“We have held that a district court is authorized to consider the sufficiency of the complaint on its own initiative. . . . And if the court finds the complaint fails to state a claim, it may dismiss as long as the procedure employed is fair.”
How later courts described this case
- “We have held that a district court is authorized to consider the sufficiency of the complaint on its own initiative. . . . And if the court finds the complaint fails to state a claim, it may dismiss as long as the procedure employed is fair.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHIVA AKULA CIVIL ACTION
VERSUS NO. 23-1057
BERNARD CASSIDY, ET AL. SECTION: “P” (5)
ORDER AND REASONS
Before the Court are several motions to dismiss filed by the following defendants,
respectively: Katie McHugh;1 Vaschelle Hastings;2 Bernard Cassidy;3 Kelly Melech
Anderson;4 Jeffrey Landry and Ernest Green;5 Rachel Murphy;6 Elizabeth Seymour;7 and
Xavier Becerra8 (collectively, “Moving Defendants”). Pro se Plaintiff, Shiva Akula, filed
opposition memoranda to most, but not all, of these motions.9 For the following reasons,
the Court finds the Moving Defendants’ motions should be granted, and the Court
dismisses without prejudice Plaintiff’s claims against all defendants.
1 R. Doc. 58.
2 R. Doc. 62.
3 R. Doc. 63.
4 R. Doc. 67.
5 R. Doc. 72.
6 R. Doc. 80.
7 R. Doc. 83.
8 R. Doc. 123.
9 See R. Docs. 90–93, 96, 114. Plaintiff did not file any opposition to pro se Defendant Vaschelle Hastings’
motion (R. Doc. 62) or Defendant Xavier Becerra’s motion (R. Doc. 123). The Court notes, however, that
Defendant Hastings’ motion simply stated that she “moves to dismiss the Plaintiff’s Claims for Relief in
the Complaint 2:23-cv-1057 for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).” See R. Doc.
62. The motion was not accompanied by a memorandum in support or any other argument in support of
her motion. See id. The Court also notes that Defendant Becerra’s motion was filed months after the other
motions to dismiss that Plaintiff did oppose, and unlike the other motions to dismiss, Defendant Becerra’s
motion was filed after Plaintiff’s criminal trial and conviction discussed herein.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Shiva Akula originally instituted this action in January 2023.10 In May
2023, Plaintiff filed his “Corrected Amended Complaint for Damages,” wherein he names
14 defendants and alleges they have formed a criminal enterprise for varying purposes, all
of which include harming the Plaintiff for their own benefit.11 At the time he filed his
Amended Complaint, Plaintiff was under an active criminal indictment for health-care
fraud in another section of this Court.12 Plaintiff alleges all 14 defendants, through their
respective roles in the enterprise, were working together to secure a false conviction in the
criminal case against him.13 Plaintiff claims the defendants are liable to him under federal
and state law. His federal law claims consist solely of violations of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962, et seq.14 He also
asserts pendent, state-law claims for fraud, violations of the Louisiana Racketeering Act,
and unjust enrichment.15
10 R. Doc. 1.
11 R. Doc. 40; see also Pl.’s RICO Case Statement, R. Doc. 54 at 13–14 (“The purpose of the scheme was
to illicitly and illegally enrich some of the Defendants at the expense of Plaintiff, (Defendants Anderson,
Nikita Murphy, Rachel Murphy, Hastings, Seymour, Williams, Augustine, Banks, Cassidy and Toale), and
for others the purpose of the scheme was to illegally enhance, financially enrich themselves and promote
their professional careers as government employees by securing a false conviction in a health care fraud
case against a physician (Defendants Landry, Becerra, McHugh, and Green). The purpose of the scheme
was to illicitly and illegally keep Defendant McHugh's star witnesses, who were the perpetrators in the state
criminal case, as “clean”, unencumbered as possible at least until the federal criminal trial would be
concluded in US v. Akula.”).
12 R. Doc. 40 at 16; see also United States v. Akula, No. 2:21-cr-00098-LMA-KWR, ECF No. 1 (E.D. La.
Aug. 1, 2021).
13 R. Doc. 40 at 2, 25, 28, 31.
14 R. Doc. 40 at 26–40 (citing 18 U.S.C. §§ 1962, 1964).
15 R. Doc. 40 at 41–55.
After all but one of the motions to dismiss currently pending before the Court were
fully briefed, Plaintiff was tried and convicted of 23 counts of health-care fraud in violation
of 18 U.S.C. § 1347 in the criminal action against him.16 The Moving Defendants seek
dismissal of Plaintiff’s claims against them on various grounds, including Plaintiff’s failure
to state a claim upon which relief can be granted due to the insufficiency of the allegations
alone, certain defendants’ immunity from suit pursuant to the doctrines of absolute,
qualified, or sovereign immunity, and because Plaintiff’s claims are now barred under Heck
v. Humphrey.17
II. LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough facts
“to state a claim for relief that is plausible on its face.”18 A claim is “plausible on its face”
when the pleaded facts allow the court to “draw the reasonable inference that the defendant
is liable for the misconduct alleged.”19 A court must accept the complaint’s factual
allegations as true and must “draw all reasonable inferences in the plaintiff's favor.”20 The
court need not, however, accept as true legal conclusions couched as factual allegations.21
To be legally sufficient, a complaint must establish more than a “sheer possibility” the
plaintiff’s claims are true.22 If it is apparent from the face of the complaint that an
16 United States v. Akula, No. 2:21-cr-00098-LMA-KWR, ECF No. 339 (E.D. La. Nov. 6, 2023).
17 See R. Docs. 58, 62, 63, 67, 72, 80, 83, 123.
18 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)).
19 Id.
20 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
21 Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
22 Id.
insurmountable bar to relief exists, and the plaintiff is not entitled to relief, the court must
dismiss the claim.23 Generally, the court’s review is limited to the complaint and any
documents attached to the motion to dismiss that are central to the claim and referenced by
the complaint.24 Relevant here, however, “[f]ederal courts are permitted to refer to matters
of public record when deciding a 12(b)(6) motion to dismiss.”25
III. LAW AND ANALYSIS
A. Federal RICO Claims
Plaintiff asserts his federal RICO claims in Counts One and Two of his Amended
Complaint.26 In particular, he alleges all named defendants are liable to him for violations
of 18 U.S.C. § 1962(c) and 18 U.S.C. § 1962(d). According to Plaintiff, Defendants
conspired to, and did in fact, knowingly and willfully conduct and/or participate in a pattern
of racketeering activities including, but not limited to: (1) the “retaliatory criminal
investigation that began once the Secretary of Health and Human Services had to settle
with Dr. Akula for a large sum of money,” (2) the “cover up of state crimes involving a
massive payroll fraud scheme . . . so that the perpetrators of the state crime could still be
reliably used as star witnesses in the federal case against Dr. Akula,” (3) the “false
testimony by the state perpetrators in exchange for providing them shield and immunity in
their state crimes involving the massive payroll fraud scheme,” and (4) the threats of
retaliation and witness tampering to ensure Dr. Akula could not receive assistance from
23 Lormand, 565 F.3d at 255–57.
24 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
25 Davis v. Bayless, 70 F.3d 367, 372 n.3 (5th Cir. 1995) (citing Cinel v. Connick, 15 F.3d 1338, 1343 n.6
(5th Cir. 1994)).
26 R. Doc. 40 at 26 (Count One), 38 (Count Two).
two individuals whose assistance “was crucial and critical for Dr. Akula in his criminal
case”—all for the sake of securing a conviction in the criminal action against him.27 The
named defendants include the Assistant United States Attorney prosecuting the criminal
case against Akula, the Secretary of the Department of Health and Human Services,
numerous employees (and “fake employees”) that participated in the alleged payroll fraud
scheme, the Louisiana Attorney General and a criminal investigator for the State who
decided not to prosecute the payroll fraud scheme, and two of Akula’s former attorneys
who represented him in the criminal action but were withdrawn as counsel prior to the
criminal trial.28
In Heck v. Humphrey, the Supreme Court established that, before ruling on a Section
1983 claim to recover damages for “harm caused by actions whose unlawfulness would
render a conviction or sentence invalid,” “the district court must consider whether a
judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction
or sentence; if it would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated.”29 Courts have
found that the Heck bar is not limited to Section 1983 claims but extends to other claims
as well, including RICO claims.30
Here, there is no doubt that a judgment in favor of Plaintiff on his RICO claims
would necessarily imply the invalidity of his criminal conviction. Indeed, Plaintiff Akula
27 R. Doc. 40 at 26–40.
28 R. Doc. 40 at 2–5.
29 512 U.S. 477, 486–87 (1994).
30 See Ray v. Recovery Healthcare Corp., No. 3:19-CV-3055-G, 2022 WL 504454, at *5 (N.D. Tex. Feb.
18, 2022), aff’d, No. 22-10303, 2022 WL 16945898 (5th Cir. Nov. 15, 2022) (collecting cases).
himself alleges the purpose of the criminal enterprise, at least in part, was to secure a false
conviction against him.31 Thus, Plaintiff’s RICO claims are Heck-barred unless he can
show that his conviction has already been invalidated, e.g., that the conviction has been
reversed on direct appeal, expunged by executive order, or called into question by a federal
court’s issuance of a writ of habeas corpus.32 Plaintiff Akula fails to do. Accordingly, his
RICO claims must be dismissed.
Because the allegations that support Plaintiff’s RICO claims apply equally to all
defendants, it necessarily follows that if the RICO claims against one defendant are barred
by Heck, the RICO claims against all named defendants are Heck-barred. Therefore, as to
any defendant, moving or non-moving, who did not raise the argument that Plaintiff’s
RICO claims against them should be dismissed as barred by Heck, the Court dismisses the
claims against those defendants sua sponte. The Court finds sua sponte dismissal is
appropriate because Plaintiff had an opportunity to respond to the Heck argument and
because the Heck argument applies equally to Plaintiff’s RICO claims against all
defendants.33
31 R. Doc. 40 at 31.
32 Heck, 512 U.S. at 487.
33 See Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 642 (5th Cir. 2007) (“We have held that a district
court is authorized to consider the sufficiency of the complaint on its own initiative. . . . And if the court
finds the complaint fails to state a claim, it may dismiss as long as the procedure employed is fair.”) (internal
citations and quotations omitted).
Defendant Becerra’s motion to dismiss, which raised the Heck challenge, was filed on November
22, 2023, and set for submission on December 13, 2023. See R. Docs. 123, 123-1. The motion includes a
certification that it was served upon Plaintiff Akula via first-class United States mail at the address he
provided for service. R. Doc. 123 at 2. As of the date of this order and reasons, Plaintiff Akula has not
filed a response to the motion.
B. State-Law Claims
Because there is no diversity of citizenship between the parties in in this case, the
Court’s exercise of jurisdiction over Plaintiff’s state-law claims is supplemental to the
Court’s original jurisdiction over Plaintiff’s federal-law claims.34 As explained above,
however, Plaintiff’s federal-law claims are barred by Heck and must be dismissed. And
under 28 U.S.C. § 1367(c)(3), a district court “may decline to exercise supplemental
jurisdiction over a claim . . . if the district court has dismissed all claims over which it has
original jurisdiction.”
Guided by the statutory factors set forth in Section 1367(c) and the common law
considerations of judicial economy, convenience, fairness, and comity, the Court finds it
appropriate to decline jurisdiction over Plaintiff’s remaining state-law claims.35 Although
Plaintiff’s claims have been pending for thirteen months, this proceeding is still at a
relatively early stage. Not all defendants have made appearances in the record, nor is there
any evidence that Plaintiff has even served all of the named defendants. Moreover, there is
no evidence that any party or the Court have expended significant resources in this
litigation such that there is a risk of duplicative litigation in state court. The Court therefore
declines to exercise supplemental jurisdiction over Plaintiff’s state law claims (Counts
Three through Ten) and dismisses Plaintiff’s state-law claims without prejudice.
34 See 28 U.S.C. § 1367.
35 Contra id. (“Our case law is clear that when a district court declines to exercise jurisdiction over
remaining state law claims following the dismissal of all federal-law claims and remands suit after
significant amount of judicial resources in the litigation . . . the court has abused its discretion under 28
U.S.C. § 1367.”) (collecting cases).
IV. CONCLUSION
For all the foregoing reasons,
IT IS ORDERED that the Moving Defendants’ motions to dismiss (R. Docs. 58,
62, 63, 67, 72, 80, 83, 123) are GRANTED, insofar as they seek the dismissal of Plaintiff's
claims against them without prejudice.
IT IS FURTHER ORDERED that all of Plaintiff's claims (R. Doc. 40) are
DISMISSED WITHOUT PREJUDICE. Counts One and Two are Heck-barred, and the
Court declines to exercise supplemental jurisdiction over the remaining state-law claims
asserted in Counts Three through Ten.
IT IS FURTHER ORDERED that all remaining motions currently pending before
the Court (R. Docs. 85, 115, 116, 117, 118) are DENIED AS MOOT.
New Orleans, Louisiana, this 10th day of April 2024.
i -
UNITED STATES DISTRICT JUDGE