Hurst v. Lavoie

Filing 18

ORDER granting 11 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge Nannette Jolivette Brown. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARIO HURST

CIVIL ACTION

VERSUS

NO. 18-6299

DR. HEATHER LAVOIE

SECTION: “G” (2)

ORDER AND REASONS
Before this Court is Defendant Dr. Heather Lavoie’s (“Defendant”) “Motion to Dismiss
for Prescription, Res Judicata, and Failure to State a Claim Upon Which Relief Can Be Granted.”1
In this litigation, Plaintiff Mario Hurst (“Plaintiff”) alleges that Defendant failed to properly
diagnose his complaints of chest pain.2 Defendant filed the instant motion arguing that Plaintiff’s
claims should be dismissed because they are prescribed under 42 U.S.C. § 1983 and Louisiana
law, have already been decided by Louisiana state courts, and Plaintiff fails to state a claim upon
which relief can be granted.3 Having considered the motion, the memoranda in support and in
opposition, the record, and the applicable law, the Court will grant the motion.
I. Background
In this litigation, Plaintiff seeks to recover damages incurred because of an alleged denial
of due process by Defendant regarding a failure to diagnose and treat chest pain.4 Plaintiff alleges
that on May 21, 2013, he visited Defendant at the Louisiana State University Health Sciences

1

Rec. Doc. 11.

2

Rec. Doc. 1.

3

Rec. Doc. 11 at 1.

4

Rec. Doc. 1 at 1.

1

Center,5 for treatment related to his chest pain.6 Plaintiff states that Defendant released him in good
standing and indicated that his condition did not require further medical attention.7 Plaintiff
contends that his chest pain worsened subsequent to his visit with Defendant.8 Plaintiff avers that
Defendant’s failure to properly diagnose and treat his pain is a violation of his due process rights.9
Plaintiff asserts that he became aware of this alleged violation when he began to experience severe
chest pain on January 1, 2015.10
On June 27, 2018, Plaintiff filed a complaint against Defendant alleging violations of the
Fourteenth Amendment for “physical injustification and harassment in life and liberty.”11 On
August 30, 2018, Defendant filed the instant motion to dismiss.12 On September 18, 2018, Plaintiff
filed an opposition.13
II. Parties’ Arguments
A.

Defendant’s Arguments in Support of the Motion to Dismiss
In the instant motion, Defendant urges the Court to dismiss Plaintiff’s Fourteenth

Amendment claims because the claims: (1) are prescribed under 42 U.S.C. § 1983 (“§ 1983”) and

5

See Rec. Docs. 11-2 at 1; 11-4 at 3.

6

Id.

7

Id.

8

Id.

9

Id.

10

Id.

11

Id.

12

Rec. Doc. 11.

13

Rec. Doc. 15.

2

Louisiana law, (2) are barred under the doctrine of re judicata, and (3) fail to state a claim for a
Fourteenth Amendment due process violation.14
First, Defendant avers that Plaintiff’s claim is prescribed under § 1983 and Louisiana law.15
Defendant characterizes Plaintiff’s claim as a Fourteenth Amendment Due Process violation
brought under § 1983.16 Defendant asserts that federal courts apply state statutes of limitations to
§ 1983 actions, and under Louisiana law, there is a one-year prescriptive period for general tort
actions.17 According to Defendant, Plaintiff appeared for his medical visit with Defendant on May
21, 2013, and alleges that “he first had knowledge of th[e] alleged [due process] violation on
January 1, 2015.”18 Defendant contends that Plaintiff’s claim is prescribed because “it was filed
five years after treatment and three and one-half years after he allegedly discovered the
violation.”19
Next, Defendant contends that res judicata prevents Plaintiff from asserting this claim in
federal court because state courts have already decided a claim by Plaintiff that involved the same
nucleus of operative facts.20 Defendant states that Plaintiff filed a negligence action against
Defendant in the Civil District Court of Orleans Parish on July 13, 2015.21 Defendant alleges that
the Orleans Parish Civil District Court and Louisiana Fourth Circuit Court of Appeal found that

14

Rec. Doc. 11-1.

15

Id. at 1.

16

Id. at 2.

17

Id.

18

Id.

19

Id. at 3.

20

Rec. Doc. 11-1 at 3–4.

21

Id. at 1.

3

Plaintiff’s negligence claim had prescribed under La. Stat. Ann. § 9:5628 (“§ 9:5628”) and that
the discovery doctrine did not apply to Plaintiff.22 Defendants assert that this ruling was affirmed
by the Louisiana Fourth Circuit Court of Appeals and the Louisiana Supreme Court.23
Defendant avers that the instant case is Plaintiff’s attempt to have this Court “review these
[state court] rulings and revive his claim under another theory of liability”24 Defendant contends
that “res judicata should be applied when the factual basis of the claims are identical.”25 Defendant
cites the Fifth Circuit case Sider v. Valley Line,26 for the proposition that where Louisiana courts
have rendered a final judgment on the merits, federal courts will not review for error but only for
finality.27 For these reasons, Defendant argues that “this [C]ourt is precluded from considering this
claim under res judicata.”28
Finally, Defendant argues that Plaintiff fails to state a claim upon which relief can be
granted because medical malpractice claims do not give rise to a § 1983 action.29 Defendant also
asserts that Plaintiff cannot maintain that § 9:5628 violates his due process rights because the Fifth
Circuit has held that § 9:5628 does not violate procedural or substantive due process rights under
the Fourteenth Amendment.30 Accordingly, Defendant avers that the Court should dismiss

22

Id. at 3.

23

Id. at 1, 3.

24

Id. at 3.

25

Id.

26

857 F.2d 1043, 1046 (5th Cir. 1988).

27

Id.

28

Id. at 4.

29

Id.

30

Id. at 4–5 (citing Montagino v. Canale, 792 F.2d 554, 557 (5th Cir. 1986)).

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Plaintiff’s case because Plaintiff’s claim has prescribed, is barred by the doctrine of res judicata,
and Plaintiff has failed to state a claim upon which relief can be granted.31
B.

Plaintiff’s Arguments in Opposition to Defendant’s Motion to Dismiss
In opposition, Plaintiff argues that the Louisiana Medical Malpractice Act’s prescriptive

statute, § 9:5628, allows for a claim to be asserted up to one year after the date of discovery.32
Plaintiff contends that he visited Defendant on May 21, 2013 for treatment of his chest pain, but
at that time, his pain was mild and rare-occurring.33 Plaintiff insists that he did not discover the
severity of his condition and Defendant’s negligence until January 1, 2015.34 In support of this
assertion, Plaintiff alleges that the Louisiana Court of Appeals noted that Plaintiff did not discover
his condition until January 1, 2015.35
Plaintiff contends that § 9:5628 includes a discovery doctrine that allows a person to assert
a malpractice claim up to one year after the claimant discovers the alleged violation, as long as the
claim is filed no more than three years after the alleged violation occurred. 36 Plaintiff asserts that
because he discovered the severity of his pain on January 1, 2015 and filed a claim in state court
against Defendant in July 2015, his claim was timely filed.37 Plaintiff argues that because the

31

Id. at 5.

32

Rec. Doc. 15 at 1.

33

Id.

34

Id.

35

Id.

36

Id.

37

Id.

5

discovery doctrine applies to this case, his claim is not prescribed.38 Therefore, Plaintiff requests
that the Court deny Defendant’s motion to dismiss.39
III. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for
failure to state a claim upon which relief can be granted.”40 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.”41 “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that
is plausible on its face.’”42 “Factual allegations must be enough to raise a right to relief above the
speculative level.”43 A claim is facially plausible when the plaintiff has pleaded facts that allow
the court to “draw a reasonable inference that the defendant is liable for the misconduct alleged.”44
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,
and all facts pleaded are taken as true.45 However, although required to accept all “well-pleaded
facts” as true, a court is not required to accept legal conclusions as true.46 “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.”47

38

Id.

39

Id.

40

Fed. R. Civ. P. 12(b)(6).

41

Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

42

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008)).

43

Twombly, 550 U.S. at 556.

44

Id. at 570.

45

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); see also
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007).
46

Iqbal, 556 U.S. at 677–78.

47

Id. at 679.

6

Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements” will not suffice.48 The complaint need not contain detailed factual allegations, but it
must offer more than mere labels, legal conclusions, or formulaic recitations of the elements of a
cause of action.49 That is, the complaint must offer more than an “unadorned, the defendantunlawfully-harmed-me accusation.”50 From the face of the complaint, there must be enough factual
matter to raise a reasonable expectation that discovery will reveal evidence as to each element of
the asserted claims.51 If factual allegations are insufficient to raise a right to relief above the
speculative level, or if it is apparent from the face of the complaint that there is an “insuperable”
bar to relief, the claim must be dismissed.52
IV. Analysis
In the instant motion, Defendant urges the Court to dismiss Plaintiff’s claims because (1)
the claims are prescribed under § 1983 and Louisiana law, (2) the doctrine of res judicata precludes
re-consideration of the issues, and (3) the complaint fails to state a claim upon which relief can be
granted.53 As an initial matter, the Court notes that it interprets pleadings and briefs of pro se
litigants liberally “to afford all reasonable inferences which can be drawn from them.”54 In the
Complaint, Plaintiff asserts that Defendant’s actions violated his “due process life and liberty

48

Id. at 678.

49

Id.

50

Id.

51

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).

Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007); Moore v. Metro. Human Serv. Dep’t, No. 09-6470, 2010
WL 1462224, at * 2 (E.D. La. Apr. 8, 2010) (Vance, J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).
52

53

Rec. Doc. 11-1 at 1.

54

In re Tex. Pig Stands, Inc., 610 F.3d 937, 941 n.4 (5th Cir. 2010) (citing Oliver v. Scott, 276 F.3d 736, 740 (5th Cir.
2002)).

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[under] the 14th Amendment by physical injustification and harassment in life and liberty.”55
Plaintiff alleges that Defendant violated his Fourteenth Amendment rights to substantive and
procedural due process under the United States Constitution. The proper vehicle to assert a
Fourteenth Amendment claim is under 42 U.S.C. § 1983.56 In pertinent part, 42 U.S.C. § 1983
states that any person, acting under color of state law, who deprives a United States citizen “of any
rights, privileges, or immunities secured by the Constitution” shall be liable to such citizen.
Therefore, construing the complaint broadly, it appears that Plaintiff is alleging that Defendant, an
employee of the Louisiana State University Health System, violated his Fourteenth Amendment
rights and he is entitled to relief under § 1983.
Addressing Defendant’s argument that Plaintiff’s § 1983 claim is prescribed under
Louisiana law, the Court first must determine the proper statute of limitations to apply to the claim.
Under Fifth Circuit precedent, “[s]ection 1983 does not prescribe a statute of limitations. Instead,
‘[t]he statute of limitations for a suit brought under § 1983 is determined by the general statute of
limitations governing personal injuries in the forum state.’”57 The Louisiana statute that provides
the prescriptive period for personal injury actions is Louisiana Civil Code article 3492.58 Pursuant

55

Rec. Doc. 1 at 1.

56

Burns–Toole v. Byrne, 11 F.3d 1270, 1273 n. 3 (5th Cir. 1994) (citing Hearth, Inc. v. Texas Department of Public
Welfare, 617 F.2d 381, 382–83 (5th Cir. 1980) for the proposition that the proper vehicle for federal constitutional
claims for damages is a § 1983 action).
57

Heilman v. City of Beaumont, 638 F. App'x 363, 366 (5th Cir. 2016) (quoting Piotrowski v. City of Hous., 237 F.3d
567, 576 (5th Cir. 2001)).
Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir. 1989) (“[A]rticle 3492 is Louisiana's only statute of limitations for
personal injury actions.”).
58

8

to article 3492, tort claims are subject to a one-year prescriptive period.59 This period “commences
to run from the day injury or damage is sustained.”60
Plaintiff’s claims arise out of allegations that Defendant failed to diagnose and treat his
chest pains during his May 21, 2013 visit to the Louisiana State University Health Sciences
Center.61 Plaintiff filed the complaint on June 27, 2018.62 Taking Plaintiff’s allegation that his due
process rights were violated on May 21, 2013 as true, this claim has prescribed because the instant
case was filed over five years later. Alternatively, in both the complaint and the opposition to the
instant motion, Plaintiff contends that though he visited Defendant on May 21, 2013, his pain was
mild at that time, and he did not then understand the full extent of his condition or the manner in
which his due process rights had been violated.63 Plaintiff alleges that it was not until January 1,
2015, that he discovered the severity of his chest pains.64 Plaintiff asserts that only then did he
realize that Defendant had violated his rights.65 Assuming that the prescriptive period began to run
on January 1, 2015, when Plaintiff allegedly discovered the injury, Plaintiff’s claims have
prescribed because he filed the instant case over three years later.
The Fifth Circuit has instructed that a Rule 12(b)(6) motion to dismiss on the basis of
prescription should not be granted unless “it appears beyond doubt that the plaintiff can prove no

59

La. Civ. Code Ann. art. 3492.

60

Id.

61

Rec. Doc. 1.

62

Id.

63

Rec. Doc. 1 at 1–2.

64

Id.

65

Id.

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set of facts in support of his claim which would entitle him to relief.”66 Here, Plaintiff alleges that
his damages arose out of Defendant’s failure to diagnose and adequately treat his chest pains. In
the complaint, Plaintiff alleges that he visited Defendant on May 21, 2013 and was sent away
without treatment. Plaintiff further alleges that he discovered the injury on January 1, 2015.
Plaintiff’s complaint was filed on June 27, 2018. Because it appears beyond dispute that Plaintiff’s
claim has prescribed and there are no facts Plaintiff could prove in support of his claim that would
entitle him to relief, the Court will grant Defendant’s motion to dismiss.67
V. Conclusion
For the reasons discussed above, the Court finds that Plaintiff’s claim is prescribed under
42 U.S.C. § 1983 and Louisiana law.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s “Motion to Dismiss for Prescription, Res
Judicata, and Failure to State a Claim Upon Which Relief Can Be Granted”68 is GRANTED and
all claims are DISMISSED WITH PREJUDICE.

11th
NEW ORLEANS, LOUISIANA, this _____ day of January, 2019.

_________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

66

Abdul-Alim Amin v. Universal Life Ins. Co. of Memphis, Tenn., 706 F.2d 638, 640 (5th Cir. 1983).

Defendant also asserts that Plaintiff’s claims should be dismissed based on res judicata and failure to state a claim
upon which relief can be granted. Because the Court finds that Plaintiff’s claims are prescribed and should thus be
dismissed, it will not reach Defendant’s other arguments.
67

68

Rec. Doc. 11.

10