Smith v. Kliebert et al

Filing 41

ORDER & REASONS: ORDERED that Easter Seals' Motion to Dismiss (Rec. Doc. 12 ); DHH, SCLHSA, and Kliebert's Motion to Dismiss (Rec. Doc. 22 ); and Lafourche ARC's Motion to Dismiss (Rec. Doc. 37 ) are GRANTED. The above-captioned action is DISMISSED. Plaintiff's claim seeking review of the DHH's decision to terminate his benefits under the NOW program, over which this Court lacks subject matter jurisdiction, is DISMISSED without prejudice. Plaintiff's federa l allegations, which do not state a plausible claim upon which relief can be granted, are DISMISSED with prejudice. FURTHER ORDERED that Plaintiff's Motion for Emergency Preliminary Injunction (Rec. Doc. 9 ) is DENIED. FURTHER ORDERED that Defendants' Motion for Leave to File Reply to Plaintiff's Opposition (Rec. Doc. 38 ) is DENIED as moot. Signed by Judge Carl Barbier on 8/12/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

THOMAS J. SMITH

CIVIL ACTION

VERSUS

NO: 15-1775

KATHY KLIEBERT, ET AL.

SECTION: “J”(3)
ORDER & REASONS

Before

the

Court

are

three

Motions

to

Dismiss

filed

by

Defendant Easter Seals Louisiana, Inc., (“Easter Seals”) (Rec.
Doc.

12),

Department
Louisiana

Defendants

the

State

of

and

Hospitals

(“DHH”),

Services

Authority

(“SCLHSA”),

Health

Human

of

Louisiana,

through
South

its

Central

and

Kathy

Kliebert, in her official capacity as Secretary of Health and
Hospitals (Rec. Doc. 22), and Defendant Lafourche ARC (Rec. Doc.
37); and two oppositions thereto (Rec. Docs. 29, 31) filed by
Plaintiff Thomas J. Smith, through his tutrix Carolyn Smith.
Having considered the motions and legal memoranda, the record,
and the applicable law, the Court finds that the Defendants’
motions should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This litigation arises from the DHH’s decision to terminate
Plaintiff’s in-home care that he received as a result of his
participation

in

the

Medicaid

program

entitled

the

New

Opportunities Waiver (“NOW”) program. The NOW program, which is
administered by the DHH, allocates resources, including in-home

care, to participants based on their level of need. On May 27,
2015, Plaintiff filed his pro se Complaint alleging that the
Defendants’ decision to terminate his in-home care violated his
rights

under

various

federal

statutes

and

constitutional

provisions. (Rec. Doc. 1)
Plaintiff
Defendants

has

previously

regarding

the

filed

same

suit

causes

against

of

action

the

and

same

similar

operative facts. In 2012, Plaintiff alleged that the DHH reduced
his in-home care from 24 hours per day to 74 hours per week.
Plaintiff appealed that reduction to a state administrative law
judge at the Louisiana Division of Administrative Law (“DAL”),
who affirmed the DHH’s decision. In July 2012, Plaintiff filed
suit

in

the

Seventeenth

Judicial

District

for

the

Parish

of

Lafourche, seeking review of the administrative judge’s ruling.
That suit is still pending.
On January 9, 2013, Plaintiff filed a pro se complaint in
this Court, Civil Action No. 12-3057 (“No. 12-3057”), purporting
to

“transfer”

district

his

court.

pending
The

state

court

magistrate

action

judge

to

the

construed

federal
this

as

Plaintiff’s attempt to remove his own action and recommended
that

the

action

be

remanded.

Plaintiff

objected

to

the

magistrate judge’s recommendation, explaining that he intended
to

file

believed

a

separate

that

he

was

action

in

federal

required

to

2

court

transfer

and

his

erroneously

pending

state

court action in order to do so. This Court sustained Plaintiff’s
objection and granted him leave to file an amended complaint
that included claims under federal statutory or constitutional
law. Plaintiff filed his amended complaint on March 1, 2013.
In

August

Permanent

2013,

Restraining

Plaintiff
Order,

filed

seeking

a

Motion

to

have

for
the

Emergency
defendants

immediately enjoined from reducing his in-home care hours. After
being

served,

Plaintiff’s

the

defendants

amended

each

filed

for

lack

complaint

motions
of

to

dismiss

subject

matter

jurisdiction and for failure to state a claim upon which relief
could be granted. Plaintiff filed identical oppositions to all
three motions to dismiss.
On December 16, 2013, this Court granted the defendants’
motions to dismiss, holding that Plaintiff had failed to state a
claim upon which relief could be granted and that this Court
lacked subject matter jurisdiction to hear Plaintiff’s claims.
The

United

States

Court

of

Appeals

for

the

Fifth

Circuit

affirmed the judgment against Plaintiff on September 9, 2014.
Finally, the United States Supreme Court denied certiorari on
February 23, 2015.
In

the

instant

case,

Plaintiff

again

alleges

that

the

Defendants violated his rights, this time by terminating his inhome care rather than simply reducing it. On June 6, 2014, DHH
sent Plaintiff a letter discharging him from the NOW program

3

because of his alleged noncompliance with NOW program policies
and Medicaid regulations. (Rec. Doc. 19-6) Plaintiff did not
appeal this decision to a state administrative law judge. After
all litigation concerning No. 12-3057 had ceased, on March 12,
2015,

Medicaid

terminated

funding

to

Plaintiff’s

NOW

waiver.

Plaintiff appealed the termination; however, Plaintiff failed to
attend his appeal hearing, resulting in the administrative law
judge upholding the termination. 1 (Rec. Doc. 19-8) Plaintiff did
not seek judicial review of this administrative ruling in state
court.
On July 6, 2015, Plaintiff filed a Motion for Emergency
Preliminary
Defendants
care

and

Injunction
immediately

to

Defendants’

restore
opposed

(Rec.

Doc.

enjoined
his

from

in-home

Plaintiff’s

9),

seeking

to

terminating

care

to

motion.

24

(Rec.

have

his

hours
Docs.

the

in-home
per
17,

day.
19)

Defendants filed the instant Motions to Dismiss (Rec. Docs. 12,
22, 37) arguing that the Court must dismiss Plaintiff’s claims
for

lack

of

subject

matter

jurisdiction,

failure

to

state

a

claim upon which relief could be granted, insufficient service
of process, as “frivolous or malicious” under 28 U.S.C. § 1915,
and

as

barred

by

res

judicata.

Plaintiff

timely

opposed

the

motion filed by Easter Seals and the motion by DHH, SCLHSA, and

1

The administrative law judge’s decision terminating Plaintiff’s appeal was
rendered on May 28, 2015, after Plaintiff had already filed his Complaint in
the instant case.

4

Kliebert. (Rec. Docs. 29, 31) Because Lafourche ARC’s motion is
set for hearing on August 26, 2015, the deadline for Plaintiff
to file a response has not yet passed. The arguments raised by
Lafourche ARC, however, are nearly identical to those raised in
the

other

Defendants’

motions.

Therefore,

the

Court

will

consider all three motions together.
PARTIES’ ARGUMENTS
The Defendants present a litany of arguments in support of
their motions to dismiss. First, the Defendants argue that this
Court lacks subject matter jurisdictions over Plaintiff’s claims
that

seek

decision

federal
to

court

terminate

review

of

Plaintiff’s

the
NOW

state

administrative

benefits.

Second,

Defendants argue that Plaintiff failed to properly serve them
with process by simply sending the Complaint to Defendants by
mail. Third, Defendants argue that Plaintiff fails to state a
claim upon which relief may be granted. Fourth, Defendants argue
that Plaintiff’s claims must be dismissed under 28 U.S.C. § 1915
because

the

Complaint

in

this

in

forma

pauperis

action

is

frivolous or malicious. Lastly, Defendants argue that Plaintiffs
federal

claims

are

barred

by

the

doctrine

of

res

judicata

because the same claims were properly dismissed by this Court in
No. 12-3057.
Plaintiff

generally

opposes

Defendants’

motions.

First,

Plaintiff argues that the Complaint “not only meets but exceeds

5

the standards” set forth in Rule 8 of the Federal Rules of Civil
Procedure. Second, in response to Defendants’ argument that this
Court lacks subject matter jurisdiction, Plaintiff argues that
the causes of action in this case “arise under Medicaid, Federal
Laws, and the Constitution.” (Rec. Doc. 31, p. 4) According to
Plaintiff,

a

Medicaid

Louisiana’s

procedure

lawsuit

federal

in

recipient
for

court.

is

not

judicial
Third,

required

review

Plaintiff

to

exhaust

before

filing

argues

that

a
his

claims are not barred by res judicata because “this is a new
case” and he “[has] not otherwise litigated the issue before
this Court and [has] never received a decision on this issue.”
(Rec. Doc. 29, p.2; Rec. Doc. 31, p. 6)

Plaintiff’s oppositions

do

regarding

not

address

Defendants’

arguments

insufficient

service of process or dismissal pursuant to 28 U.S.C. § 1915.
LEGAL STANDARD
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

6

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 and Procedure § 3522 (3d ed.
2008). If a court lacks subject matter jurisdiction, it should
dismiss without prejudice. In re Great Lakes Dredge & Dock Co.,
624 F.3d 201, 209 (5th Cir. 2010).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough 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, 570
(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. Iqbal, 556 U.S. at 678. Although pro se
plaintiffs
represented

are
by

held

to

lawyers,

less

stringent

“conclusory

standards

than

those

allegations

or

legal

conclusions masquerading as factual conclusions will not suffice

7

to prevent a motion to dismiss.” Taylor v. Books A Million,
Inc., 296 F.3d 376, 378 (5th Cir. 2002).
DISCUSSION
The Fifth Circuit summarized the law applicable to this
case

in

Plaintiff’s

previous

appeal,

Smith

ex

rel.

Smith

v.

Department of Health & Hospitals Louisiana, 581 F. App'x 319
(5th Cir. 2014).
As an initial matter, to the extent that Smith
seeks review in federal court of the Department's
decision to reduce his benefits under the NOW program,
his claims do not raise a federal issue and were
rightly
dismissed
for
lack
of
subject
matter
jurisdiction. See Vinson v. La. Sec'y of Health and
Hosps., 2009 WL 1406296, *1–2 (W.D. La. May 19, 2009);
Mashburn v. La. Dep't of Soc. Servs., 1993 WL 192122,
*1 (E.D. La. June 1, 1993). Under Louisiana law, a
plaintiff aggrieved by a final decision of the
Department must seek review “in state, as opposed to
federal, court.” Mashburn, 1993 WL 192122 at *1; see
also La. Rev. Stat. § 46:107(C) (“[A]n applicant or
recipient may obtain judicial review [of an adverse
administrative decision] by filing a petition for
review of the decision in the Nineteenth Judicial
District Court or the district court of the domicile
of the applicant or recipient.”). Thus, as the
district court correctly noted, Smith must continue to
pursue these claims in state court.
Id.

at

320.

In

the

instant

case,

Plaintiff

seeks

review

in

federal court of the DHH’s decision to terminate his benefits
under

the

NOW

program.

It

makes

no

difference

whether

the

decision was to reduce his in-home care form 24 hours per day to
74

hours

per

week,

as

terminate

his

in-home

was
care

the

case

altogether,

8

in
as

No.
is

12-3057,
the

case

or

to

here.

Plaintiff’s claims do not raise a federal issue; he must seek
review in state court.
Regarding Plaintiff’s claims under federal law, the Court
agrees

with

Defendants

that

Plaintiff

has

failed

to

state

a

claim upon which relief can be granted. The Court finds that the
Complaint
listing

only

of

includes

federal

conclusory

statutes

that

allegations
are

not

and

a

connected

general
to

any

specific facts and do not appear to state a cognizable claim. In
fact, other than in the caption, the Complaint does not mention
Easter Seals, SCLHSA, or Lafourche ARC at all. Just as in No.
12-3057,

Plaintiff

refers

to

the

Americans

with

Disabilities

Act, 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. §
794,

both

of

disability;
benefits

which

prohibit

however,

were

discrimination

Plaintiff's

terminated

do

on

allegations

not

indicate

the

basis

of

that

his

NOW

that

he

was

discriminated against in any way.
Plaintiff

also

claims

a

violation

of

42

U.S.C.

§

1983,

which requires proof that Defendants violated one of Plaintiff’s
federal statutory or constitutional rights. See Webster v. City
of

Houston,

735

F.2d

838,

Plaintiff

claims

that

“denial

violates

the

Medicaid

Act

844
of
and

(5th

Cir.

1984).

notification
the

Fifth

of
and

Similarly,
an

Appeal”

Fourteenth

Amendments to the United States Constitution. However, Plaintiff
provides no facts in connection with this claim.

9

Just

as

Plaintiff’s

they
claims

insufficient.

were

“Without

Plaintiff’s

this

in

in

Complaint

connecting

the

previous
are

complaint,

conclusory

alleged

facts

to

and
the

alleged rights, Smith argues only that his benefits were reduced
and that this reduction amounts to a violation of his federal
statutory and constitutional rights. The proper response to such
conclusory

allegations

is

dismissal

for

failure

to

state

a

claim.” Smith, 581 F. App’x at 321 (citing Iqbal, 556 U.S. at
678).
Because the Court concludes that it lacks subject matter
jurisdiction

over

Plaintiff’s

state

law

claims

and

that

Plaintiff’s federal law allegations do not state a plausible
claim

upon

which

relief

can

be

granted,

the

Court

need

not

consider whether Plaintiff failed to properly serve Defendants
with process or if the doctrine of res judicata applies in this
case.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Easter Seals’ Motion to Dismiss
(Rec. Doc. 12); DHH, SCLHSA, and Kliebert’s Motion to Dismiss
(Rec. Doc. 22); and Lafourche ARC’s Motion to Dismiss (Rec. Doc.
37)

are

GRANTED.

Plaintiff’s

claim

The

above-captioned

seeking

review

of

action
the

is

DHH’s

DISMISSED.
decision

to

terminate his benefits under the NOW program, over which this

10

Court lacks subject matter jurisdiction, is DISMISSED without
prejudice. Plaintiff’s federal allegations, which do not state a
plausible claim upon which relief can be granted, are DISMISSED
with prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Emergency
Preliminary Injunction (Rec. Doc. 9) is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion for Leave to
File Reply to Plaintiff’s Opposition (Rec. Doc. 38) is DENIED as
moot.
New Orleans, Louisiana this 12th day of August, 2015.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

11