# Sims v. Louisiana State

> District Court, E.D. Louisiana · January 25, 2023

URL: https://www.frixlaw.com/law-library/cases/10188849

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** January 25, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10188849

## How later opinions describe it (automated extraction)

- affirming district court’s dismissal of plaintiff’s employment discrimination suit where plaintiff failed to exhaust administrative remedies and offered no justification for failing to do so besides his “good faith effort”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

SHANWANDA SIMS CIVIL ACTION

VERSUS No. 22-2609

LOUISIANA STATE, ET AL. SECTION I

ORDER & REASONS
Before the Court is a motion1 by defendants, the State of Louisiana through
the Louisiana Department of Health (“LDH”) and the Florida Parishes Human
Services Authority (“FPHSA”)2 (collectively, “defendants”), to dismiss pro se plaintiff
Shanwanda Sims’ (“Sims”) claims pursuant to Federal Rules of Civil Procedure
12(b)(1) and (b)(6) or, alternatively, for a more definite statement pursuant to Rule
12(e). Sims opposes3 the motion. For the reasons that follow, the Court grants the
motion to dismiss.
I. FACTUAL BACKGROUND
Sims is an African American female,4 who has been employed with the FPHSA
as a licensed practical nurse since May 28, 2013.5 Sims initially filed an online inquiry

1 R. Doc. No. 6. The defendants note that Sims does not make factual allegations
against LDH specifically—only against FPHSA. Id. at 13. As the Court finds that
Sims’ claims should be dismissed on other grounds, it will not reach the issue of
whether Sims failed to state a claim for relief against LDH specifically. Nor will the
Court address the defendants’ argument that the Civil Service Commission has
exclusive jurisdiction over Sims’ claim for back pay. Id. at 13–14.
2 Comprised of the parishes of Livingston, St. Helena, St. Tammany, Tangipahoa, and
Washington. La. Stat. Ann. § 28:912(A)(3).
3 R. Doc. No. 11.
4 R. Doc. No. 1, at 4.
5 R. Doc. No. 1-1, at 7.
with the Equal Employment Opportunity Commission (“EEOC”) on June 23, 2020.
She then filed a “Charge of Discrimination” with the EEOC on December 28, 2020. In
her EEOC charge, Sims alleged that she took Family and Medical Leave Act

(“FMLA”) leave due to a medical condition, but “[t]he use and frequency of [her] leave
did not set [sic] well with [her] employer and ultimately resulted in an unjustified
negative evaluation.”6 After she attempted to file a “grievance,” Sims further alleged,
she began “experiencing retaliation, on-going targeting, harassment, and increased
surveillance by management.”7 She then alleged that, “[m]ost recently (on 3/6/2020),
[she] was denied accommodations under [the] ADA.”8 While Sims did check the box

for “race” in answer to the question of why she thought she was discriminated against
on the EEOC charge form,9 the factual allegations included in her EEOC charge did
not mention racial discrimination.
On February 25, 2022, the EEOC issued its determination related to her
charge, stating that “[t]he EEOC will not proceed further with its investigation and
makes no determination about whether further investigation would establish
violations” occurred.10 She received notice of her right to sue on May 13, 2022.11

6 Id.
7 Id.
8 Id.
9 Id. at 6.
10 Id. at 8.
11 Id. at 13.
Sims filed her complaint12 in this Court on August 9, 2022. In her complaint,
Sims alleges she has been subject to employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 28 U.S.C. § 2000e et seq, the

Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq, and 42
U.S.C. §§ 1981 and 1983.13 Specifically, Sims’ complaint alleges that (1) she was
denied accommodations under the ADA on March 6, 2020 due to her race;14 (2) she
was issued reprimands between March 12, 2018 and June 22, 2020 for mistakes that
white employees were not punished for committing;15 (3) between February 15, 2017
and October 31, 2018, she was “illegally harassed” for “missed work that was covered

by intermittent FMLA[,]” and for outstanding unsigned patient notes due to her
race;16 (4) she received poor performance evaluations between September 20, 2016
and December 14, 2020 based on her race, as her “white co-workers [were] not being

12 R. Doc. Nos. 1 and 1-1, at 1–4. The Court notes that while pages one through four
of R. Doc. No. 1-1 are part of Sims’ complaint, pages five through seven consist of
Sims’ EEOC charge, and pages eight through thirteen relate to the EEOC’s
determination of her charge.
13 Id. at 3.
14 R. Doc. No. 1-1, at 1.
15 Id. at 1–2.
16 Id. at 2. The factual allegations in Sims’ complaint supporting her third claim
indicate that she filed a “grievance” on August 28, 2018 in response to the harassment
she alleges she suffered for her use of FMLA leave. Id. She further alleges that her
grievance “fell on deaf ears” and she has been “consistently targeted, harassed, [and]
retaliated against[.]” Id. Her EEOC charge similarly alleges that, after she attempted
to file a grievance related to the FPHSA’s negative response to her taking FMLA
leave, she “beg[a]n experiencing retaliation, on-going targeting, harassment, and
increased surveillance by management.” Id. at 7. Accordingly, Sims’ allegations
relating to retaliation arise under the FMLA. As Sims does not include retaliation in
violation of the FMLA as a cause of action in her complaint before this Court, the
Court will not address retaliation in violation of the FMLA in this Order & Reasons.
held to the same accountability” as Sims;17 (5) on “various dates,” Sims’ supervisor
discriminated against her based on Sims’ race;18 (6) on “various dates,” she was
reprimanded for having outstanding unsigned patient notes due to her race;19 and (7)

she is not being paid “at the same or equitable pay rate as [her] white, Caucasian
counterpart.”20
II. STANDARDS OF LAW
a. Dismissal for Lack of Subject Matter Jurisdiction
“Federal courts are courts of limited jurisdiction; without jurisdiction
conferred by statute, they lack the power to adjudicate claims.” In re FEMA Trailer

Formaldehyde Prod. Liab. Litig., 668 F.3d 281, 286 (5th Cir. 2012). Under Federal
Rule of Civil Procedure 12(b)(1), “a claim is ‘properly dismissed for lack of subject-
matter jurisdiction when the court lacks the statutory or constitutional power to
adjudicate’ the claim.” Id. (citation omitted). Courts are to consider a Rule 12(b)(1)
jurisdictional argument before addressing any other arguments on the merits. Id.
(citing Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)).
When ruling on a Rule 12(b)(1) motion, a court may dismiss an action for lack

of subject matter jurisdiction “on any one of three separate bases: (1) the complaint
alone; (2) the complaint supplemented by undisputed facts evidenced in the record;

17 Id. at 2–3.
18 Id. at 3–4.
19 Id. at 4.
20 Id. In the “Statement of Claim” section of Sims’ complaint, she also states that
“alleged discriminatory acts occurred on” December 23, 2021, and May 6, 2022, but
she does not provide any factual allegations as to the acts she contends occurred on
those dates. R. Doc. No. 1, at 4.
or (3) the complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.” Spotts v. United States, 613 F.3d 559, 565–66 (5th Cir. 2010) (quoting
St. Tammany Par., ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315

(5th Cir. 2009)). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the
party asserting jurisdiction.” Ramming, 281 F.3d at 161. When a court determines
that it does not have subject matter jurisdiction over an action, the action is dismissed
without prejudice. See, e.g., id.; Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.
1977).
b. Dismissal for Failure to State a Claim

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows for dismissal of a
complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotations
omitted). A claim is facially plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. “The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Culbertson v. Lykos, 790 F.3d 608, 616 (5th Cir. 2015) (citation omitted)
(internal quotation marks omitted). Thus, “where the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the complaint has
alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’” Iqbal, 556
U.S. at 679.
A complaint is insufficient if it contains “only labels and conclusions, or a

formulaic recitation of the elements of a cause of action.” Whitley v. Hanna, 726 F.3d
631, 638 (5th Cir. 2013) (citation and internal quotations omitted). It “must provide
the defendant with fair notice of what the plaintiff’s claim is and the grounds upon
which it rests.” Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (internal
quotations omitted). In considering a motion to dismiss, a court views the complaint
“in the light most favorable to the plaintiff, accepting as true all well-pleaded factual

allegations and drawing all reasonable inferences in the plaintiff’s favor.” Lovick v.
Ritemoney Ltd., 378 F.3d 433, 437 (5th Cir. 2004).
c. Motion for a More Definite Statement
Federal Rule of Civil Procedure 12(e) states, in pertinent part, that “[a] party
may move for a more definite statement of a pleading to which a responsive pleading
is allowed but which is so vague or ambiguous that the party cannot reasonably
prepare a response.” The motion must be made prior to filing a responsive pleading

and “must point out the defects complained of and the details desired.” Fed. R. Civ.
P. 12(e). A court should only grant a motion for more definite statement when the
complaint is “so excessively vague and ambiguous to be unintelligible and as to
prejudice the defendant seriously in attempting to answer it.” Phillips v. ABB
Combustion Eng’g, Inc., No. 13-594, 2013 WL 3155224, at *2 (E.D. La. June 19, 2013)
(Feldman, J.); accord Koerner v. Vigilant Ins. Co., No. 16-13319, 2016 WL 4728902,
at *1 (E.D. La. Sept. 12, 2016) (Africk, J.). “If the court orders a more definite
statement and the order is not obeyed within 14 days after notice of the order or
within the time the court sets, the court may strike the pleading or issue any other

appropriate order.” Fed. R. Civ. P. 12(e).
III. ANALYSIS
a. Sims’ Title VII and ADA Claims Should Be Dismissed Pursuant to
Rule 12(b)(1) for Failure to Exhaust Her Administrative Remedies

i. Sims’ EEOC Charge Did Not Allege Violations of Title VII

“Before a plaintiff may file suit in federal court under either Title VII or the
ADA, the plaintiff must first exhaust her administrative remedies by filing a charge
of discrimination with the EEOC.” Jennings v. Towers Watson, 11 F.4th 335, 342 (5th
Cir. 2021) (citing Melgar v. T.B. Butler Publ’g Co., 931 F.3d 375, 378–79 (5th Cir.
2019) (per curiam)). “Exhaustion occurs when the plaintiff files a timely charge with
the EEOC and receives a statutory notice of right to sue.” Taylor v. Books A Million,
Inc., 296 F.3d 376, 378–79 (5th Cir. 2002) (citing Dao v. Auchan Hypermarket, 96 F.3d
787, 788–89 (5th Cir.1996)); see also Cormier v. Wal-Mart Stores, Inc., 145 F. Supp.
3d 666, 667 (W.D. La. 2015) (“Before instituting a Title VII action in federal district
court, a private plaintiff must file an EEOC complaint against the discriminating
party within 180 days of the alleged discrimination and receive statutory notice of
the right-to-sue the respondent named in the charge.”). While “administrative
exhaustion is not a jurisdictional requirement, it is still a requirement.” Stroy v.
Gibson on behalf of Dep’t of Veterans Affs., 896 F.3d 693, 698 (5th Cir. 2018) (affirming
district court’s dismissal of plaintiff’s employment discrimination suit where plaintiff
failed to exhaust administrative remedies and offered no justification for failing to do
so besides his “good faith effort”) (emphasis in original).
“The scope of a Title VII complaint is limited to the scope of the EEOC

investigation which can reasonably be expected to grow out of the charge of
discrimination.” Thomas v. Texas Dep’t of Crim. Justice, 220 F.3d 389, 395 (5th Cir.
2000) (citation omitted). “Any charge not alleged in the EEOC complaint and/or
reasonably expected to grow out of the EEOC investigation is barred from judicial
review.” Oramous v. Mil. Dep’t of La., No. 05-3677, 2007 WL 2344921, at *1 (E.D. La.
Aug. 15, 2007) (Wilkinson, M.J.).

Sims failed to exhaust her administrative remedies as to her Title VII claim of
racial discrimination. Sims’ lone EEOC charge, filed on December 28, 2020,21
exclusively concerned her allegations that she was denied accommodations under the
ADA, that “the use and frequency of [her] leave did not set [sic] well with [her]
employer and ultimately resulted in an unjustified negative evaluation[,]”22 and that
she had been “experiencing retaliation, on-going targeting, harassment, and
increased surveillance by management.”23

Though Sims checked the box for “race” on the EEOC “Charge of
Discrimination” form as one of the reasons why she thought she was being
discriminated against,24 merely “checking the box” is not sufficient to allege a

21 R. Doc. No. 1-1, 6–7.
22 Id. at 7.
23 Id.
24 Id. at 6.
violation of Title VII sufficient to constitute exhaustion. “‘[T]he crucial element of a
charge of discrimination is the factual statement [particulars section] contained
therein.’” Ellzey v. Cath. Charities Archdiocese of New Orleans, 833 F. Supp. 2d 595,

601 (E.D. La. 2011) (Engelhardt, J.) (quoting Sanchez v. Standard Brands, Inc., 431
F.2d 455 (5th Cir. 1970) (alteration in Ellzey)). In Givs v. City of Eunice, the United
States District Court for the Western District of Louisiana held that, even where the
plaintiff checked both the “race” and “retaliation” boxes on the EEOC charge form,
checking the box for “retaliation” without then making any factual allegations
concerning retaliation or harassment was insufficient: “the Court does not accept that

merely checking the retaliation box is sufficient to exhaust his administrative
remedies.” The court concluded that the plaintiff’s “failure to allege any facts
concerning retaliation or harassment that would have put the EEOC on notice about
the possibility of such, are fatal to these claims.” 512 F. Supp. 2d 522, 536–37 (W.D.
La. 2007), aff’d, 268 F. App’x 305 (5th Cir. 2008) (emphasis in original) (citing Randel
v. U.S. Dep’t of Navy, 157 F.3d 392, 395 (5th Cir. 1998); see also Ellzey, 833 F. Supp.
2d at 601 (“Several courts in the Fifth Circuit have held that a plaintiff fails to

exhaust his/her administrative remedies as to a particular claim if his charge does
not contain the claim or make allegations giving rise to the claim.”).
Aside from simply checking the box marked “race,” Sims’ EEOC charge made
no mention of racial discrimination. As stated, in her summary of the basis for her
EEOC charge, in which she alleged a violation of the ADA as well as retaliation, Sims
makes no factual allegations pertaining to racial discrimination. A claim of racial
discrimination in violation of Title VII could not be “reasonably expected to grow out
of” an EEOC investigation where the only factual allegations are that the defendants
failed to provide Sims accommodations under the ADA, she received a poor

performance review as a result of her taking FMLA leave, and she was subjected to
retaliation for attempting to file a grievance.25 Thomas, 220 F.3d at 395. As the Court
finds that Sims has failed to exhaust her administrative remedies as to her Title VII
claims, those claims will be dismissed without prejudice.
ii. Sims’ EEOC Claims Pursuant to the ADA Were Untimely

Pursuant to 42 U.S.C. § 2000e-5(e)(1), “[an EEOC] charge under this section
shall be filed within one hundred and eighty days after the alleged unlawful
employment practice occurred . . . .” The EEOC’s regulations set out the requirements
for charges alleging employment discrimination. A charge must “be in writing and
signed and . . . verified.” 29 C.F.R. § 1601.9. A verified charge is one that has been
“sworn to or affirmed before a notary public, designated representative of the [EEOC],
or other person duly authorized by law to administer oaths . . . or [is] supported by
an unsworn declaration in writing under penalty of perjury.” Id. § 1601.3(a).

As stated, Sims’ EEOC charge asserted that the date the most recent allegedly
discriminatory action occurred was March 6, 2020.26 The 180-day period for Sims to

25 Id. at 7.
26 Id. at 6, 7 (“Most recently (on 3/6/2020), I was denied accommodations under [the]
ADA.”)
file her complaint therefore ended on September 2, 2020. However, Sims’ EEOC
charge was filed on December 28, 2020.27
Sims asserts that she filed within the 180-day period because she “submitted

an online inquiry with EEOC on June 23, 2020.”28 However, an online inquiry does
not qualify as a verified EEOC charge. See McLeod v. Floor & Decor Outlets of Am.,
Inc., No. 20-03134, 2021 WL 2515750, at *2 (N.D. Tex. June 18, 2021) (“The Court
concludes that [the plaintiff’s] unverified inquiry information form does not qualify
as a charge and thus [the plaintiff] has failed to exhaust her administrative remedies
regarding her Title VII retaliation claim.”); see also Ernst v. Methodist Hosp. Sys., 1

F.4th 333, 338 (5th Cir. 2021) (“An intake questionnaire that ‘is not verified as
required by EEOC regulations . . . cannot be deemed a charge.’” (quoting Patton v.
Jacobs Eng’g Grp., Inc., 874 F.3d 437, 443 (5th Cir. 2017))). Sims failed to timely
submit an EEOC charge alleging violations of the ADA, and therefore failed to
exhaust her administrative remedies as to that claim. The Court will accordingly
dismiss the ADA claim without prejudice.29

27 R. Doc. No. 1, at 5.
28 R. Doc. No. 11, at 8 (“Because I filed the online inquiry dated June 23, 2020, I was
within the one hundred and eight [sic] days of the unlawful employment practice
occurrence.”)
29 As the Court will dismiss Sims’ ADA claims for failure to exhaust her
administrative remedies, it need not reach the defendants’ additional argument that
Sims has failed to allege that she has a qualifying disability pursuant to the ADA. R.
Doc. No. 6-1, at 12–13.
b. Defendants Are Entitled to Sovereign Immunity as to Sims’ 42
U.S.C. §§ 1981 and 1983 Claims

“The Eleventh Amendment bars citizens of a state from suing their own state
or another state in federal court unless the state has waived its sovereign immunity
or Congress has expressly abrogated it.” Raj v. La. State Univ., 714 F.3d 322, 328 (5th
Cir. 2013) (citations omitted). “[E]leventh amendment immunity is a jurisdictional
issue that cannot be ignored, for a meritorious claim to that immunity deprives the
court of subject matter jurisdiction of the action.” Jefferson v. La. Sup. Ct., 46 F. App’x
732, 732 (5th Cir. 2002); see also Arce v. Louisiana, No. 16-14003, 2017 WL 5619376,
at *4 (E.D. La. Nov. 21, 2017) (Africk, J.) (“Sovereign immunity operates as ‘a
constitutional limitation on the federal judicial power.’” (quoting Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984))). Thus, absent exceptions not
relevant here, sovereign immunity generally bars a federal court from exercising

jurisdiction over a suit against a non-consenting state. See, e.g., Velazquez v. City of
Westwego, 531 F. Supp. 3d 1142, 1150 (E.D. La. 2021) (Africk, J.) (citing Union Pac.
R.R. Co. v. La. Pub. Serv. Comm’n, 662 F.3d 336, 340 (5th Cir. 2011)).
The State of Louisiana has not waived its Eleventh Amendment immunity,30
see, e.g., Holliday v. Bd. of Supervisors of LSU Agric. & Mech. Coll., 149 So. 3d 227,
229 (La. 2014)), and “Congress has not abrogated state sovereign immunity under . .

30 “No suit against the state or a state agency or political subdivision shall be
instituted in any court other than a Louisiana state court.” La. Stat. Ann. §
13:5106(A).
. § 1983[.]”31 Raj, 714 F.3d at 328 (citing Quern v. Jordan, 440 U.S. 332, 339–340
(1979) and Richardson v. S. Univ., 118 F.3d 450, 453 (5th Cir. 1997)).
“Immunity under the Eleventh Amendment extends to any state agency that

is deemed an ‘alter ego’ or an ‘arm of the state’ such that the State itself is the ‘real,
substantial party in interest.’” Stratta v. Roe, 961 F.3d 340, 350 (5th Cir. 2020)
(quoting Vogt v. Bd. Of Comm’rs, 294 F.3d 684, 688–89 (5th Cir. 2002) (internal
quotation marks and citations omitted)). A district court determining whether an
entity is an arm of the state weighs the following six factors:
(1) whether the state statutes and case law view the agency as an
arm of the state; (2) the source of funds for the entity; (3) the degree
of local autonomy the entity enjoys; (4) whether the entity is
concerned primarily with local, as opposed to statewide, problems;
(5) whether the entity has the authority to sue and be sued in its
own name; and (6) whether the entity has the right to hold and use
property.

Id. at 350–51 (citing Clark v. Tarrant Cty., Texas, 798 F.2d 736, 744–45 (5th Cir.
1986)). The second factor is given the most weight in the court’s analysis, because
“[t]he Eleventh Amendment exists mainly to protect state treasuries.” Id. (quoting
United States ex rel. Barron v. Deloitte & Touche, L.L.P., 381 F.3d 438, 440 (5th Cir.
2004)). Conversely, “the fifth and sixth factors are the least important.” Smith v. Bd.
Comm’rs La. Stadium & Exposition Dist., 372 F. Supp. 3d 431, 448 (E.D. La. 2019)
(Morgan, J.).

31 Congress abrogated state sovereign immunity as to claims made pursuant to
several statutes, including the ADA, in 42 U.S.C. § 2000d-7: “[a] State shall not be
immune under the Eleventh Amendment of the Constitution of the United States
from suit in Federal court for a violation of . . . the Age Discrimination Act of 1975[.]”
The LDH is an arm of the state.32 Consequently, the Court must only consider
whether, weighing the six factors above, the FPHSA is an arm of the state and
therefore entitled to immunity under the Eleventh Amendment.

Applying the first factor, the FPHSA and nine other such “human services
authorities” were established by Act 594 of the 2003 legislative session of the
Louisiana Legislature to provide “state-funded behavioral healthcare and care for
persons with intellectual disabilities and developmental disabilities . . . at a local level
to ensure local accountability, responsiveness to the unique needs of the community,
and the establishment of local partnerships and relationships with other local

agencies that serve individuals in the community.” La. Stat. Ann. § 28:910(A).
Pursuant to La. Stat. Ann. § 28:915(C), “[e]ach human services district or authority
shall . . . be a political subdivision of the state[.]” The FPHSA’s classification as a
political subdivision is not determinative of the issue before this Court. Smith, 372 F.
Supp. 3d at 440; see also Slowinski v. England Econ. & Indus. Dev. Dist., 2002-0189
(La. 10/15/02), 828 So. 2d 520, 524 (“[T]he characterization of the [England Economic
and Industrial Development District] as a ‘political subdivision of the state’ is not

determinative of whether it is an ‘instrumentality of the state.”).
The second and most important factor—concerning the source of FPHSA’s
funding—weighs in favor of finding the FPHSA to be an arm of the state. The Court’s

32 “The Eastern District of Louisiana has noted that the LDH is ‘“considered an arm
of the state” and, therefore, protected by the Eleventh Amendment’ from suit.” Jones
v. Gee, No. 18-5977, 2020 WL 564956, at *8 (E.D. La. Feb. 5, 2020) (Lemelle, J.) (citing
Montgomery-Smith v. La. Dep’t Health and Hosp., 299 F. Supp. 3d 790, 807 (E.D. La.
March 2, 2018) (internal citation omitted)).
analysis of this factor consists of a two-part inquiry: “In assessing this second factor,
we conduct inquiries into, first and most importantly, the state’s liability in the event
there is a judgment against the defendant, and second, the state[’s] liability for the

defendant’s general debts and obligations.” Vogt, 294 F.3d at 693 (quoting Hudson v.
City of New Orleans, 174 F.3d 677, 687 (5th Cir.1999)).
First, any judgment entered against the FPHSA would be paid by the state.
The Louisiana legislature established the “Self-Insurance Fund” within its
Department of the Treasury, which “consists of all premiums paid by state agencies
under the state’s risk-management program and is used for, among other things, the

payment of losses incurred by state agencies.” SkyRunner, LLC v. La. Motor Vehicle
Comm’n, No. 19-00049, 2019 WL 5681537, at *4 (W.D. La. Oct. 31, 2019) (citing La.
Stat. Ann. § 39:1533(A)(1)). The statute establishing the Self-Insurance Fund
specifically lists the FPHSA as a covered entity.33 Thus, any judgment entered
against the FPHSA would be paid by the state.
Second, the state is indirectly responsible for the general debts and obligations
of the FPHSA because the state provides funding for the FPHSA’s operations.

Pursuant to statute, “(1) [t]he secretary of the [LDH] shall have the authority to enter
into a sole-source contract with districts or authorities for the provision of behavioral
health services, developmental disabilities and intellectual disabilities services[.]”

33 “This fund shall be used only for the payment of losses incurred by state agencies
under the self-insurance program, premiums for insurance obtained through
commercial carriers, administrative expenses associated with . . . the payment of
losses incurred by the Florida Parishes Human Services Authority . . . .” La. Stat.
Ann. § 39:1533(A)(1).
La. Stat. Ann. § 28:918(B)(1). “For any service contracted by the [LDH], the [LDH]
shall provide the funding appropriate for the adequate delivery of such services[.]” Id.
The FPHSA’s strategic plan for fiscal years 2020 through 2025 also support

finding that the source of funding for the FPHSA’s general debts and obligations are
provided by the state: “Functions and funds relative to the operation of these services
were transferred to FPHSA from the Louisiana Department of Health (LDH). Some
funds relative to these functions are also appropriated directly to FPHSA.”34
Considering both the state’s liability for a judgment against the FPHSA and the
state’s liability for the FPHSA’s general debts and obligations, the Court finds that

the second factor weighs in favor of finding the FPHSA to be an arm of the state.
The third factor in the Court’s analysis is the degree of local autonomy the
FPHSA enjoys. This factor weighs in favor of finding the FPHSA to be an arm of the
state.
The FPHSA is governed by a board of nine members, each of whom “shall be
appointed by the governing authority of each parish.” La. Stat. Ann. § 28:913.2(A)–
(B). The appointments must be “ratif[ied] by a plurality of the legislative delegation

representing the five parishes which are included in the [FPHSA].” Id. (B) All of the
board members are subject to the “Code of Governmental Ethics,” La. Stat. Ann. §
28:913.7(6), and “[a]ll employees of the districts and authorities shall be members of

34 LOUISIANA DEP’T HEALTH, LDH STRATEGIC PLAN FISCAL YEAR 2022–2028: 09-301
FLORIDA PARISHES HUMAN SERVICES AUTHORITY 9,
https://www.ldh.la.gov/assets/docs/budget/FY20202025LDH5YearStrategicPlan.pdf
(last accessed Jan. 24, 2023).
the state civil service system and the Louisiana State Employees’ Retirement
System[,]” La. Stat. Ann. § 28:916(D).
The LDH also exercises significant control over the operations of the FPHSA.

The secretary of the LDH is “responsible for policy, development, implementation,
and monitoring of service provision of the statewide human services system.” La.
Stat. Ann. § 28:918(A). The LDH has the “authority to survey and monitor the human
services districts and authorities by conducting onsite reviews, desk reviews, data
reviews, requiring data submission on grant funds, legislative reporting, federal or
state requirements, and budgeting purposes.” Id. (F). The LDH also has the authority

“to assume temporary management of the district or authority if noncompliance with
the [agreement between the LDH and FPHSA] constitutes a threat to public health
or well-being . . . .” Id. (E)(2)(a). In such an event, the LDH will “assume responsibility
and oversight for the provision of services with funds appropriated to the district until
such time as the district has met the compliance standards . . . .” Id. In light of the
significant authority the state maintains over the operations of the FPHSA, the third
factor in the Court’s analysis weighs in favor of finding the FPHSA to be an arm of

the state.
The fourth factor in the Court’s analysis concerns whether the FPHSA is
concerned primarily with local, as opposed to statewide, problems. The Louisiana
legislature established the FPHSA to provide “state-funded behavioral healthcare
and care for persons with intellectual disabilities and developmental disabilities” at
the “local level to ensure local accountability, responsiveness to the unique needs of
the community, and the establishment of local partnerships and relationships with
other local agencies . . . .” La. Stat. Ann. § 28:910(A). The FPHSA has a “responsibility
to prioritize and provide for state-funded services[.]” La. Stat. Ann. § 28:914(A)(19).

Accordingly, while the FPHSA’s remit is local, its primary purpose is to address
statewide problems. The fourth factor therefore is at a minimum neutral, but
arguably weighs in favor of a finding that the FPHSA is an arm of the state.
Finally, the fifth and sixth factors concern whether the entity has the authority
to sue and be sued in its own name and whether the entity has the right to hold and
use property, respectively. The FPHSA has “the power to sue and be sued” and the

power to “acquire movable and immovable property by lease, purchase, donation, or
otherwise and to obtain title to same in its own name.” La. Stat. Ann. § 28:915(C),
(B)(4). Accordingly, the final two factors weigh against finding the FPHSA to be an
arm of the state. However, as stated, these two factors are given the least weight in
the Court’s analysis. Smith, 372 F. Supp. 3d at 448.
Considering all of the factors, and giving the most weight to the second factor,
the Court finds that the FPHSA is properly considered an arm of the state and is

therefore entitled to sovereign immunity under the Eleventh Amendment. The Court
will therefore dismiss Sims’ claims pursuant to 42 U.S.C. §§ 1981 and 1983 for lack
of jurisdiction.35

35 As the Court finds it lacks jurisdiction over Sims’ 42 U.S.C. §§ 1981 and 1983
claims, it need not address the defendants’ additional argument that Sims’ claims
under these statutes are prescribed. See R. Doc. No. 6-1, at 11–12.
IV. CONCLUSION
IT IS ORDERED the defendants’ motion to dismiss is GRANTED and Sims’
claims pursuant to 42 U.S.C. §§ 1981 and 1983 are DISMISSED WITH
PREJUDICE, and Sims’ claims pertaining to Title VII and the ADA are
DISMISSED WITHOUT PREJUDICE for the reasons provided herein.
IT IS FURTHER ORDERED that the defendants’ motion for a more definite
statement is DENIED AS MOOT.
New Orleans, Louisiana, January 24, 2023.

UNITED STATHS DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10188849. Public record. Not legal advice.