Hall v. Bergeron et al

Filing 11

ORDER granting 9 Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. As such, the claims asserted against Patrick Forbes are DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that the claims against Defendants Bergeron and Sweazy are barred by the Eleventh Amendment and therefore must also be DISMISSED WITHOUT PREJUDICE. Signed by Judge Susie Morgan on 1/9/2017. (cg) (Copy of Doc. 10 mailed to plaintiff with order, per chambers)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GREGORY M. HALL
Plaintiff

CIVIL ACTION

VERSUS

NO. 16-15589

PATRICK W. FORBES, ET AL
Defendants

SECTION: “E” (5)

ORDER AND REASONS
Before the Court is Defendant Patrick W. Forbes’ motion to dismiss pursuant to
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. 1 Plaintiff opposes the
Defendant’s motion. 2 For the reasons that follow, Defendant’s motion to dismiss is
GRANTED.
BACKGROUND
On October 5, 2016, pro se Plaintiff Gregory Marcus Hall filed a complaint naming
“Liza Bergeron + The State of Louisiana State Program Manager,” “Patrick W. Forbes, PE
Office of Community Development” (“OCD”) and “Bradley Sweazy of the Road Home
Small Rental Program.” 3 Plaintiff alleges he was improperly withheld access to funding
allocated by The Louisiana Road Home Small Rental Property Program (“SRPP”) for
renovations for two properties he owns in New Orleans, Louisiana. 4
As the court in Blanchard v. Newton explained:
Following Hurricanes Katrina and Rita, federal funds were appropriated to
the State of Louisiana by the federal government for the purpose of disaster
recovery and compensation for those property owners affected by the
R. Doc. 9.
R. Doc. 10.
3 R. Doc. 1. Defendant Forbes states in his motion, “As of the date of filing this motion, Defendants
Bergeron and Sweazy have been served with Plaintiff’s Complaint. This motion is filed on behalf of
Defendant Forbes, however, the arguments herein would apply equally to Defendants Bergeron and
Sweazy and will be reasserted on their behalf in the event they are served.” R. Doc. 9-1, at 1 n.1.
4 See R. Doc. 1.
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storms. The Road Home Program was developed by the State of Louisiana
and approved by the United States Department of Housing and Urban
Development (“HUD”) as a plan for disbursement of Community
Development Block Grant (“CDBG”) funds to property owners. The Road
Home Program was developed by the Louisiana Recovery Authority and its
successor, Office of Community Development (“OCD”), both offices in the
Division of Administration for the State of Louisiana.
In accordance with federal statute, the state created the Louisiana Recovery
Authority (“LRA”) to oversee the disbursement of federal funds. The state
authorized the OCD within the Division to administer the Road Home
Program. There is no dispute that the OCD is a state agency. 5
The SRPP is a part of the Road Home Program and specifically provides loans to
rental property owners to help restore damaged units and offer them at affordable rents.
In his motion to dismiss, Forbes argues the Court lacks subject matter jurisdiction to hear
this case as a result of Eleventh Amendment sovereign immunity. 6 Additionally, Forbes
argues the Plaintiff has exhausted his appeal rights and, under the SRPP program, no
further remedies are available. 7
LEGAL STANDARD
“Federal courts are courts of limited jurisdiction; without jurisdiction conferred by
statute, they lack the power to adjudicate claims.” 8 A motion to dismiss under Federal
Rules of Civil Procedure 12(b)(1) challenges a federal court’s subject-matter jurisdiction. 9
Under Rule 12(b)(1), “[a] case is properly dismissed for lack of subject matter jurisdiction
when the court lacks the statutory or constitutional power to adjudicate the case.” 10 “Lack
of subject-matter jurisdiction may be found in the complaint alone, the complaint

865 F. Supp. 2d 709, 712 (M.D. La. 2012) (internal citations omitted).
R. Doc. 9-1, at 5.
7 Id.
8 In re FEMA Trailer Formaldehyde Products Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 286 (5th
Cir. 2012).
9 See Fed. R. Civ. P. 12(b)(1).
10 Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998)
(internal quotation marks and citation omitted).
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supplemented by the undisputed facts as evidenced in the record, or the complaint
supplemented by the undisputed facts plus the court’s resolution of the disputed facts.” 11
“When, as here, grounds for dismissal may exist under both Rule 12(b)(1) and Rule
12(b)(6), the Court should, if necessary, dismiss only under the former without reaching
the question of failure to state a claim.” 12
ANALYSIS
The Court begins by noting its cognizance of Plaintiff’s pro se status. “It is wellestablished that ‘pro se complaints are held to less stringent standards than formal
pleadings drafted by lawyers.’” 13 “Despite [the] general willingness to construe pro se
filings liberally, [the courts] still require pro se parties to fundamentally ‘abide by the rules
that govern the federal courts.’”14 Among other requirements, Plaintiffs proceeding pro
se “must properly plead sufficient facts that, when liberally construed, state a plausible
claim to relief, serve defendants, [and] obey discovery orders.” 15
Even construing the amended complaint liberally, it is clear this Court lacks
jurisdiction over Plaintiff’s complaint. The Eleventh Amendment serves as a jurisdictional
bar depriving federal courts of the jurisdiction to adjudicate claims against a state. 16 Both
federal and state law claims are barred from being asserted against a state in a federal
court. 17 “Though the language of the Eleventh Amendment does not specifically address
suits against the State by its own citizens, the Supreme Court has consistently held that

In re FEMA, 668 F.3d at 287.
Valdery v. Louisiana Workforce Comm’n, No. CIV.A. 15-01547, 2015 WL 5307390, at *1 (E.D. La. Sept.
10, 2015).
13 Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quoting Miller v. Stanmore, 636 F.2d
986, 988 (5th Cir. 1981)).
14 E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014), as revised (Sept. 18, 2014) (quoting Frazier
v. Wells Fargo Bank, N.A., 541 F. App’x 419, 421 (5th Cir. 2013) (internal quotation marks omitted)).
15 Id. (citations omitted).
16 Union Pac. R. Co. v. La. Pub. Serv. Comm’n, 662 F.3d 336, 340 (5th Cir. 2011).
17 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 119-21 (1984).
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an unconsenting State is immune from suits brought in federal court by her own citizens
as well as citizens of other states.” 18 Furthermore, the Eleventh Amendment “extends to
actions against state agencies or entities that are classified as ‘arms of the state.’” 19
“Pursuant to the seminal case of Ex Parte Young and its progeny, an exception to
Eleventh Amendment immunity exists when a suit is brought against a state officer, in his
official capacity, seeking prospective relief to enjoin an ongoing violation of federal law.” 20
However, “the doctrine of Ex Parte Young is of no aid to a plaintiff seeking damages from
the public treasury.” 21 Additionally, “[r]elief that in essence serves to compensate a party
injured in the past by an action of a state official in his official capacity that was illegal
under federal law is barred even when the state official is the named defendant.” 22 As the
court in Stroebel stated, “This is true if the relief sought is equivalent to an award of
damages for a past violation of federal law although set forth as something else; thus,
courts will consider the substance rather than the form of the relief sought in determining
whether the Ex Parte Young exception applied.” 23
“It is additionally well-settled that [t]he Eleventh Amendment bars a suit against
state officials when the state is the real, substantial party in interest.” 24 To determine the
party at interest, the Court must look beyond “the mere names of the titular parties” and
instead look to the “essential nature and effect of the proceeding.” 25 “The general rule is

Id. (internal quotation marks omitted) (citing Edelman v. Jordan, 415 U.S. 651, 662–63 (1974)).
Id. (citing Regents of the Univ. of Ca. v. John Doe, 519 U.S. 425, 429 (1997); Perez v. Region 20 Educ.
Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002)).
20 Stroebel v. United States, 742 F. Supp. 2d 870, 873 (E.D. La. 2010) (citing Ex Parte Young, 209 U.S.
123 (1908).
21 Scheuer v. Rhodes, 416 U.S. 232, 238 (1974) (citing Edelman, 415 U.S. 651; Kennecott Copper Corp v.
State Tax Comm’n, 327 U.S. 573 (1946); Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459 (1945); Great
Northern Life Insurance Co. v. Read, 322 U.S. 47 (1944)).
22 Papasan v. Allain, 378 U.S. 265, 278 (1986).
23 Stroebel, 742 F. Supp. 2d at 873 (citing Papasan, 378 U.S. at 278-79).
24 Id. (citing Pennhurt State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984); Ford Motor Co., 323
U.S. at 464) (alteration in original).
25 Scheuer, 416 U.S. at 237.
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that relief sought nominally against an officer is in fact against the sovereign if the decree
would operate against the latter.” 26 “This occurs, for example, ‘if the judgment sought
would expend itself on the public treasury or domain, or interfere with the public
administration,’ or if the effect of the judgment would be ‘to restrain the Government from
acting, or to compel it to act.’” 27
Like the plaintiff in Stroebel, Hall’s request for relief merely seeks compensation
for funds he alleges were wrongfully withheld from him in the past. 28 Therefore, the effect
of a judgment in favor of Hall would operate against the State of Louisiana through the
Louisiana Recovery Authority, i.e., the state agency responsible for implementing and
administering the Road Home Program and specifically the funds allocated to it. 29 As a
result, because Plaintiff’s suit is barred by Eleventh Amendment sovereign immunity, his
claim must be dismissed. 30
LEAVE TO AMEND
The Court should “freely give” leave to amend “when justice so requires.” 31
Ordinarily, “a court should grant a pro se party every reasonable opportunity to amend.” 32
“When it is apparent, however, that amendment will be futile, dismissal without leave to
amend is appropriate.” 33 The Court finds the Plaintiff’s claims are clearly barred by the

Hawaii v. Gordon, 373 U.S. 57, 58 (1963).
Stroebel, 742 F. Supp. 2d. at 873 (quoting Pennhurst, 465 U.S. at 102 n.11).
28 See id. at 874.
29 See id. As an agency of the State of Louisiana, the Louisiana Recovery Authority qualifies as the ‘state’
for purposes of Eleventh Amendment immunity. See Robinson v. Road Home Corp., 2010 WL 148364, at
*2 (E.D. La. Jan. 12, 2010).
30 As this Court does not have jurisdiction to hear this case, the Court need not, and cannot, address the
Defendant’s 12(b)(6) claims. See Valdery, 2015 WL 5307390, at *2.
31 Fed. R. Civ. P. 15(a)(2); Leal v. McHugh, 731 F.3d 405, 417 (5th Cir. 2013).
32 Hale v. King, 642 F.3d 492, 503 n.36 (5th Cir. 2011) (quoting Pena v. United States, 157 F.3d 984, 987
n.3 (5th Cir. 1988)).
33 Valdery, 2015 WL 5307390, at *2 (citing Forman v. Davis, 371 U.S. 178, 182 (1962); Smith v. EMC
Corp., 393 F.3d 590, 595 (5th Cir. 2004)).
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Eleventh Amendment and therefore amendment will be futile. Accordingly, leave to file
an amended complaint is not warranted. 34
OTHER DEFENDANTS
The Court has an obligation to examine its subject matter jurisdiction sua sponte
at any time. 35 Although the other named Defendants, Liza Bergeron and Bradley Sweazy,
have not yet been properly served, the Court finds the reasoning of Defendant Forbes’
motion to dismiss, and the analysis described above, apply equally to Defendants
Bergeron and Sweazy. 36
CONCLUSION
Accordingly;
IT IS ORDERED that the Defendant’s motion to dismiss 37 based on lack of
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) is GRANTED. As such,
the claims asserted against Patrick Forbes are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the claims against Defendants Bergeron and
Sweazy are barred by the Eleventh Amendment and therefore must also be DISMISSED
WITHOUT PREJUDICE.
New Orleans, Louisiana, this 9th day of January, 2017.
_____________________ __________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

The Plaintiff did not request leave to file a second amended complaint.
See, e.g., FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990).
36 As stated above, Defendant Forbes, in his motion to dismiss, states, “As of the date of filing this motion,
Defendants Bergeron and Sweazy have not been served with Plaintiff’s Complaint. This motion is filed on
behalf of Defendant Forbes, however, the arguments herein would apply equally to Defendants Bergeron
and Sweazy and will be reasserted on their behalf in the even they are served.” R. Doc. 9-1, at 1 n.1.
37 R. Doc. 9.
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