Chute v. Viken et al

Filing 29

MEMORANDUM OPINION AND ORDER granting 25 Motion to Amend/Correct; granting 27 Motion ; denying 12 Motion to Amend Findings of Fact and Amend the Judgment Under FRCP Rule 52(b); denying 12 Motion to Amend/Correct; denying 12 Motion to Alter or Amend Judgment Under FRCP Rule 59(e); denying 17 Motion for Disqualification; denying 20 Motion to Dismiss for Lack of Jurisdiction. Signed by U.S. District Judge Lawrence L. Piersol on 8/27/18. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

GARY L. CHUTE, individually and personally, and
as the personal representative of the Estate of Donna
M. Chute;

5:17-CV-05061-LLP

Plaintiff,
vs.

HONORABLE JEFFREY L. VIKEN, in his official
capacity and individually; HONORABLE DANIEL

L. HOVLAND, in his official capacity and
individually;
HONORABLE
RAYMOND
GRUENDER, in his official capacity and
individually; HONORABLE DIANA MURPHY in
her official capacity and individually; HONORABLE
LAVENSKI SMITH in his official capacity and
individually; HONORABLE WILLIAM JAY RILEY
in his official capacity and individually; BRENDAN
V. JOHNSON, United States Attorney, in his official
capacity
and
individually;
STEPHANIE
BENGFORD,Assistant United States Attorney,in her
official capacity and individually;
MICHAEL S. HOWARD, Assistant Counsel, Social
Security Administration, in his official capacity and

MEMORANDUM OPINION AND
ORDER DENYING PLAINTIFF'S
MOTION TO ALTER OR AMEND THE

JUDGMENT,DENYING PLAINTIFF'S
MOTION TO DISQUALIFY JUDGE
PIERSOL,GRANTING PLAINTIFF'S

MOTION TO AMEND THE COMPLAINT,
DENYING DEFENDANT'S

MOTION TO DISMISS COMPLAINT,
AND GRANTING DEFENDANT'S MOTION
TO DISMISS AMENDED COMPLAINT

individually; CAROLYN W. COLVIN, Acting
Commissioner of Social Security, in her official
capacity; JEFFREY B. WALL, Acting Solicitor

General, in his official capacity and individually;
JUDGE VIKEN'S UNKNOWN LAW CLERK(S), in
their official capacity and individually; JUDGE
HOVLAND'S UNKNOWN LAW CLERK(S), in
their official capacity and individually; AND
EIGHTH
CIRCUIT
COURT
OF
APPEAL
UNKNOWN NUMBER OF PANEL JUDGES AND

LAW CLERKS, in their official capacity and
individually;
Defendants.

INTRODUCTION

Pending before the Court is Plaintiffs Motions to Alter or Amend the Judgment under
FCRP Rule 59(e), Amend Findings of Fact and Amend the Judgment Under FRCP Rule 52(b),

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and for Clarification of Jurisdiction, Doc. 12, Plaintiffs Motion for Disqualification of Judge
Lawrence L. Piersol, Doe. 17, and Plaintiffs Motion to Amend Complaint, Doc. 25. Also before
the Court is Defendant's Motion to Dismiss Complaint, Doc. 20 and Defendant's Motion to

Dismiss Amended Complaint, Doc. 27. Having considered the pleadings, the Court denies
Plaintiffs motions and Defendant's Motion to Dismiss Complaint. Defendant's Motion to Dismiss
the Amended Complaint is granted.
FACTUAL BACKGROUND

Plaintiffs complaint alleges a conspiraey aimed to deprive Plaintiff of his disability
benefits. The alleged faets came about during and as a result of earlier litigation in Civ. 11-5062.
The earlier litigation began on August 5, 2011, when Plaintiff filed a complaint appealing the
denial of his application for disability insurance benefits and supplemental seeurity income
benefits by Defendant, the Commissioner of Social Security Administration. Civ. 11-5062 at Doc.
1.

On March 7, 2012, Judge Viken granted Defendant's motion to remand pursuant to
sentence six of42 U.S.C. § 405(g). Civ. 11-5062 at Doc. 23. On remand, the Administrative Law

Judge issued a partially favorable decision, finding Plaintiff was disabled beginning on January 3,
2012. Civ. 11-5062 at Doc. 85. Following the partially favorable deeision for Plaintiff, Defendant

moved for an order reversing and remanding the action for further administrative proceedings to
determine whether the alleged onset of disability oecurred prior to January 3, 2012. Id. Judge
Viken granted Defendant's motion to remand on October 29, 2013. Id. Despite the remand.
Plaintiff alleges that he became eligible for Medieare on July 1, 2014. Soon after. Plaintiff alleges
that Dr. Jacqueline Van Egeraat requested that he reeeive medical tests. On July 25,2014,Plaintiff
went to The Imaging Center for the tests.

On September 9,2014,an administrative decision favorable to Plaintiffwas filed, awarding
benefits to Plaintiff. As a result, on November 10, 2014, Plaintiff entered eurrent pay status and
baek benefits under Title 2 were paid to Plaintiff in the amount of $60,324. Civ. 11-5062 at Doe.
19. Following the September 9, 2014, administrative decision. Plaintiff received a letter on

September 24, 2014, notifying him that his entitlement date for medical insurance changed to an
earlier date, January 2011. Plaintiff alleges that he did not want the earlier Medicare benefits and
did not write to the Social Security Administration as the letter direeted him to do ifhe wanted the

earlier Medicare benefits. Plaintiff alleges he proceeded this way, because he believed to already
be covered by Medicare benefits that started in July of2014.

Plaintiff alleges that shortly after receiving the letter regarding an earlier entitlement date
Plaintiff received a new Medicare card. Plaintiff alleges that he did not notice the effective date

for his Medical Insurance Part B had been changed from 07-01-14 to 09-01-17. Furthermore,
Plaintiff alleges that he was incorrectly reflinded July and August Medicare Part B payments as a
result of an unlawful cancelation of Plaintiffs Medicare Part B coverage.

Plaintiff alleges that Medicare wrongfully denied payment of $3,774.08 to The Imaging
Center Dakota PET CT and MRl for the procedures performed on July 25, 2014. Plaintiff further

alleges that this bill was turned over to Credit Collections Bureau and has been accumulating
interest ever since. Plaintiff alleges that this is all the result of a conspiracy.
Plaintifforiginally filed a pro se complaint against several named and unnamed defendants

alleging violations of his civil rights pursuant to 42 U.S.C. § 407(a)-(b), 42 U.S.C. § 1981, 42
U.S.C. § 1985(3), 42 U.S.C. § 1986,42 U.S.C. § 1988, The Americans with Disabilities Act, and
the Fifth Amendment equal protection and due process rights. Additionally, Plaintiff asked the
court to exercise supplemental jurisdiction over all defendants' alleged violations of S.D.C.L. §
16-18-28 and defendant attorney's alleged violations of S.D.C.L. § 16-18-26(1). Because Plaintiff
moved for leave to proceed informa pauperis in his lawsuit against defendants, the Court engaged

in a two-step screening process to determine 1) whether Plaintiff was financially eligible to
proceed in forma pauperis under 28 U.S.C. § 1915(a) and 2) whether the complaint should be
dismissed under 28 U.S.C. §§ 1915(e)(2)(B). See Martin-Trigona v. Stewart, 691 F.2d 856, 857

(8th Cir. 1982); also. Key v. Does,217 F. Supp. 3d 1006, 1006 (E.D. Ark. 2016). In applying
this process, the only part of Plaintiffs complaint that survived screening alleged unpaid bills by
Medicare against the Acting Commissioner of Social Security. All other claims against all other
defendants, known and unknown, were dismissed pursuant to 28 U.S.C. § 1915(e)(2).
ANALYSIS

MOTION TO ALTER OR AMEND JUDGMENT

Plaintiff moves to alter or amend the Court's screening order under Rule 59(e) and 52(b).
Though related, the rules serve slightly different functions. Rule 52(b)is "intended to permit a
party to move the trial court to clarify or supplement factfindings to enable the appellate court to
understand the factual issues determined at trial." Clark v. Nix, 578 F. Supp. 1515, 1516(D. Iowa

1984)."Motions made under [Rule 52(b)]... are not intended merely to relitigate old matters nor
are such motions intended to allow the parties to present the case under new theories of
Evans, Inc. v. Tiffany & Co.,416 F. Supp. 224, 244(D. C. 111. 1976). The purpose of Rule
52(b) is to provide the court an opportunity to correct manifest errors of law or fact at

trial. C/az-A:, 578 F. Supp. at 1516; Accord Cody v. Hillard, U9 F.3d 1197, 1200 (8th
Cir.1998)(remanding the case to the district court to enter findings offact and conclusions oflaw

sufficient for the Eighth Circuit to review the decision, and noting that though Rule
52(a)"generally requires findings of fact and conclusions of law for rulings on injunctions," the
court need not decide whether Rule 52(b) applied to motion to dissolve an injunction in order to
remand in this instance).

Rule 59(e) was adopted to clarify a district court's power to correct its own mistakes in the

time period immediately following entry ofjudgment. Pro Edge L.P. v. Cue, 377 F.Supp.2d 694,
698 (N.D. Iowa 2005)(citing Norman v. Ark. Dep't ofEduc., 79 F.3d 748, 750 (8th Cir.1996).
Rule 59(e) motions "serve the limited function of correcting 'manifest errors of law or fact or to

present newly discovered evidence.'" United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930,
933(8th Cir. 2006)(qaoting Innovating Home Health Care v. P. T.-O. T. Assoc. ofthe Black Hills,
141 F.3d 1284, 1286 (8th Cir. 1998)). "Such motions cannot be used to introduce new evidence,

tender new legal theories, or raise arguments which could have been offered or raised prior to entry
of judgment."/(i.(quoting Innovative Home Health Care, 141 F.3d at 1286). To prevail on
a Rule 59(e) motion,the movant must show that(1)the evidence was discovered after trial;(2)the
movant exercised due diligence to discover the evidence before the end of trial;(3) the evidence
is material and not merely cumulative or impeaching; and (4) a new trial considering the evidence
would probably produce a different result. Id.

In his motion, Plaintiff fails to assert any evidence that was not previously known. Instead,

Plaintiff simply seeks to relitigate not only the prior screening order in this case, but previous
orders entered by the Court in other cases as well. See Civ. 16-5064. Therefore Plaintiffs Motion

to Alter or Amend the Judgment under Rules 52(b) and/or 59(e)is denied.
MOTION FOR DISQUALIFICATION OF JUDGE PIERSOL

Plaintiff next moves to disqualify Judge Piersol from the instant case. Section 455(a) of
Title 28 of the United States Code requires a federal judge to "disqualify himself in any
proceeding in which his impartiality might reasonably be questioned." Developed under § 144,

which requires disqualification for "personal hias or prejudice," the statute is designed "to remedy
a situation wherein a federal judge is alleged to have a bias or prejudice against a party of such a
nature that it would prevent that judge from presiding in a fair and impartial manner." Deal v.

Warner,369 F. Supp 174, 176(W.D. Mo. 1973)(citing United States v. Thomas,299 F. Supp. 494
(E.D. Mo. 1968). "Pursuant to the statutory directive of Section 144, a judge has an unavoidable

duty to recuse himself when facts are properly verified by affidavit supporting a claim of legally
cognizable hias or prejudice."Id."On the other hand, a judge has an equally unavoidable duty not
to refuse to recuse himself when the facts verified by affidavit do not support an allegation of
legally cognizable hias or prejudice." Id. (citing United States v. Diorio, 451 F.2d 21 (2nd Cir.
1971), cert, denied, 405 U.S. 955; United States v. Anderson,433 F.2d 856(8th Cir. 1970); Action
Realty Co. v. Will, All F.2d 843(7th Cir. 1970); Thomas, 299 F. Supp. 494; Euge v. Trantina,298
F. Supp. 876(E.D. Mo. 1969)).

The fact that a verified certified motion to disqualify has been filed does not
automatically require a judge to disqualify himself. Rather, the particular judge
who is the object of the verified certified motion must determine the factual and

legal sufficiency of the motion and ascertain whether the alleged facts presented
therein give "fair support" to the charge of hias and prejudice. In essence, it must
he said that the statute here provides the means whereby a party to an action "... can
insure that his trial is free from any personal hias or prejudice, subject only to his
ability to allege facts to support his claim and his attorney's duty to certify good
faith in the filing ofthe affidavit.

A judge is precluded from refuting the alleged facts presented,regardless of
their nature. The judge must accept as true every verified allegation of fact as a
predicate for the affiant's belief. Statements of fact set forth in the affidavit as the

basis for belief that a judge is biased or prejudiced must be accepted as true by
the judge even though the judge may know that such statements of fact are false.

Further, a judge is presumed to be qualified to preside over a particular
cause, and there is a substantial burden upon the affiant to establish that such is not

the case. The burden upon the affiant to provide the basis for disqualification is
threefold.

First, the affidavit must set forthfacts with sufficient specificity. Only the
facts presented in the affidavit are relevant, not mere conclusory allegations.
Second,the facts presented must give "fair support" to the allegation ofbias
or prejudice, so as to convince a reasonable man.

Third, the factual allegations must be shown to be personal in nature, as
opposed to judicial. In this sense "personal" refers to an attitude or disposition
which is extrajudicial in origin. Thus, prior adverse judicial determinations
involving the particular affiant or the same issue in question are insufficient as a
basis for disqualification. Indeed, it would be most strange if".. . a judge became
less qualified the greater his . . . experience."
Id. at 176-77.

Plaintiff asks Judge Piersol to recuse himself due to bias based on three related allegations:
1) the Court granted Defendant's motion for an extension of time to answer within three days,
while many of Plaintiffs substantive briefs have been pending far longer; 2)the granting of that
motion for an extension of time was done before Plaintiff could file a response in furtherance of
an alleged conspiracy with another judge to deprive Plaintiff of his constitutional rights; and 3)
Plaintiffs Fifth Amendment right to due process was violated in granting Defendant's extension
of time. Defendant's response argues Judge Piersol's actions neither show bias, nor deprive
Defendant of any eonstitutional rights. The Court agrees.

The Court's granting of a motion for an extension oftime to answer while taking longer to
rule on motions that require fact-finding and legal analysis of substantive law is not unusual

practice in the federal system and Plaintiff cites no authority to the contrary. Substantive questions

of law simply take more time to resolve. Further, Plaintiffs "wild, untrue, and unsupported
allegations" of a judge's conspiracy are insufficient to require recusal. See Goldsmith v. Dooley,
Civ. 11-4181-KES, 20212 WL 181417 at *1 (D.S.D. Jan. 20, 2012).
Finally, Plaintiff cannot show that the Court's granting ofthe motion for extension oftime
without allowing a response fi-om Plaintiff resulted in a deprivation of either his substantive or

procedural due process rights. Plaintiff cannot show that a life, liberty, or property interest was
deprived by the Court's granting of a 30-day extension oftime. See Vaugh v. Ruoff, 304 F.3d 793,
796 (8th Cir. 2002)(a procediual due process claim requires the plaintiff to show that he was

deprived ofa life, liberty, or property interest and that the state did not afford the plaintiff adequate
procedural rights before depriving him ofthat interest). Further, Plaintiff cites no authority for the
proposition that granting a motion for an extension oftime "violated a fimdamental constitutional

right of the plaintiff and that the alleged violation shocks the contemporary conscience. C.N.

Willmar Pub. Sck, Indep. Sch. Dist. No. 347, 591 F.3d 624,634(8th Cir. 2010).
It should also be noted that requiring fijrther time for a response to motions to extend time

would be largely impractical. Local Rule 7.1.B provides that every motion raising a question of
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law requires the movant to serve and file a brief containing argument and support. However, it
specifically excludes from that requirement "motions to amend a scheduling order." Id. The rule
also requires 21 days to file a responsive brief and 14 days to file a reply brief"after service of a

motion and brief." Id. A motion for extension of time is akin to a motion to amend a scheduling
order, which is exempted fi-om the briefing requirement, and therefore exempted from the response
requirement. In many instances, such a briefing and response requirement would extend the initial

deadline far beyond what is asked for in the motion for extension of time, resulting in a waste of
judicial time and resources. Accordingly, Plaintiffs Motion for Disqualification of Judge
Lawrence L. Piersol, Doc. 17, is denied.
MOTION TO AMEND COMPLAINT

Plaintiff submits his motion to amend the complaint pursuant to Rule 15(a)(1)(B) which
permits a party to amend its pleading once as a matter ofcourse within 21 days after service ofa motion
under Rule 12(b) of the Federal Rules of Civil Procedure. Because Plaintiffs motion is timely, it is
granted. Therefore, Defendant's Motion to Dismiss, Doc. 20, is denied as moot.
MOTION TO DISMISS

Plaintiffs claim involving Medicare Part B Insurance against Acting Commissioner of
Social Security, now Nancy A. Berryhill, survived screening. Plaintiff alleges that Medicare

breached its contract with Plaintiff when it failed to cover the cost of several medical procedures,
while premiums for Medicare were correctly being withheld from his social security. Plaintiff
alleges that Medicare wrongfully denied payment of $3,774.08 for the procedures performed on
July 25, 2014, at The Imaging Center Dakota PET CT and MRl. Plaintiff further alleges that this
bill was turned over to collections and has been accumulating interest ever since. Because
Plaintiffs First Amended Complaint restates those claims which this Court previously dismissed
pursuant to 28 U.S.C. § 1915 and because Defendant asserts that Plaintiffs First Amended Complaint
does not cure the deficiencies in his Complaint that were the basis of Defendant's original motion to
dismiss (Doc. 20-21, 26), Defendant incorporated her previous motion into the current Motion to
Dismiss Plaintiffs First Amended Complaint, Doc. 27. Defendant asks this Court to dismiss Plaintiffs
Amended Complaint for lack ofjurisdiction as Plaintiff has not exhausted his administrative remedies.

Plaintiff is proceeding pro se and his complaint is therefore entitled to a liberal

construction. Atkinson v. Bohn,91 F.3d 1127,1129(8th Cir. 1996)(per curiam). Although pro se

complaints are to be construed liberally,"they must still allege facts sufficient to support the claims
advanced." Stone v. Harry, 364 F.3d 912,914(8th Cir. 2004). The Court is not required to supply
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additional facts for a pro se plaintiff, nor construct a legal theory that assumes facts which have
not heen pleaded. Id. Even under a liberal construction, however. Plaintiffs remaining elaim must
he dismissed.

Plaintiff carries the burden of showing that jurisdiction exists. VS Ltd. P'ship v. Dep't of
Hons. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000)(citation omitted). Under a 12(h)(1)
motion to dismiss, the Court is "free to weigh the evidence and satisfy itself as to the existence of

its power to hear the case." Osborn v. United States, 918 F.2d 724, 730(8th Cir. 1990). Not only
must Plaintiff show jurisdiction, but Plaintiff must also show that the Federal Government has

waived its sovereign immunity. "Absent a waiver, sovereign immunity shields the Federal

Government and its agencies from suit." Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475
(1994). The relevant statutes in this case clearly limit judicial review to a final decision of the

Secretary of HHS made after a hearing. See 42 U.S.C. §§ 405(g) and (h), and 1395ii. Section
405(g) "is the sole avenue for judicial review for all claims arising under the Medicare Act."

Anderson v. Sullivan, 959 F.2d 690, 693 (8th Cir. 1992)(internal citations omitted). Under that
seetion. Plaintiff must have presented "a claim for benefits to the Secretary and then exhaust[ed]

the administrative remedies prescribed by the Secretary" before the Court may exercise
jurisdiction. Titus v. Sullivan, 4 F.3d 590, 592(8th Cir. 1993)(citation omitted).
After having his Medicare elaim denied. Plaintiff needed to follow the administrative

review process set forth in 42 C.F.R. §§ 405 et seq. The Medicare Summary Notice informed

Plaintiff of his ability to appeal his coverage deeision. Regardless of Plaintiffs attempt to
eharacterize the denial as a conspiracy. Plaintiff ultimately argues that his claim for benefits was
wrongfully denied. Even assuming arguendo that waiver of the administrative remedies is

appropriate in this case, the Court cannot waive the presentment requirement itself, which Plaintiff

has not satisfied. Sipp v. Astrue, 641 F.3d 975, 980 (8th Cir. 2011).' Therefore, Plaintiffs
remaining claim must be dismissed.

'
Further, as Defendant points out, Plaintiff has named the wrong defendant for such a suit. Instead, it is the Secretary
of HHS, not the Commissioner, who should be named. While 42 C.F.R. § 405.1136(d)(1) provides Plaintiff60 days
to commence the action against the correct defendant, such an extension would not remedy Plaintiffs failure to
exhaust his administrative remedies before bringing suit and would therefore be futile.
8

Accordingly, it is ORDERED:

1. Plaintiffs Motions to Alter or Amend the Judgment under FCRP Rule 59(e), Amend
Findings of Fact and Amend the Judgment under FRCP Rule 52(b), and for
Clarification ofJurisdiction, Doc. 12, is DENIED;

2. Plaintiffs Motion for Disqualification of Judge Lawrence L. Piersol, Doc. 17, is
DENIED;

3. Plaintiffs Motion to Amend Complaint, Doc. 25, is GRANTED;
4. Defendant's Motion to Dismiss Complaint, Doc. 20, is DENIED;

5. Defendant's Motion to Dismiss First Amended Complaint, Doc. 27, is GRANTED.
DATED this August

2018.
BY THE COURT:

M.^awrence L. Piersol

United States District Judge
ATTEST:

MATTHEW W.THELEN,CLERK
,Deputy