ORDERAND REASONS

The following motion is before the Court: Motion to Dismiss Under Rule 12(b)(1) for Lack of Subject Matter Jurisdiction and Under Rule 12(b)(6) for Failure to State a Claim (Rec. Doc. 17) filed by the defendant, John Bel Edwards, Governor of the State of Louisiana. The plaintiff, Clayton Cangelosi, opposes the motion. The motion, submitted for consideration on October 14, 2020, is before the Court on the briefs without oral argument. For the reasons that follow, the motion is granted.

I. Background

This case involves a constitutional challenge to Emergency Proclamation 89 JBE2020, issued by the defendant, John Bel Edwards, Governor of the State of Louisiana, on July 11, 2020, in response to the COVID-19 pandemic. The Governor issued the Proclamation to implement additional mitigation measures in an effort to slow the spread of infection in Louisiana. Section 4 of the Proclamation is a Face Covering Order, referred to colloquially as a "mask mandate" (at times hereinafter "the Mask EP"). The Mask EP requires every individual in Louisiana to wear a "face covering over the nose and mouth when inside a commercial establishment or any other building or space open to the public, whether indoor or outdoor." (Rec. Doc. 17-2, Exhibit 1 at 3 § 4(A)). The Mask EP is subject to several exceptions or exemptions. The Mask EP obligates businesses and organizations to require all persons who enter their premises to wear a face covering unless one of the enumerated exemptions applies to the individual. Under the Mask EP's enforcement provision, businesses and organizations that fail to enforce the mask requirement are subject to written citations. Id. § 4(D). The state-wide mask mandate, however, does not allow for governmental enforcement against individuals who fail to comply with the mask mandate.

On July 13, 2020, the plaintiff, Clayton Cangelosi, proceeding pro se, filed this action against the Governor in his official capacity. Cangelosi contends that the state-wide mask mandate 1) constitutes an unconstitutional infringement on his liberty and privacy rights in violation of the Fifth, Ninth, and Fourteenth Amendments to the United States Constitution (Count I), 2) violates his rights to freedom of speech and assembly and to petition his government under the First, Ninth, and Fourteenth Amendments to the United States Constitution (Count II), 3) constitutes an unconstitutional infringement of his fundamental right to travel in violation of the Fifth, Ninth, and Fourteenth Amendments to the United States Constitution (Count III), 4) constitutes an unconstitutional infringement of his right to control his own body and to make his own health decisions by restricting his access to fresh air in public in violation of the Fifth, Ninth, and Fourteenth Amendments to the United States Constitution (Count IV), and 5) violates state law (La. R.S. § 29:736(D)) (Count VI).

Plaintiff seeks relief for the foregoing alleged violations of federal law pursuant to 42 U.S.C. § 1983 (Count V). Plaintiff also seeks declaratory and injunctive relief, asking the Court to declare the Mask EP to be unconstitutional and permanently enjoining its enforcement. Plaintiff also seeks damages in the amount of $1,500,000.00 for the emotional distress and humiliation of being asked to leave the premises of certain businesses and harassed in public places due to the mask mandate.

Defendant now moves to dismiss the complaint in its entirety arguing that the claims do not satisfy the requirements for Article III standing and that the claims are barred by the Eleventh Amendment. Should any of Plaintiff's claims survive those obstacles, Defendant argues that the facts alleged fail to state a claim for a violation of any right guaranteed by the Constitution.

II. Discussion

Article III of the United States Constitution extends the judicial power of the United States to "cases" and "controversies." U.S. Const. art. III, § 2. It is now well-settled that Article III constitutes a constitutional limitation of federal court jurisdiction to actual cases or controversies. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Raines v. Byrd, 521 U.S. 811, 818 (1997)). Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. Id. The doctrine ensures that federal courts do not exceed their jurisdictional authority, and it does this by limiting the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong. Id. (citing Raines, 521 U.S. at 820; Valley Forge Christian Coll. v. Americans United for Separ. of Church & State, Inc., 454 U.S. 464, 473 (1982); Warth v. Seldin, 422 U.S. 490, 498-99 (1975)).

The jurisprudence of the Supreme Court has established that standing consists of three elements: the plaintiff must have 1) suffered an injury in fact, 2) that is fairly traceable to the challenged conduct of the defendant (causation), and 3) that is likely to be redressed by a favorable judicial decision. Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Friends of the Earth, Inc. v. Laidlaw Environ. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)). The plaintiff who files a complaint in federal court, as the party invoking federal jurisdiction, bears the burden of establishing these elements. Id. (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990)). In order to satisfy this burden at the pleading stage the plaintiff must clearly allege facts to satisfy each element of Article III standing. Id. (quoting Warth, 422 U.S. at 518). Moreover, the plaintiff must demonstrate standing separately for each form of relief that he seeks. Friends of the Earth, 528 U.S. at 185 (citing Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)).

Even where the requirements of Article III standing are met, the sovereign immunity conferred on the states by the Eleventh Amendment further limits the grant of judicial authority found in Article III of the Constitution. Pennhurst, 465 U.S. at 98. The Eleventh Amendment bars federal suits against a state, state agency, or a state official in his official capacity unless that state has waived its sovereign immunity. Corn v. Miss. Dep't of Pub. Safety, 954 F.3d 268, 274 (5^th Cir. 2020) (citing Bryan v. Tex. Dep't of Aging & Disability Servs., 781 F.3d 764, 769 (5^th Cir. 2015); Cozzo v. Tangipahoa Par. Council, 279 F.3d 273, 280-81 (5^th Cir. 2002)). A suit against a state official in his official capacity is not a suit against the official personally but rather is a suit against the official's office. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (citing Brandon v. Holt, 469 U.S. 464, 471 1985)). As such an official capacity suit is no different than a suit against the state itself. Id. (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Monell v. N.Y. City Dep't of Soc. Servs., 436 U.S. 658 (1978)). Therefore, the Eleventh Amendment "generally precludes actions against state officers in their official capacities." Cantu Servs., Inc. v. Roberie, 535 Fed. Appx. 342, 344 (5^th Cir. 2013) (quoting McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5^th Cir. 2004)).

An action against a state official in his official capacity may not be barred by the Eleventh Amendment if the doctrine recognized by the Supreme Court in Ex parte Young, 209 U.S. 123 (1908), applies. The Ex parte Young doctrine ensures that state officials do not "employ the Eleventh Amendment as a means of avoiding compliance with federal law." Cantu Servs., 535 Fed. Appx. at 344 (quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 113 S. Ct. 684, 688 (1993)). For Ex parte Young to apply, the claim must be brought against a state official in his official capacity and the relief sought must be "declaratory or injunctive in nature and prospective in effect." Id. (quoting Saltz v. Tenn. Dep't of Emp't Sec., 976 F.2d 966, 968 (5^th Cir. 1992)); Corn, 954 F.3d at 274. Furthermore, the state official must be committing an ongoing federal violation. Id. Finally, the state official who has been sued must have some connection with the enforcement of the allegedly unconstitutional law. Mi Familia Vota v. Abbott, --- F.3d --- , No. 20-50793, 2020 WL 6058290, at *4 (5^th Cir. Oct. 14, 2020) (citing In re Abbott, 956 F.3d 696, 708 (5^th Cir. 2020)).

Although standing is a jurisdictional issue and therefore should be resolved before considering more substantive issues, see Linda R.S. v. Richard D., 410 U.S. 614, 616 (1973), this case involves claims against a state official—the Governor of Louisiana—in his official capacity. As such, the Eleventh Amendment presents an obstacle to all aspects of Plaintiff's claims against the Governor. First, the claim against the Governor for monetary relief ($1,500,000.00) and any claims premised on violations of state law, whether statutory or constitutional, are dead on arrival without even considering the enforcement provisions of the Mask EP. Neither the claim for monetary relief, which constitutes non-injunctive retrospective relief, Corn, 954 F.3d at 274, nor the claims premised on state law fall within the Ex parte Young exception to Eleventh Amendment immunity, Pennhurst, 465 U.S. at 106 (1984) (recognizing that Ex parte Young only applies to claims premised on federal law); Corn, 954 F.3d at 275. As to the damages claims and state law claims the Eleventh Amendment bar is absolute and insurmountable. Thus, for those claims any discussion of standing or whether the plaintiff has pleaded a plausible claim for relief would be mere didactic exercises.

Second, as to the remainder of Plaintiff's claims, i.e., those premised on federal law for which the relief sought is injunctive and prospective in nature, the Eleventh Amendment also presents an obstacle for the following reasons. For the Ex parte Young exception to the Eleventh Amendment to apply, the state official that the plaintiff is seeking to prospectively enjoin must be responsible for or at least have some connection to the enforcement of the allegedly unconstitutional law. Referring to the specific provisions of the Mask EP, it becomes obvious that the Governor does not enforce the Mask EP—rather enforcement is carried out by the State Fire Marshal and the Governor's Office of Homeland Security and Emergency Preparedness. (Rec. Doc. 17-2, Exhibit 1 at 4 § 5). Thus, even if the Mask EP were violative of some federal right, an injunction issued against the Governor would not alleviate the violation of any right guaranteed under federal law because the Governor does not enforce the mandate against anyone including the plaintiff herein. Therefore, the essence of the injunction that Plaintiff seeks is one in which a federal court coerces the state's executive into countermanding an executive order issued under state law. Ex parte Young does not permit a federal court to take such action against the Governor and the exception does not save the remainder of Plaintiff's claims from the reach of the Eleventh Amendment.

Given however that the Mask EP is enforced by state officials who are within the executive branch of state government, and may very well be answerable to the Governor at some level, one may argue that even without a direct enforcement role the Governor has a "sufficient connection" with enforcement to open the door to the Ex parte Young exception to Eleventh Amendment immunity, at least insofar as the claims premised on federal law for which the relief sought is injunctive and prospective in nature are concerned. See Mia Familia Vota, 2020 WL 6058290, at *4 (citing In re Abbott, 956 F.3d at 708). But for those claims even if they escape Eleventh Amendment immunity, they fail based on Article III standing and the plaintiff's failure to state a claim upon which relief can be granted.

As to standing, because the Court must liberally construe a pro se litigant's pleadings, Coleman v. United States, 912 F.3d 824, 828 (5^th Cir. 2019) (citing Erickson v. Pardus, 551 U.S. 89 (2007), the Court will assume that the "injury" at issue for purposes of standing is not the monetary damages for distress and humiliation that crept into this case via the plaintiff's amended prayer for relief (Rec. Doc. 9)—injury allegedly committed by third parties that have no connection to the sole defendant in this case—but rather the alleged violation of Plaintiff's federal constitutional rights when business owners refuse to allow him to enter without wearing a face covering. In order to move past the injury in fact element of standing, the Court will ignore two not insignificant facts: the Mask EP itself cannot be and has never been enforced against the plaintiff by the only governmental actors authorized to enforce it; and the private business owners whose conduct the plaintiff is complaining about are not governmental actors whose conduct is limited by the Constitution. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

Assuming solely for the sake of argument that the plaintiff has pleaded an injury in fact chargeable to the sole defendant in this case, the standing requirements of causation and redressability remain problematic. The private businesses that have and will continue to enforce the Mask EP against the plaintiff are independent actors not before the Court and they are the parties that are directly regulated by the Mask EP. See Inclusive Communities Proj., Inc. v. Dep't of Treasury, 646 F.3d 649, 655-56 (5^th Cir. 2019) (quoting Lujan, 504 U.S. at 562). As the defendant has pointed out, a private business may refuse service to any person for any non-discriminatory reason, e.g., "No Shirt, No Shoes, No Service." (Rec. Doc. 17-1, Memorandum in Support at 10). Thus, while Plaintiff may question the efficacy of face coverings in preventing the spread of COVID-19, the owners of private businesses may not feel the same way. With or without the Mask EP being in effect, those business owners might very well require a face covering before entering their premises both for the protection of their employees and for the protection of their other patrons who might otherwise be disinclined to enter the premises if a face covering is not required. And even if this Court had some basis to legitimately enjoin enforcement of the mask mandate, which it does not, those business owners could very well continue to require the plaintiff to don a face covering before entering their premises. The proposition that an injunction against the Governor would relieve the plaintiff of having to wear a face covering in order to enter certain businesses is highly speculative. Inclusive Communities Project, 946 F.3d at 655 (explaining that redressability requires a showing that it is likely not just merely speculative that the injury will be redressed by a favorable decision). Thus, the causation and redressability elements of standing are not met here.

But even if Plaintiff could escape the obstacles presented by the Eleventh Amendment and problems with Article III standing, at the end of the day he fails to state a claim for relief under any legal theory because even if the business owners could be considered state actors for the purpose of requiring the plaintiff to wear a face covering, a specious proposition at best, the face covering requirement does not violate any right guaranteed by federal law. Simply, the claims grounded on violations of the Constitution and federal law are legally frivolous for the reasons explained by Judge Vance in her Order and Reasons addressing the same constitutional claims against Jefferson Parish President Sheng in conjunction with the parish's mask mandate. Cangelosi v. Sheng, No. 20-1989, 2020 WL 5960682, at *4 (E.D. La. Oct. 8, 2020).

Aside from the fatal flaws in his case that have already been discussed, Plaintiff simply ignores that when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some "real or substantial relation" to the public health crisis and are not "beyond all question, a plain, palpable invasion of rights secured by fundamental law." In re Abbott, 954 F.3d at 784 (quoting Jacobson v. Commonwealth of Mass., 197 U.S. 11, 31 (1905)). The Supreme Court's Jacobson decision instructs that all constitutional rights may be reasonably restricted to combat a public health emergency. Id. at 786. Thus, even if the facts pleaded had raised a plausible inference that a right guaranteed under federal law might be implicated by the Mask EP, Plaintiff cannot overcome the Jacobson hurdle, notwithstanding his own questioning of the efficacy of face coverings vis à vis COVID-19.

Accordingly, and for the foregoing reasons;

IT IS ORDERED that the Motion to Dismiss Under Rule 12(b)(1) for Lack of Subject Matter Jurisdiction and Under Rule 12(b)(6) for Failure to State a Claim (Rec. Doc. 17) filed by the defendant, John Bel Edwards, Governor of the State of Louisiana is GRANTED. The complaint is DISMISSED in its entirety as follows: All claims premised on federal law are dismissed with prejudice; all claims premised on state law are dismissed without prejudice.

November 3, 2020

/s/_________

UNITED STATES DISTRICT JUDGE

So that Plaintiff will not second guess the wisdom of suing the Governor in his official capacity only, the Court points out that because the Governor does not personally enforce the Mask EP and has had no personal involvement in any of the alleged deprivations that the plaintiff has sued upon, no claim against him would lie in his individual capacity. See Henley v. Simpson, 527 Fed. Appx. 303, 307-08 (5^th Cir. 2013) (unpublished) (explaining the folly of trying to evade the Eleventh Amendment by suing a state official in his individual capacity for claims that are actually official capacity claims).