Nguyen et al v. Louisiana State Board of Cosmetology et al

Filing 61

RULING AND ORDER denying 46 Rule 12(b)(6) and 12(b)(1) Motions to Dismiss and Special Motion to Strike Plaintiffs' First Amended and Supplemental Complaint. Signed by Chief Judge Brian A. Jackson on 02/11/2015. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
THOA T. NGUYEN, ET AL.

CIVIL ACTION

VERSUS
LOUISIANA STATE BOARD OF
COSMETOLOGY, ET AL.

NO.: 14-00080-BAJ-RLB

RULING AND ORDER
Before the Court are Defendant Celia R. Cangelosi’s Rule 12(b)(6) and
12(b)(1) Motions to Dismiss and Special Motion to Strike Plaintiffs’ First
Amended and Supplemental Complaint (Doc. 46). Defendant Cangelosi (also,
“Defendant”) moves to dismiss the First Amended and Supplemental
Complaint for Injunctive Relief and Damages (Doc. 44) of Plaintiffs Thoa T.
Nguyen, et al., pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) and
12(b)(6), moves to strike allegations against her pursuant to Rule 12(f), and makes a
Special Motion to Strike under Louisiana Code of Civil Procedure (“La. C.C.P.”)
article 971. Plaintiffs oppose Defendant Cangelosi’s Motions to Dismiss and Motions
to Strike. (Docs. 47, 48). The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331,
1367. Additional briefing is not required, and oral argument is not necessary. For
reasons explained below, Defendant’s Rule 12(b)(1) Motion to Dismiss, Rule 12(b)(6)
Motion to Dismiss, Rule 12(f) Motion to Strike, and Special Motion to Strike Under
La. C.C.P. art. 971 are all DENIED.

1

I.

BACKGROUND

Plaintiffs are Vietnamese- and Asian-American nail salon owners in
Louisiana who allege they have been “subjected to disproportionate and heightened
inspections” by the Louisiana State Board of Cosmetology (“LSBC”)1 based on their
ethnicity and race. (Doc. 1 at ¶ 19). Plaintiffs2 filed suit against several defendants,
including Defendant Celia R. Cangelosi, who is being sued in both her individual
and official capacities. Plaintiffs assert claims of (1) racial discrimination in
violation of 42 U.S.C. § 1983 and the Fourteenth Amendment of the U.S.
Constitution, and (2) false imprisonment. Plaintiffs pray for relief in the form of,
inter alia, declaratory judgment that defendants violated Plaintiffs’ rights; an
injunction enjoining defendants from further discriminatory practices; an injunction
ordering defendants to reinstate Plaintiffs’ business licenses; an injunction ordering
defendants to develop and institute a training program; and costs, damages, and
punitive damages for defendants’ commission of false imprisonment.3

The LSBC was established under the Louisiana Cosmetology Act as a professional association
within the meaning of Article VII, Section 9 of Louisiana Constitution. La. R.S. § 37:563(2).
1

The Complaint states that Plaintiffs filed suit on their own behalf as well as on behalf of a class
similarly situated pursuant to Rules 23(a) and 23(b), defining the class of plaintiffs as “all past and
present Vietnamese- and Asian-American hair and nail salon owners in Louisiana who have been
harassed, intimidated, falsely imprisoned, and arbitrarily discriminated against or racially profiled
based on their race, ethnicity, or national origin by the [LSBC] and/or its agents.” (Doc. 1-1 at p. 4).
Plaintiffs, however, did not comply with the Court’s Local Rules regarding class actions. Specifically,
they did not caption their Complaint as a class action, nor did they move for certification under Rule
23(c)(1) within ninety days of filing their Complaint. See LR 23.1. The Court only considers the
claims brought by Plaintiffs on their own behalf, as no class has been certified in the instant matter.
2

Plaintiffs also requested preliminary injunctions, (see Doc. 1 at ¶ 33), but never filed applications
for preliminary injunctions separate from the Complaint, as required by the Court’s Local Rules, see
LR65.1. The Court does not consider Plaintiffs’ requests for preliminary injunctions herein, as they
are not properly before the Court.
3

2

On April 28, 2014, Defendant Cangelosi filed motions to dismiss pursuant to
Rules 12(b)(6) and 12(b)(1), as well as motions to strike pursuant to Rule 12(f) and
La. C.C.P. article 971. (Doc. 16). With no opposition from any defendants and with
leave from the Court, Plaintiffs filed a First Amended and Supplemental Complaint
for Injunctive Relief and Damages (Doc. 44) on August 13, 2014.4
On August 28, 2014, Defendant Cangelosi responded with the instant
Motions to Dismiss and Motions to Strike. (Doc. 46). Because Defendant’s instant
motions adopt the recitation of facts and the arguments contained in her earlier
motions, the Court denied as moot Defendant’s earlier motions. (See Doc. 51). In its
Ruling herein, the Court considers the facts and arguments asserted in Defendant’s
earlier motions as incorporated by reference in her instant motions.
Defendant Cangelosi argues that Plaintiffs lack standing to bring their
claims against her. Further, she argues that she is entitled to absolute immunity
because the claims arise from her performance of a quasi-judicial or quasiprosecutorial function or, alternatively, that she is entitled to qualified immunity.
Separately, Defendant moves to strike Plaintiffs’ allegations subject to Rule 12(f) as
impertinent and scandalous. She also files a Special Motion to Strike under La.
C.C.P. art. 971, requesting reasonable costs and attorney’s fees on the basis that

Because Plaintiffs’ Amended Complaint expressly incorporates the original Complaint, Plaintiffs’
original Complaint retains legal effect. See Canal Ins. Co. v. Coleman, 625 F.3d 244, 246 n.2 (5th Cir.
2010) (King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994)) (amended complaint supersedes original
complaint and renders it of no legal effect “unless amended complaint specifically refers to and
adopts or incorporates by reference the earlier pleading” (emphasis added)). Thus, the Court
considers both the initial Complaint and the Amended Complaint in the instant Ruling. Similarly,
the Court considers the contents of both Defendant’s initial Motion to Dismiss and Motion to Strike
(Doc. 16) and her Amended Motion to Dismiss and Motion to Strike (Doc. 46), since the latter adopts
the recitation of facts and arguments of the former.
4

3

Plaintiffs’ claims against Defendant arise from Defendant’s actions in furtherance of
her right to free speech in connection with a public issue. The Court proceeds to first
consider Defendant’s motions to dismiss and then Defendant’s motions to strike.

II.

MOTIONS TO DISMISS
A.

Rule 12(b)(1) Motion to Dismiss for Lack of Jurisdiction
1.

Standard of Review

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, 286–87 (5th Cir. 2012) (Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)); Stockman v. FEC, 138
F.3d 144, 151 (5th Cir. 1998)). Under Rule 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. (Home Builders Ass’n, Inc. v. City
of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)). A court should consider a Rule
12(b)(1) jurisdictional attack before addressing any attack on the merits.

Id.

(Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied, 536 U.S.
960 (2001)). Considering a Rule 12(b)(1) motion to dismiss first “prevents a court
without jurisdiction from prematurely dismissing a case with prejudice.” Id.
In ruling on a Rule 12(b)(1) motion, “the court is permitted to look at evidence
in the record beyond simply those facts alleged in the complaint and its proper
attachments.” Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009), cert.
denied, 558 U.S. 1111 (2009). See also Ramming, 281 F.3d at 161 (stating that a

4

court ruling on a 12(b)(1) motion may evaluate “(1) the complaint alone, (2) the
complaint supplemented by undisputed facts evidenced in the record, or (3) the
complaint supplemented by undisputed facts plus the court’s resolution of disputed
facts”). A motion to dismiss for lack of subject-matter jurisdiction should only be
granted if it appears certain that the plaintiff cannot prove any set of facts in
support of his claims entitling him to relief. Wagstaff v. U.S. Dep’t of Educ., 509
F.3d 661, 663 (5th Cir. 2007).
However, “[t]he burden of proof for a Rule 12(b)(1) motion to dismiss is on the
party asserting jurisdiction.” Celestine v. TransWood, Inc., 467 F. App’x 317, 318
(5th Cir. 2012) (Ramming, 281 F.3d at 161). “Accordingly, the plaintiff constantly
bears the burden of proof that jurisdiction does in fact exist.” Id. A pleading stating
a claim for relief must contain “a short and plain statement of the grounds for the
court’s jurisdiction.” Id. (Fed. R. Civ. P. 8(a)(1)). In federal question cases, the party
must demonstrate a non-frivolous claim based on federal law. Gibbs v. Buck, 307
U.S. 66, 72 (1939).
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) (per curiam).
2.

Discussion

Before moving to the sufficiency of Plaintiffs’ claims, the Court must resolve
Defendant’s challenge to Plaintiffs’ standing to bring the claims in the first place. A

5

motion to dismiss for lack of constitutional standing is properly filed pursuant to
Rule 12(b)(1). See Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795
n.2 (5th Cir. 2011). Defendant alleges that Plaintiffs lack constitutional standing
because they have not suffered an injury in fact. See id. at 795 (“The three
requirements of Article III standing are familiar: the plaintiffs must allege an
injury in fact that is fairly traceable to the defendant's conduct and likely to be
redressed by a favorable ruling.” (Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–
61 (1992))). Defendant argues that Paragraph 27 of the Complaint, as amended,
contains factual allegations that arose during a September 2013 LSBC board
hearing concerning interactions between Defendant and one Hang T. Nguyen, an
individual who has not joined as a named plaintiff in this suit.
After examining the Amended Complaint and the transcript of the September
2013, the validity or accuracy of which is not disputed,5 the Court agrees with
Defendant that Plaintiffs have not sufficiently demonstrated that they suffered an
injury in fact from Defendant’s alleged actions in the LSBC September 2013
hearing, to which no Plaintiff was a party.
Paragraph 27 of the Amended Complaint, however, goes on to allege facts
beyond the scope of the September 2013 hearing. The Complaint alleges that
Defendant had employed an individual to investigate and testify against salon
businesses, and that individual was “only asked to target Vietnamese- and Asian-

The hearing transcript was submitted as an exhibit attached to Defendant’s initial 12(b)(1) and
12(b)(6) motions, (see Doc. 16-2), and was cited for support by Plaintiffs in their response briefing,
(see Doc. 20 at p. 20). Thus, the Court deems the contents of the transcript to be undisputed facts in
the record, which it may consider in evaluating Defendant’s 12(b)(1) motion to dismiss.
5

6

owned salons.” (Doc. 44 at p. 8). According to the Complaint, that individual
investigated the business of Plaintiff Mai Thi Nguyen and testified at Nguyen’s
Rule to Show Cause Hearing. (Id.). Plaintiffs further allege that Defendant colluded
with inspectors to target Asian- and Vietnamese-owned nail salons for alleged
violations. (Doc. 44 at pp. 7–8). Plaintiffs allege in detail instances in which they
have been subject to LSBC investigatory and enforcement action. (Doc. 1 at ¶¶ 7–
16, 29).
“At the pleading stage, general factual allegations of injury resulting from the
defendant's conduct may suffice, for on a motion to dismiss we presume that general
allegations embrace those specific facts that are necessary to support the claim.”
Lewis v. Casey, 518 U.S. 343, 358 (1996). The Court finds that Plaintiffs’ allegations
of Defendant directing the targeting of salons based on race or national origin of
salon ownership, if true, would constitute an injury in fact suffered by Plaintiffs.
Thus, at this stage of the litigation, Plaintiffs have established constitutional
standing, such that their claims of racial discrimination and false imprisonment
survive dismissal. In the event that the discovery process reveals evidence providing
a valid basis to challenge the Court’s subject matter jurisdiction over the instant
matter, Defendant may file an appropriate motion at a later juncture in the
proceedings. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (plaintiff
seeking to invoke federal jurisdiction bears burden of establishing elements of
standing at successive stages of litigation). Accordingly, Defendant’s motion to

7

dismiss pursuant to Rule 12(b)(1) is DENIED, without prejudice to Defendant’s
right to reassert a lack of subject matter jurisdiction at a later time.
B.

Immunity Assertions Raised Pursuant to Rule 12(b)(6)

Here, Defendant asserts that she is entitled to absolute quasi-judicial
immunity from claims arising from Defendant’s actions as LSBC complaint counsel
and advisor.6 In the alternative, Defendant argues she is entitled to qualified
immunity for Plaintiffs’ failure to establish that Defendant violated Plaintiffs’ clearly
established constitutional rights. For the reasons discussed below, the Court finds
that Defendant is not entitled to either absolute or qualified immunity.
1.

Standard of Review

Claims of absolute and qualified immunity may be raised in a Rule 12(b)(6)
motion to dismiss. See Morales v. State of Louisiana, 74 F.3d 1236 (5th Cir. 1995).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “[F]acial plausibility” exists “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678 (Twombly, 550 U.S. at 556).
Hence, the complaint need not set out “detailed factual allegations,” but
something “more than labels and conclusions, and a formulaic recitation of the
The Court notes that the hearing agenda in the record lists Defendant as “board counsel.” (Doc. 162 at p. 2). Defendant, however, refers to her position as “complaint counsel” in her own briefings. (See
Doc. 46-1 at pp. 11, 13). In the Ruling herein, the Court adopts the use of “complaint counsel” to refer
to Defendant Cangelosi’s title, but there are insufficient facts in the record for the Court to make a
determination today as to Defendant’s official position.
6

8

elements of a cause of action” is required. Twombly, 550 U.S. at 555. When
conducting its inquiry, the Court must “accept[] all well-pleaded facts as true and
view[] those facts in the light most favorable to the plaintiff.” Bustos v. Martini Club
Inc., 599 F.3d 458, 461 (5th Cir. 2010) (quotation marks omitted).
Although courts generally are not permitted to review materials outside of
the pleadings when determining whether a plaintiff has stated a claim for which
relief may be granted, there are limited exceptions to this rule. Specifically, a court
may consider documents attached to a Rule 12(b)(6) motion to be part of the
pleadings if the plaintiff refers to those documents and they are central to the claim.
See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000);
Causey v. Sewell Cadillac–Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004).
2.

Discussion

“‘Absolute immunity’ denies a person whose federal rights have been violated
by a government official any type of remedy, regardless of the conduct. As such the
[U.S.] Supreme Court has been ‘quite sparing’ in recognizing absolute immunity.”
O'Neal v. Miss. Bd. of Nursing, 113 F.3d 62, 65 (5th Cir. 1997). Qualified immunity,
on the other hand, renders government officials immune from “liability for the
performance of their discretionary actions unless their conduct violates clearly
established statutory or constitutional rights which a reasonable person would have
known.” Id.
Whether an official may assert absolute or qualified immunity depends on
“the nature of the function performed, not the identity of the actor who performed

9

it.” Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (Forrester v. White, 484 U.S. 219,
229 (1988)). An official may be fully protected by absolute immunity when carrying
out one function, but may only be protected by qualified immunity when performing
another function. See id.
a)

Absolute Immunity

“Whether a defendant possesses absolute immunity from suit is a question of
law.” Walter v. Torres, 917 F.2d 1379, 1383 (5th Cir. 1990). “[T]he official seeking
absolute immunity bears the burden of showing that such immunity is justified for
the function in question.” Burns v. Reed, 500 U.S. 478, 486 (1991).
Regarding

Plaintiffs’

claim

that

Defendant

“is

responsible

for

the

implementation of the discriminatory structure of [LSBC] meetings and hearings,”
(Doc. 44 at p. 7), Defendant argues that she possesses absolute immunity from suit,
asserting that her “actions as complaint counsel and as advisor to the board during
a disciplinary hearing were well within the confines of those quasi-judicial functions
that have an ‘integral’ relationship to the administrative hearing,” (Doc. 16-1 at p.
10).
“[O]fficials who are responsible for the decision to initiate or continue a
proceeding subject to agency adjudication are entitled to absolute immunity from
damages liability for their parts in that decision.” Butz v. Economou, 438 U.S. 478,
516 (1978). The Fifth Circuit has held that absolute immunity extends to members
of administrative boards serving in quasi-prosecutorial and quasi-judicial roles. See
Di Ruzzo v. Tabaracci, 480 F. App'x 796, 797 (5th Cir. 2012) (absolute immunity

10

extends to counsel and members of Texas Medical Board performing quasiprosecutorial and quasi-judicial functions); see also Austin Mun. Sec., Inc. v. Nat’l
Ass’n of Sec. Dealers, Inc., 757 F.2d 676 (5th Cir. 1985) (absolute immunity
extended to association, its disciplinary officers, and its staff members to the extent
they were acting as prosecutors within the outer scope of their duties).
Although the Court examines the nature of the function performed and not
the identity or title of the actor who performed it, the Court may only determine
quasi-judicial or quasi-prosecutorial absolute immunity to be applicable when the
official’s challenged activities arise from the performance of her traditional official
duties. See Kalina v. Fletcher, 522 U.S. 118, 131 (1997) (reaffirming the notion that
“the prosecutor is fully protected by absolute immunity when performing the
traditional functions of an advocate” (emphasis added)); Imbler v. Pachtman, 424
U.S. 409, 418 (1976) (common-law absolute immunity for judges applies to “acts
committed within their judicial jurisdiction,” and a prosecutor similarly enjoys
absolute immunity when acting “when he acts within the scope of his prosecutorial
duties” (internal quotation marks and citation omitted) (emphases added)).
Plaintiffs claim that Defendant “repeatedly exceeded her authority by
making unilateral decisions without first asking for the Board’s collective vote” and
asserts that “the Vice-Chair was present and still permitted [Defendant] to ‘run’ the
meeting according to her preference.” (Doc. 44 at p. 7). They assert that Defendant
improperly exceeded the scope of her regular duties as complaint counsel and

11

advisor during the September 2013 hearing, rendering her without absolute
immunity protection for the challenged actions during that hearing.
Defendant urges the Court to consider Haygood v. Begue, a case of our sister
U.S. District Court for the Western District of Louisiana in which Brian Begue, an
attorney serving as general counsel for the Louisiana State Board of Dentistry, was
appointed to act as independent counsel for the Board’s Disciplinary Committee. In
Haygood, the plaintiff argued that Begue was not entitled to absolute immunity
because Begue improperly combined his role as independent counsel with that of a
prosecutor, exceeding the statutory limits of his actual authority. See Haygood v.
Begue, No. 13-CV-0335, 2014 WL 1315004, at *3 (W.D. La. Mar. 31, 2014). The
court rejected plaintiff’s argument and held Begue absolutely immune from all
claims related to his role as independent counsel, noting that Begue was serving as
independent counsel pursuant to the authority expressly delegated to him under the
Louisiana Administrative Code, and Begue’s actions occurred “in direct relation to
his quasi-judicial role” as Dental Board counsel. Id. at *3–4.
Haygood is distinguishable from the instant matter in an important aspect:
in Haygood, there was no dispute that Begue’s role as independent counsel was
properly

granted

by

the

Dental

Board

chairman

under

the

Louisiana

Administrative Code, with statutorily specified functions of “ruling on evidentiary
objections and other procedural issues raised during the hearing.” La. Admin. Code,

12

tit. 46, pt. XXXIII, § 923(D).7 See also O'Neal v. Miss. Bd. of Nursing, 113 F.3d at 66
n.2 (finding the Mississippi State Board of Nursing’s board functions to be judicial
in nature and protected by absolute immunity, based on the disciplinary hearing
procedures and board powers and duties explicitly detailed by statute).
In the instant case, in contrast, Defendant has not directed the Court to any
statutory provision in the Louisiana Cosmetology Act defining the role of complaint
counsel, nor any statutory provision describing the means by which quasi-judicial
functions may be delegated during an LSBC hearing. Further, the hearing
transcript submitted into the record as an attachment to Defendant’s motion to
dismiss reflects that one Lora V. Moreau—and not Defendant—was designated to
serve as Acting Chairman to preside over the September 2013 meeting in question.
(See Doc. 16-2 at p. 2).
Defendant, who seeks absolute immunity, bears the burden of showing that
immunity is justified for the function in question. See Burns v. Reed, 500 U.S. at
486. Yet Defendant has not made specific assertions or provided evidence to
establish the scope of her authority as complaint counsel or advisor, such that the
Court could determine whether the quasi-judicial or quasi-prosecutorial functions
Section 923(D) of the Louisiana Administrative Code, concerning adjudicatory hearings of the
Louisiana State Board of Dentistry, reads, in full:
7

During and before an adjudication hearing, the chairman shall rule upon all
evidentiary objections and other procedural questions, but in his discretion may
consult with the entire hearing panel in executive session. At any such time, the
hearing panel may be assisted by legal counsel, retained by the board for such
purpose, who is independent of complaint counsel and who has not participated in
the investigation or prosecution of the case. If the board or hearing panel is attended
by such counsel, the chairman may delegate to such counsel ruling on evidentiary
objections and other procedural issues raised during the hearing.

13

for which Defendant seeks immunity are properly within the bounds of her official
duties.
Additionally, insofar as Defendant claims that her alleged instruction to her
secretary to gather evidence or alleged collusion with inspectors to target certain
salons constituted prosecutorial actions subject to absolute immunity, the Court
disagrees. “A state agent performing investigative functions, as opposed to
adjudicative or prosecutorial functions, is not entitled to absolute immunity.” Di
Ruzzo, 480 F. App'x at 797. The U.S. Supreme Court has explained:
Almost any action by a prosecutor, including his or her direct
participation in purely investigative activity, could be said to be in
some way related to the ultimate decision whether to prosecute, but we
have never indicated that absolute immunity is that expansive.
Rather, . . . we inquire whether the prosecutor's actions are closely
associated with the judicial process.
Burns v. Reed, 500 U.S. at 495. The gathering of evidence and the inspection of
salons may be prerequisite to a summons to a salon owner to appear at an LSBC
hearing, but the inspections themselves are too remote from the hearing proceeding
for the Court to deem them protected by absolute immunity.
Accepting as true Plaintiffs’ well-pleaded facts regarding allegations of
Defendant’s activities during an LSBC hearing and Defendant’s involvement in
targeting certain salons for regulatory inspection, Defendant has not shown as a
matter of law that she is entitled to absolute immunity such that dismissal is
warranted at this stage in litigation. If the discovery process supplements the
record with more facts demonstrating quasi-judicial or quasi-prosecutorial functions
to be within the scope of Defendant’s responsibilities and duties as an LSBC official,
14

the Court will reconsider the question of Defendant’s absolute immunity upon a
motion properly raised at a later time.
b)

Qualified Immunity

Defendant, alternatively, claims she is entitled to the protections of qualified
immunity. Qualified immunity shields defendants from “civil damages liability as
long as their actions could reasonably have been thought consistent with the rights
they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987).
A court should grant a Rule 12(b)(6) motion to dismiss based on qualified immunity
unless the complaint states facts showing that a defendant violated a plaintiff's
clearly established federal right. “[Q]ualified-immunity analysis is based upon two,
well-established prongs: (1) whether plaintiffs show violation of a clearlyestablished statutory or constitutional right; and, if so, (2) whether they show
defendants' actions were objectively unreasonable in light of clearly established
law.” Porter v. Valdez, 424 F. App'x 382, 386 (5th Cir. 2011) (quotation marks and
internal alterations omitted). See also Pearson v. Callahan, 555 U.S. 223, 244
(2009).
To correct an apparent misunderstanding on the part of the Defendant, the
Court must clarify the degree to which qualified immunity would shield Defendant
from the claims lodged against her. Qualified immunity is applicable to bar suit
only to the extent a defendant is sued in her individual capacity. See Walker v.
Howard, 517 F. App'x 236, 237 (5th Cir. 2013). Thus, the Court’s analysis of
qualified immunity here has no bearing on the claims lodged against Defendant in

15

her official capacity. Furthermore, qualified immunity does not prevent an award of
prospective injunctive relief. See Mangaroo v. Nelson, 864 F.2d 1202, 1208 (5th Cir.
1989). Here, the face of Plaintiffs’ complaint does not seek damages against
Defendant Cangelosi, but only declarative and injunctive relief in connection with
Plaintiffs’ constitutional claims of racial discrimination pursuant to § 1983. (See
Doc. 1 at ¶ 33).8 Here, with no facts in the record to support a claim for damages
against Defendant Cangelosi, the Court finds Defendant’s qualified immunity
argument inapplicable. Should discovery adduce additional facts to allow the Court
to ascertain a viable claim seeking damages against Defendant in her individual
capacity, Defendant may raise an argument for qualified immunity again and the
Court will evaluate her entitlement to qualified immunity at such time.

Plaintiffs do, however, seek costs and damages in connection with their false imprisonment
claim. (Doc. 1 at ¶ 33). The Complaint only provides the essential elements of the tort of false
imprisonment, with no mention of constitutional rights implicated by the alleged restraint of
freedom. (Id. at ¶ 28). However, the U.S. Supreme Court has made clear that “no heightened
pleading rule requires plaintiffs seeking damages for violations of constitutional rights to invoke §
1983 expressly in order to state a claim.” Johnson v. City of Shelby, Miss., 574 U.S. ___, ___, 135 S.
Ct. 346, 346 (2014) (per curiam). So long as Plaintiffs have adequately pleaded substantively
plausible factual allegations sufficient to survive threshold dismissal, they need not expressly invoke
§ 1983. See id. Here, the facts pleaded in support of Plaintiffs’ false imprisonment claim, (see Doc. 1
at ¶ 8), implicate Fourth Amendment protections from unreasonable searches and seizures.
However, even though the Court notes that Plaintiffs’ false imprisonment claims could be
construed as § 1983 claims for which Plaintiffs seek civil damages liability (claims that would be
barred against a defendant who possesses qualified immunity), the Complaint simply does not
contain facts sufficient to support a claim of false imprisonment against Defendant Cangelosi. With
regard to Defendant’s alleged involvement in inspections and investigations on-site at salons, the
Complaint states that Defendant “employed her own secretary or clerk as a witness” and “asked her
secretary . . . to gather evidence,” as well as “knowingly colluded” with inspectors “to arbitrarily
target” certain salons. There is no mention of Defendant in the factual allegations regarding the
instance in which LSBC inspectors were to have entered a salon owned by Plaintiff Thoa Thi Nguyen
and “prohibited Mrs. Nguyen and her employees from leaving” for approximately two hours. (Doc. 1
at ¶ 8). Nor is there a factual basis elsewhere in the Complaint linking Defendant Cangelosi to any
alleged commission of false imprisonment.
8

16

III.

MOTIONS TO STRIKE
A.

Motion to Strike Under Rule 12(f)

Defendant seeks to strike allegations of racism from Paragraph 27 of the
Complaint, stating that such allegations pleaded are “inflammatory and conclusory
allegations which are not supported and should be struck pursuant to [Rule] 12(f) as
impertinent and scandalous.” (Doc. 16-1 at p. 3). Rule 12(f) allows a district court to
strike, either on proper motion by a party or on its own initiative, any redundant,
immaterial, impertinent, or scandalous matter in any pleading. A district court
possesses considerable discretion in disposing of a Rule 12(f) motion to strike. See
United States v. Coney, 689 F.3d 365, 379 (5th Cir. 2012). However, “the action of
striking a pleading should be sparingly used by the courts. . . . The motion to strike
should be granted only when the pleading to be stricken has no possible relation to
the controversy.” Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306
F.2d 862, 868 (5th Cir. 1962) (Brown & Williamson Tobacco Corp. v. United States,
201 F.2d 819, 822 (6th Cir. 1953)). So long as the challenged allegations describe
acts or events that are relevant to the action and are minimally supported in the
record, a complaint will not be stricken even if it offends the sensibilities of the
objecting party. See Coney, 689 F.3d at 379–80.
Here, the controversy concerns alleged discrimination and profiling based on
race, ethnicity, and national origin committed by the LSBC and its agents. The
Court finds a possible relation between the aspects of the controversy and the
allegations of “overt discriminatory practice” by Defendant during LSBC board

17

hearings. Further, the limited evidence in the record supports—if only minimally—
a basis for Plaintiffs’ assertion of discriminatorily applied enforcement.9
In the exercise of its discretion, the Court here deems it imprudent to strike
allegations of racial discrimination, however offensive, in a case centered on claims
of racial discrimination. Accordingly, Defendant’s motion to strike allegations from
Paragraph 27 of the Complaint, pursuant to Rule 12(f), is DENIED WITH
PREJUDICE.
B.

Special Motion to Strike Under La. C.C.P. art. 971

Finally, Defendant seeks reasonable attorney’s fees and costs under
Louisiana’s Special Motion to Strike, also known as article 971 of the Louisiana
Code of Civil Procedure, which provides: “a cause of action against a person arising
from any act of that person in furtherance of the person's right of petition or free
speech under the United States or Louisiana Constitution in connection with a
public issue shall be subject to a special motion to strike, unless the court
determines that the plaintiff has established a probability of success on the claim.”
A party prevailing under an article 971 motion to strike is entitled to reasonable
attorney’s fees and costs. See La. C.C.P. art. 971B. Article 971 serves “as a
procedural device to be used early in legal proceedings to screen meritless claims
pursued to chill one's constitutional rights under the First Amendment of the
United States Constitution to freedom of speech and press.” Henry v. Lake Charles

As exhibits to their original Complaint, Plaintiffs attached the agendas from two 2013 LSBC
hearings, both of which list names of individuals and businesses subject to LSBC enforcement. (See
Docs. 1-2, 1-3). Plaintiffs assert, and the exhibits appear to corroborate, that the violation hearings
were “almost completely filled with Vietnamese and Asian-Americans.” (Doc. 1-1 at ¶¶ 17, 18).
9

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American Press, L.L.C., 566 F.3d 164, 169 (5th Cir. 2009) (Lee v. Pennington, 830
So.2d 1037, 1041 (La. Ct. App. 2002)). Defendant argues that “Plaintiffs cannot
show a probability of success regarding their claims against [Defendant], and those
claims are clearly related to written and oral statements made in connection with
an issue under consideration or review by an official body authorized by law.” (Doc.
46-1 at p. 13).
Article 971 creates a burden-shifting test. First, the movant must make a
prima facie showing that article 971 covers the activity underlying the suit,
specifically that “the matter arises from an act in furtherance of his or her right of
free speech or the right of petition and in relation to a public issue”; then, if the
movant makes this showing, then the burden shifts to the plaintiff to “demonstrate
a probability of success on his or her own claim.” See Henry, 566 F.3d at 181. The
purpose of the law, as stated by the Louisiana legislature, is “to encourage
continued participation in matters of public significance.” Id. at 169 (Thomas v. City
of Monroe, 833 So.2d 1282, 1286 (La. Ct. App. 2002)).
Although the legislature articulated its intent for article 971 to be “construed
broadly,” see id., Defendant has not made a prima facie showing that article 971
covers her alleged written or oral statements. Defendant’s motion does not point to
any specific statement she made in furtherance of her rights of petition or free
speech. Further, Defendant’s apparent role in the LSBC hearing was that of LSBC
complaint counsel and advisor, that is, as an official of a state-created professional
organization. As a general rule, “[t]he First Amendment protects the press from

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governmental interference; it confers no analogous protection on the Government.”
Columbia Broad. Sys., Inc. v. Democratic Nat. Comm., 412 U.S. 94, 139 (1973).
Thus, with Defendant ostensibly speaking in her capacity as a state official during
LSBC hearings, the Court declines to presume that Defendant’s statements were in
connection with a public issue in furtherance of her First Amendment rights merely
because they were made during an LSBC hearing.
Due to a lack of detail in the instant motion, Defendant has not met her
initial burden to prove that her underlying activity, as alleged in the Complaint,
was made in furtherance of her right of free speech or right of petition and in
relation to a public issue. Thus, Defendant’s Special Motion to Strike Under La.
C.C.P. art. 971 is DENIED WITH PREJUDICE.

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