Smith v. Department of Health and Hospitals State of Louisiana et al

Filing 36

ORDERED that Lafourche ARC, DHH and SCLHSA, and Easter Seals' Motions to Dismiss (Rec. Docs. 20 , 22 , 24 ) are GRANTED. ORDERED that this action is DISMISSED WITH PREJUDICE. FURTHER ORDERED that Plaintiff's recently filed Motion for Trial by Jury (Rec. Doc. 34 ) and Motion to Appoint Counsel (Rec. Doc. 35 ) are DENIED AS MOOT. Signed by Judge Carl Barbier on 12/16/13. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SMITH

CIVIL ACTION

VERSUS

NO: 12-3057

DEPT. OF HEALTH AND HOSPITALS
STATE OF LOUISIANA, ET AL

SECTION: "J" (3)

ORDER
Before the Court are three
Defendant

Lafourche

ARC

(Rec.

Motions to Dismiss

Doc.

20),

Defendants

filed by
Louisiana

Department of Health and Hospitals ("DHH") and South Central
Louisiana Human Service Authority ("SCLHSA")(Rec. Doc. 22), and
Defendant Easter Seals Louisiana, Inc. ("Easter Seals"). (Rec.
Doc. 24) Defendants' motions, which were set for hearing on
December 4, 2013, are before the Court on the briefs.

Having

considered the motions and memoranda of counsel, the record, and
the applicable law, the Court finds that Defendants' motions
should be GRANTED for the reasons set forth more fully below.
FACTS AND PROCEDURAL HISTORY
This

matter

arises

from

the

DHH's

decision

to

reduce

Plaintiff Thomas Smith, Jr.'s number of hours of in-home care

that he received as a result of his participation in a Medicaid
program

entitled

the

"New

Opportunities

Waiver"

program.

Plaintiff appealed this decision to a state administrative law
judge,

and

the

DHH's

decision

was

affirmed.

In

July

2012,

Plaintiff filed suit against the DHH in the Seventeenth Judicial
District Court for the Parish of Lafourche seeking review of the
administrative law judge's ruling. (Rec. Doc. 22-1, Exh. A, p.
21) It appears that the state court proceeding is still pending.
On December 31, 2012, Plaintiff, through his tutrix Carolyn
Smith, moved this Court for leave to proceed in forma pauperis.
The motion was granted and Plaintiff filed his pro se Complaint
on

January

further

9,

order

2013;
of

the

however,
Court.

summons
In

this

were

withheld

Complaint,

pending

Plaintiff

purported to "transfer" his pending state court action to this
Court for review. Magistrate Judge Knowles construed this as an
attempt to remove Plaintiff's own action and recommended that the
action

be

remanded

to

state

court.

(Rec.

Doc.

4)

Plaintiff

objected to the Magistrate Judge's Report and Recommendation and
explained to the Court that he intended to file a separate action
in this Court and erroneously believed that he was required to
transfer his pending state court action. (Rec. Doc. 5) The Court
sustained

the

objection,

rejected

Magistrate

Judge

Knowles'

recommendation, and granted Plaintiff leave to file an amended

complaint, which he filed on March 1, 2013. (Rec. Docs. 6 & 7)
In August, Plaintiff filed a Motion for Emergency Permanent
Restraining. (Rec. Doc. 8) Finding that Defendants in this matter
had never been served with Plaintiff's Amended Complaint, the
Court

denied

the

motion

without

prejudice

to

re-file

once

Defendants had been served and given the opportunity to file
responsive pleadings. (Rec. Doc. 11) Once Defendants had been
served,

they

Plaintiff's

each

Amended

filed

the

Complaint

instant
for

lack

motions
of

to

subject

dismiss
matter

jurisdiction and for failure to state a claim. (Rec. Docs. 20, 22
& 24) After the Plaintiff failed to respond to Lafourche ARC's
motion, which was set for hearing on November 6, 2013, the Court
reset all three motions for hearing on December 4, 2013 and
ordered Plaintiff to respond to the pending motions by November
26, 2013. (Rec. Doc. 25) Plaintiff filed identical oppositions to
all three motions on November 19, 2013. (Rec. Docs. 26, 27, 28)
DHH filed a reply memorandum on December 3, 2013. (Rec. Doc. 33)
LEGAL STANDARD & DISCUSSION
In deciding a motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1), “the
district court is ‘free to weigh the evidence and resolve factual
disputes in order to satisfy itself that it has the power to hear
the case.’” Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th

Cir. 2005).

The party asserting jurisdiction must carry the

burden of proof for a Rule 12(b)(1) motion to dismiss.

Randall

D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762 (5th Cir.
2011).

The standard of review for a facial challenge to a motion

to dismiss under Rule 12(b)(1) is the same as that for a motion
to dismiss pursuant to Rule 12(b)(6).

United States v. City of

New Orleans, No. 02-3618, 2003 WL 22208578, at *1 (E.D. La. Sept.
19, 2003); see also,13 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE

PROCEDURE § 3522 (3d ed. 2008).

AND

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead sufficient facts to “state a claim to relief that is
plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)).

A claim is facially plausible when the plaintiff pleads

facts that allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.”

Id.

A

court must accept all well-pleaded facts as true and must draw
all reasonable inferences in favor of the plaintiff.

Lormand v.

U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker
v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

The court is not,

however, bound to accept as true legal conclusions couched as
factual allegations.
plaintiffs

are

held

Iqbal, 556 U.S. at 678. Although pro se
to

less

stringent

standards

than

those

represented

by

lawyers,

“conclusory

allegations

or

legal

conclusions masquerading as factual conclusions will not suffice
to prevent a motion to dismiss.” Taylor v. Books A Million, Inc.,
296 F.3d 376, 378 (5th Cir. 2002).
This Court previously granted Plaintiff leave to amend his
complaint, recognizing that he intended to assert federal claims
that reach beyond the issues pending in his action in state
court. Upon review of Plaintiff's Amended Complaint, however, the
Court

finds

that

the

Complaint

only

includes

conclusory

allegations and a general listing of federal statutes that are
not connected to any specific facts and do not appear to state a
cognizable claim. For example, Plaintiff refers to the Americans
with Disabilities Act (42 U.S.C. § 12132) and the Rehabilitation
Act (29 U.S.C. § 794), both of which prohibit discrimination on
the basis of disability; however, Plaintiff's allegations that
his

benefits

were

reduced

do

not

indicate

that

he

was

discriminated against in any way. Plaintiff further claims a
violation of 42 U.S.C. §§ 1983 and 1985, which require proof that
the defendants violated one of Plaintiff's federal statutory or
constitutional rights. See Webster v. City of Houston, 735 F.2d
838,

844

(5th

Cir.

1984).

Plaintiff's

allegations

do

not,

however, state a plausible claim for any such violations.1
Further, it is clear from the allegations that Plaintiff
seeks to litigate the same issues regarding his reduction in
services that he appealed in state court. The Court does not have
jurisdiction
Revised

to

Statute

hear
§

these

46:107,

claims
such

because,
claims

for

under

Louisiana

review

of

an

administrative decision must be filed "in the Nineteenth Judicial
District Court or the district court of the domicile of the
applicant or recipient." La. Rev. Stat. Ann. § 46:107. Thus,
Plaintiff must continue to pursue his claim in the Seventeenth
Judicial District Court, which is the district court located in
Plaintiff's domicile.
Accordingly,
Lafourche ARC, DHH and SCLHSA, and Easter Seals' Motions to
Dismiss (Rec. Docs. 20, 22, 24) are GRANTED.
IT IS ORDERED that the above-captioned action is DISMISSED
WITH PREJUDICE.

1

Plaintiff cites to other provisions, such as 28 U.S.C. § 517 (allowing
the United States to intervene in pending actions involving an interest of the
United States); 18 U.S.C. § 3006 (rule of criminal procedure relating to the
appointment of counsel for one accused of a crime); 28 U.S.C. § 2679
(provision entitled "exclusiveness of remedy" relating to tort claims against
the United States); 42 U.S.C. § 1981 (granting the right to make and enforce
contracts); Article 1 of Section 10 (origin unknown); Retroactive Law;
Grandfather Clause; and the Fifth, Sixth, and Fourteenth Amendments of the
United States Constitution. These provisions either do not exist, are not
sufficiently described, or do not have a connection with the alleged facts;
therefore, these provisions are not sufficient to state a federal claim.

IT IS FURTHER ORDERED that Plaintiff's recently filed Motion
for Trial by Jury (Rec. Doc. 34) and Motion to Appoint Counsel
(Rec. Doc. 35) are DENIED AS MOOT.
New Orleans, Louisiana this 16th day of December, 2013.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE