Boyle et al v. Kliebert et al

Filing 31

ORDER AND REASONS granting 15 Motion to Dismiss for Failure to State a Claim; denying 16 Motion for Sanctions. Signed by Judge Ivan L.R. Lemelle. (ijg)

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

CIVIL ACTION

VERSUS

NO. 13-5717

KATHY KLIEBERT

SECTION B(4)
ORDER AND REASONS

Nature of Motion and Relief Sought
Before

the

Court

is

Defendant

Kathy

Kliebert’s

Rule

12(b)(6) Motion to Dismiss (Rec. Doc. No. 15) and Motion for
Sanctions (Rec. Doc. No. 16). For the reasons enumerated below,
IT

IS

ORDERED

that

Defendant’s

Motion

to

Dismiss

is

GRANTED.
IT IS FURTHER ORDERED that Defendant’s Motion for Sanctions
is DENIED.
Causes of Action and Facts of Case
I. Alleged Facts
Plaintiffs, James Boyle and Janis Boyle individually and on
behalf of their minor child “D.B.”, brought the instant suit
against Kathy Kliebert in her official capacity as the Secretary
of the Louisiana Department of Health and Hospitals (DHH)1 under

1

Plaintiffs originally named other state officials and the Easter Seals of
Louisiana as defendants, however those defendants were all voluntarily
dismissed from this action by Plaintiffs. (Rec. Doc. No. 7).

1 

42 U.S.C. § 1983.2 As alleged in their Complaint3, D.B. suffers
from cerebral palsy with spastic quadriplegia and hypertonicity,
and

requires

treatment,

extensive

Plaintiffs

medical

previously

treatment.
received

To

pay

benefits

for

this

from

the

Louisiana Medicaid and Children’s Choice Waiver Program (“CC” or
“Waiver Program”), including Early and Periodic Screening and
Diagnostic Treatment (EPSDT).4
As
agency

part

of

approved

the

Waiver

support

Program,

coordination

Plaintiffs

utilized

an

services

provider

to

develop a comprehensive plan of care (CPOC) for D.B. D.B.’s CPOC
included

intensive

physical

therapy

at

the

Pediatric

Fitness

Center (PFC) in Michigan. D.B. received treatment at the PFC on
several occasions while she was enrolled in Medicaid and the

2

Although Plaintiffs list other federal statutes in their Complaint,
including the Rehabilitation Act of 1973, the Americans With Disabilities
Act, and various provisions governing Medicaid, the Court understands
Plaintiffs to only be asserting as their substantive causes of action claims
under 42 U.S.C. § 1983 for Kliebert’s alleged violations of federal law. See
(Rec. Doc. No. 8 at ¶¶ 32-33). Plaintiffs’ Opposition to the instant motion
confirms that fact. While Plaintiffs discuss the requirements of the Medicaid
Act, the enforceability of those requirements is argued only with reference
to § 1983. (Rec. Doc. No. 18 at 4-6).

3

In considering a motion to dismiss, the Court accepts as true all wellpleaded facts by the plaintiffs and views those facts in the light most
favorable to the plaintiffs. Stokes v. Gann, 498 F.3d 483, 484 (5th Cir.
2007).
4

Although Medicaid began as a program enacted by Congress, it exists as “a
cooperative endeavor in which the Federal Government provides financial
assistance to participating States to aid them in furnishing health care to
needy persons.” Harris v. McRae, 448 U.S. 297, 308 (1980). Subject to federal
standards, “each participating State must develop its own program describing
conditions of eligibility and covered services.” Bowen v. Massachusetts, 487
U.S. 879, 883 (1988).

2 

Waiver

Program.

treatment,

After

Plaintiffs

each

occasion

requested

that

payments

be

D.B.

made

received

using

funds

allocated to her through the Waiver Program. The Office for
Citizens with Developmental Disabilities (OCDD), a state agency,
denied each of the requests at various points in 2008 and 2009.
In

2010,

advised

Plaintiffs

Plaintiffs

that

allege

that

Medicaid,

DHH

and

rather

than

OCDD
CC,

officials
was

the

primary payor for D.B.’s treatments. Subsequently, on September
3,

2010,

Plaintiffs

responsible

for

submitted

a

administering

claim

to

Medicaid.

the

state

Plaintiffs

agency

did

not

receive a response. They submitted a second claim on February 3,
2012. Plaintiffs allege that they have yet to receive a response
to either claim.
II. Procedural History
Plaintiffs

originally

filed

suit

against

various

state

defendants for failure to reimburse Medicaid and CC benefits in
2011. That suit, captioned CA 11-3192, was dismissed without
prejudice by this Court by order of May 29, 2012 on prescription
grounds. The Court found that, based on Plaintiffs’ Complaint,
“because Plaintiffs’ funding requests were denied in 2008 and
2009, the prescription period began accruing at that time and
had run” by the time suit was filed. CA 11-3192, (Rec. Doc. No.
28 at 7). The Court did not separately consider Plaintiffs’
additional argument that they had submitted further claims to
3 

the state agency responsible for administering Medicaid, because
Plaintiffs’ filings gave no indication that these claims were
submitted later than 2009. As the Court noted in dismissing the
claim

without

prejudice,

“[t]o

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.” (Id. at 9).
Rather than filing a motion to set aside or a motion to
vacate the Court’s prior decision under Rule 59 or Rule 605,
Plaintiffs waited several months and then filed as an entirely
new action the present suit. In the instant case, Plaintiffs
again claim that DHH, either through Medicaid or OCDD, failed to
provide

federally

specifically,

required

Plaintiffs

reimbursement

state

-

for

the

to
first

D.B.
time

More
in

a

procedurally proper manner6 - that they submitted certain claims
to the state agency responsible for Medicaid reimbursements in
2010 and 2012, for which they have yet to receive a response.
Plaintiffs seek declaratory and injunctive relief to enjoin
Defendant from continued implementation of invalid regulations

5

The Court indicated in an order following dismissal that a motion under Rule
59 or Rule 60 was the proper vehicle for requesting the Court to reconsider
its prior decision. CA 11-3192, (Rec. Doc. No. 40 at 2).

6

 Plaintiffs attempted to amend their Complaint in CA 11-3192 to include the
2010 submission, but only after the case had been dismissed. See (Rec. Doc.
Nos. 32 and 35). 

4 

and policies. Plaintiffs also seek incidental money damages and
penalties

for

(1)

Defendant’s

failure

to

process

Plaintiffs’

Medicaid claims, and (2) Defendant’s failure to implement D.B.’s
plan of care. Additionally, Plaintiffs seek attorneys’ fees and
costs.
Law and Analysis
Defendant’s

Motion

to

Dismiss

is

based

on

two

separate

defenses. Defendant argues: (1) Plaintiffs fail to state a claim
because
cannot

an

official

proceed

under

capacity
42

suit

U.S.C.

§

against
1983;

a

and

state
(2)

official

Plaintiffs’

claims are prescribed. The Court reviews each defense in turn.
I. § 1983 Official Capacity Suits
Whether

a

state

officer

may

be

sued

in

their

official

capacity under 42 U.S.C. § 1983 depends on what relief is being
sought by the plaintiff. An official capacity suit may proceed
where

the

plaintiff

is

seeking

only

prospective

injunctive

relief, but must be dismissed where the plaintiff is seeking
money damages. Am. Bank & Trust Co. of Opelousas v. Dent, 982
F.2d

917,

921

(5th

Cir.

1993);

Horton

v.

Mississippi

State

Senate, 68 F.3d 468 (5th Cir. 1995); see also Edelman v. Jordan,
415 U.S. 651, 678 (1974) (holding the Eleventh Amendment bars
suit for the retroactive payment of government benefits).7

7

 Defense counsel repeatedly cites Will v. Michigan Dep't of State Police, 491
U.S. 58 (1989) for the proposition that all official capacity suits are
barred under § 1983 because a government official sued in their official

5 

Here,
Kliebert

Plaintiffs’

in

her

only

official

remaining

capacity

claims

under

42

are

U.S.C.

against
§

1983.

Plaintiffs seek both injunctive and monetary relief. Pursuant to
the cases cited above, Plaintiffs’ claims for monetary relief
must be dismissed, while their claims for injunctive relief may
proceed. See Blanchard v. Forrest, 1994 WL 495857 at *1-2 (E.D.
La. Sept. 6, 1994) (denying motion to dismiss plaintiffs’ § 1983
official

capacity

suit

for

violations

of

the

Medicaid

Act

wherein injunctive relief was sought).
Plaintiffs cite in their Opposition a number of cases to
establish that they have stated a valid cause of action for all
of their claims to relief. However, none of the cases cited deal
with immunity issues, but instead discuss only whether a party
has a private right of action to enforce Medicaid provisions
under § 1983. Indeed, in the lone Fifth Circuit case cited by
Plaintiffs, the only cause of action alleged was for injunctive
relief. See S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 585 (5th
Cir.

2004)

(plaintiff

brought

action

“seeking

injunctive

and

declaratory relief”).
Accordingly, the Court finds that Plaintiffs’ claims for
monetary

relief

must

be

dismissed,

and

now

moves

to

a

capacity may never be a “person” within the meaning of § 1983. That is flatly
wrong, as recognized by the Will Court itself. Will at 71 n.10 (stating
“[o] f course a state official in his or her official capacity, when sued for
injunctive relief, would be a person under § 1983 . . .”). 

6 

consideration

of

whether

Plaintiffs’

claims

for

declaratory

relief survive prescription.
II. Prescription
Although
limitations,

§

1983

courts

does

not

reviewing

contain
§

1983

a

federal

claims

apply

statute
the

of

forum

state’s personal injury limitations period. Moore v. McDonald,
30 F.3d 616, 620 (5th Cir. 1994). In Louisiana, that period
(known as prescription) is one year. La. Civ. Code art. 3492;
Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998). However,
federal law is used to determine when the claim arises. Jacobsen
at 319. Under federal law, a claim arises “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) (internal citation omitted) and has information sufficient
to “file suit and obtain relief.” Walker v. Epps, 550 F.3d 407,
414

(5th

Cir.

2008).

The

standard

is

the

same

where

only

decided

that

prospective relief is sought. Id.
Defendant

argues

that

the

Court

already

Plaintiffs’ claims are prescribed in its May 29, 2012 Order in
CA 11-3192. The Court disagrees. That Order dismissed without
prejudice Plaintiffs’ claims for four CC Waiver Program “funding
requests [] denied in 2008 and 2009,” as well as Plaintiffs’
claims that the named Defendants in that action had engaged in
an

unlawful

pattern

or

practice
7 

and

continuing

violation

of

federal

law.

CA

11-3192,

(Rec.

Doc.

No.

28

at

7).

Here,

Plaintiffs raise as new matters the two Medicaid claims they
subsequently made to the state in 2010 and 2012, which have gone
unanswered. Although the 2010 request to Medicaid was mentioned
in

the

Court’s

prior

Order,

it

was

not

addressed

by

its

reasoning - which was limited to the finding that Plaintiffs had
“’reason to know’” they had a cognizable injury, at the latest,
a year after the 2009 request was denied. Id. (quoting Jackson
at 265). The matter now before the Court – i.e., when Plaintiffs
had reason to know of their injury for claims which they never
received a response – is a different matter.
In order to determine when Plaintiffs had reason to know
they had been injured, the Court turns to the statutes governing
state Medicaid procedure. State plans administering Medicaid are
required to adhere to certain time requirements contained in 42
C.F.R. § 447.45. Most relevant to this proceeding, the state
Medicaid agency must pay claims within “12 months of the date of
receipt.” Id. at (d)(4).
Plaintiffs

submitted

their

first

Medicaid

claim

on

September 3, 2010 for payment. The state agency was therefore
required respond no later than September 3, 2011. When they did
not respond, Plaintiffs were on notice on that date that they
had been injured by the lack of state action. Jackson at 265;
see also St. Amant v. Benoit, 806 F.2d 1294, 1298 (5th Cir.
8 

1987)

(recognizing

that

government

silence

combined

with

previous denials of similar requests should lead a plaintiff to
reasonably infer that they have been injured, thus commencing
the applicable limitation period). Plaintiffs had one year from
that date to file suit - by September 3, 2012. The instant case
was filed on November 11, 2013 – outside the time period for
filing a claim. The claim is therefore prescribed.8
The

fact

that

Plaintiffs

submitted

a

further

Medicaid

request in February of 2012 does not extend the prescription
date. A plaintiff may not extend the limitation period under
federal statutes by repeating the same claim to the state agency
after already being placed on notice that their rights have been
violated.

See

Odaiyappa v. Bd. of Sup'rs of Louisiana State

Univ., 933 F. Supp. 575, 577 (E.D. La. 1996)(holding that civil
rights

plaintiff

may

not

“extend

the

limitation

periods

indefinitely simply by ‘filing a series of appeals and fresh
requests’”) (quoting Lever v. Nw. Univ., 979 F.2d 552, 555 (7th
Cir. 1992); Cf. Delaware State Coll. v. Ricks, 449 U.S. 250, 261
n.15 (1980) (“Mere requests to reconsider [] cannot extend the

8

The Court notes that this result may have been avoided had Plaintiffs’
counsel included the 2010 date in Plaintiffs’ original complaint or response
to Defendants’ motion dismiss in the 2011 suit, CA 11-3192. Had that date
been presented, the Court may have concluded that at least that Medicaid
claim survived prescription. Instead, counsel only included as the relevant
dates the four denials from 2008 and 2009 – which the Court used as the
measuring dates for prescription. CA 11-3192, (Rec. Doc. No. 28 at 7). Rather
than seeking to vacate the Court’s order on prescription and draw the Court’s
attention to the 2010 date, Plaintiffs waited several months and then filed
the instant lawsuit.

9 

limitations
Further,

to

periods
the

applicable

extent

to

Plaintiffs

the

civil

argue

a

rights

single

laws.”).

continuing

violation has persisted over several years, their claims fair no
better: a plaintiff “may not employ the continuing violation
theory to resurrect claims about discrimination concluded in the
past, even though its effects persist.” Berry v. Bd. of Sup'rs
of L.S.U., 715 F.2d 971, 979 (5th Cir. 1983) (internal citation
omitted). Moreover, Plaintiffs offer no exception for extending
the limitation period. Bourdais v. New Orleans City, 485 F.3d
294,

298

(5th

Cir.

2007)

(“Once

it

is

established

that

the

statutory limitations period has run, the plaintiffs have the
burden to prove that some exception to prescription applies.”).
Accordingly, the claims must be dismissed.9
III. Defendant’s Motion for Sanctions
Because

the

Court

determines

that

Plaintiffs’

cause

of

action here is distinct from that which was previously alleged,
the Court finds no cause to impose sanctions for improper filing

9

 The Court also questions Plaintiffs standing to bring the instant claims.
Standing is an absolute requirement for federal jurisdiction, and without
standing a plaintiff’s claim may not proceed. N.A.A.C.P. v. City of Kyle,
Tex., 626 F.3d 233, 237 (5th Cir. 2010); Ass'n of Cmty. Organizations for
Reform Now v. Fowler, 178 F.3d 350, 356 (5th Cir. 1999). In order to
establish standing for injunctive relief, a plaintiff must establish a “real
or immediate threat that the plaintiff will be wronged” in the future. City
of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). Here, Plaintiffs’ Complaint
reveals that they are currently domiciled in Florida. (Rec. Doc. No. 8 at 5).
They also indicate in their Opposition to the instant Motion that D.B. has
not been enrolled in the CC Waiver Program or Louisiana Medicaid since 2011.
(Rec. Doc. No. 18 at 8). Accordingly, it seems unlikely that Plaintiffs can
maintain standing to challenge the future actions of Louisiana officials –
since they no longer live in the state or are enrolled in the programs in
question.  

10 

of the instant suit, nor does the Court find the suit was filed
solely for the purpose of harassing Defendant. Sanctions are
therefore inappropriate, and denied.10
Conclusion
Accordingly, and for the reasons enumerated above,
IT

IS

ORDERED

that

Defendant’s

Motion

to

Dismiss

is

GRANTED.
IT IS FURTHER ORDERED that Defendant’s Motion for Sanctions
is DENIED.

New Orleans, Louisiana, this 10th day of September, 2014.

______________________________
UNITED STATES DISTRICT JUDGE

10

 Given D.B.’s serious health issues, the distinct factual and legal
circumstances surrounding this action, and the overall tenure of pertinent
pleadings, we are disheartened by the unwarranted attempt to seek
sanctions here.

11