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Cerwonka v. State

United States District Court, W.D. Louisiana, Lafayette Division

March 26, 2018




         Before the Court, on referral from the district judge, is a Motion to Dismiss [Doc. 5] filed by the defendant, the State of Louisiana, through the Louisiana State Board of Examiners of Psychologists of the Department of Health and Human Services (“the Board”). Plaintiff Eric Cerwonka filed an opposition to the motion [Doc. 8], and the defendant filed a reply brief [Doc. 11]. The motion to dismiss is asserted under both Rule 12(b)(1) for lack of federal jurisdiction and Rule 12(b)(6) for failure to state a claim. For the reasons that follow, the undersigned recommends that the motion to dismiss for lack of federal jurisdiction be GRANTED, and that the plaintiff's claims against the Board be DENIED AND DISMISSED WITHOUT PREJUDICE. Because the undersigned recommends dismissal on jurisdictional grounds, the undersigned makes no recommendation on the movant's request for a dismissal under Rule 12(b)(6).


         The underlying facts of the lawsuit are as follows. Plaintiff was a practicing psychologist in Louisiana and was working for the Veterans Administration and also as a private practitioner in Lafayette at the time of the incidents giving rise to the instant lawsuit. Without addressing the reasons therefor, the plaintiff alleges the Board improperly revoked his license to practice as a psychologist in Louisiana. The plaintiff alleges he appealed the revocation of his license to the Nineteenth Judicial District Court for the Parish East Baton Rouge, Louisiana, which “vacated the entire prosecution of Dr. Cerwonka as unconstitutional and violating both Louisiana state and [f]ederal civil rights laws and other constitutional mandates.”[1] Thereafter, the plaintiff filed the instant lawsuit seeking damages “for the egregious violations of his rights which have resulted in his loss of his Veterans Administration job as well as considerable additional monetary damages, a loss of reputation and loss of his ability to provide services for health providers.”[2] In his Complaint, the plaintiff alleges the matter is brought “under 28 U.S.C. §1331, Federal Question, as well as 28 U.S.C. §1343(a)(3), Jurisdiction under 42 U.S.C. §1983.”[3]

         In the instant motion, the defendant argues the plaintiff's claims against it should be dismissed under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure because it is a state agency, and, under the Eleventh Amendment, the plaintiff is barred from obtaining relief against a state agency.


         Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claims. In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286-287 (5th Cir.2012), citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Stockman v. FEC, 138 F.3d 144, 151 (5th Cir.1998). 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., quoting Home Builders Ass'n, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998).

         A Rule 12(b)(1) motion to dismiss allows a party to challenge the exercise of the Court's subject matter jurisdiction. The Court will accept all well-pleaded allegations in the complaint as true, and construe those allegations in a light most favorable to the plaintiff. Truman v. United States, 26 F.3d 592, 594 (5th Cir.1994). Moreover, the court may consider affidavits and other evidence outside the pleadings in resolving a motion to dismiss under Rule 12(b)(1). Williamson v. Tucker, 645 F.2d 4047, 412-13 (5th Cir.1981). The party asserting jurisdiction bears the burden of proof for a 12(b)(1) motion to dismiss. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001). Thus, “the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.” Celestine v. TransWood, Inc., 467 Fed.Appx. 317, 318 (5th Cir. 2012) (unpublished), citing Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2011). When a district court finds it lacks subject matter jurisdiction, its determination is not on the merits of the case, and does not bar the plaintiff from pursuing the claim in a proper jurisdiction. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).

         To survive a Rule 12(b)(6) motion to dismiss, the plaintiffs must plead enough facts “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir.2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 129 S.Ct. at 1949-50.

         A legally sufficient complaint must establish more than a “sheer possibility” that plaintiffs' claim is true. Id. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Twombly, 550 U.S. at 555. In other words, the 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. Lormand, 565 F.3d at 255-57. If there are insufficient factual allegations to raise a right to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 & n. 9 (5th Cir.2007), the claim must be dismissed.

         Where a dismissal is sought on grounds of both want of federal jurisdiction as well as failure to state a claim, and both grounds for dismissal apply, the Fifth Circuit has held the court should dismiss only on the jurisdictional ground under Fed.R.Civ.P. 12(b)(1), without reaching the question of failure to state a claim under Fed.R.Civ.P. 12(b)(6). Dismissal with prejudice for failure to state a claim is a decision on the merits and essentially ends the plaintiff's lawsuit, whereas a dismissal on jurisdictional grounds alone is not on the merits and permits the plaintiff to pursue his claim in the same or in another forum. See, e.g., Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).

         III. ANALYSIS

         The defendant seeks dismissal of the claims against it on grounds it is a state agency that is immune from suit under the Eleventh Amendment. A claim is properly dismissed under Rule 12(b)(1) where the relief sought by the plaintiff against a particular defendant is barred by the Eleventh Amendment.

         The Eleventh Amendment bars an individual from suing a state in federal court unless the state consents or Congress has clearly and validly abrogated the state's sovereign immunity. U.S. Const. amend. XI; see, e.g., Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (recognizing that an individual may sue a state if the state consents or Congress abrogates the state's sovereign immunity pursuant to the Fourteenth Amendment), cited in Fairley v. Louisiana, 254 Fed.Appx. 275, 276-77 (5th Cir. 2007) (unpublished). A suit against a state agency or department is considered a suit against the state under the Eleventh Amendment. See, e.g., Coll. Sav. Bank, 527 U.S. at 671, 119 S.Ct. 2219; see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (“It is clear, of course, that ... a suit in which the State or one of its agencies or departments is named as a defendant is proscribed by the Eleventh Amendment.”). “The Eleventh Amendment [also] bars a suit against state officials when ‘the state is the real, substantial party in interest.'” Pennhurst, 465 U.S. at 101, 104 S.Ct. 900, cited in Fairley, 254 Fed.Appx. at 277. “[T]he general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter.” Id. (internal citations and quotations omitted).

         Although acknowledging there is no jurisprudence directly finding that the Louisiana State Board of Examiners of Psychologists, which was created by the Louisiana Department of Health and Hospitals (“LDHH”), is a state agency, defendant argues the Board is similar to the Louisiana State Board of Medical Examiners, which was also created by the LDHH, and which has been held to be a state agency entitled to Eleventh Amendment immunity. Because the Board argues it has not ...

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