Anderson v. Kentucky One Health, Inc. et al

Filing 29

MEMORANDUM OPINION & ORDER Signed by Senior Judge Thomas B. Russell on 10/17/2017: granting 7 Motion to Dismiss for Failure to State a Claim; granting 9 Motion to Dismiss for Failure to State a Claim; finding as moot 12 Motion for Summary Judgment; finding as moot 15 ROCP Motion ; finding as moot 17 Motion to Amend RICO Motion. cc: Counsel, plaintiff pro se(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:17-cv-00359
ARTIS ANDERSON

PLAINTIFF

v.
KENTUCKY ONE HEALTH, INC., et. al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon five motions. First, Defendant Kentucky Court
of Justice (“Court of Justice”) has filed a Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). [DN 9.] Plaintiff Artis Anderson (“Plaintiff”) has responded, [DN 13], and
the time has passed for the Court of Justice to file a reply. Second, Defendant Kentucky One
Health, Inc. (“KOH”) has filed a Motion to Dismiss under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). [DN 7.] The time has passed for Plaintiff to file a response. Third,
Plaintiff has filed a “RICO Motion.” [DN 15.] Defendants KOH and the Court of Justice have
responded, [DN 19, 20], and the time has passed for a reply. Fourth, Plaintiff has filed a Motion
to Amend this RICO Motion. [DN 17.] Fifth, Plaintiff has filed a Motion for Summary Judgment
against KOH. [DN 12.] KOH has responded, [DN 14], and the time has passed for a reply. For
the following reasons the two motions of Defendants [DN 7, 9] are GRANTED, and Plaintiff’s
three motions [DN 12, 15, 17] are DISMISSED AS MOOT.
I. The Court of Justice’s Motion to Dismiss
A. Legal Standard
Pursuant to Federal Rule of Civil Procedure 8(a)(2), pleadings, including complaints,
must contain a “short and plain statement of the claim showing that the pleader is entitled to
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relief.” As such, a complaint may be attacked for failure “to state a claim upon which relief can
be granted” under Rule 12(b)(6). When examining a motion to dismiss under Rule 12(b)(6), the
Court must presume that all the factual allegations in the complaint are true and will draw all
reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency v.
Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008). “The court need not,
however, accepted unwarranted factual inferences,” id., nor must it “accept as true a legal
conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Also,
“[w]hen a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any
exhibits attached thereto…and exhibits attached to the defendant’s motion to dismiss so long as
they are referred to in the Complaint and are central to the claims contained therein.” Bassett v.
Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).
Further, although a “complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement
to relief requires more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Rather, the plaintiff’s “[f]actual allegations must be enough to raise a right to
relief above the speculative level on the assumption that all the allegations in the complaint are
true (even if doubtful in fact).” Id. (internal citations omitted). The complaint should contain
sufficient facts “to state a claim to relief that is plausible on its face.” Id. at 570. Plausibility
attaches “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Thus, if
the court cannot infer from the well-pleaded facts “more than the mere possibility of misconduct,

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the complaint has alleged—but has not show[n]—that the pleader is entitled to relief.” Id. at 679.
“Only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id.
B. Discussion
Plaintiff’s prayer for relief against the Court of Justice in his first Complaint seeks entry
of a declaratory judgment finding the Court of Justice to be an unconstitutionally functioning
agency of the Commonwealth of Kentucky. [DN 1, at 18.] Plaintiff has since amended his
Complaint, but incorporated the original one. [See DN 6.] The impetus of Plaintiff’s claim
against the Court of Justice is that specific judges in the state of Kentucky have rendered
unfavorable rulings against him in an illegal and/or unconstitutional fashion.
He alleges in the section of his Complaint entitled “Statement of the Case” that “[s]everal
state court actions have been filed by the Plaintiff seeking relief and all or most have been denied
and the state judges making the decisions to deny relief have ignored controlling state statutes,
state appellant [sic] court opinions, the Constitution of the United States, International treaties,
and United States Supreme Court opinions….1 [DN 1, at 5.] And when Plaintiff arrives at the
section aimed specifically at the Court of Justice, he goes on to describe in detail prior
proceedings before Woodford County, Kentucky Circuit Judge Paul Isaacs and Woodford
County District Court Judge Vanessa Dickson. [Id. at 7-8.] He alleges, among other things, that
they rendered their judgments against him without properly considering relevant statutes and
case law, and without sufficient evidence to rule the way that they did. He concludes by stating
that “[f]ailing to follow the Constitution and Supreme Court’s opinion[s] is a violation of a
judge’s oath of office,” and that “state courts cannot rely upon state law or local rules of court to
avoid protecting constitutional rights.” [Id. at 8-9.]

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Notably, Plaintiff does not specify which statutes, court opinions, constitutional provisions, or treaties the unnamed
state court judges failed to consider or follow in rendering their decisions.

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Plaintiff’s Amended Complaint largely mirrors the general thrust of the allegations in his
original Complaint. Here, he alleges further that Judges Dickson and Jeff Moss, a Family Court
judge, relied upon “false allegations of neglect and abuse” of Ms. Mary Ellen Reynolds (“Ms.
Reynolds”),2 thereby “depriv[ing] the Plaintiff of his Constitutional rights….” [DN 6, at 3.] He
claims that “Judge Dickson violated at least five (5) Kentucky state statutes” in rendering her
judgment that CHFS should be appointed as Ms. Reynolds’ guardian, thus “violat[ing] the law,”
“los[ing] jurisdiction,” and rendering “her judgments….VOID.” [Id. at 4.] Plaintiff alleges that
the appointment of CHFS as guardian amounts to Judge Dickson having stolen Ms. Reynolds’
assets and given them to the state of Kentucky. [Id.] Further, Plaintiff alleges that Judge Moss
“knowingly, intentionally, or neglectedly [sic] ignored controlling law” when he admitted certain
testimony in court before annulling Plaintiff’s marriage to Ms. Reynolds. [Id. at 9.] This,
Plaintiff alleges, denied him his Constitutional right to be married. [Id.] Finally, Plaintiff argues
that the disregard shown to both himself and to Ms. Reynolds and their marriage amounts to a
lack of enforcement of the laws and “[t]he Kentucky Court of Justice is [therefore] an
unconstitutionally functioning agency of the Commonwealth of Kentucky.” [Id. at 9-10.]
“Sovereign immunity is the privilege of the sovereign not to be sued without its
consent.” Virginia Office for Protection and Advocacy v. Stewart, 563 U.S. 247, 253 (2011).
Thus, “[a] State may waive its sovereign immunity at its pleasure…and in some circumstances
Congress may abrogate it by appropriate legislation. But absent waiver or valid abrogation,
federal courts may not entertain a private person’s suit against a State. Id. at 253-254 (internal
citations omitted). Indeed, it is an established principle that “an unconsenting State is immune
from suits brought in federal courts by her own citizens as well as by citizens of another state.”
And while “[t]here may be a question…whether a particular suit in fact is a suit against a State,”
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Plaintiff was formerly married to Ms. Reynolds, but that marriage was annulled by Judge Moss.

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“[i]t is clear, of course, that in the absence of consent a suit in which the State or one of its
agencies or departments is named as the defendant is proscribed by the Eleventh Amendment.”
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (emphasis added).
Indeed, “[t]his jurisdictional bar applies regardless of the nature of the relief sought.” Id. at 10001 (citing Missouri v. Fiske, 290 U.S. 18, 27 (1933) (explaining that this bar applies with equal
force to “suits in equity as well as at law.”).
In Kentucky, “‘[t]he doctrine of sovereign immunity sweeps broadly’ to shield the
Commonwealth and its agencies from suit, unless it is expressly waived by the Kentucky
General Assembly.” Ludwig v. Kentucky Dep’t of Military Affairs, No. 13-174-GFVT, 2015 WL
351863, at *4 (E.D. Ky. Jan. 23, 2015) (quoting Withers v. Univ. of Kentucky, 939 S.W.2d 340
(Ky. 1997)). Moreover, waiver will only be found “where stated by the most express language or
by such overwhelming implications from the text as [will] leave no room for any other
reasonable construction.” Withers, 939 S.W.2d at 346 (quoting Edelman v. Jordan, 415 U.S. 651,
673 (1974)). Here, the Court of Justice “constitutes an arm of the state for Eleventh Amendment
purposes.” Lowe v. Kentucky Court of Justice, No. 2:14-168-KKC, 2015 WL 1526106, at *3
(E.D. Ky. Apr. 2, 2015) (internal quotation marks omitted). As such, it is “immune from suit
[for] damages claims in federal court.” Id. And even though Plaintiff has sought a declaratory
judgment, “his allegations are based solely upon alleged past misconduct, and therefore fall
outside the exception found in Ex Parte Young, 209 U.S. 123 (1908).” Id. (citing Bailey v.
Montgomery, 433 F. Supp. 2d 806, 810-11 (E.D. Ky. 2006)). Thus, the Court will dismiss
Plaintiff’s claim against the Court of Justice for lack of subject matter jurisdiction.
C. Conclusion

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Due to the fact that the Court has determined it does not have subject matter jurisdiction
over Plaintiff’s claim against the Court of Justice, this claim must be dismissed.
II. KOH’s Motion to Dismiss
A. Legal Standard
KOH has also filed a Motion to Dismiss Plaintiff’s claims against it, pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). The 12(b)(6) standard is outlined above in
Section I(A). Under 12(b)(1), a party may assert by motion the defense of “lack of subject matter
jurisdiction.” Fed. R. Civ. P. 12(b)(1). “A Rule 12(b)(1) motion can either attack the claim of
jurisdiction on its face, in which case all allegations of the plaintiff must be considered as true, or
it can attack the factual basis for jurisdiction, in which case the trial court must weigh the
evidence and the plaintiff bears the burden of proving that jurisdiction exists.” DLX, Inc. v.
Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). “A facial attack on the subject-matter jurisdiction
alleged in the complaint questions merely the sufficiency of the pleading.” Gentek Bldg. Prods.,
Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). However, where the factual
basis is challenged, the court “is free to weigh the evidence and satisfy itself as to the existence
of its power to hear the case…no presumptive truthfulness attaches to plaintiff’s allegations, and
the existence of disputed material facts will not preclude the trial court from evaluating for itself
the merits of the jurisdictional claims.” RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d
1125, 1134 (6th Cir. 1996). Finally, “[i]f the court determines at any time that it lacks subject
matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
B. Discussion
Plaintiff’s prayer for relief against KOH asks the Court for “[c]ompensatory damages in
the sum of…Fifteen Billion ($15,000,000,000) Dollars.” [DN 28, at 9.] This figure stems from

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what Plaintiff refers to as “the violations of the Plaintiff’s constitutional rights by each of the
named conspirators and other unknown conspirators and all of the Plaintiff’s costs, filing fees,
attorneys’ fees, paper, ink, postage, etc., that he has spent combating the conspirators in various
courts.” [DN 1, at 18.]
In his original Complaint, incorporated by reference thereafter into his Amended
Complaint, Plaintiff alleges that KOH is vicariously liable for the “illegal acts and deeds” of Dr.
Thomas Quisenberry, a neurologist who Plaintiff appears to claim was acting as an employee, or
at least an agent, of KOH at all relevant times. Plaintiff alleges that Dr. Quisenberry perjured
himself in an affidavit while working at St. Joseph’s Hospital in Lexington, Kentucky, where he
was treating Ms. Reynolds. [DN 1, at 6.] This affidavit was used at the Woodford County,
Kentucky District Court proceeding wherein guardianship over Ms. Reynolds was awarded to
CHFS. Next, Plaintiff alleges that Dr. Thomas Coburn, an employee of KOH, who has been the
primary care physician for Ms. Reynolds since March 2005, [DN 7-1, at 3], “provided a
deposition regarding [Ms. Reynolds’] health while he was an unqualified witness. [DN 1, at 6.]
The deposition testimony to which Plaintiff refers was with respect to a hearing in March
2016 in Jessamine County, Kentucky Family Court, wherein Judge Moss determined the
invalidity of Plaintiff’s marriage to Ms. Reynolds. [DN 7-1, at 4.] There, Dr. Coburn testified
that the urinary tract infection from which Ms. Reynolds suffered “w[as] a common cause of
delirium in elderly women and could increase confusion.” [Id.] KOH contends that Dr. Coburn
expressed his concerns that Ms. Reynolds “was unable to make major life decisions on May 11,
2015 [the date of the marriage], or to understand the implications of those decisions due to her
increasing dementia and the mental effects of her UTI.” [Id. at 3-4.] The Jessamine County
Family Court annulled the marriage.

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Plaintiff claims that the above acts by Dr. Quisenberry and Dr. Coburn were illegal, and
violated Plaintiff’s Constitutional rights under 42 U.S.C. §§ 1983 and 1985, and that KOH is
vicariously liable for their actions. Additionally, Plaintiff claims that KOH is liable for Medicare
fraud.
i. Plaintiff’s § 1983 Claim
Pursuant to 42 U.S.C. § 1983, there is a prohibition on “actions [taken] ‘under color of
state law’ which deprive an individual of a right secured by the U.S. Constitution or a federal
statute.” Cherrington v. Skeeter, 344 F.3d 631, 644 (6th Cir. 2003). Consequently, “before a
defendant may be held liable under section 1983, that defendant must first possess power by
virtue of state law, then misuse that power in a way that violates federal constitutional rights.” Id.
(internal quotation marks omitted).
Plaintiff’s § 1983 claim against KOH cannot proceed, because he fails to plead sufficient
allegations that KOH was or is associated with the government or government officials, or that
KOH or its employees or agents were otherwise operating under color of state law. Thus,
Plaintiff’s § 1983 claim against KOH must be dismissed. See Anderson v. Dickson, No. 5:16-cv71-KKC, 2016 WL 4015176, at *2-3 (E.D. Ky. Jul. 26, 2016) (dismissing § 1983 claims by this
Plaintiff made against, among others, Dr. Coburn and Dr. Quisenberry under the same or
substantially similar facts).
ii. Plaintiff’s § 1985 Claim
42 U.S.C. § 1985 has made three separate types of conspiracies unlawful. First, it is
unlawful to conspire to prevent an “officer from performing [her] duties.” 42 U.S.C. § 1985(1).
Second, it is unlawful to conspire to obstruct justice, intimidate the party, witness, or juror in a
lawsuit. 42 U.S.C. § 1985(2). Third, it is unlawful to conspire to deprive individuals “of the

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equal protection of the laws….” 42 U.S.C. § 1985(3). Additionally, under this third type of
unlawful conspiracy, “[t]he plaintiff…must demonstrate that the conspiracy was motivated by a
class based animus, such as race.” Smith v. Thornburg, 136 F.3d 1070, 1078 (6th Cir. 1998)
(citing Collyer v. Darling, 98 F.3d 211, 233 (6th Cir. 1996), cert. denied, 117 S. Ct. 2439
(1997)). The Court finds that Plaintiff has not pled sufficient allegations to withstand KOH’s
Motion to Dismiss this claim.
Plaintiff invokes § 1985 in general terms, alleging that various individuals, such as Dr.
Coburn, Dr. Quisenberry, judges, and an unnamed “case manager,” conspired with KOH “to
deprive the Plaintiff of his Constitutional rights….” [See DN 6.] Due to the fact that Plaintiff
alleges that “this Court has jurisdiction under 42 USC § 1985 based on discrimination against the
elderly based on age,” [DN 1, at 15], this Court will presume that Plaintiff proceeds under §
1985(3). To succeed under this subsection,
the plaintiff must demonstrate (1) a conspiracy; (2) for the purpose of depriving,
either directly or indirectly, any person or class of persons of the equal protection
of the laws, or of equal privileges or immunities of the laws; (3) an act in
furtherance of the conspiracy; (4) whereby a person is either injured in his person
or property or deprived of any right or privilege of a citizen of the United States.
Ctr. For Bio-Ehtical Reform, 477 F.3d 807, 832 (6th Cir. 2007). In viewing this four-part test, it
is apparent that Plaintiff has failed to put forth such specific allegations with respect to an alleged
conspiracy, its purpose, or how KOH was actually involved with the adverse actions he allegedly
suffered. This is because “[c]onspiracy claims must be pled with some degree of specificity
and…vague and conclusory allegations unsupported by materials facts will not be sufficient to
state such a claim.” Id. Moreover, case law shows that age is not a protected class under this
statute. See Platt v. Burroughs Corp., 424 F. Supp. 1329, 1340-41 (E.D. Pa. 1976) (Ҥ 1985(3) is
limited to invidious class-based discrimination, and a group of persons over the age of 40 years
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and under 65 is not a ‘class’ for purposes of that section”); see also Abbott v. Moore Business
Forms, Inc., 439 F. Supp. 643, 650 (D. N.H. 1977) (“alleged discrimination based on age…fails
to come within the proscription of Section 1985.”). Thus, Plaintiff has failed to allege classbased animus, as required by § 1985(3), and he fails to state a claim upon which relief can be
granted. See Anderson, 2016 WL 4015176, at *2-3 (the same Plaintiff’s § 1985 claim being
dismissed on substantially similar facts.).
iii. Plaintiff’s Medicare Fraud Claim
Plaintiff also alleges that KOH engaged in Medicare fraud. It is unclear precisely which
statutes Plaintiff alleges were violated by KOH, but Plaintiff does refer to 18 U.S.C. § 1347 in
alleging that the paramedics who took Ms. Reynolds to the hospital “committed Medicare fraud
by lying to [Ms. Reynolds] and the Plaintiff about [Ms. Reynolds’] medical condition…in
violation of 18 USC § 1347.” [DN 6, at 6.] This is the only time the Court can find a reference to
a specific statute in conjunction with allegations of Medicare fraud. However, Plaintiff fails to
state a claim upon which relief can be granted here as well.
As the Ninth Circuit has recognized, “there is no private right of action under 18 U.S.C. §
1347.” Jason v. Grp. Health Co-op Inc., F. App’x 630, 631 (9th Cir. 2013). Thus, to the extent
Plaintiff attempts to proceed under this statute, his claim must be dismissed for lack of standing,
as the Court does not have subject matter jurisdiction. Moreover, even if Plaintiff was proceeding
under the Civil Monetary Penalties Law, 42 U.S.C. § 1320a-7a, he still does not have standing as
a private citizen to enforce these provisions. See Rzayeva v. United States, 492 F. Supp. 2d 60,
78 (D. Conn. 2007) (“No private cause of action exists under the federal health care fraud statute,
42 U.S.C. § 1320a-7b; only the federal government may bring lawsuits for the recovery of loss

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caused by alleged Medicare fraud.”). Because Plaintiff lacks standing to bring this claim, the
Court lacks subject matter jurisdiction and must dismiss it.
C. Conclusion
Plaintiff has failed to state a claim upon which relief can be granted with respect to his
allegations against KOH arising under §§ 1983 and 1985. These claims are dismissed. Plaintiff
lacks standing to bring an action for Medicare fraud, and the Court therefore lacks subject matter
jurisdiction and it must dismiss this claim as well.
III. Plaintiff’s RICO Motions
Plaintiff has filed a motion with the Court styled “Motion to Find Defendants Kentucky
One Health, Inc., and the Kentucky Court of Justice Criminal Enterprises Under the Recketeer
[sic] Influenced and Corrupt Organizations Act (RICO) Statutes, and Other Individuals as
Conspirators to Violate Rico Statutes.” [DN 15.] However, because the Court has dismissed all
of Plaintiff’s claims against both KOH and the Court of Justice, Plaintiff’s “RICO Motion” has
been rendered moot. It is therefore dismissed as such. Additionally, Plaintiff has filed a Motion
to Amend the aforementioned RICO Motion. [DN 17.] However, this Motion to Amend has been
rendered moot as well. It is therefore dismissed as such.
IV. Plaintiff’s Motion for Summary Judgment Against KOH
Plaintiff has also filed a Motion for Summary Judgment against KOH. [DN 12.]
However, due to the fact that the Court has dismissed all of Plaintiff’s claims against KOH, this
Motion for Summary Judgment has been rendered moot. Thus, Plaintiff’s Motion for Summary
Judgment against KOH is dismissed as such.
V. CONCLUSION
For the reasons stated herein, IT IS HEREBY ORDERED as follows:

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1) Kentucky One Health’s Motion to Dismiss [DN 7] is GRANTED.
2) The Kentucky Court of Justice’s Motion to Dismiss [DN 9] is GRANTED.
3) Plaintiff’s RICO Motion [DN 15] is DISMISSED AS MOOT.
4) Plaintiff’s Motion to Amend his RICO Motion [DN 17] is DISMISSED AS MOOT.
5) Plaintiff’s Motion for Summary Judgment against Kentucky One Health [DN 12] is
DISMISSED AS MOOT.
The Clerk is directed to remove Kentucky One Health, Inc. and the Kentucky Court of
Justice as defendants in this case.
IT IS SO ORDERED.

cc:

Artis Anderson, pro se Plaintiff
20 Buckner St.
Winchester, KY 40391

cc:

Counsel of Record

October 17, 2017

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