United States District Court, E.D. Louisiana
ORDER AND REASONS
NANNETTE JOLIVETTE BROWN, District Judge.
In this litigation, pro se plaintiff Obadiah Francois seeks relief from defendants Rafael F. Salcedo, Richard W. Richoux, and Jefferson Parish arising from his alleged diagnosis with "grandiose and paranoid delusions" following an examination conducted at the Jefferson Parish Correctional Center. Presently before the Court are motions to dismiss filed by Defendants Jefferson Parish and Richoux, to which no opposition has been filed. Having reviewed the pleadings, the motions, the memoranda in support, and the applicable law, the Court will grant-in-part and deny-in-part the pending motions, dismissing Francois's claims against Jefferson Parish and Salcedo pursuant to Federal Rule of Civil Procedure 12(b)(6), and dismissing Francois's claims against Richoux pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Since Francois has failed to state a claim against any Defendant, the Court will also deny as moot Francois's pending "Motion for Summary Judgment."
A. Factual Background
In his complaint, Francois alleges that defendants Rafael F. Salcedo and Richard W. Richoux examined him on October 23, 2013 at Jefferson Parish Correctional Center and, on the basis of that examination, diagnosed him with "grandiose and paranoid delusions." This diagnosis, according to Francois, was a "negligent diagnostic error" that caused pain and suffering, mental anguish, emotional distress. Francois maintains that these defendants' alleged error caused "breach of confidentiality, defamation of character, " and "falsifying the facts."
B. Procedural Background
On February 12, 2014, Francois filed a complaint against Salcedo, Richoux, and Jefferson Parish, alleging negligence and violations of his rights under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the Constitution. Francois requests the formation of a medical review panel, "$200 for [the] medical review panel, " an award of damages, and costs.
On February 20, 2014 Francois filed a "Motion to Suppliment Complaint to Add Attachments, " in which he attaches what appears to be a letter from James Brad McConville, M.D. to Judge Roy M. Cascio of the Second Parish Court, Parish of Jefferson. On March 6, 2014, Francois filed another motion to supplement his complaint, in which he demands $500, 000 from "Rafael F. Salcedo-Ace American Insurance Company" and $500, 000 from "Richard W. Richoux-Nautilus Insurance Company, " and states that Salcedo and Richoux are "being reported as qualified for acts of medical malpractice under the provisions of La. R.S. 40:1299.41 et seq. for the above referenced claim. Eighth Amendment Violation."
On April 3, 2014, Richoux moved to dismiss Francois's claim against him due to improper service. On April 4, 2014, Salcedo moved to dismiss Francois's case based on absolute immunity or, alternatively, prematurity. Francois filed an opposition to both motions on April 7, 2014. Francois moved for summary judgment on April 9, 2014,  and, with leave of Court, filed a third "supplemental" complaint demanding $500, 000 from Jefferson Parish on April 11, 2014. On April 11, 2014, Salcedo again moved to dismiss Francois's amended complaint based on absolute immunity or, alternatively prematurity. On April 22, 2014, Richoux and Salcedo filed oppositions to Francois's motion for summary judgment. On August 28, 2014, Jefferson Parish filed a motion to dismiss for failure to state a claim and for lack of subject matter jurisdiction. That motion was submitted on October 15, 2014 without opposition from Francois. Salcedo's re-urged motion to dismiss is also unopposed. On December 29, 2014, with leave of Court, Salcedo filed a "Supplemental Memorandum" in support of his motion, in which he "supplements the arguments made for dismissing him from this case with the Order and Reasons issued in the Matthias Francois case, " decided on December 12, 2014, by Section "C" of this Court, because "the two cases are almost factually identical."
II. Parties Arguments
Since Francois filed his third "supplemental" complaint, Jefferson Parish and Richoux have filed motions to dismiss. The Court will address both motions here.
A. Jefferson Parish's Motion
In its "Rule 12(b)(1) Motion to Dismiss Amended Complaint and, in the Alternative, Rule 12(b)(6) Motion to Dismiss Amended Complaint, " Jefferson Parish contends that Francois's claims against it should be dismissed because: (1) although Francois asserts constitutional violations, the pleadings show a state-law tort claim, but no constitutional claims, warranting dismissal for lack of subject-matter jurisdiction; and (2) Francois's claims arise under the Louisiana Medical Malpractice Act, which only permits him to seek relief from a "health care provider, " a statutorily defined term which does not include Jefferson Parish, and otherwise lack "factual content that would allow this Court to draw the reasonable inference that Jefferson Parish is liable for the conduct alleged, " warranting dismissal for failure to state a claim.
B. Salcedo's Motion
In his re-urged "Rule 12(b)(6) Motion to Dismiss Amended Complaint Based on Absolute Immunity, Alternatively, Prematurity, " Salcedo argues that: (1) as a court-appointed expert, he is entitled to absolute immunity from claims arising from his work in his capacity as an expert, warranting dismissal of Francois's claims with prejudice; and (2) Francois's malpractice claim against him should be dismissed as premature, since he filed it before seeking review by a medical review panel, as is required under Louisiana law.
III. Law and Analysis
As an initial matter, the Court notes that Jefferson Parish's motion to dismiss was set for submission on October 15, 2014. Pursuant to Local Rule 7.5 of the Eastern District of Louisiana, "[e]ach party opposing a motion must file and serve a memorandum in opposition to the motion with citations of authorities no later than eight days before the noticed submission date." Francois has not filed any opposition to the motion." Likewise, Salcedo's re-urged motion was set for submission on April 30, 2014. Francois has not filed an opposition to the motion. Although failure to respond to a motion will be considered a statement of no opposition, the court is not required to grant every unopposed motion." Rather, the Court will consider the briefing before it, and, having considered the briefing, will only grant the motion if it has merit.
A. Rule 12(b)(1)
In its "Rule 12(b)(1) Motion to Dismiss Amended Complaint and, in the Alternative, Rule 12(b)(6) Motion to Dismiss Amended Complaint, " Jefferson Parish asserts, in part, that this Court lacks subject matter jurisdiction over Francois's claims. "When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." This practice "prevents a court without jurisdiction from prematurely dismissing a case with prejudice." Accordingly, the Court will consider Jefferson Parish's jurisdictional arguments first.
1. Legal Standard: Rule 12(b)(1)
"Federal courts are courts of limited jurisdiction, " and "possess only that power authorized by Constitution and statute." Accordingly, a claim is "properly dismissed for lack of subject-matter jurisdiction when the [C]ourt lacks the statutory or constitutional power to adjudicate" it.
A party may "facially" or "factually" attack the basis of the Court's subject matter jurisdiction on a 12(b)(1) motion. When the moving party makes a "facial attack, " it limits its arguments to the four corners of the complaint, and urges the Court "merely to look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction, [when]... the allegations in his complaint are taken as true for purposes of the motion." When the moving party makes a "factual attack, " it goes beyond the pleadings and challenges "the existence of subject matter jurisdiction in fact." Although "the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist, " and dismissal is required "whenever it appears that subject matter jurisdiction is lacking, " a 12(b)(1) motion will be granted only "if it appears certain that the plaintiff cannot prove any set of facts in support of his claims entitling him to relief."
In the instant motion, Jefferson Parish makes a "facial attack" on Francois's assertion of jurisdiction, focusing exclusively on the pleadings and contending that although Francois asserts violations of the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, "the pleadings show no claims arising under these (or any other) Amendments." Rather, Jefferson Parish contends, Francois has asserted state-law tort claims incapable of supporting federal jurisdiction. Since Jefferson Parish makes a "facial attack" on Francois's assertions of federal jurisdiction, the Court will "look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction, [when]... the allegations in his complaint are taken as true for purposes of the motion."
a. Negligence Claim
Jefferson Parish first asserts that Francois's cause of action arises under Louisiana law insofar as it asserts claims for "mental anguish, " "emotional distress, " and "psychological pain and suffering" arising from Francois's ...