A federal lawsuit against the state psychology board is continuing with arguments over exactly who is the Defendant, the psychology board or the state of Louisiana, a matter that takes on importance in light of the 2015 Supreme Court decision ruling that the North Carolina Dental Board did not share in immunity under the Eleventh Amendment. And, after arguments about the board’s immunity, a supplement was filed on January 5, asking to add the board’s Executive Director, an employee of the State, as a Defendant.
In August 2017, Dr. Eric Cerwonka filed a lawsuit in federal court against the Louisiana State Board of Examiners of Psychologists (LSBEP) alleging violations of his Constitutional rights. This followed a July 2017 ruling by 19th Judicial District Court Judge Michael Caldwell negating the LSBEP disciplinary decision against Cerwonka, in February 2017, on grounds that the board’s methods “… violated the Constitutional rights of Dr. Cerwonka.”
On January 12 the United States Magistrate Judge, Carol B. Whitehurst, ordered that the oral argument scheduled for January 17, on the Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim for Partial Summary Judgment, was canceled. She wrote “In the event the Court desires oral argument on the motion at a later date, the Court will contact the parties and schedule same.”
Written arguments, obtained from the federal records system, were filed in November 2017.
On November 13, counsel for the LSBEP, Attorney General, Jeff Landry, signed for by Jeremiah Sams, Assistant Attorney General, filed a “Motion to Dismiss.”
Sams wrote that the Defendant was “…incorrectly named by Plaintiff as the Louisiana State Board of Examiners of Psychologists,” the Defendant is the “State of Louisiana, through the Louisiana State Board of Examiners of Psychologists of the Department of Health and Human Services…” he wrote.
He cited limited jurisdiction of federal courts and lack of sufficient factual matter, and Eleventh Amendment Immunity, “Under the Eleventh Amendment, Plaintiff is barred from obtaining relief from the Board.” And, he wrote, “Alternatively, Plaintiff has failed to state a claim against the Board under 42 U.S.C. §1983, as the Board is not a ‘person’ under the meaning of §1983.”
In the “Motion to Dismiss,” Mr. Sams also wrote that, “Under the Eleventh Amendment of the United States Constitution, an unconsenting state is immune from any lawsuit seeking monetary damages or equitable relief brought in federal courts by her own citizens or by the citizens of another state …” And, he wrote, “The Board is an agency of the State of Louisiana.”
“The State of Louisiana has not waived its immunity from suit in the federal system,” wrote Sams. “Therefore, Plaintiff’s §1983 claims against the Board should be dismissed under the Eleventh Amendment.”
Attorney for Cerwonka, Brown Sims attorney Mr. L. Lane Roy, wrote in the “Opposition of Plaintiff to Defendant’s Motion to Dismiss,” filed on November 30, 2017:
“Defendant, erroneously stated in its Motion to Dismiss as the ‘State of Louisiana, through the Louisiana State Board of Examiners of Psychologists of the Department of Health and Human Services’, and actually, and legally, the ‘Louisiana State Board of Examiners of Psychologists’ …”
Regarding the Defendant’s claim for Eleventh Amendment Immunity, Roy wrote, “ The basis
for that claim is the unproven, and baseless statement that the Defendant is really the State of Louisiana. Here, when the Defendant seeks dismissal based upon immunity of the State, it must prove that the Board is the State of Louisiana. The contrary is correct.”
“Defendant’s assertion in citations, particularly on page four of Defendant’s brief, refers to cases that have no relationship to the present one.”
And, “Contrary to the Defendant’s argument, Cerwonka sues under 28 U.S.C.§1331 and §1343.” […]
“These two sections clearly apply hereto. It is precisely what we ask here. Further, we do not sue the State of Louisiana, which is not a defendant, has not been a defendant, and was not a plaintiff in the underlying prosecution of the case against Dr. Cerwonka resulting originally in the loss of his license to practice psychology.”
Later in the brief, Roy writes, “An important case for this Court’s consideration on the issue of the Eleventh Amendment Immunity is the United States Supreme Court decision in the matter of North Carolina State Board of Dental Examiners vs. Federal Trade Commission, 135 Sup. Ct.1101(2015). While the North Carolina State Board case
involves as one of its principal issues federal anti-trust laws, one of the main topics decided by the court was whether the State of North Carolina possessed Eleventh Amendment immunity from application of the federal law and its being subject to suit before the federal courts. In a lengthy discussion, the court found that North Carolina did not possess Eleventh Amendment immunity.” […]
“Here, there is absolutely no showing whatever that the State of Louisiana had active control over the Board in this matter and in fact, the exact opposite is correct.”
In another section of the Attorney General’s “Motion to Dismiss,” Sams writes, “Alternatively, Plaintiff has failed to state a claim against the Board under 42 U.S.C. §1983, as the Board is not a “person” under the meaning of §1983.
“To state a claim under §1983, a plaintiff must establish that a person, acting under color of law, deprived him of some constitutional right.
“State agencies and state officials acting in their official capacity are not ‘persons’ within the meaning of the statute, and it is a well settled point of law that a state is not capable of being sued under 42 U.S.C. § 1983, as the state is not a “person” under 42 U.S.C. §1983.34” […] “Accordingly, Plaintiff’s §1983 claims against the Board should be dismissed.”
In response, Roy wrote, “The problem with the argument is that nothing here in the Petition, nothing in Motion and Memorandum filed by the Defendant’s herein, intimate in any way, much less prove, that the agency defendant is in fact a state agency or a state official. In fact the opposite is true. The State has virtually no control of this agency as shown by the decisions that its rendered in this matter, not involving a state person but private attorneys hired for the persons, private investigators, private members of the community acting as judges at the hearing before the Board, private employees acting as persons, though illegally, who made decisions on interim suspension without a hearing whatsoever.”
On January 5, Mr. Roy filed an “Amended and Supplemental Suit for Damages for Violation of Civil Rights,” with Judge Rebecca F. Doherty identified as the Judge.
The amendment seeks to add an additional Defendant, Jamie Monic, executive director and employed of the State of Louisiana and who, the claim alleges, took actions “reserved to be taken only by a majority vote of the Board itself.” And that she “… frequently acted as the Board in connection with matters addressable in this lawsuit.”