Miller v. Rosado et al

Filing 94

OPINION AND ORDER: The Court hereby GRANTS Defendant's 73 Cross-Motion for Summary Judgment and DENIES Plaintiff's 53 Second Motion for Summary Judgment. The Court DIRECTS the Clerk of Court to ENTER JUDGMENT in favor of Defendants Debra Rosado and Dr. John J. Wernert and against Plaintiff Kevin Miller. Signed by Magistrate Judge Paul R Cherry on 8/4/2017. (Copy mailed to pro se party)(jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KEVIN MILLER,
Plaintiff,

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)
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v.
DEBRA G. ROSADO and
JOHN J. WERNERT,
Defendants.

CAUSE NO.: 2:15-CV-291-PRC

OPINION AND ORDER
This matter is before the Court on (1) Plaintiff’s Second Motion for Summary Judgment [DE
53], filed by Plaintiff Kevin Miller on September 12, 2016, and (2) Defendant’s[sic] Cross-Motion
for Summary Judgment [DE 73], filed by Defendants Debra Rosado and Dr. John J. Wernert on
December 5, 2016. The motions were fully briefed on January 18, 2017. On June 23, 2017, the Court
ordered additional briefing on the issue of Eleventh Amendment immunity, the briefing of which
was complete on July 28, 2017.
PROCEDURAL BACKGROUND
Plaintiff Kevin Miller filed his Complaint, pro se, against Debra Rosado (Administrative
Law Judge) and Joseph Moser (Director of Medicaid for Indiana) on August 5, 2015. With the
Complaint, Plaintiff filed Exhibits 1, 2, 3, and 4. Plaintiff filed a First Amended Complaint on
November 3, 2015. On December 7, 2015, Defendants filed a Motion to Dismiss for failure to state
a claim.
On December 21, 2015, Plaintiff filed a Motion for Summary Judgment, including a 23-page
Exhibit. (ECF 25). That date, Plaintiff also filed a sworn Declaration, dated December 15, 2015, in
support of the Motion for Summary Judgment. (ECF 26). On January 7, 2016, the Court stayed the

briefing on Plaintiff’s Motion for Summary Judgment pending a ruling on Defendants’ Motion to
Dismiss.
On April 4, 2016, the Court granted in part and denied in part the Motion to Dismiss,
dismissing without prejudice Plaintiff’s Americans with Disabilities Act and Rehabilitation Act
claims. Plaintiff’s procedural due process claims brought under 42 U.S.C. § 1983 remain pending.
Defendants filed an Answer on April 21, 2016.
On April 28, 2016, the Court denied without prejudice and with leave to refile Plaintiff’s
Motion for Summary Judgment and set discovery deadlines.
On September 12, 2016, Plaintiff filed the instant Second Motion for Summary Judgment,
citing Exhibits 1, 2, 3, and 4 submitted with his Complaint. See (ECF 53; ECF 1-1, 1-2, 1-3, 1-4).
The Court stayed briefing on the Second Motion for Summary Judgment to allow for rulings related
to discovery.
On September 16, 2016, the Court substituted Dr. John J. Wernert, Secretary of the Indiana
Family Social Services Administration (FSSA), for Joseph Moser, Director of Medicaid for Indiana,
as the correct supervisory government official for Plaintiff’s claim.
On December 5, 2016, Defendants filed the instant Cross Motion for Summary Judgment
and a combined brief in support of their Cross Motion for Summary Judgment and in response to
Plaintiff’s Second Motion for Summary Judgment.
On January 3, 2017, Plaintiff filed a response to the Cross Motion for Summary Judgment
and a reply in support of his Second Motion for Summary Judgment.
On January 18, 2017, Defendants filed a reply in support of their Cross Motion for Summary
Judgment.

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On June 23, 2017, the Court issued an Opinion and Order setting a schedule for the parties
to brief the issue of Eleventh Amendment immunity in this case. Defendants filed their brief on July
7, 2017. Plaintiff filed his response brief on July 21, 2017, and Defendants filed their reply brief on
July 28, 2017.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure require that a motion for summary judgment be granted
“if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Rule 56 “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). “Summary judgment is appropriate when no material fact is disputed and the
moving parties are entitled to judgment as a matter of law, meaning that no reasonable jury could
find for the other party based on the evidence in the record.” Carman v. Tinkes, 762 F.3d 565, 566
(7th Cir. 2014).
A party seeking summary judgment bears the initial responsibility of informing the court of
the basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, that it believes
demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed. R.
Civ. P. 56 (a), (c). The moving party may discharge its initial responsibility by simply
3

“‘showing’—that is, pointing out to the district court—that there is an absence of evidence to
support the nonmoving party’s case.” Celotex, 477 U.S. at 325; see also Spierer v. Rossman, 798
F.3d 502, 508 (7th Cir. 2015). When the nonmoving party would have the burden of proof at trial,
the moving party is not required to support its motion with affidavits or other similar materials
negating the opponent’s claim. Celotex, 477 U.S. at 323, 325; Spierer, 798 F.3d at 507-08;
Modrowski v. Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013).
“Once the moving party puts forth evidence showing the absence of a genuine dispute of
material fact, the burden shifts to the non-moving party to provide evidence of specific facts creating
a genuine dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The non-moving party
cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See
Fed. R. Civ. P. 56(c)(1), (e); Flint v. City of Belvidere, 791 F.3d 764, 769 (7th Cir. 2015) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party must “do more
than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)
(1986)). Rule 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails
to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion
and supporting materials—including the facts considered undisputed—show that the movant is
entitled to it . . . .” Fed. R. Civ. P. 56(e); see also Anderson, 477 U.S. at 248-50.
In viewing the facts presented on a motion for summary judgment, a court must construe all
facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor
of that party. See Anderson, 477 U.S. at 255; McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765
(7th Cir. 2014); Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009). A court’s role is not to
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evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth
of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson,
477 U.S. at 249-50.
PLAINTIFF’S EVIDENTIARY OBJECTION
On January 3, 2017, Plaintiff filed an “Objection to Evidence,” (ECF 82), in which Plaintiff
objects to Defendants’ submission of the recording of the April 9, 2015 hearing before ALJ Rosado
and Defendants’ submission of the transcript of that recording. Plaintiff asserts that the recording
is not the original, that the recording Defendants submitted changes the outcome of the hearing in
the record, and that “[t]his is not the Plaintiffs April 9, 2015 recording of the hearing and the
transcript is not original either.” (ECF 82, p. 2). However, Plaintiff does not state what was changed,
he does not state that the voice on the recording is not his, and he offers no evidence (such as a
declaration or affidavit) in support of these assertions. The Court has listened to the recording, and
the transcript accurately transcribes the recording. It appears that this objection is based on the fact
that ALJ Rosado restarted the recording once Kathryn Houseworth was present for the hearing and
on Plaintiff’s misunderstanding that the case was going to be “remanded,” although the word
“remand” was never used at the hearing, as discussed in more detail below. (ECF 78-1, Ex. AA).
To the extent Plaintiff objects that Defendants submitted a copy, rather than the original, of the
recording and transcript for purposes of the summary judgment, to submit an accurate copy of the
recording is not improper. Plaintiff has not shown that Defendants will be unable to produce an
original or authenticated copy. See Fed. R. Civ. P. 56(c)(2). The Court OVERRULES Plaintiff’s
objection.

5

MATERIAL FACTS1
1.

Applications for Medicaid Disability
On March 25, 2013, the Indiana Family and Social Services Administration (FSSA) sent

Plaintiff Miller a “Pending Verifications for Applicants/Recipients” form in his case number
1056017336, giving him a deadline of April 8, 2013, to submit proof of “Unearned Income.” (ECF
77-2, Ex. B). All subsequent applications and notices relevant to this case and outlined below, other
than related to an appeal, are in Plaintiff’s same case number 1056017336. Also on March 25, 2013,
FSSA sent Plaintiff a separate “Pending Verifications for Applicants/Recipients” form in the same
case number, giving Plaintiff a deadline of April 8, 2013, to submit proof of “Bank
Accounts/Financial Holdings.” (ECF 77-3, Ex. C).
Beginning May 1, 2013, Plaintiff was approved by FSSA for Medicaid Disability with a
monthly “spend-down amount.” (ECF 77-4, Ex. D). Beginning November 1, 2013, Plaintiff was
eligible for Medicaid without a spend-down due to a decrease in income. (ECF 77-5, Ex. E).
On January 16, 2014, FSSA mailed Plaintiff a notice that it was time to review his eligibility
for SNAP benefits (previously known as “food stamps”) and for medical coverage. See (ECF 77-6,
Ex. F). The notice informed Plaintiff that a telephone interview was scheduled for February 6, 2014,
at 9:30 a.m. Id. The notice further explained that the SNAP benefits would end effective March 1,
2014. Id.

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In his Second Motion for Summary Judgment, Plaintiff cites “the evidence presented and previously submitted in the
case exhibits 1, 2, 3, 4 and the brief filed in support of this motion.” (ECF 53). Plaintiff’s Exhibits 1-4 are attached to
Plaintiff’s Original Complaint. See (ECF 1). In addition, Plaintiff filed his written responses to Defendants’ discovery
requests as required by Northern District of Indiana Local Rule 26-2, and those documents are before the Court as part
of the record. See (ECF 43); Fed. R. Civ. P. 56(c)(3).

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On February 25, 2014, Plaintiff executed a “Summary of Eligibility Information Client
Certification for Food Stamps” form, which provided redetermination information. (ECF 77-7, Ex.
G).
On May 28, 2014, FSSA mailed Plaintiff a notice that, effective July 1, 2014, Plaintiff’s
Medicaid would be discontinued because his “condition has improved significantly. It is no longer
considered to be substantial enough to satisfy the definition of disability in state rules.” (ECF 77-8,
Ex. H, p. 2) (citing 405 I.A.C. § 2-2-3). The same notice indicated that his SNAP benefits would
continue without change, explained his right to appeal, and provided an appeal form. Id.
On June 5, 2014, FSSA issued a “Notice - Receipt of Appeal” with appeal number
4000287250, informing Plaintiff that his appeal had been received and that he would be sent a
hearing scheduling notice. (ECF 77-9, Ex. I).
On June 6, 2014, FSSA sent Plaintiff a “Notice of Hearing” in his appeal in case number
4000287250 (which arose from his Medicaid Disability case number 1056017336), setting the
hearing for July 15, 2014, at 1:30 p.m. (ECF 77-10, Ex. J) (citing 42 C.F.R. § 431.200 et seq./405
I.A.C. § 1.1-1 et seq.). The notice explained how to request a continuance of the hearing, including
that good cause must be shown under 470 I.A.C. § 1-4-3(j) or 405 I.A.C. § 1.1-1-3(d), that the
request be made in writing, that the request be made known to all parties, and that the request
include two suggested hearing dates acceptable to all parties. Id. The notice warns that failure to
appear at the scheduled hearing with no advance notice will result in a dismissal of the appeal. Id.
On June 27, 2014, FSSA received a note from Plaintiff asking to reschedule his July 15, 2014
hearing because his attorney was “unwilling to go that day.” (ECF 77-11, Ex. K). Plaintiff requested
that the hearing date be rescheduled for July 21, 2014, or July 25, 2014. Id. On July 25, 2014, FSSA
mailed Plaintiff a “Notice of Dismissal” that provided: “The appeal request in this matter is
7

dismissed. The appellant did not appear at the scheduled hearing and no evidence of good cause for
failure to appear has been offered.” (ECF 77-12, Ex. L).
On August 4, 2014, FSSA sent Plaintiff an “Important Notice About Your Benefits,”
explaining that, effective September 1, 2014, Plaintiff’s Medicaid benefits would be discontinued
due to “implementation of hearing decision” and because Plaintiff’s “condition has improved
significantly. It is no longer considered to be substantial enough to satisfy the definition of disability
in state rules.” (ECF 77-13, Ex. M, p. 2) (citing Ind. Code § 12-15-28-7; 405 I.A.C. § 2-2-3).
Plaintiff’s SNAP benefits were not affected.
On November 24, 2014, Plaintiff reapplied for Medicaid in the same underlying Medicaid
Disability case number 1056017336. See (ECF 77-14, Ex. N, p. 2).
On December 4, 2014, FSSA mailed Plaintiff a notice titled “Verificaciones Pendientes Para
Postulantes/Beneficiaros - Healthy Indiana Plan.” (ECF 77-15, Ex. O). The notice was in Spanish.
Id.
On December 19, 2014, FSSA mailed Plaintiff a form titled “Pending Verifications for
Applicants/Recipients,” requesting information from Plaintiff. (ECF 77-16, Ex. P); (ECF 43-1, pp.
84-85). The forms gave Plaintiff until January 2, 2015, to provide the documents. (ECF 77-16, Ex.
P); (ECF 43-1, pp. 84-85). The notice warns that a failure to provide the information will result in
the benefits being denied or discontinued. (ECF 77-16, Ex. P); (ECF 43-1, pp. 84-85). The form asks
Plaintiff to provide proof of “Shelter Expense,” “Identity,” “Bank Accounts/Financial Holdings,”
“Vehicles,” “Lump Sum Payment,” and “Notice Regarding Rights and Responsibilities.” (ECF 7716, Ex. P); (ECF 43-1, pp. 84-85).
On January 12, 2015, FSSA sent Plaintiff an “Important Notice About Your Benefits.” (ECF
77-14, Ex. N); see also (ECF 43-1, p. 102-108). The Notice informed Plaintiff that his November
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24, 2014 application for Medicaid was denied because “individual does not have a social security
administration (SSA) disability determination or social security disability insurance
(SSDI)/Supplemental Security Income (SSI) application on file,” “failure to cooperate in verifying
the value of resources,” “failure to provide all required information,” “value of resources exceeds
program eligibility standard,” and “income exceeds program eligibility standards.” (ECF 77-14, Ex.
N., p. 2); (ECF 43-1, p. 102).
On January 15, 2015, Plaintiff reapplied for Medicaid Disability in the same case number.
See (ECF 1-1, pp. 7, 8); (ECF 1-3). On January 21, 2015, FSSA sent Plaintiff an “Appointment
Notice,” informing Plaintiff that he was scheduled for a phone interview on January 28, 2015, at
8:15 a.m. (ECF 77-18, Ex. R); (ECF 43-1, p. 156).
On January 28, 2015, FSSA sent Plaintiff a one-page “Pending Verifications for
Applicants/Recipients,” requesting that Plaintiff provide proof of “Shelter Expense,” “Bank
Accounts/Financial Holdings,” “Summary of Eligibility Redetermination Information,” “Client
Certification for Food Stamps,” and “Notice Regarding Rights and Responsibilities.” (ECF 1-3, p.
7). The notice gave Plaintiff until February 10, 2015, to submit the information. Id.
On January 28, 2015, FSSA sent Plaintiff a two-page “Pending Verifications for
Applicants/Recipients,” requesting that Plaintiff provide proof of “Bank Accounts/Financial
Holdings,” “Vehicles,” “Life Insurance,” “Unearned Income,” “Lump Sum Payment,” and “Release
of Medical Information.” (ECF 43-1, pp. 158-59, 160). The notice gave Plaintiff until February 10,
2015, to submit the information. Id. at pp. 158, 160.
On January 30, 2015, FSSA sent Plaintiff a separate one-page “Pending Verifications for
Applicants/Recipients,” requesting that Plaintiff provide proof of “Requirement to File for Social

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Security Disability Benefits.” (ECF 1-3, p. 6). The notice gave Plaintiff until March 2, 2015, to
submit the information. Id.
On March 2, 2015, FSSA sent Plaintiff a notice informing him that the Medicaid Medical
Review Team (MRT) had determined that Plaintiff did not meet the Medicaid Disability criteria.
(ECF 77-19, Ex. S); (ECF 77-20, Ex. T); (ECF 1-3, p. 9). The notice further provided: “This is not
an official notice of denial. This letter serves as a piece of the official notice that will be sent to you
when the Division of Family Resources takes action on your case. That notice will explain your
appeal rights.” (ECF 77-19, Ex. S) (emphasis added); (ECF 77-20, Ex. T); (ECF 1-3, p. 9). The
March 2, 2015 MRT notice explained that Plaintiff stated in his application that he was disabled due
to bodily injury (knee, arm, wrist, back, and neck); that the medical evidence indicated a diagnosis
of “ruptured or herniated disc”; and that the MRT evaluated medical evidence from the dates
10/2/2013 – 11/19/2015 from Dr. Julian Ungar-Sargon. (ECF 77-19, Ex. S); (ECF 77-20, Ex. T);
(ECF 1-3, p. 9). The notice states that Plaintiff was considered “not disabled” and an explanation
is given: “Your impairment is considered to last for a continuous 12 month period; however, the
social and medical information that was submitted does not confirm that your condition substantially
impairs your ability to perform labor, services, or engage in a useful occupation.” (ECF 77-19, Ex.
S); (ECF 77-20, Ex. T); (ECF 1-3, p. 9).
On “March 4, 2015,” FSSA sent Plaintiff a letter informing him that it had tried to contact
him on “March 9, 2015, and on March 10, 2015,” concerning Plaintiff’s DFR Mailbox
correspondence. (ECF 77-21, Ex. U); (ECF 1-3, p. 8); (ECF 43-2, p. 1). The letter provides:
Per our records it indicates that you were denied for Medicaid Disability by our
Medical Review Team on 03/02/2015. You should have received a notice in the mail
and if you do not agree with the decision [that] was made by our Medical Review
Team you do have the right to appeal the decision that was made.
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However; you were approved for another category of medical in[sic] which will start
effective 04/01/2015 in[sic] which is our new HIP 2.0 medical coverage. You should
receive further information in the mail concerning your coverage for that category.
(ECF 77-21, Ex. U) (emphasis added); (ECF 1-3, p. 8) (same).
On March 5, 2015, FSSA sent Plaintiff an “Important Notice About Your Health Coverage”
in relation to his January 15, 2015 application, advising him that he was approved for the Healthy
Indiana Plan (HIP) Plus program. (ECF 77-22, Ex. V).
In his sworn Declaration, Plaintiff states, “I called in and complained. In March of 2015 I
was waiting for the official denial because it comes with the appeal form. The denial never came
so I had wrote my own appeal letter. I wasn’t sure it was sufficient so I sent in a old food stamp
appeal form.” (ECF 26, p. 3, ¶ 6). “I didn’t get an appeal letter so I couldn’t appeal the denial.” Id.
p. 4, ¶ 9b.
On March 17, 2015, FSSA received Plaintiff’s handwritten “Appeal Request” with the case
number 1056017336 written at the top. (ECF 1-3, p. 12); (ECF 43-2, p. 6); see also (ECF 77-23, Ex.
W, p. 5). The appeal provides: “I wish to appeal the action to deny, stop or reduce my Benefits. I
am appealing my denial of Medicaid Disability Insurance Case #1056017336. I understand that a
fair hearing will be scheduled for me and that I will be able to explain why I disagree with the action
taken on my benefits.” (ECF 1-3, p. 12).
On March 20, 2015, FSSA received a computer-generated “Appeal Form” for Plaintiff in
the same case, dated March 19, 2015, which also states that Plaintiff “wishes to appeal the action
to deny stop or reduce my benefits. . . . I understand that a fair hearing will be scheduled for me and
that I will be able to explain why I disagree with the action taken on my benefits.” (ECF 1-3, p. 13).
The “Date of Notice” on the “Appeal Form” is March 5, 2015. Id.

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2.

April 9, 2015 Hearing
On April 9, 2015, an administrative hearing was held on Plaintiff’s appeal. (ECF 77-23, Ex.

W). Defendant Debra J. Rosado was the Administrative Law Judge who presided over the hearing.
Id. at p. 8; (ECF 78-1, Ex. AA, p. 1). Kathryn Houseworth represented the State of Indiana. Id.
ALJ Rosado used a hand-held tape recorder to record the hearing. (ECF 78-2, Ex. BB, pp.
11-12). ALJ Rosado started the recorder when Plaintiff came into the hearing room before she
started asking him questions. Id. Plaintiff then told ALJ Rosado about getting injured at work, that
he was homeless, and that FSSA did not use all his medical records. Id. ALJ Rosado decided to look
for some information on the internet. Id. While Plaintiff was looking for the web address to give to
ALJ Rosado, ALJ Rosado saw one of Plaintiff’s papers notifying him that he had been approved for
the Healthy Indiana Plan. Id. When Houseworth came on the phone, ALJ Rosado stopped and then
restarted the tape recording. Id.
After the recording was restarted, ALJ Rosado noted that Plaintiff received adequate and
timely notice of the action on January 12, 2015, but that the Hearings and Appeals department
received his request for a hearing on March 17, 2015, which was untimely as it was past the thirtythree days allowed for a medical appeal. (ECF 78-1, Ex. AA, p. 2). ALJ Rosado asked Plaintiff why
his appeal was late. Id. Plaintiff responded that he only became aware of the denial after he received
the March 2, 2015 notice from the Medical Review Team. Id.
Houseworth stated that the official notification from FSSA was never mailed to Plaintiff. Id.
at p. 4.
Then the following exchange occurred between ALJ Rosado and Plaintiff:
ALJ:

Okay. So then, I am going to address the issue that the notice – the last
official notice that was sent was January 12th and the day you appealed was
on March the 17th, which is untimely. But, I also need to ask you, Mr.
12

Miller, do you waive your right to proper notification, in which case it means
that the State will not be sending you the notice telling you that your
impairment and all that information from the Medical Review Team, and if
you do waive your right to proper notification, then the appeal that you filed
is basically untimely. So you may want to get that notice.
KEVIN MILLER:
ALJ:

Okay, if you don’t waive your right to official notice, then the hearing is
going to be dismissed and you’ll be receiving a – a notice from the state
telling you that – the reason you were denied.

KEVIN MILLER:
ALJ:

And then I’ll have a right to appeal?

And then you’ll have your rights to appeal.

KEVIN MILLER:
ALJ:

Okay, so I don’t want to waive it, waive my right.

Thank you, your honor.

Is that what you want?

KEVIN MILLER:

Yes.

(ECF 78-1, Ex. AA, p. 4-5).
Houseworth then asked ALJ Rosado to repeat the action that was being taken, and ALJ
Rosado stated:
ALJ:

The hearing is going to be dismissed, the Appellant is . . .

KATHRYN HOUSEWORTH: Okay.
ALJ:

. . . not waiving his right to proper notification, so a decision, I mean, a
decision will be sent to both parties and it will instruct the State as to what
they need to do which is basically to send him the notification…

KATHRYN HOUSEWORTH:
ALJ:

. . . as to why his medical disability application was denied. And then he will
...

KATHRYN HOUSEWORTH:
ALJ:

Right.

Okay.

. . . have full appeal rights at that point.”
13

Id. at p. 6.
3.

The Hearing Decision
On May 14, 2015, ALJ Rosado issued a written “Notice Hearing Decision.” (ECF 1-3, p.

15); (ECF 43-2, pp. 54-59); (ECF 77-23, Ex. W, p. 5). The Hearing Decision states that the “Issue”
for the hearing was: “The original issue under appeal was the Appellant’s eligibility for Medical
Assistance to the Disabled (“MA D”); however, this issue was not addressed as the only issue was
determined to be whether the Appellant received timely and adequate notice.” (ECF 1-3, p. 15);
(ECF 43-2, p. 55); (ECF 77-23, Ex. W, p. 5). The decision then provides, in a separate delineated
section:
The Administrative Law Judge has carefully reviewed the testimony presented at the
hearing, all evidence, Federal/State regulations, and policy transmittals in regard to
this matter. The Decision, which follows, outlines the facts and conclusions
therefrom that are the basis for the final determination by the Administrative Law
Judge.
THIS MATTER IS DISMISSED.
(ECF 1-3, p. 15); (ECF 43-2, p. 55); (ECF 77-23, Ex. W, p. 5).
After setting out twelve paragraphs of “Findings of Fact,” the Hearing Decision provides the
following “Conclusions of Law”:
This matter is dismissed since the Appellant was not issued timely and adequate
notice in regards to the Medicaid disability criteria denial of Medical Assistance to
the Disabled.
Since the Appellant did not waive his right to timely and adequate notice, the
original issue in regards to the denial of Medical Assistance to the Disabled taken
against the Appellant with respect to his resources and income were not addressed.
The State Agency is directed to mail out to the Appellant a manual or
computer-generated notice informing him of the denial of Medical Assistance to the
Disabled due to not meeting the Medicaid disability criteria.
The Appellant shall retain all rights of hearing and appeal of the new notice of
eligibility.
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(ECF 43-2, p. 56) (emphasis added); (ECF 77-23, Ex. W, p. 8) (same).2 The section titled “Decision”
provides: “The Administrative Law Judge dismisses this matter as there was no timely and adequate
notice given to the Appellant as required under 45 CFR 205.10(i)(A)(B). (ECF 43-2, p. 56); (ECF
77-23, Ex. W, p. 8).3 Page 5 of the Hearing Decision is titled “Appeal Rights,” explaining the rights
of appeal for ALJ Rosado’s decision and the procedure to follow for the appeal. (ECF 1-3, p. 17);
(ECF 43-2, p. 59); (ECF 77-23, Ex. W, p. 9).
On May 15, 2015, FSSA sent Plaintiff an “Eligibility Notice of Action Medicaid/Hoosier
Healthwise” (State Form 1110 (R13/2-14) FI 0619M) in his same case number 1056017336
regarding the application date of November 24, 2014. (ECF 1-3, p. 20). On page one, the box for
“Your application was denied” is checked. Id. The “Reason for denial” is “Disability is not met; is
12 mo. but not substantail[sic] impairment; failure to provide all required information; failure to
cooperate in verifying the[sic].” Id. Only page one of the seven-page document is attached as an
exhibit to Plaintiff’s original Complaint, and Defendants have not provided a copy of any part of this
notice.
On May 19, 2015, Plaintiff faxed a handwritten correspondence dated May 18, 2015, which
states: “I Kevin Miller request a Agency Review of my Administrative Law Judges decision.
1056017336/MA D/01/A3-4000378714.” (ECF 1-3, p. 18).
On June 3, 2015, FSSA sent Plaintiff a letter, notifying him that they received the request
for a review of the May 14, 2015 Hearing Decision in 1056017336/4000378714 and that “[a]ll
parties will be sent a Notice of Final Agency Action when the review is complete.” (ECF 1-3, p. 19).

2

This page is missing from the exhibit attached to the Complaint. See (ECF 1-3, pp. 15-17).

3

This page is missing from the exhibit attached to the Complaint. See (ECF 1-3, pp. 15-17).

15

On June 16, 2015, FSSA issued a “Notice of Final Agency Action,” affirming ALJ Rosado’s
May 14, 2015 Hearing Decision. (ECF 25-1, p. 1). The Notice advised Plaintiff of his right to appeal
this final agency decision by asking a court to review the matter. Id.
After the April 9, 2015 hearing, Plaintiff did not apply for Medicaid again. See (ECF 78-2,
Ex. BB, p. 17).
ANALYSIS
This is a § 1983 action brought by pro se Plaintiff Kevin Miller who alleges that his
Fourteenth Amendment due process rights were violated in relation to his application for Medicaid
Disability. The claims remaining in this case following the Court’s April 4, 2016 ruling on the
Motion to Dismiss are Plaintiff’s § 1983 Fourteenth Amendment Due Process claims based on (1)
ALJ Rosado restarting the audio recording of the hearing, (2) ALJ Rosado allegedly stating different
outcomes at the April 9, 2015 hearing and in her written May 14, 2015 Hearing Decision, and (3)
FSSA only allowing Plaintiff to submit twelve months of medical evidence in support of his
Medicaid Disability claim. For the reasons set forth below, the Court grants summary judgment in
favor of Defendants on all remaining claims.
The due process clause of the Fourteenth Amendment to the United States Constitution
provides that the states shall not “deprive any person of life, liberty, or property, without due process
of law[.]” U.S. Const. amend. XIV. To prevail on his claim for a deprivation of procedural due
process based on a property right, Plaintiff must establish (1) a cognizable property interest, (2) a
deprivation of that property interest, and (3) a denial of due process. Mathews v. Eldridge, 424 U.S.
319, 332 (1976); Khan v. Bland, 630 F.3d 519, 527 (7th Cir. 2010) (citing Hudson v. City of Chi.,
374 F.3d 554, 559 (7th Cir. 2004)). There is no loss of property without due process if the state

16

provides an adequate post-deprivation remedy for the loss. See Hudson v. Palmer, 468 U.S. 517, 533
(1984); Parratt v. Taylor, 451 U.S. 527, 540 (1981).
Medicaid “is a cooperative federal-state program through which the Federal Government
provides financial assistance to States so that they may furnish medical care to needy individuals.”
Wilder v .Va. Hosp. Ass’n, 496 U.S. 498, 502 (1990); see also Nat’l Fed’n of Indep. Bus. v. Sebelius,
— U.S. —, —, 132 S. Ct. 2566, 2581 (2012). Medicaid requires that states provide assistance to a
needy individual with a disability who meets certain qualifications. See Ind. Code § 12-14-15-1.
This is commonly referred to as “Medicaid Disability” or “Medicaid for the Disabled” (“MA D”).
See Thompson v. Roob, 1:05-CV-636, 2006 WL 2990426, at *1 (S.D. Ind. Oct. 19, 2006). An
individual can be found to be a “needy individual with a disability” if the person has “[a] physical
or mental impairment, disease, or loss that is verifiable by a physician licensed under IC 25-22.5,
that appears reasonably certain to result in death or to last for a continuous period of at least twelve
(12) months without significant improvement, and that substantially impairs the individual’s ability
to perform labor or services or to engage in a useful occupation.” Ind. Code § 12-14-15-1(2)(A)
(emphasis added). Indiana FSSA’s Medicaid Medical Review Team (“MRT”) is responsible for
determining whether an applicant is eligible for Medicaid Disability under this standard. See Indiana
Medicaid

for

Providers,

Review

Team

(MRT),

Overview,

http://provider.indianamedicaid.com/about-indiana-medicaid/member-programs/special-program
s/medical-review-team-(mrt).aspx (last visited August 3, 2017).

17

The parties do not dispute that eligibility for Medicaid Disability benefits is a “property”
interest within the meaning of the Due Process Clause. Thompson, 2006 WL 2990426, at *6;4 Coffey
v. Xerox Corp., No. 1:13-CV-97, 2014 WL 773202, at *9 (S.D. Ind. Feb. 24, 2014) (citing Hamby
v. Neel, 368 F.3d 549, 560 (6th Cir. 2004); Mathews, 424 U.S. at 340). Nor do the parties dispute
that Plaintiff was found to be not eligible for Medicaid Disability benefits on March 2, 2015. Thus,
to establish a violation of procedural due process, Plaintiff must show that he was deprived of his
property interest in Medicaid Disability without due process of law. Veterans Legal Defense Fund
v. Schwartz, 330 F.3d 937, 939 (7th Cir. 2003).
A. Due Process Claims Against ALJ Debra Rosado Based on the Restarting
of the Tape Recording and on the Alleged Difference Between the
Outcome Announced at the Hearing and the Outcome in the Written Decision
The Court begins with the two claims against ALJ Rosado, finding that there is no genuine
issue of material fact and that Plaintiff cannot demonstrate a due process violation by ALJ Rosado.5

4

The court in Thompson v. Robb, explained:
We find that Plaintiffs have adequately articulated a claim to a property interest to which due
process protections apply. As they point out, the Indiana “MA D” eligibility statute (IC § 12-14-15-1)
“establish[es] ‘substantive predicates’ to govern official decision making . . . [and] mandate[s] the
outcome to be reached upon a finding that the relevant criteria have been met.” Kentucky Dept. of
Corrections v. Thompson, 490 U.S. 454, 462 (1989); Pls.’ Reply at 4. The Indiana statute states that
“MA D” benefits shall be granted to a needy disabled individual who meets specified and objective
criteria; it provides for no discretion on the part of the administrative agency, thus establishing an
entitlement to “MA D” benefits for any individual who qualifies.
The Supreme Court has stated that “[i]n the Medicare and the Medicaid Programs the
Government has provided needy patients with both direct benefits and indirect benefits. The direct
benefits are essentially financial in character . . . . The Government cannot withdraw these direct
benefits without giving the patients notice and an opportunity for a hearing on the issue of their
eligibility for benefits.” O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 787-88 (1980). See
also Goldberg v. Kelly, 397 U.S. 254, 261-64 (1970); Gomolinsky v. Davis, 716 N.E.2d 970, 973-75
(Ind. Ct. App. 1999) (applying procedural due process protections to Indiana Medicaid benefits). Such
direct benefits are at issue here. Thus, in our view, the “MA D” eligibility provision creates a
protectible property interest.
No. 1:05-CV-636, 2006 WL 2990426, at *6 (S.D. Ind. Oct. 19, 2006).

5

“While a plaintiff is not required to exhaust state remedies to bring a § 1983 claim, this does not change the fact that
no due process violation has occurred when adequate state remedies exist.” Veterans Legal Defense Fund v. Schwartz,
330 F.3d 937, 941 (7th Cir. 2003); see also Stachowski v. Town of Cicero, 425 F.3d 1075 (7th Cir. 2005) (citing Veterans
Legal Defense Fund, 330 F.3d at 941). Regarding the decision of ALJ Rosado, it appears that Plaintiff was afforded all

18

1.

Tape Recording
First, Plaintiff alleges that ALJ Rosado violated his due process rights because she restarted

the recording device. See (ECF 17, pp. 2-3). This was not a due process violation. ALJ Rosado
initially started the hand-held recording device when Plaintiff entered the hearing room; this was
not improper. Plaintiff explains that he began telling ALJ Rosado about his claim before the hearing
began, which would have been on the original recording. (These substantive matters that Plaintiff
discussed before the hearing began were ultimately not addressed at the hearing or in the hearing
decision because the hearing and decision turned on the procedural issue of Plaintiff not having
received proper notice.) The FSSA representative—Ms. Houseworth—was not yet present. Once
Ms. Houseworth was present for the hearing, ALJ Rosado then restarted the recording. In other
words, the recording of the hearing started when both parties were present for the hearing. There can
be no violation of Plaintiff’s rights regarding the hearing when the hearing had not yet begun until
Ms. Houseworth was present.
The Indiana state statute governing the conduct of administrative proceedings provides that
“[t]he adminstrative law judge shall regulate the course of the proceedings in conformity with any
prehearing order and in an informal manner without recourse to the technical, common law rules
of evidence applicable to civil actions in the courts.” Ind. Code § 4-21.5-3-25(b). The statute further
requires that the ALJ “afford to all parties the opportunity to respond and conduct cross-

the process that he was due because he had an opportunity to appeal ALJ Rosado’s May 14, 2015 decision and availed
himself of that opportunity by appealing the decision on May 18, 2015. See (ECF 1-3, p. 18). On June 3, 2015, Plaintiff
was notified that his appeal of the May 14, 2015 decision was received. (ECF 1-3, p. 19). And, on June 16, 2015, FSSA
issued a “Notice of Final Agency Action” affirming ALJ Rosado’s May 14, 2015 Hearing Decision. (ECF 25-1, p. 1).
The Notice advised Plaintiff of his right to appeal the final agency decision by asking a court to review the matter. Id.
There is no indication that Plaintiff filed a petition for judicial review pursuant to Indiana Code § 4-21.5-5-1, et seq.
However, because Defendants did not seek summary judgment on the claims against ALJ Rosado on this basis, the Court
nevertheless considers each substantive claim in turn. As set forth below, neither constitutes a due process violation.

19

examination.” Ind. Code § 4-21.5-3-25(c). ALJ Rosado complied with Indiana state statute by
recording the hearing, Ind. Code § 4-21.5-3-25(g), and by keeping a record of the proceeding, Ind.
Code § 4-21.5-3-14(a). And, the Indiana statute prohibits ex parte communications: “[A]n
administrative law judge serving in a proceeding may not communicate, directly or indirectly,
regarding any issue in the proceeding while the proceeding is pending, with: (1) any party; . . . .
without notice and opportunity for all parties to participate in the communication.” Ind. Code § 421.5-3-11. Plaintiff has not explained how the restarting of the tape once all parties were present for
the hearing violated his due process rights.
Because the hearing did not start until both parties were present, ALJ Rosado did not violate
Plaintiff’s due process rights when she restarted the tape recording at the moment when both parties
were present for the hearing. To the extent this claim is also brought against Defendant FSSA,
summary judgment is granted in favor of FSSA on this claim for the same reasons.
2.

Oral Ruling v. Written Decision
Second, Plaintiff alleges that ALJ Rosado violated his due process rights by announcing a

different ruling at the April 9, 2015 hearing than the one written in the May 14, 2015 Hearing
Decision. There was no due process violation in relation to the outcome of the hearing because there
is no inconsistency between the oral and written rulings. Plaintiff alleges in his Complaint and
Amended Complaint and continues to argue in his briefs that ALJ Rosado “remanded” his case at
the end of the hearing. See (ECF 1, pp. 2-3); (ECF 17, pp. 2-3); (ECF 54, p. 14). However, the word
“remand” was not used at the hearing by ALJ Rosado. Rather, ALJ Rosado used the word
“dismissed” both at the April 9, 2015 hearing and in the May 14, 2015 Hearing Decision. At both
the hearing and in the written decision, ALJ Rosado explained that Plaintiff’s appeal was being
dismissed because he did not receive proper notice of the March 2, 2015 MRT decision, that FSSA
20

would be directed to send him the proper notice, and that he would then be able to appeal the March
2, 2015 MRT determination. Contrary to Plaintiff’s assertion, the April 9, 2015 hearing and the May
14, 2015 Hearing Decision do not have different outcomes; the word “remand” was never used.
At the hearing, Plaintiff explained that he became aware of the decision to deny his January
15, 2015 application for benefits when he received the March 2, 2015 MRT notice. (ECF 78-1, Ex.
AA, p. 2); see also (ECF 77-19, 20, Exs. S, T). The FSSA representative, Ms. Houseworth, testified
that the official notice following the MRT determination was never mailed to Plaintiff. (ECF 78-1,
Ex. AA, p. 4). ALJ Rosado confirmed with Plaintiff that he did not waive his right to get proper
notice of his right to appeal the March 2, 2015 MRT denial. (ECF 78-1, Ex. AA, pp. 2, 4-5). ALJ
Rosado explicitly found that FSSA had erred by not sending Plaintiff official notification of the
March 2015 MRT decision. Thus, ALJ Rosado ordered FSSA to send Plaintiff the official notice
of the March 2015 MRT decision and indicated that Plaintiff would retain his full rights to appeal.
At the hearing, ALJ Rosado confirmed that Plaintiff understood that this was a favorable ruling:
ALJ:

Okay, if you don’t waive your right to official notice, then the hearing is
going to be dismissed and you’ll be receiving a – a notice from the state
telling you that – the reason you were denied.

KEVIN MILLER:
ALJ:

And then you’ll have your rights to appeal.

KEVIN MILLER:
ALJ:

And then I’ll have a right to appeal?

Thank you, your honor.

Is that what you want?

KEVIN MILLER:

Yes.

(ECF 78-1, Ex. AA, p. 4-5). Thus, Plaintiff understood at the time of the hearing that the hearing
was being dismissed and that he would retain his right to appeal once he received the proper notice.
This is consistent with the May 14, 2015 Hearing Notice which provided:
21

This matter is dismissed since the Appellant was not issued timely and adequate
notice in regards to the Medicaid disability criteria denial of Medical Assistance to
the Disabled.
Since the Appellant did not waive his right to timely and adequate notice, the
original issue in regards to the denial of Medical Assistance to the Disabled taken
against the Appellant with respect to his resources and income were not addressed.
The State Agency is directed to mail out to the Appellant a manual or
computer-generated notice informing him of the denial of Medical Assistance to the
Disabled due to not meeting the Medicaid disability criteria.
The Appellant shall retain all rights of hearing and appeal of the new notice of
eligibility.
(ECF. 77-23, Ex. W, p. 8). Plaintiff has offered no evidence that ALJ Rosado used the word
“remand” at the April 9, 2015 hearing. There is no inconsistency between ALJ Rosado’s statements
at the hearing and in her written hearing decision, and ALJ Rosado did not prevent Plaintiff from
appealing the adverse decision of the MRT. There is no due process violation by ALJ Rosado. Thus,
the Court grants summary judgment in favor of ALJ Rosado on this claim. To the extent this claim
is also brought against FSSA, summary judgment is granted in favor of FSSA on this claim for the
same reasons.
B. § 1983 Due Process Claims Against Dr. John Wernert in his Official Capacity—
Eleventh Amendment Immunity
Plaintiff’s remaining § 1983 procedural due process claim seeks injunctive relief against
Defendant Dr. John Wernert, in his official capacity, for an alleged violation of Plaintiff’s due
process rights in relation to the denial of Plaintiff’s application for Medicaid Disability. Plaintiff
argues that he should have been permitted to present evidence from a longer time period.
In reviewing the cross motions for summary judgment, the Court sua sponte raised the issue
of Eleventh Amendment immunity as to this claim and ordered the parties to brief the issue. See
(ECF 89 (citing Higgins v. Mississippi, 217 F.3d 951, 954 (7th Cir. 2000) (“We conclude . . . that
22

a federal court can raise an Eleventh Amendment defense on its own initiative.”); Ind. Prot. &
Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., 603 F.3d 365, 370 (7th Cir. 2010) (addressing
Eleventh Amendment immunity on appeal after “[t]he defendants engaged in two rounds of
litigation in [the] case—one before the district court, and one before this court—without raising the
Eleventh Amendment as a defense”)).
The Eleventh Amendment to the United States Constitution provides: “The Judicial power
of the United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” U.S. Const. Amend. XI. “If properly raised, the amendment bars actions in
federal court against a state, state agencies, or state officials acting in their official capacities.” Ind.
Prot. & Advocacy Servs., 603 F.3d at 370. There are three primary exceptions to Eleventh
Amendment immunity: when
(1) “Congress has abrogated the state’s immunity from suit through an unequivocal
expression of its intent to do so through a valid exercise of its power”; (2) a state
“has properly waived its immunity and consented to suit in federal court”; and (3)
the plaintiff “seek[s] prospective equitable relief for ongoing violations of federal
law . . . under the Ex Parte Young doctrine.”
Sonnleitner v. York, 304 F.3d 704, 717 (7th Cir. 2002) (quoting Marie O. v. Edgar, 131 F.3d 610,
614-15 (7th Cir. 1997)); see also Council 31 of the Am. Fed. of State, Cnty. and Municipal
Employees, AFL-CIO v. Quinn, 680 F.3d 875, 882 (7th Cir. 2012). As for the first two exceptions,
Congress did not abrogate a state’s Eleventh Amendment immunity to suit under § 1983, see Quern
v. Jordan, 440 U.S. 332, 340-41 (1979), and Indiana has not waived its immunity.
As for the third, the Ex Parte Young exception provides that a plaintiff can bring suit against
individual state officials in their official capacity for prospective relief to enjoin ongoing violations
of federal law. Ex Parte Young, 209 U.S. 123, 159-60 (1908); Council 31, 680 F.3d at 882; Ind.
23

Prot. & Advocacy Servs., 603 F.3d at 371. Determining whether the exception applies requires a
“straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective.” Verizon Maryland Inc. v. Public Serv. Comm.
of Maryland, 535 U.S. 635, 645 (2002); see also Sonnleitner, 304 F.3d at 717. Defendant Dr.
Wernert, as the head of the FSSA and sued in his official capacity, is the appropriate target for a
claim for prospective injunctive relief, even though the FSSA is an arm of the state. See Ex Parte
Young, 209 U.S. 123. However, Plaintiff cannot satisfy the Ex Parte Young exception in this case
because, although he alleges a violation of federal law, he cannot show an “ongoing” violation of
that federal law. An entirely past deprivation of procedural due process is not an “ongoing” violation
for purposes of the exception. See Sonnleitner, 304 F.3d at 718-19; Ceria M. Travis Academy, Inc.
v. Evers, No. 16-CV-593, 2016 WL 4098587, at *5 (E.D. Wis. July 28, 2016) (citing Sonnleitner,
304 F.3d at 718).
In Sonnleitner, the court held that the plaintiff’s allegation of a Fourteenth Amendment
procedural due process deprivation was not an “ongoing violation” when his claim was based on a
prior alleged demotion without adequate due process. Id. The court found that, even assuming the
plaintiff’s “constitutional rights have been violated, the violation was not the demotion as such, but,
instead, the fact that the demotion occurred without an adequate opportunity to be heard, either
through an additional predisciplinary hearing or a sufficiently prompt post-disciplinary hearing.”
Id. The court found this to be a “past rather than an ongoing violation of federal law” and held that
the Ex Parte Young exception did not apply. Id.
Similarly, in Ceria M., there was no question that the plaintiff had alleged a violation of
federal law by alleging a violation of Fourteenth Amendment due process based on the denial of a
request for a payment. 2016 WL 4098587, at *5. The plaintiff argued that the violation was
24

“ongoing” for purposes of applying the Ex Parte Young exception because “[the defendant]
‘continues to violate the Fourteenth Amendment as long as he continues to hold [plaintiff’s] property
without the benefit of a hearing to determine whether [the defendant] is entitled to that property.’”
Id. Relying on Sonnleitner, the court found that the due process violation in Ceria M
—–“withholding the May payment without an adequate opportunity to be heard”—was not an
“ongoing violation.” Id. The court reasoned that the denial was a “one-time” event that occurred in
the past and that there were no allegations as to future payments. Id. The court held that Ex Parte
Young did not apply to avoid Eleventh Amendment immunity in that case. Id.
As in both Sonnleitner and Ceria M., the alleged constitutional violation in this case occurred
in the past. Like in Sonnleitner, it is not the denial of Plaintiff’s application for Medicaid Disability
but, rather, that the denial occurred without an adequate postdeprivation remedy that is the alleged
constitutional violation. Even assuming that Plaintiff did not get the official notice of the March 2,
2015 MRT denial from FSSA, as ordered by ALJ Rosado in her May 14, 2015 Hearing Decision,
and that Plaintiff’s constitutional rights were violated as a result, the violation occurred in the past
and is not ongoing. Thus, the Ex Parte Young exception does not apply to overcome Eleventh
Amendment immunity as to this claim in this case. The Court grants summary judgment in favor
of Defendant Dr. John Wernert in his official capacity as Secretary of FSSA on this claim.
C. Other Allegations in Plaintiff’s Amended Complaint
In their Motion for Summary Judgment, Defendants note three other allegations by Plaintiff
in the Amended Complaint and argue that those allegations are undeveloped, that Plaintiff does not
allege that they constitute due process violations, and that they could not be due process violations.
In the interests of thoroughness, the Court considers each in turn.

25

First, Plaintiff alleges in his Amended Complaint that he received conflicting information
from FSSA on March 25, 2013, resulting in his Medicaid being terminated on July 25, 2014. (ECF
17, p. 2). As noted by Defendants, the information in the two March 25, 2013 notices were not
conflicting but rather requested that Plaintiff provide proof of different information. One notice
required Plaintiff to provide proof of his unemployment check, see (ECF 77-2, Ex. B), while the
other notice required Plaintiff to provide proof of his retirement account, see (ECF 77-3, Ex. C).
There is no conflict and no potential due process violation. Moreover, these two documents did not
result in the discontinuation of Plaintiff’s Medicaid benefits in July 2014; rather, Plaintiff’s
Medicaid benefits were discontinued because his condition improved significantly, which is
unrelated to his unemployment check or his retirement account. See (ECF 77-8, Ex. H, p. 2). The
Court grants summary judgment in favor of Defendants on these allegations.
Second, Plaintiff alleges in the Amended Complaint that, after reapplying for Medicaid on
November 24, 2014, he received documents in Spanish on December 4, 2014, and was denied
Medicaid on January 12, 2015. Notably, Plaintiff does not allege in his Amended Complaint or
argue in his briefs on these motions that receiving the documents in Spanish was related to the denial
of his benefits on January 12, 2015. Although FSSA initially mailed Plaintiff a document in Spanish
on December 4, 2014, requesting that he provide proof of certain documents, see (ECF 77-15, Ex.
O), on December 19, 2014, FSSA sent Plaintiff the notice in English, see (ECF 77-16, Ex. P). A
comparison of the two documents shows that the “comments” section under each checked category
of proof required on both the Spanish and English forms (Shelter Expense, Identity, Bank
Accounts/Financial Holdings, Vehicles, Lump Sum Payment, and Notice Regarding Rights and
Responsibilities) is typed in English and requests the identical information. Compare (ECF 77-15,
Ex. O), with (ECF 77-16, Ex. P). The only difference is that the Spanish form requests that Plaintiff
26

sign, date, and return the medical release form OMPP3512S. The proof requested in the December
19, 2014 form in English was due by January 2, 2015. The January 12, 2015 Notice of Denial lists
numerous reasons that Plaintiff is not eligible; his denial was not based on a failure to return the
signed and dated OMPP3512S form. (ECF 77-17, Ex. Q). Notably, the January 12, 2015 Notice
indicates that Plaintiff’s “income exceeds the program eligibility standards.” (ECF 77-17, Ex. Q, p.
2). Moreover, at the April 9, 2015 Hearing, ALJ Rosado noted that Plaintiff did not timely appeal
the January 12, 2015 decision. There was no due process violation in having sent Plaintiff a notice
in Spanish, which can only be described as a clerical error that was rectified and that had no
substantive effect on Plaintiff’s application for Medicaid Disability. The Court grants summary
judgment in favor of Defendants on these allegations.
Third, Plaintiff alleges in his Amended Complaint that the denial of his right to Medicaid
Disability has “obstructed medical evidence in my social security claim now going on four years.”
(ECF 17, p. 3). In response to Defendants’ Interrogatories, Plaintiff states that he “was unable to
show medical conditions in my social security claim. The only physical medical evidence in my
social security decisions was from my knees.” (ECF 78-2, Ex. B, Interrog. Resp. 22). However,
Plaintiff alleges no facts in his Amended Complaint nor offers evidence of record on summary
judgment to suggest that FSSA has obstructed evidence in his social security determination.
It appears from Plaintiff’s Second Motion for Summary Judgment that Plaintiff’s position
is based on a misunderstanding of the interplay between the Social Security Administration and the
FSSA in relation to the determination of disability for purposes of supplemental security income
benefits. In his Second Motion for Summary Judgment, Plaintiff writes:
42 CFR 435.541 et seq. requires MRT to determine disability. As of June 1, 2014
FSSA determines disability for everything except SSI pursuant to the Social Security
27

Programs Operation Manual at https://secure.ssa.gov/poms.nsf/lnx/0501730060
including SSDI.
(ECF 54, p. 9) (emphasis added); see also Social Security Administration, Program Operations
Manual

System

(POMS),

SI

01730.060

Medicaid

Information

by

Regions,

https://secure.ssa.gov/poms.nsf/lnx/0501730060 (last visited August 3, 2017).
The POMS webpage cited by Plaintiff provides, in relevant part:
2. State of Indiana
The following describes the State’s Medicaid program:
•Name of Administering State Agency
Indiana Family & Social Services Administration (FSSA)
•Medicaid Determination
Effective June 1, 2014, SSA makes determinations for SSI recipients. The State
makes determinations for all other groups.
•Additional Medicaid Questions
Effective June 1, 2014, SSA obtains answers to the question regarding third party
coverage on the application and at all redeterminations. SSA does not obtain answers
to the question regarding unpaid medical expenses.
•Medicaid Referrals
When SSA does not make determinations of eligibility for Medicaid, refer those SSI
claimants to the local county Division of Family Resources (DFR) for a Medicaid
eligibility determination. Refer to regional Supplements for any additional referral
instructions.
https://secure.ssa.gov/poms.nsf/lnx/0501730060 (last visited August 3, 2017). Thus, this section
only describes which entity makes Medicaid Determinations for certain groups of individuals,
including supplemental security income recipients, in Indiana. Plaintiff appears to have understood
this description to mean that FSSA makes other determinations, such as his social security
28

determination, which is not the case. Rather, the Disability Determination Bureau handles the
gathering of documents for the Social Security Administration for determining disability for
supplemental security income benefits. See Ind. Code §§ 12-8-1.5-16, 17. To the extent that Plaintiff
is bringing a separate claim based on these allegations, the Court grants summary judgment in favor
of Defendants on this claim.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS Defendant’s[sic] Cross-Motion for
Summary Judgment [DE 73] and DENIES Plaintiff’s Second Motion for Summary Judgment [DE
53]. The Court DIRECTS the Clerk of Court to ENTER JUDGMENT in favor of Defendants
Debra Rosado and Dr. John J. Wernert and against Plaintiff Kevin Miller.
So ORDERED this 4th day of August, 2017.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

29