McKee v. Duplantier et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DANIEL MCKEE 	CIVIL ACTION
VERSUS 	No. 	26-109
NEIL DUPLANTIER, ET AL. 	SECTION I
ORDER AND REASONS
Pro se plaintiff Daniel McKee (“plaintiff”) filed this lawsuit against defendants
Neil Duplantier, Shibu Varughese, and West Jefferson Hospital (the “Hospital”)
(collectively, “defendants”) for alleged injuries he suffered while under their care and
as a result of being “wrongfully discharged.”1 U.S. Magistrate Judge Currault granted
plaintiff’s 	request 	to 	proceed 	in 	forma 	pauperis2 and, 	pursuant 	to 	28 	U.S.C.
§ 1915(e)(2), screened and recommended plaintiff’s complaint be dismissed without
prejudice for lack of subject matter jurisdiction.3 Plaintiff filed an objection4 to the
report and recommendation. He also, separately, filed a “consolidated motion”5 for
(1) change of venue; (2) protective order; (3) preliminary injunction; and (4) sanctions.
The Court will address the objection and plaintiff’s consolidated motion in turn.
1 See generally R. Doc. No. 4.
2 R. Doc. No. 6.
3 See generally R. Doc. No. 8.
4 R. Doc. No. 12. Plaintiff’s objection to the report and recommendation was due on
March 5, 2026. See R. Doc. No. 8. However, the Court granted plaintiff’s motion for
extension of time to file objections on March 6, 2026, see R. Doc. No. 11, and plaintiff
filed his objection the same day, see R. Doc. No. 12. Plaintiff’s objection is, therefore,
timely.
5 R. Doc. No. 9.
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I. 	LAW & ANALYSIS
a. 	Subject Matter Jurisdiction
The report and recommendation found that the allegations in the complaint
were 	insufficient 	to 	support 	either 	diversity 	jurisdiction 	or 	federal 	question
jurisdiction.6 With respect to the latter, the report and recommendation noted that
“although Plaintiff checked the box marked ‘federal question’ and list[ed] ‘ADA,’” in
his complaint as the basis for jurisdiction, “he includes no factual allegations that
implicate a claim under the Americans with Disabilities Act” (“ADA”). It noted, for
example, that the complaint includes no allegations that establish that plaintiff
“suffers from a medical condition that would qualify as a disability under the ADA.”7
It instead found that plaintiff’s “factual allegations all appear to relate to alleged acts
of malpractice in his treatment and discharge relating to hip replacement surgery,”
which reflect only state law claims and cannot serve as the basis for federal question
jurisdiction.8
In his objection,9 plaintiff submits that federal question jurisdiction exists for
his claims pursuant to the ADA as well as the “Emergency Medical Treatment and
Active Labor Act (EMTALA), and federal regulations governing patient rights
established under the Social Security Act.”10
6 See R. Doc. No. 8, at 3–5.
7 Id. at 5.
8 Id. at 4; id. at 5 (“Plaintiff’s allegations are more properly characterized as claims
of medical malpractice, not a violation of Title III of the ADA.”); see also id. at 4
(noting that “all specified causes of action reflect only state law claims”).
9 R. Doc. No. 12.
10 Id. at 2.
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EMTALA “provides patients with a private cause of action for any personal
harm a patient suffers as a direct result of the hospital’s EMTALA violation.”
Guzman v. Mem’l Hermann Hosp. Sys., 409 F. App’x 769, 773 (5th Cir. 2011) (citing
42 U.S.C. § 1395dd(d)(2)(A)). “The act requires that participating hospitals give the
following care to an individual who is presented for emergency medical care: (1) an
appropriate medical screening; (2) stabilization of a known emergency medical
condition; and (3) restrictions on transfer of an unstabilized individual to another
medical facility.” Id. The term “transfer” means “the movement (including the
discharge) of an individual outside a hospital’s facilities at the direction of any person
employed by (or affiliated or associated, directly or indirectly, with) the hospital.” 42
U.S.C. § 1395dd(e)(4). “Congress enacted EMTALA to prevent ‘patient dumping,’
which is the practice of refusing to treat patients who are unable to pay.” Id. at 772
(internal quotations omitted).
EMTALA “is not a general federal malpractice statute.” Hao Liu v. Plano Med.
Ctr., 328 F. App’x 904, 905 (5th Cir. 2009). A plaintiff’s complaint alleging malpractice
and not allegations that “fall within the scope of § 1395dd,” may be properly dismissed
for lack of subject matter jurisdiction. See id. (finding that the district court did not
err by dismissing the plaintiff’s negligence claim, brought pursuant to EMTALA, for
lack of subject-matter jurisdiction). Whether the Court has subject matter over
plaintiff’s 	claims 	pursuant 	to 	EMTALA, 	therefore, 	depends 	on 	whether 	“the
complaint pled facts that support the EMTALA claims.” Gardner v. Huott, No. 13-
840, 2013 WL 12130310, at *2 (W.D. Tex. Dec. 13, 2013). The “claim need only be
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‘colorable’ to invoke federal question jurisdiction.’” WickFire, L.L.C. v. Woodruff, 989
F.3d 343, 352 (5th Cir. 2021).
It appears to the Court, at this stage,11 that plaintiff’s allegations support a
colorable EMTALA claim.12 Notably, plaintiff alleges that he “presented to the
Hospital with acute medical needs,” and he alleges that after an examination, it was
determined that his “condition required significant medical intervention and post-
11 In determining whether subject matter jurisdiction exists, this Court follows “the
general rule that courts should avoid merits analyses in determining jurisdiction.” In
re KSRP, Ltd., 809 F.3d 263, 267 (5th Cir. 2015); see also id. (“[C]ourts should analyze
their own authority to hear a case as a separate matter from whether that case
involves a viable claim.”). Although “a claim that invokes federal jurisdiction may
nonetheless be ‘dismissed for want of subject-matter jurisdiction if it is not colorable,
i.e., if it is immaterial and made solely for the purpose of obtaining jurisdiction’ or is
‘wholly insubstantial and frivolous,’” id. (quoting Arbaugh v. Y & H Corp., 546 U.S.
500, 513 n. 10 (2006)), the Court does not find that plaintiff’s claims are made solely
for the purpose of obtaining jurisdiction or wholly insubstantial and frivolous.
Nevertheless, the Court will entertain any challenges defendants may have to
jurisdiction or viability of plaintiff’s claims once they have been served and should
they wish to raise such challenges in their responsive pleadings.
12 The Court recognizes that the report and recommendation analyzed only whether
plaintiff’s claims support an ADA claim because that was the only federal statute
listed in plaintiff’s complaint and the Magistrate Judge did not have the benefit of
knowing that plaintiff was asserting an EMTALA claim. See R. Doc. No. 8, at 4–5.
However, because “pro se complaint[s] should be construed liberally,” and because
plaintiff’s allegations raise a colorable claim under federal law, the Court declines to
dismiss the complaint at this time and will allow plaintiff an opportunity to amend
his complaint to add his EMTALA claim. See Randall v. Reeves, 189 F.3d 466,
4661999 WL 511391, at *1 (5th Cir. 1999) (finding that the magistrate judge erred by
dismissing the pro se plaintiff’s claims for reasons related to the specific statute cited
by the plaintiff, rather than whether the complaint alleged a cause of action); cf.
Jackson v. Dep’t of Veteran’s Affs., No. 22-016, 2022 WL 18814745, at *3 (N.D. Tex.
Dec. 14, 2022), report and recommendation adopted, No. 22-016, 2023 WL 2144158
(N.D. Tex. Feb. 21, 2023) (finding that although the pro se plaintiff had “not sought
leave to do so, he should be provided an opportunity to amend his Complaint to correct
the deficiency” and name the correct defendant).
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discharge care.”13 Hospital medical providers determined that he was “unable to care
for himself” and that he should “be transferred directly from the Hospital to a skilled
nursing home facility upon discharge.”14 Yet, at some point thereafter, Hospital staff
“demanded that Plaintiff leave the premises immediately,” prior to receiving the
advised medical care.15 Plaintiff alleges that, due to his homeless status, he was
“discharged . . . directly out onto the street with no housing, no follow-up care, and no
resources to manage his severe medical conditions.”16
Although the Court takes no position as to the ultimate viability of plaintiff’s
EMTALA claim,17 the Court finds plaintiff’s allegations, particularly considering his
pro se status,18 are sufficient at this stage to support a finding that federal question
jurisdiction exists.
b. 	Plaintiff’s consolidated motion
The Court, however, denies the requests in plaintiff’s consolidated motion.
First, Magistrate Judge Currault ordered the Clerk of Court to withhold issuance of
summons pending completion of her review of plaintiff’s complaint.19 Accordingly, no
summons have been issued and defendants have not yet been served in this matter.
Additionally, plaintiff has not made any assertion that defendants have been given
13 R. Doc. No. 4 ¶¶ 18–19.
14 Id. ¶ 21.
15 Id. ¶¶ 23–27.
16 Id. ¶ 28.
17 See supra n. 11.
18 See Randall, 189 F.3d 466, 4661999 WL 511391, at *1.
19 See R. Doc. No. 6, at 3.
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notice of this lawsuit.20 As such, the Court finds that plaintiff’s motion for a
preliminary injunction is premature. See Buckler v. Austin, No. 22-368, 2023 WL
2557360, at *1 (W.D. Tex. Jan. 20, 2023) (declining to issue a preliminary injunction
where “the docket contain[ed] no indication that [the] [p]laintiff ha[d] served any of
the [d]efendants with process” and there was no evidence that the defendants were
“aware” of the plaintiff’s preliminary injunction motion); F ED. R. CIV . P. 65(a)(1) (“The
court may issue a preliminary injunction only on notice to the adverse party.”).
Likewise, with respect to plaintiff’s request for a protective order, the motion
does not certify that plaintiff has “in good faith conferred or attempted to confer with
other affected parties in an effort to resolve the dispute without court action,” as is
required by Federal Rule of Civil Procedure 26(c). See FED. R. CIV . P. 26(c)(1). The
Court will therefore, at this time, deny without prejudice plaintiff’s motion for a
protective order. See Hardy v. Scandinavian Airlines Sys., No. 21-1591, 2025 WL
416106, at *7 (E.D. La. Feb. 6, 2025) (Currault, M. J.) (“Failure to confer generally
serves as a basis for denying a discovery motion.”).21
The Court also denies plaintiff’s request to transfer to the Middle District of
Louisiana pursuant to 28 U.S.C. § 1404(a).22 First, plaintiff has failed to satisfy the
20 See generally R. Doc. Nos. 4, 8, 9.
21 In so deciding, the Court does not suggest that a protective order is appropriate in
this case. Cf. Hardy, 2025 WL 416106, at *7 (“[T]he privilege protecting medical
records from discovery is waived when the party places her medical condition at
issue.”). 	Particularly 	because 	the 	Court 	questions 	whether 	Rule 	26(c)—which
pertains to discovery-related protective orders—is an appropriate vehicle for the
“protective housing” that plaintiff seeks. See R. Doc. No. 9, at 4.
22 See R. Doc. No. 9, at 3.
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“preliminary question under § 1404(a),” which is whether venue is proper in the
Middle District of Louisiana. See In re Volkswagen of Am., Inc., 545 F.3d 304, 312
(5th Cir. 2008) (“The preliminary question under § 1404(a) is whether a civil action
‘might have been brought’ in the destination venue.”). None of the defendants reside
in the Middle District of Louisiana,23 see 28 U.S.C. § 1391(b)(1), and the only “events”
plaintiff points to as occurring in the Middle District of Louisiana are “the critical
examination 	and 	the 	creation 	of 	essential 	expert 	evidence,”24 see 	§ 1391(b)(2).
Importantly, it does not appear that these are the events “giving rise to his claims.”
See id. Plaintiff’s claims arise out of his treatment at, and allegedly improper
discharge from, the Hospital in Marrero, Louisiana, which is encompassed by this
judicial district.25
Moreover, even if the Court were to find that this case “might have been
brought” in the Middle District of Louisiana, § 1404(a), plaintiff has not met his
burden of showing “‘good cause’ for a transfer by ‘clearly demonstrating that a
transfer is for the convenience of parties and witnesses, in the interest of justice.’”
Gonzalez v. Sea Fox Boat Co., Inc., No. 18-7711, 2019 WL 414665, at *2 (E.D. La. Feb.
1, 2019) (Africk, J.) (quoting In re Volkswagen of Am., Inc., 545 F.3d at 315) (internal
alterations omitted). Although two of the factors the Court would consider are “the
relative ease of access to sources of proof” and “the cost of attendance for willing
23 See R. Doc. No. 4, at 2 (alleging that all defendants reside in Marrero, Louisiana).
24 R. Doc. No. 9, at 3.
25 	U NITED 	S TATES 	D ISTRICT 	COURT, 	EASTERN 	D ISTRICT 	OF 	LOUISIANA , 	Parish
Information, 	https://www.laed.uscourts.gov/court-information/parish-info 	(last
visited Mar. 11, 2026).
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witnesses,” see id., plaintiff’s motion to transfer is based solely on the fact that a single
non-party witness—the unnamed “medical examiner”—resides in Baton Rouge and
would have to “travel [and] transport[] necessary records and evidence from Baton
Rouge.”26 Furthermore, while a “plaintiff’s choice of forum is clearly a factor to be
considered” it is not “in and of itself . . . conclusive nor determinative.” In re Horseshoe
Ent., 337 F.3d 429, 434 (5th Cir. 2003). For these reasons, and in exercising its “broad
discretion in deciding whether to order a transfer,” the Court finds plaintiff has not
met his burden of showing “good cause” and declines to transfer the above-captioned
case. Id. (quoting Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir. 1998)).
Finally, plaintiff’s Rule 11 motion for sanctions does not assert that any
sanctionable conduct has occurred.27 Instead, plaintiff states that the Court “should
impose sanctions” if any party “interferes with this litigation.”28 Plaintiff seeks an
order from this Court “warning” the parties that improper actions are sanctionable.29
Plaintiff’s 	motion 	is 	both 	procedurally 	improper 	pursuant 	to 	Rule 	11,30 	and
premature.
26 R. Doc. No. 9, at 3.
27 See generally id.
28 Id. at 5.
29 Id. at 6.
30 See FED. R. CIV . P. 11(c)(1) (stating that “the court may impose an appropriate
sanction” only after the party against who sanctions are sought is given “notice and
a reasonable opportunity to respond”); see also FED. R. CIV . P. 11(c)(2) (“A motion for
sanctions must be made separately from any other motion and must describe the
specific conduct that allegedly violates Rule 11(b).”).
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II. 	CONCLUSION
Accordingly,
IT IS ORDERED that the Court DECLINES TO ADOPT the report and
recommendation.31
IT IS FURTHER ORDERED that plaintiff is GRANTED LEAVE TO
AMEND his complaint by MARCH 27, 2026, to add his EMTALA claim. Failure to
file an amended complaint may result in dismissal of plaintiff’s lawsuit.
IT 	IS 	FURTHER 	ORDERED 	that 	plaintiff’s 	consolidated 	motion32 	is
DENIED.
New Orleans, Louisiana, March 16, 2026.
_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
31 R. Doc. No. 8.
32 R. Doc. No. 9.
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