Montgomery v. Coventry Health Care, Inc et al

Filing 10

ORDER: Adopting Magistrate Judge Clarke's Report and Recommendation 5 ; Denying as Moot Motion for Leave to Proceed in Forma Pauperis 1 . This action is dismissed, with prejudice. Signed on 4/16/2012 by Judge Owen M. Panner. (dkj)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MAURICE MONTGOMERY, an individual,
Plaintiff,

1:12-cv-131-CL

v.

ORDER

COVENTRY HEALTH CARE,

INC. et al,

Defendants.

PANNER, District Judge:

Magistrate Judge Mark D. Clarke filed a Report and
Recommendation (#5), and the matter is now before me. See 28
U.S.C.

§

636 (b) (1) (B),

Fed. R. Civ. P. 72 (b). Pro se plaintiff

filed objections. Accordingly,

I have reviewed the file of this

case de novo. See 28 U.S.C. § 636(b) (1)
Corp. v. Commodore Bus. Mach.,

1 - ORDER

Inc.,

(C)i

McDonnell Douglas

656 F.2d 1309, 1313 (9th Cir.

1981). I conclude the R & R is correct.
Plaintiff alleges a Medicare Part 0 sponsor's pharmacy
refused to fill his prescription. Plaintiff's cause of action
necessarily "arises under" the Medicare Act. Therefore,
plaintiff's claims are subject to the Act's mandatory exhaustion
requirements. See Do Sung Uhm v. Humana,

Inc.,

620 F.3d 1134,

1140-41 (9th Cir. 2010).
Enrollees challenging adverse coverage determinations must
proceed according to the process outlined in 42 U.S.C.

§§

423.566

- 423.604. Enrollees with complaints other than one involving a
coverage determination must proceed according to the grievance
procedures of

§

423.564. Plaintiff does not dispute that he failed

to appeal his claims or file a grievance. Therefore, this Court
lacks jurisdiction over plaintiff's claims. Id.
CONCLUSION

I adopt Magistrate Judge Clarke's Report and Recommendation
(#5). This action is dismissed, with prejudice.
IT IS SO ORDERED.

DATED this ~ day of April, 2012.

~~

OWEN M. PANNER
U.S. DISTRICT JUDGE

2 - ORDER