Mendoza v. United States of America
ORDER AND REASONS that the United States of America's 7 Motion to Dismiss for Failure to State a Claim is GRANTED. Signed by Judge Mary Ann Vial Lemmon on 9/7/2017. (cms)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES H. MENDOZA, SR.
UNITED STATES OF AMERICA
SECTION "S" (2)
ORDER AND REASONS
IT IS HEREBY ORDERED that the United States of America’s Motion to Dismiss for
Failure to State a Claim (Doc. #7) is GRANTED.
This matter is before the court on the United States of America’s motion to dismiss
plaintiff’s claim against it for failure to state a claim upon which relief can be granted.
On September 19, 2016, plaintiff herein, James H. Mendoza, Sr., filed Civil Action No.
16-14790 in the United States District Court for the Eastern District of Louisiana alleging that the
United States retaliated against him for filing a complaint about his treatment at a Department of
Veterans’ Affairs medical center.1 Specifically, Mendoza alleged that he filed a complaint with
Theresa Cruthids, a Patient Advocate, concerning Dr. Eleanor Daveron and Nurse Brandi Torres
claiming that they gave Mendoza “false information concerning a medical report from the Pain
Management Clinic in New Orleans, Louisiana.” Within an hour of Mendoza’s filing the
complaint, Dr. Tanya D. Martin, who was not Mendoza’s doctor, stopped a prescription refill that
was in progress. Mendoza alleges that Drs. Daveron and Martin falsified his medical records in
Mendoza named as defendants, Gina Hontiveros, R.N., Theresa Cruthirds, Dr. Eleanor Daveron, Dr.
Tanya D. Martin, Brandi Torres, R.N., and the United States Department of Veterans Affairs. The United
States filed a motion to dismiss Mendoza’s claims against those defendants and substitute the United States
as the proper defendant. This court granted the motion, and the United States was substituted as the proper
retaliation for his filing the original complaint, which caused him mental and physical pain.
Mendoza “demand[ed] that his medical records be cleared of any false information” and sought
$350,000 for mental and physical distress.
The United States filed a motion to dismiss Mendoza’s claims arguing that this court lacked
subject matter jurisdiction over Mendoza’s claims for libel, slander and misrepresentation. The
United States also argued that Mendoza did not state a claim for intentional infliction of emotional
distress or a claim under the Privacy Act, 5 U.S.C. § 552a. In response, Mendoza stated facts in
his medical records that he claimed were untrue and that he had a conversation with Cruthirds,
who said that Torres caused many problems. The court granted the motion and dismissed
Mendoza’s claims. Mendoza’s intentional infliction of emotional distress claim was dismissed
On May 18, 2017, Mendoza, acting pro se,2 filed this Civil Action No. 17-5035 in the
United States District Court for the Eastern District of Louisiana. In the current suit, he names the
United States as the defendant and claims that employees at the Department of Veterans’ Affairs
medical center in Hammond, Louisiana intentionally inflicted emotional distress on him by various
actions. First, he alleges that on July 28, 2015, nurse Brandi Torres embarrassed him “as though
[he] was a drug addict trying to obtain medication that was not [his]” when she yelled at him
“loudly in front of all the patients in the lobby” about having his Xanex pills counted by the
Because plaintiff is proceeding pro se, the court must construe his pleadings liberally. Grant v. Cuellar,
59 F.3d 523, 524 (5th Cir. 1995). However, “[t]he right of self-representation does not exempt a party from
compliance with relevant rules of procedural and substantive law.” Birl v. Estelle, 660 F.2d 592, 593 (5th
Next, Mendoza alleges that on July 28, 2015, he filed a complaint against Torres with
Cruthirds, and that Cruthirds stated that Torres had a bad attitude. Mendoza claims that an affidavit
Cruthirds executed in connection with his prior law suit was untruthful. Mendoza claims that he
never discussed undergoing a drug test with Cruthirds, and that her stating that their conversation
involved anything other than Torres’s job performance was a false statement made to “knowingly,
willingly and INTENTIONALLY hurt someone mentally [which] goes far beyond outrageous. It
is cruel, disgusting and inhumane.”
Mendoza also alleges that Dr. Tanya D. Martin intentionally caused him emotional distress
on September 3, 2015, by including false statements in his medical records concerning his use of
hydrocodone, following Dr. Sharma’s instructions, and his family history. Mendoza seeks
“$400,000 for the outrageous intentional emotional distress” that he endured “because of the lies
and accusations made by the medical staff” at the Hammond clinic.
The United States filed the instant motion to dismiss Mendoza’s complaint arguing that his
intentional infliction of emotional distress claim is barred by the application of res judicata, or
alternatively, that Mendoza failed to properly allege a claim for intentional infliction of emotional
distress. Mendoza points out items that he believes were falsified in his medical records.
Specifically, he states that Dr. Martin misrepresented the content of a telephone consultation “in
retaliation” and “to cast as negativity on [his] dignity, integrity and lifestyle” and that Dr. Martin
misrepresented statements Mendoza made about the amount of morphine he takes. Further,
Mendoza claims that Cruthirds made false statements in her affidavit concerning the content of
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a motion to dismiss a
complaint for failure to state a claim upon which relief can be granted. To survive a Rule 12(b)(6)
motion to dismiss, enough facts to state a claim for relief that is plausible on its face must be
pleaded. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl.
v. Twombly, 127 S.Ct. 1955, 1964-65 & 1973 n. 14 (2007)). A claim is plausible on its face when
the plaintiff pleads facts from which the court can “draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
“Factual allegations must be enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly,
127 S.Ct. at 1965. The court “must accept all well-pleaded facts as true and view them in the light
most favorable to the non-moving party.” In re S. Scrap Material Co., LLC, 541 F.3d 584, 587
(5th Cir. 2008). However, the court need not accept legal conclusions couched as factual
allegations as true. Iqbal, 129 S.Ct. at 1949-50. In considering a motion to dismiss for failure to
state a claim, a district court may consider only the contents of the pleading and the attachments
thereto. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (citing Fed. R.
Civ. P. 12(b)(6)).
The United States argues that Mendoza’s intentional infliction of emotional distress claim
is barred by res judicata because it was raised in his prior complaint and dismissed by this court.
"'[R]es judicata encompasses two separate but linked preclusive doctrines: (1) true res
judicata or claim preclusion and (2) collateral estoppel or issue preclusion.'" Houston Prof'l
Towing Ass'n v. City of Hous., 812 F.3d 443, 447 (5th Cir. 2016) (quoting Comer v. Murphy Oil
USA, Inc., 718 F.3d 460, 466-67 (5th Cir. 2013)). "True res judicata 'bars the litigation of claims
that either have been litigated or should have been raised in an earlier suit,' while collateral estoppel
'precludes relitigation of only those issues actually litigated in the original action, whether or not
the second suit is based on the same cause of action.'" Id. (quotations and citations omitted). The
United States argues that Mendoza’s intentional infliction of emotional distress claim is barred by
collateral estoppel or issue preclusion.
Collateral Estoppel or "issue preclusion" is a type of res judicata that bars "'successive
litigation of an issue of fact or law actually litigated and resolved in a valid court determination
essential to the prior judgment,' even if the issue recurs in the context of a different claim." Taylor
v. Sturgell, 128 S.Ct. 2161, 2171 (2008) (quoting New Hampshire v. Maine, 121 S.Ct 1808, 1814
(2001)). Collateral estoppel is intended to protect parties from multiple lawsuits, to avoid the
possibility of inconsistent decisions, and to conserve judicial resources. Lytel v. Household Mfg.,
Inc., 110 S.Ct. 1331, 1337 (1990) (citing Montana v. United States, 99 S.Ct. 970, 973-74 (1979)).
To establish collateral estoppel, a party must show "(1) that the issue at stake [is] identical to the
one involved in the prior litigation; (2) that the issue has been actually litigated in the prior
litigation; and (3) that the determination of the issue in the prior litigation has been a critical and
necessary part of the judgment in that earlier action." Rabo Agrifinance, Inc. v. Terra XXI, Ltd.,
583 F.3d 348, 353 (5th Cir. 2009) (citing Wehling v. CBS, 721 F.2d 506, 508 (5th Cir. 1983)).
"The parties to the suits need not be completely identical, so long as the party against whom
estoppel applies had the full and fair opportunity to litigate the issue in the previous lawsuit." Id.
(citing Wehling, 721 F.2d at 508).
In both this case and Civil Action No. 16-14790, Mendoza alleges that the United States is
liable for intentional infliction of emotional distress due to the actions of employees at the
Department of Veterans Affairs medical center in Hammond, Louisiana. The intentional infliction
of emotional distress claim was dismissed in Civil Action No. 16-14790 because Mendoza did not
allege sufficient facts to state a claim. The United States Court of Appeals for the Fifth Circuit
has recognized that a second action is not barred by a judgment in a prior action when the first
complaint was dismissed because certain facts were not included and the second complaint
includes those additional facts. Estevez v. Nabers, 219F.2d 321, 323 (5th Cir. 1955). Both
complaints allege that Dr. Martin falsified Mendoza’s medical records. However, the complaint
in Civil Action No. 17-5035 adds allegations that Torres embarrassed Mendoza and Cruthirds
made untrue statements in an affidavit. The current complaint also includes details regarding the
medical records that Dr. Martin allegedly falsified. Because the current complaint seeks to add
details that were lacking in the prior complaint, res judicata is inapplicable.
Failure to Allege Intentional Infliction of Emotional Distress
The United States also argues that Mendoza did not sufficiently allege a claim for
intentional infliction of emotional distress.
To recover for intentional infliction of emotional distress, a plaintiff must establish: (1) that
the defendant's conduct was extreme and outrageous; (2) that the emotional distress suffered by
the plaintiff was severe; and, (3) that the defendant desired to inflict severe emotional distress or
knew that severe emotional distress would be substantially certain to result from his conduct.
White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991). Under Louisiana law, “extreme and
outrageous conduct” is conduct that is “‘so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable
in a civilized community.’” Rice v. Reliaster Life Ins. Co., 770 F.3d 1122, 1137 (5th Cir. 2014)
(quoting White v. Monsanto, 585 So.2d 1205, 1209 (La. 1991)).
Mendoza has not put forth any allegations that satisfy the elements of intentional infliction
of emotional distress. He states that he was “outraged” by entries in his medical records, Cruthirds’
statements in her affidavit, and Torres’s behavior.
However, there are no allegations that
demonstrate extreme or outrageous conduct or that that medical personnel desired to inflict severe
emotional distress or knew that severe emotional distress would be substantially certain to result
from their allegedly false entries in Mendoza’s medical records or in an affidavit. Further, Torres’s
alleged action of speaking loudly about Mendoza’s prescription in front of other patients does not
rise to the level of outrageous behavior that is utterly intolerable. Therefore, the United States’
motion to dismiss Mendoza’s infliction of emotional distress claims is GRANTED, and those
claims are DISMISSED.
IT IS HEREBY ORDERED that the United States of America’s Motion to Dismiss for
Failure to State a Claim (Doc. #7) is GRANTED.
New Orleans, Louisiana, this _____ day of September, 2017.
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE
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