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

Filing 63

RULING AND ORDER granting in part and denying in part 57 Rule 12(b)(6) Motion to Dismiss Plaintiffs' Complaint and First Amended and Supplemental Complaint. Defendant LSBC's Rule 12(b)(6) motion to dismiss pursuant to the protections of Eleventh Amendment immunity is DENIED. Defendant Stockstill's 12(b)(6) motion to dismiss for failure to state a claim is DENIED; motion to dismiss based on absolute immunity is DENIED; motion to dismiss based on qualified immunity with respect t o false imprisonment claims is DENIED WITHOUT PREJUDICE; and motion to dismiss based on qualified immunity with respect to racial discrimination is DENIED. Defendant Kellers 12(b)(6) motion to dismiss for failure to state a claim is GRANTED with resp ect to Plaintiffs' claim of false imprisonment, but DENIED with respect to Plaintiffs' claim of racial discrimination in violation of the Fourteenth Amendment to the U.S. Constitution. Plaintiffs' claim for false imprisonment against K eller is hereby DISMISSED WITH PREJUDICE. Defendant Keller's 12(b)(6) motion to dismiss pursuant to the protections of absolute and qualified immunity is DENIED WITH PREJUDICE. Defendants Young and Hand's 12(b)(6) motions to dismiss for failure to state a claim are GRANTED. All claims against Defendants Young and Hand are hereby DISMISSED WITH PREJUDICE. Signed by Chief Judge Brian A. Jackson on 03/20/2015. (BCL)

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 is the Rule 12(b)(6) Motion to Dismiss Plaintiffs’
Complaint and First Amended and Supplemental Complaint (Doc. 57) filed
by Defendants Louisiana State Board of Cosmetology (“LSBC”), Steve Young,
Frances Hand, Sherrie Stockstill, and Margaret Keller (collectively, “Defendants”).
Defendants move to dismiss the Complaint (Doc. 1) and First Amended and
Supplemental Complaint (Doc. 44) of Plaintiffs Thoa T. Nguyen, et al., pursuant
to Federal Rule of Civil Procedure (“Rule”) 12(b)(6).
Plaintiffs oppose this Motion. (Doc. 60). The Court has jurisdiction pursuant
to 28 U.S.C. §§ 1331, 1367. Oral argument is not necessary. For reasons explained
herein, Defendants’ Motion is GRANTED IN PART and DENIED IN PART.

I.

BACKGROUND
On February 6, 2014, Plaintiffs filed a Complaint for Injunctive Relief and

Damages (Doc. 1) against the instant Defendants, among other defendants, seeking
injunctive relief and damages. With no opposition from any defendants and with

1

leave from the Court, Plaintiffs filed their First Amended and Supplemental
Complaint for Injunctive Relief and Damages (Doc. 44) on August 13, 2014.
Plaintiffs are nail salon owners in Louisiana who allege that they have been
“harassed, intimidated, falsely imprisoned, and arbitrarily discriminated against or
racially profiled based on their race, ethnicity or national origin by the Louisiana
State Board of Cosmetology and/or its agents.” (Doc. 1-1 at ¶ 5).1 Specifically,
Plaintiffs assert claims of (1) racial discrimination in violation of 42 U.S.C. § 1983
and the Fourteenth Amendment, 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.2 (Doc. 1-1 at ¶ 33).
On January 14, 2015, with leave from the Court, Defendants filed the instant
Motion to Dismiss,3 asserting: (1) Plaintiffs failed to state a claim upon which relief

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). As explained in an earlier ruling in this matter,
Plaintiffs did not comply with the Court’s Local Rules regarding class actions, and no class has been
certified in this matter. (See Doc. 61 at p. 2 n.2).
1

Plaintiffs also requested preliminary injunctions, (see Doc. 1-1 at ¶ 33), but never filed applications
for preliminary injunctions separate from the Complaint, as required by the Court’s Local Rules, see
LR65.1. As explained in an earlier ruling in this matter, the Court does not consider Plaintiffs’
requests for preliminary injunctions herein, as they are not properly before the Court. (See Doc. 61 at
p. 2 n.3).
2

Defendants filed their first 12(b)(6) motion to dismiss on April 28, 2014, in response to Plaintiffs’
initial Complaint and prior to Plaintiffs’ filing of their Amended Complaint. In order to sharpen the
3

2

may be granted, (2) the Eleventh Amendment bars Plaintiffs’ claims against the
LSBC; (3) the individual defendants are entitled to immunity from Plaintiffs’
claims. Plaintiffs oppose the Motion. (See Doc. 60).4

II.

STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint

against the legal standard set forth in Rule 8, which requires “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Claims of absolute and qualified immunity may also 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)). “Determining whether a complaint states a plausible claim for relief [is]
. . . a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679. “[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).

issues presented to the Court, Defendants were granted leave to file the instant 12(b)(6) motion to
dismiss in response to Plaintiffs’ Amended Complaint.
Plaintiffs’ response in opposition to Defendants’ instant motion to dismiss, (Doc. 60), incorporates
their response to Defendants’ original motion to dismiss, (Doc. 19).
4

3

Hence, the complaint need not set out “detailed factual allegations,” but
something “more than labels and conclusions, and a formulaic recitation of the
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).
The Supreme Court has noted that Rule 12(b)(6) requires dismissal whenever
a claim is based on an invalid legal theory:
Nothing in Rule 12(b)(6) confines its sweep to claims of law which are
obviously insupportable. On the contrary, if as a matter of law it is
clear that no relief could be granted under any set of facts that could be
proved consistent with the allegations, . . . a claim must be dismissed,
without regard to whether it is based on an outlandish legal theory, or
on a close but ultimately unavailing one.
Neitzke v. Williams, 490 U.S. 319, 327 (1989) (quotation marks and citations
omitted). However, “[f]ederal pleading rules . . . do not countenance dismissal of a
complaint for imperfect statement of the legal theory supporting the claim
asserted.” Johnson v. City of Shelby, Miss., 574 U.S. ___, ___, 135 S. Ct. 346, 346
(2014) (per curiam).
III.

DISCUSSION

A. Failure to State a Claim
Defendants argue that Plaintiffs have failed to state claims upon which relief
may be granted against individual Defendants Young, Hand, Stockstill, and Keller.

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1. Claims Against Steve Young and Frances Hand
The Complaint does not set forth any factual allegations that would form a
basis for plausible claims against Defendants Young and Hand. The only reference
to Young in the factual allegations details one of Plaintiffs’ interactions with Young,
wherein “a citation was still issued even after assurances by Mr. Young that
[Plaintiff could] continue to prepare the store for business.” (Doc. 1-1 at ¶ 11). There
is no indication what allegedly unconstitutional action is attributable to Young. As
to Hand, there is no reference whatsoever to Hand in the Complaint’s factual
allegations.
“In order to state a cause of action under section 1983, the plaintiff must
identify defendants who were either personally involved in the constitutional
violation or whose acts are causally connected to the constitutional violation
alleged.” Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995). Here, the Court
recognizes that Young and Hand serve as LSBC’s Executive Director and Chairman
respectively, but merely the fact that these individuals hold leadership positions in
LSBC is insufficient to state a plausible claim. “Under section 1983, supervisory
officials are not liable for the actions of subordinates on any theory of vicarious
liability.” Roberts v. City of Shreveport, 397 F.3d 287, 291–92 (5th Cir. 2005)
(Thompson v. Upshur Cnty., 245 F.3d 447, 459 (5th Cir.2001)). Plaintiffs have failed
to allege any act on the part of Young and Hand which contributed to the violation
of Plaintiffs’ constitutional rights. Similarly, Plaintiffs have not alleged any facts

5

sufficient to support a claim against Young and Hand involving a state tort of false
imprisonment.
Accordingly, with respect to Defendants Young and Hand, Defendants’
12(b)(6) motion to dismiss is GRANTED, and all claims against Defendants Young
and Hand are DISMISSED WITH PREJUDICE.
2. Claims Against Sherrie Stockstill and Margaret Keller
In contrast to the claims against Young and Hand, the Complaint contains
specific factual allegations against LSBC inspectors Stockstill and Keller. With
regard to Defendant Stockstill, Plaintiffs allege that on July 19, 2013, Stockstill and
an unknown LSBC inspector entered the business of Plaintiff Thoa T. Nguyen and
demanded personal identification and business licenses from Nguyen and her
employees. (Doc. 1-1 at ¶ 8). According to Plaintiffs, Stockstill and the other
inspector, without permission, “proceeded to open doors, search compartments, sift
through files, and prohibited Mrs. Nguyen and her employees from leaving” for
“approximately the next two hours.” (Id.).
In Louisiana, the two essential elements of a false imprisonment claim are:
(1) detention of a person; and (2) the unlawfulness of such detention. Anderson v.
Wal-Mart Stores, Inc., 675 So.2d 1184, 1186 (La. App. Ct. 1996); see also Kyle v. City
of New Orleans, 353 So.2d 969, 971 (La. 1977) (“False arrest and imprisonment
occur when one arrests and restrains another against his will without a warrant or
other statutory authority. Simply stated, it is restraint without color of legal
authority.”). For false imprisonment to occur, there must be “a total and unlawful

6

restraint of a person's freedom of locomotion.” Rawls v. Daughters of Charity of St.
Vincent De Paul, Inc., 491 F.2d 141, 146 (5th Cir. 1974), cert. denied, 419 U.S. 1032
(1974) (Crossett v. Campbell, 48 So. 141 (La. 1909)).
Here, the facts pleaded in support of Plaintiffs’ false imprisonment claim, (see
Doc. 1-1 at ¶ 8), implicate Fourth Amendment protections from unreasonable
searches and seizures.5 See U.S. Const. amend. IV. (“The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated . . . .). A seizure occurs when a government actor
has restrained the liberty of a citizen such that a reasonable person would not feel
free to terminate the encounter. See United States v. Drayton, 536 U.S. 194, 201
(2002) (recognizing that “[i]f a reasonable person would feel free to terminate the
encounter, then he or she has not been seized”). The U.S. Supreme Court has long
recognized that “the Fourth Amendment's prohibition on unreasonable searches and
seizures is applicable to commercial premises, as well as to private homes.” New
York v. Burger, 482 U.S. 691, 699 (1987). At this juncture in the proceedings, the
Court need not decide whether the alleged seizure of Plaintiffs was reasonable.
Rather, Plaintiffs need only to have alleged facts that, when taken as true, state a
plausible claim that an unreasonable seizure occurred.

The Complaint enumerates 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.
5

7

Defendants argue, however, that the inspection of Nguyen’s business was
conducted pursuant to regulatory authority. (Doc. 56-2 at p. 5). In support,
Defendants cite a section of the Louisiana Cosmetology Act, which provides that
the LSBC “shall be responsible for the control and regulation of the practice of
cosmetology and shall . . . [i]nspect during hours of operation any licensed,
permitted, certified, or registered facility or school, including but not limited to
pertinent records, for the purpose of determining if any provisions of law governing
the practice of cosmetology are being violated.” La. R.S. § 37:575(10).
The facts alleged in the Complaint are not merely conclusory and, viewing
the facts in the light most favorable to Plaintiffs, the Court finds that Plaintiffs
have adequately stated a claim of false imprisonment under both Louisiana law and
the U.S. Constitution. The Complaint alleges that the inspectors ordered Plaintiffs
to cease work and prohibited them from leaving the salon premises for
approximately two hours. (Doc. 1-1 at ¶¶ 8, 29). An order not to leave the business
premises for two hours can reasonably be understood to constitute a detention as
well as a seizure. Although the inspection was conducted according to regulatory
authority, the statutory provision put forth by the Defendants does not expressly
authorize inspectors to detain persons on the premises during inspections.
Accordingly, Plaintiffs have stated a plausible claim of false imprisonment against
Defendant Stockstill.
In contrast, the factual allegations of the Complaint do not support a claim of
false imprisonment against Defendant Margaret Keller. Plaintiffs allege that Keller

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entered the business of Plaintiff Hanh Hoang in April or May of 2012 with no prior
notice, “immediately went to the supply room and began talking on the phone . . .
consistently laughing and joking in the presence of Ms. Hoang and her patrons.”
(Doc. 1 at ¶ 9). According to Plaintiffs, Keller subsequently cited Hoang for
violations in a fine over $3,000. (Id.). There are no allegations of conduct rising to
the level of detention or seizure. In particular when considering the regulatory
authority of Keller to conduct LSBC inspections pursuant to La. R.S. § 37:575, these
actions, even if taken to be true, do not constitute a plausible claim for false
imprisonment.
Finally, Plaintiffs allege that “[w]ith belief, Ms. Cangelosi knowingly colluded
with Ms. Sherrie Stockstill, Margaret Keller, and other close-by inspectors . . . to
arbitrarily target . . . Asian and Vietanamese- salon owners for minor violations.”
(Doc. 44 at p. 8). Defendants argue that these are mere conclusory allegations that
Defendants discriminated against Plaintiffs based on race. The Court disagrees.
When the allegation of targeting salons based on race is considered in conjunction
with the other numerous and specific factual allegations regarding Stockstill’s and
Keller’s inspections and citations of various Plaintiffs’ businesses, (see Doc. 1-1 at
¶¶ 8–11, 15–16), the Court finds that the facts, when taken in the light most
favorable to Plaintiffs, support a plausible claim for racial discrimination in
violation of the Fourteenth Amendment.6

See Yick Wo v. Hopkins, 118 U.S. 356 (1886) (holding that a facially race-neutral law, when
administered in a prejudicial manner, is an infringement of the Equal Protection Clause of the
Fourteenth Amendment).
6

9

Accordingly, Defendant Stockstill’s 12(b)(6) motion to dismiss for failure to
state a claim is DENIED as to both claims. Defendant Keller’s 12(b)(6) motion to
dismiss for failure to state a claim is GRANTED IN PART, with respect to the
claim of false imprisonment, and DENIED IN PART, with respect to the claim of
racial discrimination in violation of the Equal Protection Clause of the Fourteenth
Amendment.
B. LSBC’s Eleventh Amendment Immunity
“Federal court jurisdiction is limited by the Eleventh Amendment and the
principle of sovereign immunity that it embodies.” Vogt v. Bd. of Comm'rs of
Orleans Levee Dist., 294 F.3d 684, 688 (5th Cir. 2002). Specifically, federal courts
have no jurisdiction “over suits against a state, a state agency, or a state official in
his official capacity unless that state has waived its sovereign immunity or
Congress has clearly abrogated it.” Moore v. La. Bd. of Elementary & Secondary
Educ., 743 F.3d 959, 963 (5th Cir. 2014) (citations omitted). “[T]he State's Eleventh
Amendment immunity will extend to any state agency or other political entity that
is deemed the ‘alter ego’ or an ‘arm’ of the State,” such that the state itself is “the
real, substantial party in interest.” Vogt, 294 F.3d at 688–89 (5th Cir. 2002).
Here, Defendants argue that the LSBC is an arm of the state, and is thus
entitled to immunity from suit under the Eleventh Amendment.7 There is no simple
test to determine whether a state agency is an arm of the state for purposes of
To the extent that Plaintiffs seek declaratory and injunctive relief against individual Defendants,
Defendants do not argue that the Eleventh Amendment bars those claims. “Despite [the sovereign
immunity] bar, a federal court may enjoin a state official in his official capacity from taking future
actions in furtherance of a state law that offends federal law or the federal Constitution.” Moore, 743
F.3d at 963.
7

10

Eleventh Amendment immunity, although the U.S. Court of Appeals for the Fifth
Circuit has traditionally relied on the following six factors to guide its analysis:
(1) Whether the state statutes and case law view the agency as an arm
of the state; (2) The source of the entity's funding; (3) The entity's
degree of local autonomy; (4) Whether the entity is concerned primarily
with local as opposed to statewide problems; (5) Whether the entity has
the authority to sue and be sued in its own name; and (6) Whether the
entity has the right to hold and use property.
See, e.g., Cozzo v. Tangipahoa Parish Council--President Gov't, 279 F.3d 273, 281
(5th Cir. 2002); Anderson v. Red River Waterway Comm'n, 231 F.3d 211, 214 (5th
Cir. 2000). Not all the factors are afforded equal weight. Indeed, the Fifth Circuit
has held that the second factor, the source of the entity’s funding, is the most
important factor. See Hudson v. City of New Orleans, 174 F.3d 677, 682 (5th Cir.
1999). Furthermore, “the last two factors weigh significantly less in the six factor
balance of equities.” Cozzo, 279 F.3d at 281 (5th Cir. 2002). Considering these
factors, discussed in detail below, the Court concludes that a suit against the LSBC
is not, in effect, a suit against the State of Louisiana.
1. State’s View
The Louisiana legislature, in establishing the LSBC under the Louisiana
Cosmetology Act (“the Act”), decreed that the LSBC “shall constitute a professional
association within the meaning of Article VII, Section 9 of the Constitution of
Louisiana.” La. R.S. § 37:563(2). Under Louisiana’s constitution, professional
associations are distinguished from state boards, agencies, and commissions, who
must deposit all money received immediately in the state treasury. See La. Const.
art. VII, § 9. Based on the Act’s designation of the LSBC as a professional
11

association and statutory differentiation between professional associations and
state boards, there is no indication that Louisiana would view the LSBC as an arm
of the state. Cf. Earles v. State Bd. of Certified Pub. Accountants of La., 139 F.3d
1033, 1037 (5th Cir. 1998) (finding that Louisiana would regard State Board of
Certified Public Accountants of Louisiana as part of state, when state statute
defined Board as “state agency within the Department of Economic Development”);
Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 186 (5th Cir. 1986)
(determining that state viewed Louisiana Department of Wildlife and Fisheries and
Louisiana Wildlife and Fisheries Commission as arms of state, when state statute
enumerated Department as part of “executive branch of state government,” and
Commission as part of that Department). Here the legislature was explicit in
separating the LSBC as a professional association unlike traditional state boards,
agencies, and commissions. This first factor weighs against the LSBC being
considered an arm of the state.
2. Source of Entity’s Funding
The Fifth Circuit has deemed this second factor the most significant “because
an important goal of the [E]leventh [A]mendment is the protection of states'
treasuries, the most significant factor . . . is whether a judgment against it will be
paid with state funds.” Richardson v. S. Univ., 118 F.3d 450, 455 (5th Cir. 1997)
(citation omitted).
The state legislature apparently contemplated the possibility that the LSBC
would receive an “annual or biennial appropriation,” although the Act permits the

12

receipt and expenditure of funds from parties other than the state. See La. R.S. §
37:575. In practice, it appears that in available documentation from the years 2004
to 2013, no money whatsoever has been appropriated to the LSBC through the
“State General Fund” or “State General Fund by interagency transfers.” (See Doc.
19-1). In every single year from 2004 through 2013, the LSBC’s total means of
financing has been accounted for by fees and self-generated revenues. (See id.).
Defendants’ lone argument that state law mandates the LSBC’s collection of fees
and regulates the limits of those fees, see La. R.S. § 37:599, does not address the
issue of whether LSBC’s funding is linked to the state treasury. On the pleadings
before the Court,8 it appears undisputed that any judgment against the LSBC
would not be paid from the state treasury. Thus, this factor, which is deemed most
important of the six, cuts against the Court finding the LSBC to be an arm of the
state.
3. Entity’s Degree of Local Autonomy
In the Fifth Circuit, “the vulnerability of the commissioners to the governor's
pleasure militates against a finding of local autonomy” but the Court must also
consider the “extent of the entity's independent management authority.”
Jacintoport Corp. v. Greater Baton Rouge Port Comm'n, 762 F.2d 435, 442 (5th Cir.
1985).
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). Plaintiffs attached a copy of LSBC budget summary statements,
obtained through a FOIA request, to their opposition to Defendants’ first 12(b)(6) motion to dismiss,
which they have adopted in their opposition to the instant 12(b)(6) motion to dismiss, so such budget
summary statements, which are central to the invocation of Eleventh Amendment immunity, are
properly within the scope of this Court’s consideration.
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Here, the eight LSBC board members are appointed by the governor, and
they serve at the pleasure of the governor. See La. R.S. § 37:571. Yet the legislature
affords the LSBC great latitude to, inter alia, “make necessary rules and
regulations” to effectuate the purpose of the Act;9 to enforce statutory provisions
“related to conduct and competence, including but not limited to revocation,
summary suspension, suspension, probation, reprimand, warnings, or fines”;10 to
“receive and expend funds . . . from parties other than the state” and keep such
funds “in a separate, special account”;11 and to “[e]mploy or contract for inspectors,
clerical help, legal assistance, and other personnel.”12 This third factor of local
autonomy does not cut neatly in either direction.
4. Scope of Entity’s Concerns
As to this fourth factor, “[l]imited territorial boundaries suggest that an
agency is not an arm of the state.” Vogt, 294 F.3d at 695 (5th Cir. 2002). See, e.g.,
Cozzo, 279 F.3d at 282 (finding sheriff’s department to be concerned with local
problems since sheriff's duties are “generally performed only within a single
parish”). The LSBC is concerned with controlling and regulating the practice of
cosmetology on a statewide, rather than local, scale. Nothing in the Act indicates
that board members or inspectors are limited in the concerns to the territory of a
district or other local subdivision. Qualifications for LSBC board members and

9

La. R.S. § 37:575A(2).

10

La. R.S. § 37:575A(8).

11

La. R.S. § 37:575B(4).

12

La. R.S. § 37:575B(7).

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examination team members reference only the requirements pertaining to the state.
See La. R.S. § 37:572 (every board member must be “duly qualified registered voter
of this state and shall have been domiciled in the state for at least twelve
consecutive months prior to appointment”) (emphases added); La. R.S. § 37:585
(examination team members must be “registered voters of the state and who have
been domiciled in the state for at least twelve consecutive months prior to
employment as examination team members”) (emphases added). Hence, with the
LSBC’s concern with statewide problems, the fourth factor supports a finding in
favor of Eleventh Amendment immunity.
5. Capacity to Sue and Be Sued
The Fifth Circuit counts this fifth factor against Eleventh Amendment
immunity if the entity has the ability to sue and be sued. Hudson v. City of New
Orleans, 174 F.3d 677, 691 (5th Cir. 1999). Here, the Louisiana legislature has not
expressly addressed whether the LSBC is authorized to sue and be sued in its own
name. The LSBC has been subject to suit in state court, although it has
inconsistently been sued both in its own name and as an entity through which to
sue the state. Compare Dural v. La. State Bd. of Cosmetology, 4 So. 3d 874 (La. Ct.
App. 2008), with Belt v. State, Through La. Bd. of Cosmetology, Commerce Dep't,
493 So. 2d 278, 280 (La. Ct. App. 1986), writ denied, 496 So. 2d 1044 (La. 1986).13
With no clear direction from the legislature and conflicting case law regarding the

The Court emphasizes that the Eleventh Amendment would only apply to bar suits in federal
court, the existence of state court lawsuits to which the LSBC was a party is not dispositive and
serves merely as guidance for the analysis of the multi-factor “state-arm test.”
13

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LSBC’s capacity to sue and be sued, this factors lends little guidance to our
Eleventh Amendment immunity inquiry.
6. Right to Hold and Use Property
The authorization for the LSBC to acquire, hold, and use property militates
against the LSBC being considered an arm of the state. See Voisin's Oyster House,
Inc. v. Guidry, 799 F.2d at 187. Here, the LSBC is afforded a wide range of rights
regarding property ownership and usage. The LSBC is responsible for maintaining
a permanent testing center, La. R.S. § 37:575A(1)(A), for which it may “purchase,
acquire, develop, expand, sell, lease, maintain, mortgage, borrow funds, or
otherwise contract with respect to immovable property and improvements thereon
as it may deem necessary or appropriate,” La. R.S. § 37:575B(10). Further, upon the
LSBC’s sale of immovable property, “the revenue derived from the sale shall be
retained by the [LSBC] and shall not be subject to reversion to the state general
fund.” La. R.S. § 37:575B(10). The LSBC’s rights and responsibilities concerning
property weigh against a finding of Eleventh Amendment immunity.
In sum, upon evaluation of the mixed indications given by the various factors
discussed above, the Court is led to the conclusion that the LSBC is not an arm of
the state. The question is a close one, but the Court is persuaded by the complete
absence of state funding, which the Fifth Circuit holds to be the most significant
factor, in addition to the statutory designation as a professional association,
ambiguity as to whether the LSBC has the capacity to sue and be sued, and the

16

LSBC’s authority to hold and use property. Thus, the Court finds that the LSBC is
not entitled to Eleventh Amendment immunity.
C. Individual Defendants’ Absolute or Qualified Immunity
Having concluded supra that all claims against Defendants Young and Hand,
as well as the false imprisonment claim against Defendant Keller, must be
dismissed in this matter, the Court proceeds to analyze whether Defendants
Stockstill and Keller, who are LSBC inspectors, are afforded the protections of
immunity against the remaining claims.14 In determining individual immunity, the
Court examines “the nature of the function performed, not the identity of the actor
who performed it.” Kalina v. Fletcher, 522 U.S. 118, 127, 118 S. Ct. 502, 508 (1997)
(Forrester v. White, 484 U.S. 219, 229 (1988)). Defendants Stockstill and Keller
contend that they are entitled to absolute immunity from claims arising from their
performance of quasi-judicial functions. In the alternative, the individual
Defendants argue that they are entitled to qualified immunity for Plaintiffs’ failure
to establish that Defendants violated Plaintiffs’ clearly established constitutional
rights.
1. Absolute Immunity
“‘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
The Court recognizes that the LSBC, whose structure was established by the state legislature,
does not lend itself to neat categorization as a government agency. Defendants, however, do not raise
any argument disputing that LSBC officials are subject to Section 1983 claims by virtue of their
operation “under color of any statute, ordinance, regulation, custom, or usage.” See 42 U.S.C. § 1983.
Thus, although the Court finds here that the LSBC is not an arm of the state under the Fifth
Circuit’s established test for Eleventh Amendment immunity, it assumes without deciding that
Section 1983 applies to individual LSBC officials and employees and, thus, proceeds to analyze the
merits of Defendants’ individual immunity defenses.
14

17

[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). 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 extends to counsel and
members of Texas Medical Board performing quasi-prosecutorial 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).
Here, Defendants Stockstill and Keller argue that their alleged actions in
their capacities as LSBC inspectors were quasi-judicial in nature. 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. Defendants have cited
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no authority—nor is the Court aware of any—entitling the functions of a regulatory
inspector to absolute immunity.
2. Qualified Immunity
Qualified immunity 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.” O'Neal v. Miss. Bd. of Nursing, 113 F.3d 62, 65 (5th Cir. 1997). Therefore
when qualified immunity is asserted as a defense, the Court must decide whether
the defendant official violated federal law that was clearly established at the time
she acted. See Pearson v. Callahan, 555 U.S. 223, 244 (2009).
a. False Imprisonment
In accordance with the Court’s findings supra, Plaintiffs’ false imprisonment
claim remains intact only against Defendant Stockstill, of the defendants who are a
party to the instant motion to dismiss. Defendants assert that Stockstill did not
violate a clearly established constitutional right because her alleged actions would
have been conducted as part of an LSBC inspection, pursuant to a business
regulatory scheme. In particular, Defendants cite New York v. Burger, 482 U.S. 691
(1987), in support of their position.15 Defendants argue that inspections of nail
salons by the LSBC, a state-established professional association, serve a substantial

Although owners of commercial premises in “closely regulated” industries have reduced
expectations of privacy, a warrantless inspection will be deemed to adhere for the traditional Fourth
Amendment standard of reasonableness only if: (1) there is a “substantial” government interest that
informs the regulatory scheme pursuant to which the inspection is made, (2) the warrantless
inspections are necessary to further the regulatory scheme, and (3) the statute's inspection program,
in terms of the certainty and regularity of its application, provides a constitutionally adequate
substitute for a warrant. Burger, 482 U.S. at 702–03 (1987).
15

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interest of promoting public health in accordance with the statutory obligation of
the LSBC to regulate the practice of cosmetology in Louisiana.
The Court is unpersuaded by Defendants’ argument on this point. Even
assuming without deciding that there exists here a substantial government interest
that informs the regulatory scheme pursuant to which the inspection is made,
wherein warrantless inspections are necessary to further the regulatory scheme,
Defendants have not shown that there is a “constitutionally adequate substitute for
a warrant” that limited the discretion of the inspectors and informed Plaintiffs that
the inspection, including the alleged two-hour detainment, was made pursuant to
law. Burger, 482 U.S. at 703 (“[T]he regulatory statute must perform the two basic
functions of a warrant: it must advise the owner of the commercial premises that
the search is being made pursuant to the law and has a properly defined scope, and
it must limit the discretion of the inspecting officers.”).
According to the Complaint, Defendant Stockstill entered Plaintiff Nguyen’s
business without a warrant, searched compartments and files, ordered Nguyen and
her employees to cease operations, and prohibited them from leaving the salon
premises for approximately two hours during an LSBC inspection. (See Doc. 1 at ¶
8). Absent a showing that the Louisiana Cosmetology Act or another statute
provides a constitutionally adequate substitute for a warrant that would render as
reasonable such a warrantless search by the LSBC, Plaintiffs have alleged that
Defendant Stockstill infringed upon a clearly established Fourth Amendment right
of freedom from unreasonable searches and seizures.

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Should the discovery process adduce additional facts that would demonstrate
that Defendant Stockstill was reasonable to make warrantless searches of salons, as
described in the Complaint, the Court will reconsider the question of Defendant
Stockstill’s qualified immunity upon a motion properly raised at a later time.
b. Racial Discrimination
With respect to the claims of racial discrimination, which remain intact
against Defendants Stockstill and Keller, the Court must clarify the degree to which
qualified immunity would shield Defendants from the claims lodged against them.
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 seeks no damages, but only declarative and injunctive relief in connection
with Plaintiffs’ constitutional claims of racial discrimination pursuant to § 1983.
(See Doc. 1-1 at ¶ 33). Accordingly, any assertion of qualified immunity with regard
to these claims is misplaced.

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IV.

CONCLUSION

Accordingly,
IT IS ORDERED that the Rule 12(b)(6) Motion to Dismiss Plaintiffs’
Complaint and First Amended and Supplemental Complaint (Doc. 57) filed
by Defendants Louisiana State Board of Cosmetology, Steve Young, Frances Hand,
Sherrie Stockstill, and Margaret Keller is GRANTED IN PART and DENIED IN
PART in accordance with the rulings herein.
Specifically,
IT IS ORDERED that Defendant LSBC’s Rule 12(b)(6) motion to dismiss
pursuant to the protections of Eleventh Amendment immunity is DENIED.
IT IS FURTHER ORDERED that Defendant Stockstill’s 12(b)(6) motion to
dismiss for failure to state a claim is DENIED; motion to dismiss based on absolute
immunity is DENIED; motion to dismiss based on qualified immunity with respect
to false imprisonment claims is DENIED WITHOUT PREJUDICE to reassert at
a later stage in the proceedings if applicable; and motion to dismiss based on
qualified immunity with respect to racial discrimination is DENIED.
IT IS FURTHER ORDERED that Defendant Keller’s 12(b)(6) motion to
dismiss for failure to state a claim is GRANTED with respect to Plaintiffs’ claim of
false imprisonment, but DENIED with respect to Plaintiffs’ claim of racial
discrimination in violation of the Fourteenth Amendment to the U.S. Constitution.
Plaintiffs’ claim for false imprisonment against Keller is hereby DISMISSED
WITH PREJUDICE.

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