Boyle et al v. Greenstein et al

Filing 28

ORDER AND REASONS granting 19 Motion to Dismiss. Signed by Judge Ivan L.R. Lemelle on 5/29/2012. (lag, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES EDWARD BOYLE, ET AL

CIVIL ACTION

VERSUS

NUMBER:

11-3192

BRUCE GREENSTEIN, ET AL

SECTION:

“B”

ORDER AND REASONS
Before

the

Court

is

Defendants

Bruce

Greenstein,

Kathy

Kliebert, Nancy Baker, Bonnie Callahan, Pat Nielsen, and Easter
Seals Louisiana’s (collectively “Defendants”) Motion to Dismiss.
(Rec. Doc. No. 19). In response, Plaintiffs James and Janis Boyle
(“Plaintiffs”) submitted a Memorandum in Opposition to Motion to
Dismiss (Rec. Doc. No. 21). Accordingly, and for the reasons
articulated below,
IT IS ORDERED that Defendant’s Motion to Dismiss be GRANTED
without prejudice.

PROCEDURAL HISTORY
On

December

30th,

2011,

Plaintiffs1

filed

a complaint

against Defendants, in the Defendants’ official capacities as
employees of the Department of Health and Hospitals (“DHH”), the
Office for Citizens with Developmental Disabilities (“OCDD”),
Easter

Seals,

Louisiana,

and

Ms.

Nielsen

in

her

personal

capacity, alleging violations of the Americans with Disabilities

1

Plaintiffs were residents of Louisiana while enrolled in
Louisiana Children’s Choice Waiver program

Act

(“ADA”),

Section

504

of

the

Rehabilitation

Act

(“Rehabilitation Act”), and 42 U.S.C. §1983. (Rec. Doc. No. 1).
The

claims

purportedly

stem

from

a

series

of

events

involving payment for Plaintiffs’ daughter’s medical care. (Rec.
Doc. No. 1). Plaintiffs have a 13 year-old daughter, Diana, who
has been diagnosed with cerebal palsy with spastic quadriplegia
and hypertonicity. Id. Plaintiffs are enrolled in the Louisiana
Children’s Choice waiver program, which offers family training
for developmentally-disabled persons as a benefit. Id.
and

2009,

Plaintiffs

made

four

funding

requests

In 2008

for

family

training programs, including a program that the family attended
at the Pediatric Family Fitness Center in Michigan. Id.

All four

requests were denied. Id. Plaintiffs also obtained a prescription
for

Diana’s

Michigan

treatment

program

and

submitted

it

to

Medicaid for reimbursement, from which they allege they have
never received a response. Id.
they

submitted

Freedom

of

In addition, Plaintiffs contend
Information

Act

requests

for

documentation regarding how many family training funding requests
the Louisiana DHH has granted, but that the request was denied on
the

grounds

that

the

documents

contained

confidential

information. Id.
Plaintiffs

request

declaratory

and

injunctive

relief,

monetary damages, attorney’s fees, and costs from Defendants. Id.
at 26.
2

CONTENTIONS OF THE MOVANT
Defendants filed a Motion to Dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) asserting that the causes of
action urged by Plaintiffs have prescribed. (Rec. Doc. No. 19-2).
In

their

Motion

prescription

to

period

Dismiss,
for

Defendants

claims

under

state

the

that

Americans

the
with

Disabilities Act, Section 504 of the Rehabilitation Act, and 42
U.S.C. § 1983 is one year, and that accrual began as soon as
Plaintiffs were notified of the denial of the claims. Id. Because
the funding denials happened in 2008 and 2009, Defendants argue,
the

claims

had

prescribed

when

the

complaint

was

filed

on

December 30, 2011. Id.

CONENTIONS OF THE RESPONDENT
Plaintiffs

respond

with

three

arguments:

(1)

the

prescription period for these claims should be governed by the
Medicaid Act’s three-year period of limitations for submission of
medical

claims

by

La.R.S.

46:446.62;

insurance
(2)

companies,

Defendants

or

refusal

alternatively
to

allow

by

prior

authorization of medical care and failure to respond to requests
constituted a “pattern and practice” of discriminatory behavior
that includes events beyond the denials of funding; and (3) even

2

 The state statute implementing the Medicaid Act, which also has
a three-year submission period for insurance claims.
3

if the one-year prescription period applies, because the pattern
and practice equate to a continuing violation the action has not
prescribed. (Rec. Doc. No. 21).

LAW AND ANALYSIS
I. Standard of Review
When reviewing a motion to dismiss, courts must accept all
well pleaded facts as true and view them in the light most
favorable to the non-moving party. Baker v. Putnal, 75 F.3d 190,
196

(5th

Cir.

1996).

However,

“factual

allegations

must

be

enough to raise a right to relief above the speculative level.”
Bell Atl. Corp v. Twombly, 550 U.S. 554, 555, 127 S.Ct. 1955,
167 L.Ed. 2d 929 (2007). “To survive a motion to dismiss a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Gonzales v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting
Ashcroft

v.

Iqbal,

129

S.Ct.

1937,

1949,

173

L.Ed.

2d

868

(2009)) (internal quotation marks omitted). The Supreme Court in
Iqbal

explained

that

Twombly

promulgated

a

“two-pronged

approach” to determine whether a complaint states a plausible
claim for relief. Iqbal, 129 S.Ct. at 1950. First, courts must
identify those pleadings that “because they are no more than
conclusions, are not entitled to an assumption of truth.” Id.
Legal conclusions must be supported by factual allegations.” Id.

4

“Threadbare recitals of the elements of the cause of action
supported by mere conclusory statements, do not suffice.” Id. at
1949.
Upon

identifying

the

well-pleaded

factual

allegations,

courts then “assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Id. at
1950. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference

that

the

defendant

is

liable

for

the

misconduct

alleged.” Id. at 1949. This is a “context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.” Id. The plaintiffs must “nudge[] their claims
across the line from conceivable to plausible. Twombly, 550 U.S.
at 570.

II. Prescription Period
Plaintiffs and Defendants dispute what is the applicable
prescription period for the immediate claims. The claims arise
under the Americans with Disabilities Act (“ADA”), Section 504
Rehabilitation Act (“Rehabilitation Act”), and 42 U.S.C. §1983,
which do not include designated prescription periods. 29 U.S.C. §
794, 42 U.S.C. §§ 12101-12181, 42 U.S.C. §1983.
“When Congress does not establish a limitations period for a
federal cause of action, the ‘general rule’ is that we borrow the

5

most

analogous

period

from

state

law.”

Frame

v.

City

of

Arlington, 657 F.3d 215, 236 (5th Cir. 2011).
Defendants assert that the most analogous state law is that
of tort law, for which the prescription period is one year. (Rec.
Doc. No. 19-2 at 3). Plaintiffs assert that the most analogous
law to apply is the Medicaid Act or La.R.S. 46:446.6. (Rec. Doc.
No. 21 at 4,5). Plaintiffs argue that because, under the Medicaid
Act, insurance companies have three years to submit claims, and
the facts in the case most closely align to a claims process,
that the Medicaid submission period should govern. Id.
This Court has previously concluded that claims arising from
the ADA and Rehabilitation Act have the one-year prescription
period as dictated by state tort law. See e.g., Copper v. St.
Martin Manor, No. 97-499, 1998 U.S. Dist. LEXIS 1114, at *3 (E.D.
La. Feb. 3, 1998); Bastoe v. Burger King Corp., No. 94-3002, 1995
U.S.

Dist.

LEXIS

8630,

at

*3

(E.D.

La.

June

21,

1995).

Furthermore, the submission deadline for claims by an insurance
company is not sufficiently analogous to a statute of limitations
to serve as the prescription period for the claims. Id. (“In
Louisiana, the statute of limitation most analogous to a claim
under the Rehabilitation Act is Louisiana’s one-year statute of
limitations for delictual actions set forth in Louisiana Civil
Code Article 3492.”). Thus, the applicable prescription period is
one year.
6

Furthermore,

“the federal standard provides that the claim

accrues when the plaintiff knows or has reason to know of the
injury which is the basis of the action.” Jackson v. Johnson, 950
F.2d 263, 265 (5th Cir. 1992). Therefore, because Plaintiffs’
funding requests were denied in 2008 and 2009, the prescription
period began accruing at that time and had run when the instant
complaint

was

filed

on

December

30,

2011.

Thus,

all

of

Plaintiffs’ claims with the denial of funding as their factual
basis are prescribed.

III. Pattern or Practice and Continuing Violation
Plaintiffs urge, however, that the complaint included claims
of relief based on Defendant’s alleged pattern or practice of
refusing access to the prior authorization process and failure to
respond to a Medicaid claim, which amounted to a departmental
policy in violation of federal law. (Rec. Doc. No. 21 at 7,8).
This practice, Plaintiffs argue, would constitute a continuing
violation, and prescription would not have run as long as the
policy was being enforced. Id.
Typically

addressed

in

discrimination

cases,

continuing

violations “involve[] a continuing system of discrimination where
the cumulative effect of the discriminatory practice and not a
discrete occurrence gives rise to the cause of action.” Scott v.
Causey, No.99-1806, 2000 U.S. Dist. LEXIS 14873, at *6 (E.D. La.

7

Oct.

4,

2000).

“To

establish

that

a

claim

falls

within

the

continuing violation theory, the Plaintiff must do two things.
First, he must demonstrate that at least one act occurred within
the filing period. Next, the plaintiff must establish the the
alleged wrong is more than the occurrence of isolated or sporadic
acts.” Brooks v. Menifee, No.CV07-0131-A, 2010 U.S. Dist. LEXIS
143929, at *8-9 (W.D. La. Sept. 27, 2010).
Moreover, when the continuing violation is a policy, the
Fifth Circuit has specifically indicated that “a plaintiff must
show some application of the illegal policy to him within the
[prescription period] preceding the complaint.” Abrams v. Baylor
College of Medicine, 805 F.2d 528, 533 (5th Cir. 1986).
In the complaint, Plaintiffs allege a series of actions by
Defendants including: (1) the denial of the funding requests; (2)
refusal to make the prior authorization process available to
them; (3) an unreasonable denial of a Freedom of Information Act
request; and (4) a failure to provide any response to the claims
submitted to Medicaid, which they urge would establish a pattern
and practice, enough to be a continuing violation. (Rec. Doc. No.
21 at 7, 8). The record demonstrates that the denials of funding
requests happened outside of the prescription period so those
events, independently, can not serve as the “one act occurring
within

the

filing

period.”

Brooks,

No.CV07-0131-A,

2010

U.S.

Dist. LEXIS 143929, at *8-9. Furthermore, Plaintiffs assertion
8

that

Defendants

(1)

refused

to

make

the

prior

authorization

process available; (2) failed to respond to a Medicaid claim
within a reasonable amount of time; and (3) unreasonably denied a
Freedom of Information Act request have not been pled with enough
specificity for this Court to determine if they occurred within
the prescriptive period. To the extent that Defendants alleged
conduct

constituted

malfeasance

in

violation

of

federal

law,

Plaintiffs must plead such with enough specificity to determine
that these acts, at a minimum, took place within the prescriptive
period. Iqbal, 129 S.Ct. at 1949.
Because Plaintiffs have not “demonstrated at least one act
during the filing period” that would constitute a violation, they
cannot

demonstrate

a

continuing

violation

to

extend

the

prescriptive period. Id.
CONCLUSION
Accordingly, and for the reasons articulated above, IT
IS ORDERED that Defendant’s Motion to Dismiss be GRANTED without
prejudice.

New Orleans, Louisiana, this 29th day of May, 2012.

_________________________________
UNITED STATES DISTRICT JUDGE

9