiff was openly

racist in class, made sexually inappropriate Icdo.mments, and was highly belittling and

abusive towards African-American students. ( ). Plaintiff denied these allegations. On

January 4, 2022, PlaintiffI da.lleges that he discovered that he had been removed from the

payroll without notice. ( at ¶ 15). Plaintiff maintains that he attempted to “appeal” his

suspension by wIdri.ting letters to both Defendants Belton and Ammons, and that both letters

were ignored. ( at ¶ 18). As a result, Plaintiff alleges that he was terminated without due

process and witIhdo. ut cause as required by SUNO’s bylaws and by the Constitution of the

United States. ( at ¶ 17).

Plaintiff alleges two claims against Defendants: a 42 U.S.C. § 1983 First Amendment

employment retaliation claim for the allegedly adverse employment action taken against

him following the filing of a student’s grievance, and a 42 U.S.C. § 1983 procedural due

process claim as a result of an alleged lack of due process afforded him with regard to his

aIIl.l egedS rteamnodvaarld f roofm R ethveie SwUNO payroll.

“When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions,

the court should considSeere tRhaem Rmulien g1 2v.( bU)n(i1t)e dj uSrtiasdteisctional attack before addressing any

attack oHnit tt hve. Cmiteyr iotsf .”P a sadena , 281 F.3d 158, 161 (5th Cir. 2001)

(citing , 561 F.2d 606, 608 (5th Cir. 1977)). “On a Rule 12(b)(1)

mBooutdiornea, utxh ev . Lpaa.r Styta tsee eBkairn gA sst'on invoke federal jurisdiction has the burden [of proof].”

, 3 F.4th 748, 753 (5th Cir. 2021). The district court should

only grant a Rule 12(b)(1) motion “if it appears certain that the plaintifRf acmanmniontg prove any

set of facts in support of his claim that would entitle plaintiff to relief.” , 281 F.3d

at 161.

In the Fifth Circuit, the standard of review applicable to motions to dismiss under

Rule 12(b)(1) resembles the standard of review for motions to dismisMs aunnsad eMru sRau Elel

1v.2 U(bn)i(t6ed), Sbtuatt aeslso allows the Court to consider a broader range of materials.

Williams v. Wyn,n eNo. 21-cv-968, 2021 WL 4148118, at *3 (E.D. La. Sept. 13, 2021) (citing

, 533 F.3d 360, 364-65 n.2 (5th Cir. 2008)).

Under Rule 12(b)(6), the district court “must accept all wScehlll-epslienagdeerd v .f aEcSt s& aHs, tIrnuce.

and view those facts in the light most favorable to the plaintiff.” True v. Robles ,

No. 11-cv-294, 2011 WL 39005N7a7p, oalte *o2n (vE. S.Dh.o Lwas. , SCeaplit .& 2 ,W 2a0l1sh1,) L (LcPiting , 571

F.3d 412, 417 (5th Cir. 2009)); , No. CV 20-1775, 2021

WL 5630895, at *4 (E.D. La. Dec. 1, 2021). A plainBtieffl l mAutls. tC polrepa. dv .e Tnwouogmhb flaycts, if taken as

true, to state a claim that is plausible on its face. , 550 U.S. 544,

556 (2007). A “formIud.l aic recitation of the elements of a cause of action” will not meet this

pleading standard. at 555. Plausibility does not require a showing of probability as a

well-pleaded complaint can proceed even if “Iadc.tual proof of those facts is improbable, and

that a recovery is very remote and unlikely.” at 556. However, legal conclusioAnssh acrreo fnt ovt.

eIqnbtaitlled to a presumption oNf atpruolteho fnor the purposes of a Rule 12(b)(6) motion.

, 556 U.S. 662 (2009); , 2021 WL 5630895, at *4.

Federal Rule of Civil Procedure Rule 12(e) provides for a more definite statement

when the pleading at issue “is so vague or ambiguous that the party cannot reasonably

prepare a response.” Fed. R. Civ. P. 12(e). “If a pleading fails to specify the plaintiff's

allegations in a manner that provides sufficient notice, a dJoenfeesn dva. nCtN cTa Cnh marotvise Ifnosr. Aag menocrye,

dInecf.inite statement under Rule 12(e) before responding.” Swierkiewicz v.

Sore, mNoa. NC.IAV. 11-402, 2011 WL 13291151, at *2 (D.N.M. Aug. 9, 2011) (citing

, 534 U.S. 506, 514 (2002)).

The standard for evaluating a motion for more definite statement is whether the

complaint “is so excessively vague and ambiguous asA tod vbaen ucendin Ctoemllimgicb’lnes aTnedc ha.s, Itnoc p. vr.e Ljuidice

the defendant seriously in attempting to answer it.” Bower v. Weism, Nano.

05 Civ. 4628, 2005 WL 3215222, at *3 (S.D.N.Y. Nov. 30, 2005) (citing ,

639 F. Supp. 532, 538 (S.D.N.Y. 1986)).

When evaluating a motion for more definite statement, the Court must assess the

complaint in light of the minimal pleading requirements of Rule 8 of the Federal Rules of

Civil Procedure, which provides in pertinent part, “A pleading which sets forth a claim for

relief . . . shall contain . . . a short and plain statement of the claim showing the pleader is

entitled to relief. . . .” Federal Rule of Civil Procedure 9(f), which should be read in

conjunction with Rule 8, states that averments of time and place are material for the

purpose of testing the suffIibcrieanhcimy ov.f Bae rpnlheaarddintg; specific pleading of these averments,

however, is not required. , No. CV 19-00101, 2019 WL 3006418, at

*1–2 (E.D. La. July 10, 2019).

The 12(e) motion is disfavored, in that “in view of the great liberality of F.R.Civ. P. 8,

permitting notice pleading, it is clearly the policy of the Rules that Rule 12(e) should not be

used to frustrate this policy by lightly requiring a plaintiff to aMmitecnhdel lh vis. Ec–oZm Wplaaiyn tT owwheicrsh,

uInncd.er Rule 8 is sufficient to withstand a smeeo gtieonne rtoa lldyismiss.”

, 269 F.2d 126, 132 (5th Cir. 1959); 5A C. Wright and A. Miller, Federal

PIIrIa. cticeT haned M Portoicoend tuor eD §is 1m37is7s ( 2d ed. 1990).

A. Rule 12(b)(1)

Federal courts are courts of limited jurisdiction. Without jurisdiction coInnf errer FeEdM bAy

sTtraatiuleter Foor rtmhea lCdoenhystdietu Ptrioond,s .d Lisiatrbi.c tL ictoigu.rts lack the power to adjudicate claims. S tockman v.

FEC , 668 F.3d 281, 286-87 (5th Cir. 2012);

, 138 F.3d 144, 151 (5th Cir. 1998). Under Federal Rule of Civil Procedure Rule

12(b)(1), a claim is “properly dismissed for lack of subject-matter jurisdictionIn wreh eFnE MthAe

cToruairlte rlacks the statutory or constitutional power to adjudicate” the claim.

, 668 F.3d at 286-87. As noted above, a court should conIds.ider a Rule 12(b)(1)

jurisdictional attack before addressing any attack on the merits. Considering a Rule

12(b)(1) motion to dismiss first “pIdr.e vents a court without jurisdiction from prematurely

dismissing a case with prejudice.”

Under the Eleventh Amendment of the United States Constitution, a non-consenting

state is immune from any lawsuit seeking monetary damages or equitablEed reelmlieafn b vro. uJogrhdta inn

federal courts by her own citizens or by the citizens of another state. ,

415 U.S. 651, 662-63 (1974). Although Congress has the power to abrogate this immunity

through the Fourteenth AmendmQenute,r int hv.a Jso nrdoat ndone so as to claims for the deprivation of

civil rights under Section 1983. , 440 U.S. 332, 345 (1979). The Eleventh

Amendment grants a state, or “arm of the state,” sovereign immunity from a suit against it

Vogt. Bd. Of Comm’rs of Orleans Levee Dist.

in federal couRrte. g ents of the Univ. Of Cal v. Doe , 294 F.3d 684, 688-89 (5th Cir.

2002) (citing , 519 U.S. 425, 429 (1997)). When the state is

the “real, substantial party in interest,” the SEpleikveesn vth. M AcmVeeandment also serves as a bar to

state law-based suits against state offisceiael sa.l s o Hughes v. Save, lCliv. A. No. 17-8164, 2018 WL

3329060, at *5 (E.D. La. Jul. 6, 2018); , 902 F.2d 376, 378 (5th Cir.

1990).

To the extent that Plaintiff seeks monetary damages against Defendants in their

official capacities, such claims are barred by the Eleventh Amendment and will be

dismissed. Sovereign immunityP iosr tth Ae urtuhl.e T, braunt st-hHeu rdusloen i sC sourpb.j evc. tF teoe neexyceptions. States, for

example, may consent to suit. , 495 U.S. 299, 304

(1990). Generally, the State Roifc hLaorudissoiann av .h Sa.s Unontiv w. aived its sovereign immunity for suits

bDreolauhgohut ssina yefe dv.e rCailt yc oouf rNt.e w Iberia , 118 F.3d 450, 453 (5th Cir. 1997);

, 937 F.2d 144, 147 (5th Cir. 1991). The Louisiana

Legislature has also clearly expressed that “[n]o suit against the state or a state agency or

political subdivision shall be instituted in any court other than a Louisiana state court.” La.

Rev. Stat. § 13:5106(A). The Fifth Circuit has explicitly held that “Southern University and

its Board of Supervisors are arms of the State of Louisiana, that the State is the real party in

interest in this lawsuit, Rainchda rtdhsaotn Southern and its Board Daerlea heonutsistaleyde to Eleventh

Amendment immunity.” , 118 F.3d at 452 (citing , 937 F.2d at

146). As such, SUNO is an “alter ego” of the State for purposes of the State’s Eleventh

Amendment immunity, and Louisiana’s sovereign immunity extends to SUNO personnel –

DCheafemnpdaagnntse vB. eJeltfofenr,s oAnm Pmaroinshs, Sahnedri ffF’so rOdff i–c ewhen they are sued in their official capacity.

, 188 F.3d 312, 314 (5th Cir. 1999).

Moreover, neither a State nor its officials acWtiinllg v .i nM itchhe. iDr eopftf.i coifa Sl tacatep aPcoiltiicees are

“persons” capable of being sued under Section 1983. , 491

U.S. 58, 71 (1989). The United States Supreme Court has specifically addressed the

distinction between official capacity and individual capacity lawsuits and made clear that a

suit against a state official in an official capacity for monetary damages iHs atfreera tve. dM aeslo a suit

against the state and is therefore barred by the Eleventh Amendment. , 502

U.S. 21, 25 (1991). Fairley v. Stadler

As the Fifth Circuit stated in , “'[N]either a State nor its officials

acting in their official capacities are ‘persons’ under §1983.’ As §1983 only provides a

remedy against a ‘person,’ the dismissal of Fairley’s §1983 claims was indisputably proper.”

294 F. App’x 805, 808-09 (5th Ciidr.. 2008). Thus “long and clearly established Supreme

Court precedent on this matter,” , means that all “official capacity” claims for monetary

relief under Section 1983 lack an arguable legal basis and are thus subject to dismissal.

In his complaint and in his opposition, Plaintiff fails to distinguish whether he is

1

suing the State Defendants in their individual or official capacities or both. Nevertheless,

for the reasons explained above and in accordance with longstanding precedent, federal

courts lack jurisdiction over suits against state officials sued in an official capacity for

monetary relief. Accordingly, this Court lacks jurisdiction over all claims for monetary relief

against Defendant SUNO and Defendants Belton, Ammons, and Ford in their official

2

capacity, and such claims will be dismissed without prejudice.

1

Plaintiff’s opposition does no more than argue with existing Supreme Court and circuit precedent,

maintaining that it is “absurd” and irrational, and Defendants misconstrue the Eleventh Amendment to the

Constitution. (Rec. doc. 20, 20-1). The law of the land is set down by the Supreme Court and the federal

c2ircuits, and this Court is Sbeoeu Cnodx t,o C fooxl,l oFwilo i,t C. amel & Wilson, L.L.C. v. Sasol North America, Inc.

B. Rule 12(b)(6)

3

Defendants argue that Plaintiff has not sufficiei.en.tly pleaded claims against Defendant

Belton and Ammons in their individual capacities, , Plaintiff has failed to state a claim

upon which relief can be granted as to those two defendants. Plaintiffs who sue

government officials in their indiviSdcuhaull tceaap avc. iWtieoso dmust allege specific conduct that gives

rise to a constitutional violation. , 47 F.3d 1427, 1434 (5th Cir. 1995).

Individual capacity claimsJa “cmksuosnt bv.e W pliedamdaeldl with ‘factual detail and particularity,’ nSocht umlteerae

conclusory allegations.” , 99 F.3d 710 (5th Cir. 1996) (quoting ,

47 F.3d at 1430). I d .“Allegations must be enough to raise a right to relief above the

speculative level.” OThvoemraplls, o“n[ pv]. eSrtseoenleal involvement is an essential element of a civil

rights cause of action.” , 709 F.2d 381, 382 (5th Cir. 1983).

As noted above, Defendant Belton is the President-Chancellor of the Southern

University System and Defendant Ammons is the Chancellor of SUNO. Defendants Belton

and Ammons are thus supervisory officials of the Southern University System and SUNO,

respectively. Ar essuppoenrdveiasto rsyu poeffriicoiral cannot be held liable pursuant to Section 1983 under

any theory of mereAlylt obne cva. uTseex .a An& eMm Upnloivy.ee or subordinate allegedly

violatedB Paslakiinnt vif.f ’Psa croknesrtitutional rights. , 168 F.3d 196, 200 (5th Cir.

1999); , 602 F.2d 1205, 1220 (5th Cir. 1979). To hold Belton and Ammons

personally liable, Plaintiff must establish either that they were “personally involved in the

acts causing the deprivation of his constitutional rights or that a causal connection exists

456-57 (5th Cir. 2013) (finding dismissal with prejudice under Rule 12(b)(1) improper because this is “to

d3isclaim jurisdiction and then exercise it”).

The Court considers the 12(b)(6) motion and Defendants’ qualified immunity argument only as to any

Douthit

bv.e Jtowneeesn an act of [these defendants] . . . and the alleged constitutional violations.”

, 641 F.2d 345, 346 (5th Cir. 1981). Plaintiff does not allege that Defendants Belton

and Ammons were present for, or personally involved in, his alleged suspension and

termination. Plaintiff names them only as defendants in his complaint and mentions them

once to say that he wrote them an “appeal” letter to which they did not respond. (Rec. doc.

1 at ¶ 18). No section of the Bylaws and Regulations of the Board cited by Plaintiff entitle

him to an appeal; it entitles him only to a hearing. (Rec. doc. 1 at ¶ 7). Plaintiff’s vague and

conclusory allegation completely lacks any factual detail or particularity and is thus

iCn. sufficQieunat ltiofi eesdt aImblimshu innidtyiv4idual liability under Section 1983.

Defendants also argue that they are entitled to qualified immunity against Plaintiff’s

Fourteenth Amendment due process claim and his First Amendment claim under Section

1983. “Qualified immunity balances two important interests – the need to hold public

officials accountable when they exercise power irresponsibly and the need to shield

officials fromP ehaarrsaosns vm. eCnatll, ahdaisntraction, and liability when they perform their duties

reasonably.” , 555 U.S. 223, 231 (2009) (noting that “[t]he protection of

qualified immunity applies regardless of whether the government official's error is ‘a

mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’”).

DPliasrinateilfif vb. eRaortsu tnhdea burden of proving that Defendants are not eBnetciktl evd. T teox q. uStaalitfeie Bdd i.m ofm Duennittayl.

Exam’rs , 489 F.3d 628, 631 (5th Cir. 2007) (citing

, 204 F.3d 629, 633-34 (5th Cir. 2000)). “The plaintiff’s factual assertions are taken

4

The Court notes that it need only address the issue of qualified immunity as to Defendant Ford as he did not

as true to determine whMetahneirs tvh. eLya warseo nlegally sufficient to defeat the defendant’s mFortieoenm faonr

[vq. uGaolirfeied immunity].” , 585 F.3d 839, 843 (5th Cir. 2009) (citing

, 483 F.3d 404, 410 (5th Cir. 2007)). “A public official is entitled to qualified

immunity unless the plaintiff demonstrates that (1) the defendant violated the plaintiff’s

constitutional rights and (2) the defendant’s actions weHrien oojbojseac tvi.v Leilvyi nugnsrteoansonable in light

of clearly established law at theP toirmteer o vf .t hEep pvsiolation.” , 807 F.3d 657,

669 (5th Cir. 2015) (quoting , 659 F.3Mde a4d4o0u, r4s 4v5. E (r5mtehl Cir. 2011)). Each

Defendant’s actions musStt ebwe acrotn svi. dMeruerdp hinydividually. , 483 F.3d 417, 421

(5th Cir. 2007) (citing , 174 F.3d 530, 537 (5th Cir. 1999) (additional

citations omitted)). Plaintiff is required to prove “that each Government-official dAeshfecnrodfatn vt,.

tIqhbroaulgh the official’s own individual actions, has violated the Constitution.”

, 556 U.S. 662, 676 (2009).

Qualified immunity operates to ensure that before they are subjected to suit, state

actors are on notice that their conduct is unlawful, and fair notice requires clearly

established law. That is, the law must “clearly prohibit the state actor’s conduct in the

particular circumDsisttarniccte so fb eCfoolruem hbiima vs.o W evesebryy reasonable official knows no t to engage in

that conduct.” , 138 S. Ct. 577, 590 (2018). “Abstract or

general statements of legal principle untethered to analogous or near-analogous facts are

not sufficient to establish a right ‘clearly’ in a given context; rather, the inquiVryin mceunstt vf.o Cciutys

oofn Swuhlpehthurer a right is clearly established as to the specific facts of the case.”

, 805 F.3d 543, 547 (5th Cir. 2015). To show the law is clearly established, a

party must “identify a case where an officeWr aecstbiyng under similar circumstances . . . was held

to have violated the Fourth Amendment.” 138 S. Ct. at 590.

Plaintiff alleges that Defendants Belton, Ammons, and Ford are personally liable to

him for money damages under Section 1983 for denying his right to free speech without

due process and for terminating him without proper notice and due process. Plaintiff

alleges that he was abruptly suspended with pay from teaching all of his courses, without

warning, by notice of suspension from Defendant Ford and that when he contacted

Defendant Ford for an explanation of his status at SUNO, Defendant Ford ignored him.

(Rec. doc. 1 at ¶¶ 14-16). Plaintiff alleges that he attempted to “appeal” his suspension by

wIdri.ting letters to both Defendants Belton and Ammons, and that both letters were ignored.

( at ¶ 18).

While this Court recognizes that academic freedom “is a special concern of the First

AmendmBuecnht”a naannd v“.c lAalsesx adnisdceurssion is protected activity,” even this right oKfe fyrieshe isapne ve.c Bhd h. aosf

lRimegietsn.t s , 919K Fin.3gds v8il4le7 ,I n8d5e3p .( 5Scthh . CDiirs. t2. v0.1 C9o)o (pceirting

, 385 U.S. 589, 603 (1967); , 611 F.2d 1109, 1113

(5th Cir. 1980). Students and teachers are not simply allowSeede ,t eo. gs.p, Beaekth eevl eSrcyht.h Dinisgt . oNno t. h4e0i3r

vm. iFnrda ssiemrply because such speech occurs in the classroom.

, 478 U.S. 675 (1986) (holding that studentM caorutlidn vn. oPta crlraisimh First Amendment

protection for offensively lewd and indecent speech); , 805 F.2d 583 (5th

Cir. 1986) (holding that professor had no First Amendment right to use profane language in

the classroom).

Plaintiff maintains that Defendants retaliated against him after a disgruntled

student filed a complaint in which she alleged that Plaintiff made sexually-inappropriate

statements regarding a past student who had visible pubic hair, was openly racist against

African-American students, and engaged in a campaign of targeted humiliation and

harassment of African-American students. (Rec. doc. 1 Ex. 2). Specifically, Plaintiff alleges

that Defendants took an adverse action against him by suspending him from teaching after

the filing of the complaint and by removing him froIdm. the SUNO payroll in violation of

Plaintiff's First Amendment and due process rights. ( at p. 3). It is axiomatic that public

university professors are public employees. To state a Section 1983 claim for a violation of

the First Amendment right to free speech, employees of a public university must allege that

“(1) they were disciplined or fired for speech that is a matter of public concern, and (2)

tThreuidre ianute vr.e Usnt iivn. othf eN s. pTeeexachs, oBuyt &w eTihgrhoeudg thh iet su Bndiv. eorf sRiteyg'es nitnsterest in regulating the speech.”

, 861 F. App'x 604, 609 (5th Cir.

2021).

The Court finds that Plaintiff’s claim fails on the face of the complaint because he

cannot establish that his speech was on a matter of public concern. The law is clear that if

Plaintiff's speech does not involve a matter of public concern, it is unnecessair.ey. for this

Court to scrutiniCzoen tnhiec kr eva. sMoyne frosr the discipline imposed onB huicmh abnya Dne vf.e Anldeaxanntsd (er , his due

process claim). ,B 4o6n1n eUl.lS v. .1 L3o8r,e 1n4z6o (1983); , 919 FM.3td.

8H4e7a,l t8h5y3 C i(t5yt hSc Chi. rD. 2is0t.1 B9d). (ocfi tEindgu c. v. Doyle , 241 F.3d 800, 810D a(6mtbhr Cotir v. .2 C0e0n1t.) )M; ich.

Univ. , 429 U.S. 274, 285 (1977);

, 55 F.3d 1177, 1186 (6th Cir. 1995).

According to Plaintiff’s own complaint and the exhibits attached to it, the speech in

question regarded Plaintiff’s commentary on a female student’s appearance in class, as well

as consistently racist comments. (Rec. doc. 1 Ex. 2). The Court finds that the use of

profanity or the disBcuucshsiaonna onf sexual topics, such as the sex lives of students, is not a matter

of public concern. , 919 F.3d at 853. In the context of a college classroom, speech

Id. Martin v.

tPhaartr idshoes not serve an academic purpose is not of public concern. (citing

, 805 F.2d 583, 585 (5th Cir. 1986)). As a threshold issue, it is thus clear that, even

taken in a light most favorable Plaintiff, he has failed to sufficiently allege that there was a

violation of his First Amendment and due process rights. As such, Defendants Belton,

5

AIImI. monTsh, aen Md oFtoiordn sa rteo eAnmtitelnedd to qualified immunity.

Because no scheduling conference has been held, and therefore no deadline to

amend pleadings established, Rule 15(a) governs Plaintiff’s motions to amend. Federal

Rule of Civil Procedure 15(a) provides that leave to amend pleadings “shall be freely given

when justice so requires.” Fed. R. Civ. P. 15(a)(2). Rule 15(a) and other federal rules

“reject the approach that pleading is a game of skill in which one misstep by counsel may

be decisive to the outcome and accept thCeo nplreiyn vc.i pGlieb stohnat the purpose of pleading is to

facilitate a proper decision on the merits.” , 355 U.S. 41, 48 (1957).

Rule 15(a) evinces a liberal amendmeSnete p Joalciocyb saennd v a. O msbootironne to amend should not be

denied absent a substantial reason to do so. , 133 F.3d 315, 318 (5th

Cir. 1998). “This pTohliocmy piss ocne vrt. aNinewly Ysotrrokn Lgiefes tI nws.h Ceon. the motion challenged is the first

mCaontaiolens tvo. WamGePn Ads.”s o cs., L.L.C. , 644 F.2d 439, 444 (5th Cir. 1981);

, Civ. A. No. 14-2679, 2015 WL 10557396, at *3 (E.D. La. Nov.

23, 2015). Addington v. Farmer's Elevator Mut. Ins. Co.

Leave to amend is not automatic. , 650

F.2d 663, 666 (5th Cir. 1981). The decision to grIadn.t or deny a motion for leave to amend

lies within the sound discretion of the trial court. As outlined by the Fifth Circuit, courts

5

in this circuit examine five factors to determine whether to grant a party leave to amend a

complaint: (1) undue delay; (2) bad faith or dilatory motive on the part of the movant; (3)

repeated failure to cure deficiencies by amendments previously allowed; (4) undue

prejudice to the opRpoosesinnzgw peaigr tvy. bAyz uvririxtue of allowance of the amendment; anPda r(5ad) ifeust iSlihtoyp osf,

tLh.Le. Ca.m v.e Bnrdoms.e Pnet.t r oleum, L.L.C. , 332 F.3d 854, 864 (5th Cir. 2003);

, No. CV 20-1278, 2020 WL 12833948, at *2 (E.D. La. Dec. 7,

2020).

In his first motion to amend his complaint (Rec. doc. 12), Plaintiff seeks to add

various state law claims based on the repercussions that he suffered as a result of his

suspension and termination. Because this Court has granted Defendants’ motion to dismiss

as to Plaintiff’s federal law claims, there is no basis for federal jurisdiction over Plaintiff’s

state law claims. A federal question exists only when “a well-pleaded complaint establishes

either that federal law creates the cause of action or that the plaintiff's Sriingghht vto. D ruealineef

Mneocrersiss aLrLilPy depends on resolution of a substantial question of Fferdaenrcahli slae wT.”a x Bd. v. Constr.

Laborers Va, c5a3ti8o nF .T3rd. 334, 337-38 (5th Cir. 2008) (quoting

, 463 U.S. 1, 27-28 (1983)). However, “[t]he fact that a substantial

federal question is necessarIyd .to the resolution of a state-law claim is not sufficient to

permit federal jurisdiction.” at 338. Only in a “‘special and small catGeugnonry v’ .o Mf cinastoens” will

federal jurisdiction exist whenE smtaptiere l aHwea cltrhecahteosic teh Aes scuaruasnec oef, Iancct.i ov.n M. cVeigh , 568

U.S. 251, 258 (2013) (quoting , 547 U.S. 677,

699 (2006)). That limited category of federal jurisdiction only exists where “(1) resolving a

federal issue is necessary to resolution of the state-law claim; (2) the federal issue is

actually disputed; (3) the federal issue is substantial; and (4) f eSdinegrhal jurisdiction will not

disturb the balance of federal and state judicial responsibilities. , 538 F.3d at 338.

The only claims that Plaintiff seeks to add are state-law claims for mental anguish

and emotional distress caused by his suspension and termination. These two claims do not

create federal subject matter jurisdiction. And because this Court has now Nd.i sAmtli. sSseecd. Caoll. ovf.

PBllaaicnhteiff’s federal law claims against Defendants, the amendment is futile. Wiggins

v. La. S, Ctaivte. AU. nNiov..- 1H9e-a3lt7h9 ,C 2a0r1e9 S WerLv s4. 8D0i3v.231, at *3 (M.D. La. Sept. 30, 2019) (citing

, 710 F. App’x 625, 628 (5th Cir. Oct. 6, 2017)

(affirming district court's finding that any amendment would be futile when proper

defendant was immune from suit under Eleventh Amendment)).

As to his second motion to amend, Plaintiff seeks to add Dr. Evelyn B. Harrell to the

complaint. Harrell is the Dean of College of Arts and Sciences at SUNO. (Rec. doc. 1 Ex. 3).

This proposed amendment is also futile. From the facts as outlined in Plaintiff’s complaint

and the exhibit attached thereto, Harrell did noId .more than email Plaintiff to ask for his

response to the complaint filed against him. ( ). In any event, Harrell is in the same

posture as the other Defendants. She is a state actor for purposes of Eleventh Asmuepnradment

Immunity under Section 1983. For the reasons stated in Section III(A), , this

aIVm. endmCoennct ltuosoi oisn futile.

IFTo rI Sth Oe RreDaEsRonEsD stated above,

that Defendants’ 12(b)(1), 12(b)(6) Motions to DismiGssR AanNdT, EinD the

Alternative, 12(e) Motion for a More Definite Statement (Rec. doc. 7) is as

outlined below.

IT IS FURTHER ORDERED

DISMISSED WITHOU Tth PaRt EtJhUeD IoCfEfi cial-capacity claims against all four

Defendants are for lack of subject-matter jurisdiction

under RITul eIS 1 2F(UbR)(T1H).E R ORDERED

DISMISSE tDh aWt tIhTeH inPdRiEviJdUuDaIlC-cEa pacity claims against Defendants

Belton and Ammons are for failure to state a claim upon

which rIeTli eISf cFaUn RbTe HgrEaRn tOedR DunEdReErD Rule 12(b)(6).

that Defendants are entitled to qualified immunity for

those federal law claims asserted by Plaintiff against Defendants in their individual

capacitIieTs .I S FURTHER ORDERED DISMISSED

WITHOUT PREJUDICE that any remaining state-law claims are

IT IS FURTHER. ORDERED

that Plaintiff’s Motion to Amend ComDplEaNinItE D(Rec. doc.

12) and Plaintiff’s Motion for Leave to1 4Atmhend Complaint J(uRnece. doc. 18) are .

New Orleans, Louisiana, this day of , 2022.

MICHAEL B. NORTH

UNIT ED STA TES M AGIST RATE J UDGE