Dye v. Kinkade et al
Filing
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ORDER denying 59 motion for TRO. Signed on 11/13/2015 by District Judge M. Douglas Harpool. (Hance, Breanna)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
JAMES DYE,
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Plaintiff,
v.
BRIAN KINKADE, et al.,
Defendants.
Case No. 2:15-cv-04021-MDH
ORDER
Before the Court is Plaintiffs’ Motion for Temporary Restraining Order (Doc. 59). After
careful review of the briefs and exhibits submitted by the parties, the Court DENIES Plaintiff’s
Motion for Temporary Restraining Order.
I. BACKGROUND
Plaintiff is a licensed dentist practicing in Springfield, Missouri who provides dental
services primarily to Medicaid recipients.
Plaintiff commenced this lawsuit against Brian
Kinkade, the director of the Missouri Department of Social Services, in his official capacity, and
against other state officials in their official and individual capacities.
Plaintiff alleges
Defendants acted contrary to state and federal law by promulgating and following an allegedly
unauthorized dental manual that disallows coverage and reimbursement for denture-related
claims for certain eligible adults. Plaintiff alleges Defendants further violated Plaintiff’s First
Amendment rights by retaliating against Plaintiff for speaking out against Defendants’ allegedly
unlawful policies and procedures.
Most relevant here are Plaintiff’s First Amendment retaliation claims. The Amended
Complaint alleges that Plaintiff contested Defendants’ policies through repeated requests for
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reimbursement and through administrative and judicial proceedings challenging Defendants’
allegedly unlawful policies and procedures.
The Amended Complaint alleges Defendants
retaliated against Plaintiff by instituting 100% prepayment review of all of Plaintiff’s claims; by
denying denture claims submitted by Plaintiff; by failing/refusing to submit to timely process
denture claims filed by Plaintiff; by auditing Plaintiff; by auditing Plaintiff’s former employees
and giving them less than 24 hours’ notice to audit 500 former patient files; and by suspending
Plaintiff’s Medicaid Provider Number. The Amended Complaint seeks injunctive relief barring
Defendants from retaliating against Plaintiff for exercising his First Amendment right to
challenge and contest Defendants’ allegedly illegal procedures; barring Defendants from
sanctioning or limiting Plaintiff’s ability to participate as a Title XIX provider and submit claims
for payment of Medicaid dental services; and barring Defendants from implementing the new
dental manual.
Plaintiff has now filed a motion for temporary restraining order. On August 29, 2014,
Defendants mailed Plaintiff a letter informing Plaintiff that Defendants were terminating
Plaintiff’s participation in the MO HealthNet program and terminating Plaintiff’s MO HealthNet
provider numbers, effective in thirty (30) days.
Plaintiff appealed that decision to the
Administrative Hearing Commission (AHC), pursuant to Mo. Rev. Stat. § 208.156, and the AHC
granted Plaintiff a stay of termination. Defendants have now asked the Commissioner for a
removal of that stay. The Commissioner has scheduled a hearing on Plaintiff’s termination
appeal for Monday, November 16, 2015 at 9:00 a.m. According to an affidavit submitted by Jim
Arneson – Plaintiff’s attorney in the AHC proceedings – the Commissioner stated during a
telephone conference that she is inclined to lift the stay of termination; however, as stated by
Defendants, no decision on the stay has been made at this time and the Commissioner has
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granted Plaintiff additional time to file any written response or evidence for the AHC to consider
in ruling on Defendants’ motion to lift the stay. Plaintiff now requests immediate relief from this
Court “to enjoin Defendants from continuing to retaliate against Plaintiff for exercising his right
to free speech by terminating Plaintiff’s NPI number, which would effectively prevent Plaintiff
from working as a dentist in Missouri.” Plaintiff requests an order enjoining Defendants from
terminating Plaintiff’s NPI number, thereby preserving the status quo, until a full hearing on the
merits of Plaintiff’s claims in this case can be heard and ruled on.
II. STANDARD
The Eighth Circuit has summarized the factors required to determine whether a
temporary restraining order should issue pursuant to Federal Rule of Civil Procedure 65:
In sum, whether a preliminary injunction should issue involves consideration of
(1) the threat of irreparable harm to the movant; (2) the state of balance between
this harm and the injury that granting the injunction will inflict on other parties
litigant; (3) the probability that movant will succeed on the merits; and (4) the
public interest.
Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981); see generally
Prudential Ins. Co. of Am. v. Inlay, 728 F. Supp. 2d 1022, 1028 (N.D. Iowa 2010) (“it is wellsettled in this circuit that applications for preliminary injunctions and temporary restraining
orders are generally measured against the same factors”). No single factor is determinative in
balancing the equities. Dataphase, 640 F.2d at 113. The burden of establishing the necessity of
a temporary restraining order is on the movant.
See Nokota Horse Conservancy, Inc. v.
Bernhardt, 666 F. Supp. 2d 1073, 1077 (D.N.D. 2009) (citing Baker Elec. Coop., Inc. v. Chaske,
28 F.3d 1466, 1472 (8th Cir. 1994)).
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III. DISCUSSION
Upon review and consideration, the Court finds Plaintiff has failed to meet his burden to
establish the necessity of a temporary restraining order. Accordingly, the Court denies Plaintiff’s
motion for temporary restraining order.
A. Younger Abstention
Defendants argue the Younger abstention doctrine applies in this federal case such that
the Court should abstain from exercising jurisdiction over Plaintiff’s motion for temporary
restraining order. The Eighth Circuit has described the Younger abstention doctrine as follows:
The Younger abstention doctrine derives from notions of federalism and comity.
Younger itself held that, absent extraordinary circumstances, federal courts should
not enjoin pending state criminal prosecutions. See Younger, 401 U.S. at 54, 91
S.Ct. 746. The Supreme Court later extended Younger abstention to state
noncriminal judicial proceedings, including administrative proceedings, if the
proceeding: (1) involves an ongoing state judicial proceeding, (2) implicates an
important state interest, and (3) provides an adequate opportunity to raise
constitutional challenges in the state proceeding. Middlesex Cnty. Ethics Comm. v.
Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116
(1982).
Hudson v. Campbell, 663 F.3d 985, 987 (8th Cir. 2011).
A recent case demonstrates the application of Younger abstention doctrine. In Geier v.
Missouri Ethics Comm'n, 715 F.3d 674 (8th Cir. 2013), the Commission brought an
administrative enforcement action against plaintiff, a political action committee, alleging that it
failed to file reports and other documentation as required. Id. at 676. In response, plaintiff filed
a federal lawsuit against the Commission alleging the Commission’s enforcement action violated
the First Amendment and seeking a preliminary injunction. Id. After ordering argument on the
issue of abstention, Judge Laughrey elected to abstain from hearing plaintiff’s claims under
Younger and dismissed the case. Id. On appeal the Eighth Circuit affirmed Judge Laughrey’s
decision to abstain. Id. at 680. The parties stipulated that the first two Younger factors were met
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and the Court found that plaintiff failed to establish it did not have an adequate opportunity to
raise its constitutional claims through the Missouri administrative process. Id. at 679. The Court
noted that “Missouri allows for judicial review of final administrative decisions” and “Missouri’s
statutory framework provides that the scope of judicial review includes analyzing whether the
agency’s action constituted a violation of constitutional provisions.” Id. (citing Mo. Rev. Stat.
§§ 536.100, 536.140(2)(1). The Court struck down plaintiff’s argument that the case involved an
exception to the Younger doctrine merely because it concerned the First Amendment. Id. 67980. In sum, the Eighth Circuit found the plaintiff failed to meet its burden to show it could not
adequately raise its constitutional issues in Missouri’s administrative proceedings or that an
exception to the Younger abstention doctrine applied; accordingly, the Court affirmed the district
court’s decision to abstain.
The Court finds the Younger abstention doctrine applies equally to this case. First, there
is clearly an ongoing state administrative proceeding. In that administrative proceeding, Plaintiff
is contesting Defendants’ termination Plaintiff’s participation in the MO HealthNet program and
the termination of Plaintiff’s provider numbers.
Second, the ongoing state administrative
proceeding implicates the state’s important interests in administering its Medicaid program and
protecting the program from fraud and waste. Third, as discussed in Geier, supra, Plaintiff has
an adequate opportunity to raise his First Amendment retaliation challenges in the state
administrative proceedings and associated state case upon judicial review. Accordingly, the
Younger abstention doctrine applies and the Court will abstain from hearing Plaintiff’s motion.
B. Dataphase Factors
Furthermore, even if the Court were to accept jurisdiction over Plaintiff’s motion,
Plaintiff has failed to establish the necessity of a temporary restraining order under Dataphase.
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First, Plaintiff has failed to show a threat of irreparable harm. Plaintiff has not demonstrated any
certain, imminent injury that is likely to occur if the Court does not grant a temporary restraining
order; rather, Plaintiff will still have the opportunity to present his arguments to the
Commissioner and the Commissioner will decide whether to continue the stay.
If the
Commissioner opts to lift the stay, she will then hear evidence and argument related to the
propriety of Defendants’ termination of Plaintiff’s benefits. Even assuming the Commissioner
does issue a termination decision adverse to Plaintiff on Monday, Plaintiff has the ability to
appeal that decision to a Missouri Circuit Court and seek another stay of termination or other
injunctive relief. Accordingly, the Court finds Plaintiff has failed to meet his burden to show
irreparable harm. Second, Plaintiff has presented insufficient evidence and argument to show
that he is likely to proceed on the merits of his First Amendment retaliation claims. Plaintiff’s
affidavits do not demonstrate that termination of Plaintiff’s provider numbers was the result First
Amendment retaliation. To the contrary, Defendant presents strong evidence that Plaintiff’s
termination is, in fact, the result of public complaints and audit/investigation results that show
Plaintiff violated Medicaid rules repeatedly and in numerous different ways. In light of these
two factors, Plaintiff has failed to meet his burden to show this Court that a temporary restraining
order should issue.
IV. CONCLUSION
For the reasons stated herein, Plaintiff’s Motion for Temporary Restraining Order (Doc.
59) is hereby DENIED.
IT IS SO ORDERED.
Date: November 13, 2015
_/s/ Douglas Harpool________________
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE
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