Webster v. Michele

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KYSHUN WEBSTER, SR. CIVIL ACTION

VERSUS No. 23-6607

ED MICHELE SECTION I

ORDER & REASONS

Before the Court is a motion1 to dismiss plaintiff Kyshun Webster, Sr.’s

(“Webster”) pro se complaint pursuant to Federal Rules of Civil Procedure 12(b)(1),

12(b)(6), and 12(c). The motion was filed by defendant Ed Michel (“Michel”),2

Inspector General, Office of the Inspector General (the “OIG”) of the City of New

Orleans. Webster has not filed any opposition to the motion, and the deadline for

doing so has passed.3 For the reasons that follow, the Court grants Michel’s motion

to dismiss.

I. FACTUAL BACKGROUND

This case stems from a report allegedly published by the OIG detailing the

investigation of Webster in his capacity as the Executive Director of the City of New

1 R. Doc. No. 6.

2 The Court notes that Michel’s last name is incorrectly spelled “Michele” on Webster’s

complaint and, consequently, on the case caption.

3 The motion was originally set for submission on February 21, 2024. R. Doc. No. 6-7

(notice of submission). On February 20, 2024, Webster filed a motion to continue. R.

Doc. No. 8. The Court granted Webster’s motion to continue in part and re-set the

submission date of Michel’s motion to March 13, 2024. R. Doc. No. 9, at 1. In its order

resetting the submission date, the Court cautioned Webster that, pursuant to Local

Rule 7.5, Webster’s response would be due eight days before the noticed submission

date, on March 5, 2024. R. Doc. No. 9, at 1, n.5.

Orleans’s Juvenile Justice Intervention Center (the “JJIC”).4 Webster alleges that,

before accepting his appointment as the JJIC’s Executive Director, he submitted a

letter conditioning his acceptance on “a flexible work schedule” and he “completed all

required disclosures regarding pre-existing business interests and other sources of

income received as required by city and state law.”5

Webster asserts that, around 2021, he “was notified of an investigative inquiry

by the . . . OIG . . . regarding [his] attendance.”6 According to Webster, despite the

City Attorney advising OIG that data regarding employees’ electronic door swipes to

enter the building were inadequate to investigate attendance, the OIG used electronic

door swipe data “as its primary basis of evidence.”7 Webster allegedly cooperated with

the investigation by answering interrogatories without ever being notified of the

specific accusations against him.8 Additionally, Webster’s counsel requested a copy of

any report from the OIG prior to its release.9

The complaint states that, around November 1, 2022, the OIG published a

“scathing report” about Webster and “widely disseminated it to the media[.]”10 This

report allegedly “contains major inaccuracies and misrepresentations of [ ] Webster’s

employment terms that were misleading to the public and damaging to [ ] Webster’s

4 See generally R. Doc. No. 1.

5 Id. at 2, ¶¶ 2–3.

6 Id. ¶ 6.

7 Id. ¶ 7.

8 Id. ¶ 8.

9 Id. ¶ 9.

10 Id. ¶ 10.

reputation[.]”11 Webster’s complaint takes issue with the report for various reasons,

including its alleged bias in choosing investigative techniques, its alleged

overreliance on door swipes, and its alleged lack of regard for conflicting testimony

from employees.12 Specifically, Webster asserts that the report ignores the City’s

policy regarding employee timekeeping, “does not comply with accepted best practices

for objectivity, fairness, and quality assurance as published by the Association of

Offices of Inspector Generals[,]” inaccurately analyzes Webster’s attendance, uses

incendiary language, and fails to fully represent the context of COVID-19, during

which the City limited the number of personnel required to report to work in person.13

By singling out Webster despite the City’s COVID-19 policy, the OIG allegedly

“discriminately and unduly targeted and publicly persecuted [Webster] for making

[his] best attempts to comply with this policy while also keeping youth safe from

COVID-19.”14

According to the complaint, the report also erroneously stated that there was

no documentation for two of Webster’s longer absences—seventeen days and eight

days, respectively—when these absences are supported by medical documentation

possibly not released by the City to protect Webster’s “medical privacy” pursuant to

the Health Insurance Portability and Accountability Act (“HIPAA”).15 Likewise, the

report allegedly fails to acknowledge that, during Hurricane Ida, Webster slept at the

11 Id. ¶ 11.

12 Id. ¶ 12.

13 Id. ¶¶ 14–22.

14 Id. ¶ 23.

15 Id. ¶ 24.

JJIC building for twelve days and cooked for youth and staff without ever using his

swipe card due to power outages.16 The complaint further alleges that Michel

“colluded with [a] television journalist, even leaking information to media sources

prematurely and launched his own politicized campaign to publicly malign [Webster]

based on rumors, hearsay, and sensationalized sources and techniques used by

television journalist[s], which are incompatible with the high bar of evidentiary

standards for fairness and objectivity set by the National Association of Inspector

Generals.”17 Moreover, the complaint alleges that the OIG “wrongfully condemned”

and attempted to criminalize Webster’s legitimate donation of a dog to the JJIC by

referring it to the Louisiana Board of Ethics for investigation.18 Finally, the complaint

asserts that the OIG report “made false claims that [Webster] misspent finances.”19

Based on these allegations, Webster’s complaint asserts violations of

substantive due process pursuant to the Fourteenth Amendment to the U.S.

Constitution.20 Webster’s complaint also suggests he may be asserting violations of

his procedural due process rights pursuant to the Fourteenth Amendment.21 The

complaint further asserts a discrimination claim based on disparate treatment

because Michel “colluded with [ ] influential Caucasian actors and influencers . . . to

publicly defame and falsely accuse Webster based on unsubstantiated rumors and

16 Id. ¶ 25.

17 Id. ¶ 27.

18 Id. ¶¶ 28–31.

19 Id. at 9.

20 Id. ¶¶ 32–39.

21 See id.

mere opinion of the OIG.”22 Additionally, the complaint alleges that Michel was

“negligent in the conduct of his duty to insure fairness, objectivity, and quality control

of the accuracy and preponderance of the evidence when bringing public allegations

against [Webster].”23 The complaint also alleges that production of the report

constituted the crime of injury of public records pursuant to Louisiana Revised

Statute § 14:132 and that Michel and/or OIG are liable for the state-law torts of

“[d]efamation” and “[p]ublic slander and libel.”24 Finally, the complaint asserts a

claim against the OIG for violating HIPAA’s privacy rule and the City’s policy

memorandum regarding HIPAA by disclosing Webster’s personal health information

to media sources and other personnel involved in the publication of the report.25

Webster seeks a declaratory judgment that “the defendant’s actions violated [his]

rights under the 14th and 15th Amendments[,]” an injunction “prohibiting the

defendant from further violations of [his] constitutional rights[,]” compensatory and

punitive damages, and attorneys’ fees and costs.26

In response, Michel argues that Webster’s complaint should be dismissed

pursuant to Rules 12(b)(6), 12(b)(1), and 12(c).27

22 Id. ¶¶ 43–44.

23 Id. ¶ 40.

24 Id. ¶¶ 41–42, 45.

25 Id. ¶ 46.

26 Id. ¶ 47.

27 R. Doc. No. 6. Although Michel’s memorandum in support of his motion suggests

that the motion is also brought pursuant to Rule 12(c), Michel makes no arguments

specific to Rule 12(c), and such claim is therefore deemed waived.

II. LEGAL STANDARDS

a. Rule 12(b)(6)

Rule 12(b)(6) allows for dismissal of a complaint for “failure to state a claim

upon which relief can be granted.” “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

and internal quotations omitted).

“[T]he face of the complaint must contain enough factual matter to raise a

reasonable expectation that discovery will reveal evidence of each element of the

plaintiffs’ claim.” Hi-Tech Elec., Inc v. T&B Constr. & Elec. Servs., Inc., No. 15-3034,

2017 WL 615414, at *2 (E.D. La. Feb. 15, 2017) (Vance, J.) (citing Lormand v. US

Unwired, Inc., 565 F.3d 228, 255–57 (5th Cir. 2009)). 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). The complaint “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). A court must limit its review to “the complaint,

any documents attached to the complaint, and any documents attached to the motion

to dismiss that are central to the claim and referenced by the complaint.” Lone Star

Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing

Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)).28

b. Rule 12(b)(1)

“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). Pursuant to Rule

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;

28 Because the Court resolves Michel’s motion pursuant to Rule 12(b)(6), it need not

set forth the Rule 12(c) standard of law.

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. If a court determines that it

does not have subject matter jurisdiction over an action, the action is dismissed

without prejudice. See, e.g., Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).

III. ANALYSIS

As noted, Michel argues that Webster’s complaint should be dismissed.

Specifically, Michel contends that, to the extent Webster asserts any claims against

the OIG, those claims should be dismissed because the OIG lacks the procedural

capacity to be sued.29 Michel also argues that the complaint fails to state a plausible

claim pursuant to 42 U.S.C. § 1983 because Webster has not identified any

constitutional violation.30 Even if Webster’s complaint did state a claim for procedural

or substantive due process violations, Michel asserts that the complaint should be

dismissed because he is entitled to qualified immunity.31

Michel also argues that the complaint fails to state a claim for discrimination

and fails to state a claim for a HIPAA violation since the report does not contain any

confidential medical information and there is no personal right of action arising from

29 R. Doc. No. 6-1, at 7–8.

30 Id. at 8–13.

31 Id. at 13–15.

a HIPAA violation.32 Michel further asserts that, if Webster’s federal claims are

dismissed, the Court should dismiss any pendent state-law claims.33 Finally, Michel

argues that the Court lacks jurisdiction over Webster’s claim for declaratory relief

since Webster has not stated a federal claim or other basis for federal jurisdiction.34

As noted, Webster did not file any opposition to Michel’s motion to dismiss. The Court

considers each argument in turn.

a. The OIG’s Procedural Capacity

Michel first asserts that, to the extent Webster’s complaint asserts claims

against the OIG, those claims should be dismissed because the OIG lacks the

procedural capacity to be sued.35 Pursuant to Federal Rule of Civil Procedure 17(b),

“capacity to sue or be sued shall be determined . . . by the law of the state where the

court is located.” Accordingly, Louisiana law governs the OIG’s capacity to be sued.

“[T]o possess juridical capacity under Louisiana law, an entity must qualify as

a ‘juridical person.’” Winn v. New Orleans City, 919 F. Supp. 2d 743, 750 (E.D. La.

2013) (Milazzo, J.) (quoting Dugas v. City of Breaux Bridge Police Dep’t, 757 So. 2d

32 Id. at 15–17.

33 Id. at 17–18.

34 Id. at 18. To be clear, Michel does not argue that the Court lacks subject matter

jurisdiction over Webster’s federal or state-law claims against him. Michel’s

jurisdictional argument is only asserted in support of his contention that, if the Court

finds that Webster’s complaint fails to state any federal claim, the Court would lack

subject matter jurisdiction to issue a declaratory judgment. See id. Accordingly, the

Court need not consider Michel’s Rule 12(b)(1) argument before considering his Rule

12(b)(6) argument. Cf. In re FEMA Trailer Formaldehyde Prod. Liab. Litig., 668 F.3d

at 286 (citation omitted).

35 R. Doc. No. 6-1, at 7–8. The complaint names “City of New Orleans Office of OIG

Through Ed Michele, Inspector General” and appears to assert certain allegations

and claims against the OIG directly. See generally R. Doc. No. 1.

741, 743 (La. Ct. App. 2000)). Article 24 of the Louisiana Civil Code provides that “[a]

juridical person is an entity to which the law attributes personality, such as a

corporation or a partnership.” “The Louisiana Supreme Court has held that juridical

status or legal capacity depends on whether ‘the organic law grants it the legal

capacity to function independently and not just as the agency or division of another

governmental entity.’” Dantzler v. Pope, No. 08-3777, 2009 WL 959508, at *1 (E.D.

La. Apr. 3, 2009) (Africk, J.) (quoting Roberts v. Sewerage & Water Bd. of New

Orleans, 634 So. 2d 341, 346–47 (La. 1994)). “Therefore, in the absence of law

providing that an entity may sue or be sued, the entity lacks such capacity.” Id. (citing

City Council of Lafayette v. Bowen, 649 So. 2d 611, 615 (La. App. 3d Cir. 1994)). When

a party lacks juridical capacity to be sued, the claims asserted against that party are

dismissed pursuant to Rule 12(b)(6). See, e.g., Dantzler, 2009 WL 959508, at *1–2.

Neither party has cited any law conferring upon the OIG the authority to sue

or be sued. See Winn, 919 F. Supp. 2d at 750. Having identified no legal authority to

support an argument that the OIG is a juridical entity, the Court finds that the OIG

lacks the capacity to be sued.36 To the extent Webster’s complaint asserts any claims

against the OIG, the Court will dismiss those claims pursuant to Rule 12(b)(6). See,

e.g., Dantzler, 2009 WL 959508, at *1–2.

36 Several courts in this district have found that the New Orleans Police Department

is not amenable to suit because it is “simply a department of the City government.”

See, e.g., Manley v. Louisiana, No. 00-1939, 2001 WL 506175, at *2 (E.D. La. May 11,

2001) (Vance, J.); see also Winn, 919 F. Supp. 2d at 750 (collecting cases). The same

is true of the OIG.

b. Due Process Claim

Michel next argues that Webster’s complaint fails to state a due process claim

pursuant to 42 U.S.C. § 1983.37 The Court notes that Webster’s complaint does not

cite § 1983 and purports to assert claims for violations of the Fourteenth Amendment

directly under the Constitution.38 However, Webster has no cause of action directly

under the Constitution since § 1983 provides the exclusive remedy for bringing his

constitutional claims. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912,

925 (9th Cir. 2001) (“[A] litigant complaining of a violation of a constitutional right

does not have a direct cause of action under the U.S. Constitution but must utilize 42

U.S.C. § 1983.”) (citing Azul-Pacifico Inc. v. City of Los Angeles, 973 F.2d 704, 705

(9th Cir. 1992)); Encalade v. Biggs, No. 23-3283, 2023 WL 7180646, at *7 (E.D. La.

Oct. 13, 2023) (Currault, M.J.) (explaining that “[t]here is no cause of action directly

under the Constitution” and “a plaintiff seeking relief in federal court on

constitutional grounds must do so pursuant to a federal civil rights statute, such as

§ 1983”). Accordingly, reading Webster’s complaint liberally,39 the Court construes it

as invoking the Court’s federal question jurisdiction pursuant to § 1983. See, e.g.,

Encalade, 2023 WL 7180646, at *7; Johnson v. City of Shelby, Miss, 574 U.S. 10, 11

(2014) (“[N]o heightened pleading rule requires plaintiffs seeking damages for

37 R. Doc. No. 6-1, at 8–15.

38 R. Doc. No. 1, ¶¶ 32–42.

39 See Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018) (“If a complaint is written

pro se, [courts] are to give it a liberal construction.”).

violations of constitutional rights to invoke § 1983 expressly in order to state a

claim.”).

“Section 1983 provides a claim against anyone who ‘under color of any statute,

ordinance, regulation, custom, or usage, of any State’ violates another’s constitutional

rights.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (quoting § 1983). To state

a § 1983 claim, “a plaintiff must (1) allege a violation of a right secured by the

Constitution or laws of the United States and (2) demonstrate that the alleged

deprivation was committed by a person acting under color of state law.” Id. (cleaned

up). A plaintiff must allege a violation of a specific constitutional or statutory federal

right to be entitled to relief pursuant to § 1983. Howard v. Ferrand, No. 22-701, 2023

WL 346082, at *3 (E.D. La. Jan. 20, 2023) (Vance, J.).

As noted, Webster’s complaint explicitly asserts violations of substantive due

process pursuant to the Fourteenth Amendment to the U.S. Constitution.40

Construed liberally, the complaint also appears to assert violations of procedural due

process.41 “The Due Process Clause of the Fourteenth Amendment declares that no

state shall ‘deprive any person of life, liberty, or property, without due process of

law.’” Duhon v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll., No. 20-

2022, 2021 WL 3711366, at *3 (E.D. La. Aug. 20, 2021) (Milazzo, J.) (quoting U.S.

Const. amend. XIV). “In procedural due process claims, the deprivation by state

action of a constitutionally protected interest in ‘life, liberty, or property’ is not in

40 R. Doc. No. 1, ¶¶ 32–39.

41 See id.

itself unconstitutional; what is unconstitutional is the deprivation of such an interest

without due process of law.” Id. (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)

(emphasis in original)). “To prevail on a [procedural] due process claim, plaintiffs

must [therefore] show that: (1) they possess a [life, liberty, or] property interest that

is protected by the due process clause, and (2) [the defendant’s] procedures are

constitutionally inadequate.” Id. (quoting Ridgely v. Fed. Emergency Mgmt. Agency,

512 F.3d 727, 734 (5th Cir. 2008)).

“Substantive due process, on the other hand, ‘ensures that, regardless of the

fairness of the procedures used, the government does not use its power for oppressive

purposes.’” Id. at *4 (quoting Patterson v. Def. POW/MIA Acct. Agency, 343 F. Supp.

3d 637 646 (W.D. Tex. 2018)). “Thus, ‘substantive due process requires only that

public officials exercise professional judgment, in a nonarbitrary and noncapricious

manner, when depriving an individual of a protected property interest.’” Id. (quoting

Lewis v. Univ of Tex. Med. Branch at Galveston, 65 F.3d 625, 631 (5th Cir. 2011)).

“The first inquiry in every due process challenge—whether procedural or

substantive—is whether the plaintiff has been deprived of a protected interest in

property or liberty.” McClelland v. Katy Indep. Sch. Dist., 63 F.4th 996, 1014 (5th Cir.

2023) (quoting Edionwe v. Bailey, 860 F.3d 287, 292 (5th Cir. 2017)). “Moreover, [t]o

have a property interest in a benefit, a person clearly must have more than an

abstract need or desire for it . . . [He] must, instead, have a legitimate claim of

entitlement to it.” Id. (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577

(1972)).

As Michel points out, Webster has not sufficiently alleged a property interest

in his job as Executive Director of the JJIC. “Under Louisiana law, a public employee

can have a property interest in their job if: (1) the employer contracted with the

employer to fire him only for cause, or (2) the employee is a permanent classified

employee under the Louisiana Civil Service System.” Griffith v. Louisiana, 808 F.

Supp. 2d 926, 941 (E.D. La. 2011) (Berrigan, J.) (citing Wallace v. Shreve Mem’l

Library, 79 F.3d 427, 429 (5th Cir. 1996)). The complaint does not allege that Webster

contracted with his employer to fire him only for cause. Likewise, it does not allege

that Webster was a permanent classified employee. In fact, the complaint does not

even allege that Webster was deprived of a property interest; it states only that he

was deprived of “life and liberty.”42 Accordingly, Webster has not adequately alleged

a property interest in his job sufficient to support a due process claim pursuant to

§ 1983.

Michel also contends that Webster “had no liberty interest at stake because

this was not a criminal investigation and [Michel] made no referral to a prosecutive

authority.”43 However, a liberty interest may be implicated even where there is no

criminal investigation. See, e.g., Vander Zee v. Reno, 73 F.3d 1365, 1369 (5th Cir.

1996) (explaining that a plaintiff can plausibly allege that defamatory statements of

a government official deprived him of a protected liberty interest if certain conditions

are satisfied).

42 R. Doc. No. 1, ¶ 39.

43 R. Doc. No. 6-1, at 12.

The U.S. Supreme Court has explained that reputation alone is neither

“liberty” nor “property” “by itself sufficient to invoke the procedural protection of the

Due Process Clause.” Paul v. Davis, 424 U.S. 693, 701 (1976). There is “no

constitutional doctrine converting every defamation by a public official into a

deprivation of liberty within the meaning of the Due Process Clause of the Fifth or

Fourteenth Amendment.” Id. at 702.

The U.S. Court of Appeals for the Fifth Circuit has applied this Supreme Court

precedent “by requiring a section 1983 plaintiff to show stigma plus an infringement

of some other interest.” Blackburn v. City of Marshall, 42 F.3d 925, 935–36 (5th Cir.

1996) (citing San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 701 (5th Cir. 1991)).

“[F]or a statement to be sufficiently stigmatizing to satisfy the first prong of the test,

the statement must be both false and assert some serious wrongdoing on the part of

the plaintiff.” Taylor v. LeBlanc, No. 20-3180, 2021 WL 3675022, at *7 (E.D. La. Aug.

19, 2021) (Africk, J.) (quoting Vander Zee, 73 F.3d at 1369). “In order to satisfy the

second prong, a plaintiff must ‘allege the deprivation of a protected interest.’” Id.

(quoting Vander Zee, 73 F.3d at 1369). “And ‘[n]either harm to reputation nor the

consequent impairment of future employment opportunities are constitutionally

cognizable injuries.’” Id. (quoting Vander Zee, 73 F.3d at 1369).

Even assuming Webster’s complaint could satisfy the first prong of the stigma-

plus-infringement standard, it does not satisfy the second prong. Webster’s complaint

alleges that the OIG’s investigation and report “denied him of future work

opportunities[ ] and destroyed his private business endeavors[,] [t]hus depriving

[Webster] of life and liberty.”44 As explained, neither harm to Webster’s reputation

nor the consequent impairment of future business or employment opportunities

qualifies as a constitutionally cognizable injury. See Taylor, 2021 WL 3675022, at *7.

Accordingly, the Court must dismiss Webster’s due process claims pursuant to Rule

12(b)(6).45

c. Discrimination Claim

Michel also argues that Webster’s discrimination claim should be dismissed for

failure to state a claim.46 Webster alleges that Michel’s investigation singled him out

and subjected him to disparate treatment by wrongly applying a standard of “on-site”

attendance which was “not evenly applied” and which “counter[ed] the [City of New

Orleans’s Chief Administrative Office’s] policy mandate.”47 The complaint further

alleges that Michel “colluded with other Caucasian actors and influencers” by

“leak[ing] premature information regarding [the] investigation” before Webster had

the opportunity to rebut the alleged misinformation in the OIG report.48 Specifically,

these individuals conspired with Michel to “publicly defame and falsely accuse

[Webster] based on unsubstantiated rumors and mere opinion of the OIG[,]” resulting

in Webster’s “unequal treatment” and suffering of “adverse actions.”49

44 R. Doc. No. 1, ¶ 39.

45 The Court notes that, aside from Webster’s conclusory assertion regarding his “life

and liberty,” see R. Doc. No. 1, ¶ 39 (emphasis added), nothing in the complaint

suggests Webster was deprived of a constitutionally protected “life” interest without

due process.

46 R. Doc. No. 6-1, at 15–17.

47 R. Doc. No. 1, ¶ 43.

48 Id. ¶ 44.

49 Id.

It is not clear whether Webster’s discrimination claim is asserted pursuant to

Title VII of the Civil Rights Act of 1964 or pursuant to § 1983. To the extent Webster

asserts an employment discrimination claim pursuant to Title VII, he must allege the

existence of an employer-employee relationship. See Garman v. Helix Energy Sols.

Grp., No. 11-2341, 2012 WL 458822, at * 2 (E.D. La. Feb. 13, 2012) (Vance, J.). Since

Webster does not allege that Michel was his employer, he cannot state a claim against

Michel pursuant to Title VII. See id.

To the extent Webster’s discrimination claim asserts a violation of the Equal

Protection Clause of the Fourteenth Amendment, such a claim must be brought

pursuant to § 1983. See Arpin, 261 F.3d at 925; Encalade, 2023 WL 7180646, at *7.

The Equal Protection Clause prohibits a state from “deny[ing] to any person within

its jurisdiction the equal protection of the laws.” Fennell v. Marion Indep. Sch. Dist.,

804 F.3d 398, 412 (5th Cir. 2015) (quoting U.S. Const. amend. XIV § 1). “[A] violation

of equal protection occurs only when the government treats someone differently than

others similarly situated; if the challenged government action does not appear to

classify or distinguish between two or more relevant persons or groups, then the

action—even if irrational—does not deny them equal protection of the laws.” Brennan

v. Stewart, 834 F.2d 1248, 1257 (5th Cir. 1988). “An equal protection claim depends

on either identifying a class or showing that the aggrieved party is a ‘class of one.’”

Monumental Task Comm., Inc. v. Foxx, No. 15-6905 c/w 16-12495, 2016 WL 5780194,

at *3 (E.D. La. Oct. 4, 2016) (Barbier, J.) (citing Gil Ramirez Grp., LLC v. Houston

Indep. Sch. Dist., 786 F.3d 400, 419 (5th Cir. 2015)).

Although Webster’s complaint sounds in racial discrimination, Webster has

not specifically identified a class subjected to disparate treatment. Rather, he alleges

that he alone was “singled-out” and that the alleged false accusations contained in

the OIG report and in media broadcasts were directed only at him.50 Accordingly, the

Court will liberally construe Webster’s equal protection claim as a “class of one” claim.

See Foxx, 2016 WL 5780194, at *5.

To survive the instant motion to dismiss based on this “class of one” claim,

Webster “must have alleged facts which plausibly state that (1) he was treated

differently from others similarly situated and (2) there was no rational basis for the

disparate treatment.” Id. Michel’s motion to dismiss does not directly address

Webster’s “discrimination” claim as a potential equal protection claim. Michel argues

only that the OIG report was not “leaked” because it became a public record upon

completion of the investigation and that Webster “did not have any right to an

advance review and rebuttal of the [r]eport.”51 Michel also “denies that a standard of

‘on-site’ attendance was improperly considered in the OIG’s investigation[.]”52

However, to accept the allegations in Webster’s complaint as true, the Court must

accept that the OIG report was inaccurate, that it wrongly relied on door-swipe data,

and that it was “based on unsubstantiated rumors and mere opinion of the OIG.”53

50 R. Doc. No. 1, ¶¶ 43–44.

51 R. Doc. No. 6-1, at 15–16.

52 Id. at 16.

53 R. Doc. No. 1, ¶¶ 43–44.

The Court must also accept that this report was shared with the media before

Webster was given the chance to “rebut and defend the misinformation.”54

Accepting these allegations as true, the Court notes that, while Webster alleges

that he was singled out, he does not specifically reference any similarly situated

individuals. Likewise, Webster does not allege any facts indicating that similarly

situated persons were treated differently. Accordingly, Webster’s complaint fails to

state a “class of one” equal protection claim. See Holden v. Perkins, 398 F. Supp. 3d

16, 25–26 (E.D. La. 2019) (Barbier, J.) (holding that a plaintiff, a student-athlete, had

failed to plausibly state that she was treated differently from others similarly

situated where the plaintiff’s petition did not reference similarly situated persons and

plaintiff provided no facts supporting her conclusion that “all other student athletes

received notice and a hearing”).55

54 Id. ¶ 44.

55 Webster’s complaint quotes Section 2-1120(8) of the New Orleans Code of

Ordinances to support his claim that he was entitled to “30 days from the transmittal

date of the report to submit a written explanation or rebuttal of the findings before

the report is finalized[.]” Id. ¶ 34. However, as Michel observes, this provision applies

only to “an audit or evaluation report,” not to an investigation report. Compare New

Orleans Code of Ordinances § 2-1120(8)(a) (“Upon completion of any audit, evaluation

or investigation, the office of inspector general shall report the results of its findings

and any recommendations to the ethics review board.” (emphasis added)) with id. §

2-1120(8)(b) (“Prior to concluding an audit or evaluation report, which contains

findings as to the person or entity which is the subject of the audit or evaluation, the

office of inspector general shall provide the affected person or entity with an internal

review copy of the report. Such person or entity shall have 30 days from the

transmittal date of the report to submit a written explanation or rebuttal of the

findings before the report is finalized . . .” (emphasis added)).

d. HIPAA Claim

Michel next argues that Webster’s claim for a HIPAA violation should be

dismissed.56 HIPAA protects the confidentiality of a patient’s medical records. 42

U.S.C. §§ 1320d-1–d-7. However, the Fifth Circuit has held that “there is no private

cause of action under HIPAA[.]” Acara v. Banks, 470 F.3d 569, 572 (5th Cir. 2006).

Accordingly, Webster’s HIPAA claim must be dismissed pursuant to Rule 12(b)(6).

e. State-Law Claims

Michel also asserts that the Court should decline to exercise supplemental

jurisdiction over Webster’s state-law claims if it dismisses Webster’s federal claims.57

A district court may decline to exercise supplemental jurisdiction over a state-law

claim if “the district court has dismissed all other claims over which the district court

has original jurisdiction[.]” 28 U.S.C. § 1367(c)(3). A district court has “wide

discretion” when deciding whether it should retain jurisdiction over state-law claims

once all federal claims have been dismissed. Guzzino v. Felterman, 191 F.3d 588, 595

(5th Cir. 1999).

However, the general rule in the Fifth Circuit is “to dismiss state claims when

the federal claims to which they are pendent are dismissed.” Parker & Parsley

Petroleum Co. v. Dresser Indus., 972 F.2d 580, 585 (5th Cir. 1992). In addition, the

Fifth Circuit has instructed district courts to consider the common law factors of

“judicial economy, convenience, fairness, and comity.” Mendoza v. Murphy, 532 F.3d

56 R. Doc. No. 6-1, at 17.

57 R. Doc. No. 6-1, at 17–18.

342, 346 (5th Cir. 2008). “These interests are to be considered on a case-by-case basis,

and no single factor is dispositive.” Id.

Upon review, the Court concludes that it will decline to exercise supplemental

jurisdiction over Webster’s state-law claims. The Court has “dismissed all claims over

which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Moreover, allowing

Louisiana courts to rule on Louisiana law “encourages fairness between the parties

by ‘procuring for them a surer-footed reading of applicable law.’” Bitte v. EMC

Mortgage Corp., No. 07-9273, 2009 WL 1950911, at *2 (E.D. La. July 1, 2009) (Africk,

J.) (citations omitted) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715,

726 (1966)). “[D]eference in this case with respect to the state law issue[s] promotes

the important interest of comity to state courts.” Id. The Court therefore declines to

exercise supplemental jurisdiction over the remaining state-law claims. Those claims

will be dismissed without prejudice. See id. (dismissing state-law counterclaim

without prejudice once no federal issues remained).

f. Declaratory Judgment Claims

Finally, Michel argues that the Court lacks subject matter jurisdiction over

Webster’s request for a declaratory judgment.58 As the Fifth Circuit has explained,

“[w]hen the other claims have been dismissed, it is also appropriate to dismiss any

declaratory-judgment request.” Stallings v. CitiMortgage, Inc., 611 F. App’x 215, 217–

18 (5th Cir. 2015) (citing Williams v. Wells Fargo Bank, N.A., 560 F. App’x 233, 243

(5th Cir. 2014)). Accordingly, the Court will deny Webster’s request for a declaratory

58 R. Doc. No. 6-1, at 18.

judgment that Michel’s actions violated Webster’s Fourteenth and Fifteenth

Amendment rights.®?

IV. CONCLUSION

Based on the foregoing,

IT IS ORDERED that Michel’s motion to dismiss is GRANTED. Webster’s

federal claims against Michel are DISMISSED WITH PREJUDICE. Webster's

state-law claims against Michel are DISMISSED WITHOUT PREJUDICE.

Webster’s request for a declaratory judgment that Michel violated his federal

constitutional rights is DENIED.

New Orleans, Louisiana, March 27, 2024.

Si □□

Sfp

UNITED STATES DISTRICT JUDGE

59 The Court notes that Webster’s complaint makes no allegations that his voting

rights under the Fifteenth Amendment were violated.

22