Doan et al v. Louisiana State University, et al

Filing 12

ORDER granting 7 Motion to Dismiss for Failure to State a Claim. Please read for all claims dismissed and remaining claim as stated in document. IT IS FURTHER ORDERED that Defendants are ordered to file their Motion to Dismiss on the last two remaining claims by August 31, 2017. Signed by Judge Jay C. Zainey on 8/16/2017. (ajn)

UNITED STATES DISTRICT COURT
EASTER DISTRICT OF LOUISIANA
THUY DOAN

CIVIL ACTION

VERSUS

NO: 17-3471

BOARD OF SUPERVISORS OF
LOUISIANA STATE UNIVERSITY, et al.

SECTION: A (4)

ORDER
Before the Court is a Motion to Dismiss (Rec. Doc. 7) filed by Defendants, the Board of
Supervisors of Louisiana State University and Agricultural College (“LSU Board”), Chancellor Larry
Hollier, Dean Henry Gremillion, and Dr. Sandra Andrieu (collectively the “individual Defendants”).
Plaintiff Thuy Doan opposes the Motion. (Rec. Doc. 8). The Motion, set for submission on July 12,
2017, is before the Court on the briefs without oral argument.
I.

Background
This matter arises out of the expulsion of Plaintiff, Thuy Doan, from the LSU School of

Dentistry. (Rec. Doc. 1). Plaintiff, a dental student who was expelled for multiple instances of cheating,
brings this lawsuit seeking readmission to LSU as well as damages and attorney’s fees. According to
the complaint, Plaintiff was expelled in March 2017, during the spring of her second year at the LSU
School of Dentistry. Sometime during the previous fall, Plaintiff allegedly began to experience
insomnia, depression, and anxiety, which she claims interfered with her ability to wake in time for
early morning classes. As a result, Plaintiff allegedly let a friend take two early-morning quizzes for
her. Plaintiff was caught and, after two hearings and an appeal, was dismissed from the school. Within
weeks, Plaintiff filed this lawsuit claiming that the school denied her due process, expelled her to avoid
accommodating her alleged disabilities, and intentionally discriminated against her because of her
Vietnamese heritage. Defendants then filed the instant motion, arguing that Doan’s claims should be
dismissed due to the absence of jurisdiction and her failure to state viable claims.
II.

Analysis
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Plaintiff agrees to dismiss 1) the § 1983 claim against the LSU Board, 2) the Louisiana
constitutional claims against the LSU Board and against the individual Defendants in their individual
capacity, 3) the Title VI claim against the individual defendants in both their individual and official
capacities, 4) the Louisiana Administrative Procedures Act (“LAPA”) claims against all Defendants,
5) the Americans with Disabilities Act (“ADA”) claims against the individual Defendants in their
individual and official capacities, and 6) the breach of contract claim against all Defendants. (Rec.
Doc. 8).
The only remaining claims at issue before the Court are 1) the § 1983 claims against the
individual Defendants, 2) the Louisiana constitutional claims against the individual Defendants in their
official capacity, 3) the ADA claims against the LSU Board, and 4) the indemnity and respondeatsuperior claims against all Defendants. Defendants maintain that Plaintiff’s remaining claims against
them should be dismissed for failure to state a claim.
In the context of a motion to dismiss, the Court must accept all factual allegations in the
complaint as true and draw all reasonable inferences in the plaintiff's favor. Lormand v. US Unwired,
Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308 (2007); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Lovick v. Ritemoney, Ltd., 378 F.3d 433,
437 (5th Cir. 2004)). However, the foregoing tenet is inapplicable to legal conclusions. Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009). Thread-bare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice. Id. (citing Bell Atlantic Corp. v. Twombly, 550, U.S.
544, 555 (2007)).
The central issue in a Rule 12(b)(6) motion to dismiss is whether, in the light most favorable
to the plaintiff, the Complaint states a valid claim for relief. Gentilello v. Rege, 627 F.3d 540, 544 (5th
Cir. 2010) (quoting Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). To avoid dismissal, a
plaintiff must plead sufficient facts to "state a claim for relief that is plausible on its face." Id. (quoting
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "A claim has facial plausibility when the plaintiff
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pleads factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. The Court does not accept as true "conclusory allegations, unwarranted
factual inferences, or legal conclusions." Id. (quoting Plotkin v. IP Axess, Inc., 407 F.3d 690, 696 (5th
Cir. 2005)). Legal conclusions must be supported by factual allegations. Id. (quoting Ashroft v. Iqbal,
556 U.S. 662, 678 (2009)).
a. 1983 Claims Against the Individual Defendants
Plaintiff maintains her § 1983 violation of due process claims against the individual
Defendants. Defendants argue that 1) Plaintiff has failed to establish a constitutionally protected right,
and 2) even if Plaintiff did establish a constitutionally protected right that entitled her to due process,
she received sufficient due process under the law. Plaintiff categorizes her expulsion as a disciplinary
action, as opposed to an academic dismissal, which requires more due process than an academic
dismissal. Defendants, in their reply, maintain that even if the Court categorizes Plaintiff’s dismissal
as disciplinary rather than academic, she received sufficient constitutional due process protection.
The Court finds that Plaintiff’s § 1983 claims against the individual Defendants should be
dismissed because, even if she had a constitutionally protected right, she received sufficient due
process under the law. The United States Court of Appeals for the Fifth Circuit has addressed a
dismissal from graduate school similar to Plaintiff’s dismissal and found that, even when categorized
as a disciplinary dismissal, a formal hearing is not required. Mathai v. Board of Sup’rs of Louisiana
State University and Agr. and Mechanical College, 551 Fed.Appx. 101, 103 (5th Cir. 2013). So long
as the student was given the opportunity to place his or her conduct in context through a “give and
take,” the student received adequate due process before his or her disciplinary dismissal. Id. (citing
Shaboon v. Duncan, 252 F.3d 722, 731 (5th Cir. 2001)). Although a formal hearing is not required,
Plaintiff was given two formal hearings at which she had the opportunity to present her case, as well
as a written appeal to the school’s Dean. (Rec. Doc. 7). She was afforded much more due process than

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required in this Circuit. Thus, the individual Defendants are entitled to dismissal of Plaintiff’s claims
against them for violation of Plaintiff’s right to due process under § 1983.
b. Louisiana Constitutional Claims Against the Individual Defendants in Their
Official and Individual Capacities
Plaintiff maintains her Louisiana constitutional claims for violation of Plaintiff’s due process
rights against the individual Defendants. Defendants argue that the Louisiana constitutional claims
should be dismissed 1) against the individual Defendants in their official capacity because they are
barred by sovereign immunity, and 2) against the individual Defendants in their individual capacity
because they are barred by qualified immunity 1. Plaintiff’s response is unclear on whether she
maintains her Louisiana constitutional claims against the individual Defendants in their individual or
official capacities, but her argument addresses only those Louisiana constitutional claims made against
the individual Defendants in their individual capacities.
Defendants are correct in their assertion that Plaintiff cannot bring her Louisiana constitutional
claims against the individual Defendants “in their official capacities as such claims are barred by the
doctrine of sovereign immunity.” Gibson v. Federal Bureau of Prisons, 121 Fed. Appx. 549, 551 (5th
Cir. 2004). The bigger question, which Plaintiff addresses in her response, is whether she has viable
claims against the individual Defendants in their individual capacities.
The Court finds that Plaintiff’s Louisiana constitutional claims against the individual
Defendants should be dismissed because, even if she had a constitutionally protected right, she received
sufficient due process under the law. The Louisiana Supreme Court uses the same standards in
analyzing deprivation of due process claims in violation of the Louisiana Constitution as the Supreme

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“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Club
Retro, LLC v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009) (quoting Pearson v. Callahan, 129 S.Ct. 808, 815 (2009). When a
Defendant invokes a defense of qualified immunity, the burden shifts to the Plaintiff to prove that 1) the defendant committed
a constitutional violation under current law, and 2) the defendant’s actions were objectively unreasonable in light of the law
at the time. Id.

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Court of the United States uses when addressing violations of the United States Constitution. Denham
Springs Economic Development Dist. v. All Taxpayers, Property Owners and Citizens, 945 So.2d 665,
681 (La. 2006) (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972). The
Louisiana Supreme Court went on to say that in analyzing a due process claim, when the plaintiff has
a constitutionally protected right, the court must determine whether the deprivation comported with
due process. Id.
The Louisiana Court of Appeals for the Fourth Circuit has held that the dismissal of a student
did not violate his due process rights when the student was “given [an] opportunity to defend himself,”
including an appeal. Lawrence ex rel. Lawrence v. St. Augustine High School, 955 So.2d 183, 196 (La.
Ct. App. 4 Cir. 2007). Plaintiff was given two formal hearings at which she was able to defend herself,
and submitted a written appeal to the school’s Dean. (Rec. Doc. 7). Given the circumstances of her
dismissal, the Court finds that the individual Defendants did not violate Plaintiff’s due process rights
under the Louisiana constitution because she was afforded sufficient due process under Louisiana law.
c. ADA Claims Against the LSU Board
Plaintiff maintains her failure-to-accommodate claim under the ADA against the LSU Board.
Defendants argue that Plaintiff’s ADA claim fails because Plaintiff did not make a request for specific
accommodations, which they assert Plaintiff was required to make. Plaintiff states that when she was
dismissed from the LSU School of Dentistry, she requested medical leave in lieu of expulsion. She
further argues that she was not required to make a request for accommodations because the need was
an obvious result of her disability. Defendants, in their response, assert that when the disability is of a
mental nature, as in Plaintiff’s case, the individual must make a request.
Plaintiff cannot bring a claim against the LSU Board for violation of the ADA if she did not
first make a specific request for accommodations, given the nature of her disability. Plaintiff states that
she suffered from anxiety, depression and insomnia at the time she was expelled from the LSU School
of Dentistry. (Rec. Doc. 6). The United States Court of Appeals for the Fifth Circuit has recognized
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that “‘where the disability, resulting limitations, and necessary reasonable accommodations, are not
open, obvious, and apparent … the initial burden rests primarily upon the [student] ... to specifically
identify the disability and resulting limitations, and to suggest the reasonable accommodations.’”
Patton v. Jacobs Engineering Group, Inc., 2017 WL 3014429, at *4 (5th Cir. 2017) (citing EEOC v.
Chevron Phillips Chem. Co., 570 F.3d 606, 621 (5th Cir. 2009)).
The Court finds that the LSU Board is entitled to dismissal of Plaintiff’s ADA claims against
it. Plaintiff was required make a specific request for accommodations because her disability was not
open, obvious, or apparent. However, she failed to make such a request. Even if Plaintiff had made a
specific request for accommodations, having another student take a quiz for Plaintiff would not have
been a reasonable request. Plaintiff’s request for medical leave, came after her infraction. (Rec. Doc.
11). Additionally, as Defendants note, Plaintiff did not “inform the school of any medical diagnosis
but merely made vague statements about ‘struggling’ and having difficulty making it to morning
classes.” (Rec. Doc. 11). The Court acknowledges that Plaintiff told two professors that she was having
trouble making it to early morning classes, but agrees with Defendants that these statements did not
constitute a request for accommodations, which is required for Plaintiff to have a viable ADA claim.
Additionally, even if Plaintiff had made such a request, having another classmate take a quiz for
Plaintiff is not a reasonable accommodation. Therefore, the LSU Board is entitled to dismissal of
Plaintiff’s ADA claims against it.
d. Indemnity and Respondeat-Superior Claims
Defendants assert that the Court should dismiss Plaintiff’s respondeat-superior claims against
the LSU Board for the actions of its agents, and Plaintiff’s indemnity claim under Louisiana law.
Defendants argue that Plaintiff’s only remaining substantive claim is her Title VI claim, which does
not permit a vicarious liability claim. Additionally, Defendants argue that Plaintiff’s indemnity claim

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under Louisiana law is barred by sovereign immunity, prematurity 2, and lack of standing 3. Plaintiff
does not respond to Defendants’ assertions on these issues.
The Court finds that the LSU Board is entitled to dismissal of Plaintiff’s respondeat-superior
claims against it. Plaintiff’s only remaining claim is her Title VI claim, and “there is no claim for
vicarious liability under Title VI.” Vouchides v. Houston Community College System, 2011 WL
4592057, at *6 (S.D. Tx. 2011) (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 285-88
(1998)).
As for Plaintiff’s indemnity claim under Louisiana law, the Court agrees that the LSU Board,
as an arm of the state of Louisiana, is protected from Plaintiff’s state-law claims in this Court by
sovereign immunity. The United States Court of Appeals for the Fifth Circuit has held that a plaintiff’s
“state law claims are barred by sovereign immunity” when brought against state entities in Federal
Court. Raj v. Louisiana State University, 714 F.3d 322, 329 (5th Cir. 2013) (citing Pennhurst State
School and Hospital v. Halderman, 465 U.S. 89, 117 (1984)). The Fifth Circuit reasoned that the
plaintiff could not recover on his state law claims against the LSU Board because the LSU Board is an
arm of the state, Louisiana has not waived sovereign immunity from suits in federal court, and money
judgments against the Board are paid by the State of Louisiana. Thus, following the law in this Circuit,
Plaintiff’s state law indemnity claim against the LSU Board is dismissed.
Accordingly;
IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 7) filed by Defendants is
GRANTED. The following claims are hereby dismissed 1) the § 1983 claims against all Defendants,
2) the Louisiana constitutional claims against all Defendants, 3) the Title VI claims against the

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The case cited by Defendants as their basis that Plaintiff’s indemnity claim is premature was in the posture of a motion
for summary judgment on the issue of indemnity, which the court found was premature. Because Plaintiff here is not
moving for summary judgment on the issue of indemnity, the Court is not persuaded by Defendants’ argument and will
not address prematurity in its analysis.
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The case cited by Defendants as their basis that Plaintiff’s indemnity claim lacks standing involved the issue of whether a
trustee had standing to assert lien avoidance. Because the issues involved in that case are not involved here, the Court is
not persuaded by Defendants’ argument and will not address standing in its analysis.

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individual defendants, in both their individual and official capacities, 4) the Louisiana Administrative
Procedures Act claims against all Defendants, 5) the Americans with Disabilities Act claims against
all Defendants, 6) the breach of contract claims against all Defendants, and 9) the indemnity claim
under Louisiana law against the LSU Board. The only remaining claims, which Defendants did not
address in their Motion to Dismiss, are 1) the Title VI claim against the LSU Board, and 2) the Direct
Action claim against ABC Insurance Companies 1-10, as it relates to the Title VI claim against the
LSU Board.
IT IS FURTHER ORDERED that Defendants are ordered to file their Motion to Dismiss on
the last two remaining claims by August 31, 2017.
New Orleans, Louisiana this 16th day of August, 2017.

___________________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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