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Miller v. Rosado

United States District Court, N.D. Indiana, Hammond Division

August 4, 2017

KEVIN MILLER, Plaintiff,
v.
DEBRA G. ROSADO and JOHN J. WERNERT, Defendants.

          OPINION AND ORDER

          PAUL R. CHERRY, MAGISTRATE JUDGE.

         This matter is before the Court on (1) Plaintiff's Second Motion for Summary Judgment [DE 53], filed by Plaintiff Kevin Miller on September 12, 2016, and (2) Defendant's[sic] Cross-Motion for Summary Judgment [DE 73], filed by Defendants Debra Rosado and Dr. John J. Wernert on December 5, 2016. The motions were fully briefed on January 18, 2017. On June 23, 2017, the Court ordered additional briefing on the issue of Eleventh Amendment immunity, the briefing of which was complete on July 28, 2017.

         PROCEDURAL BACKGROUND

         Plaintiff Kevin Miller filed his Complaint, pro se, against Debra Rosado (Administrative Law Judge) and Joseph Moser (Director of Medicaid for Indiana) on August 5, 2015. With the Complaint, Plaintiff filed Exhibits 1, 2, 3, and 4. Plaintiff filed a First Amended Complaint on November 3, 2015. On December 7, 2015, Defendants filed a Motion to Dismiss for failure to state a claim.

         On December 21, 2015, Plaintiff filed a Motion for Summary Judgment, including a 23-page Exhibit. (ECF 25). That date, Plaintiff also filed a sworn Declaration, dated December 15, 2015, in support of the Motion for Summary Judgment. (ECF 26). On January 7, 2016, the Court stayed the briefing on Plaintiff's Motion for Summary Judgment pending a ruling on Defendants' Motion to Dismiss.

         On April 4, 2016, the Court granted in part and denied in part the Motion to Dismiss, dismissing without prejudice Plaintiff's Americans with Disabilities Act and Rehabilitation Act claims. Plaintiff's procedural due process claims brought under 42 U.S.C. § 1983 remain pending.

         Defendants filed an Answer on April 21, 2016.

         On April 28, 2016, the Court denied without prejudice and with leave to refile Plaintiff's Motion for Summary Judgment and set discovery deadlines.

         On September 12, 2016, Plaintiff filed the instant Second Motion for Summary Judgment, citing Exhibits 1, 2, 3, and 4 submitted with his Complaint. See (ECF 53; ECF 1-1, 1-2, 1-3, 1-4). The Court stayed briefing on the Second Motion for Summary Judgment to allow for rulings related to discovery.

         On September 16, 2016, the Court substituted Dr. John J. Wernert, Secretary of the Indiana Family Social Services Administration (FSSA), for Joseph Moser, Director of Medicaid for Indiana, as the correct supervisory government official for Plaintiff's claim.

         On December 5, 2016, Defendants filed the instant Cross Motion for Summary Judgment and a combined brief in support of their Cross Motion for Summary Judgment and in response to Plaintiff's Second Motion for Summary Judgment.

         On January 3, 2017, Plaintiff filed a response to the Cross Motion for Summary Judgment and a reply in support of his Second Motion for Summary Judgment.

         On January 18, 2017, Defendants filed a reply in support of their Cross Motion for Summary Judgment.

         On June 23, 2017, the Court issued an Opinion and Order setting a schedule for the parties to brief the issue of Eleventh Amendment immunity in this case. Defendants filed their brief on July 7, 2017. Plaintiff filed his response brief on July 21, 2017, and Defendants filed their reply brief on July 28, 2017.

         The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

         SUMMARY JUDGMENT STANDARD

         The Federal Rules of Civil Procedure require that a motion for summary judgment be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Summary judgment is appropriate when no material fact is disputed and the moving parties are entitled to judgment as a matter of law, meaning that no reasonable jury could find for the other party based on the evidence in the record.” Carman v. Tinkes, 762 F.3d 565, 566 (7th Cir. 2014).

         A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed.R.Civ.P. 56 (a), (c). The moving party may discharge its initial responsibility by simply “‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325; see also Spierer v. Rossman, 798 F.3d 502, 508 (7th Cir. 2015). When the nonmoving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Celotex, 477 U.S. at 323, 325; Spierer, 798 F.3d at 507-08; Modrowski v. Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013).

         “Once the moving party puts forth evidence showing the absence of a genuine dispute of material fact, the burden shifts to the non-moving party to provide evidence of specific facts creating a genuine dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The non-moving party cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See Fed. R. Civ. P. 56(c)(1), (e); Flint v. City of Belvidere, 791 F.3d 764, 769 (7th Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e) (1986)). Rule 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it . . . .” Fed.R.Civ.P. 56(e); see also Anderson, 477 U.S. at 248-50.

         In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. See Anderson, 477 U.S. at 255; McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765 (7th Cir. 2014); Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson, 477 U.S. at 249-50.

         PLAINTIFF'S EVIDENTIARY OBJECTION

         On January 3, 2017, Plaintiff filed an “Objection to Evidence, ” (ECF 82), in which Plaintiff objects to Defendants' submission of the recording of the April 9, 2015 hearing before ALJ Rosado and Defendants' submission of the transcript of that recording. Plaintiff asserts that the recording is not the original, that the recording Defendants submitted changes the outcome of the hearing in the record, and that “[t]his is not the Plaintiffs April 9, 2015 recording of the hearing and the transcript is not original either.” (ECF 82, p. 2). However, Plaintiff does not state what was changed, he does not state that the voice on the recording is not his, and he offers no evidence (such as a declaration or affidavit) in support of these assertions. The Court has listened to the recording, and the transcript accurately transcribes the recording. It appears that this objection is based on the fact that ALJ Rosado restarted the recording once Kathryn Houseworth was present for the hearing and on Plaintiff's misunderstanding that the case was going to be “remanded, ” although the word “remand” was never used at the hearing, as discussed in more detail below. (ECF 78-1, Ex. AA). To the extent Plaintiff objects that Defendants submitted a copy, rather than the original, of the recording and transcript for purposes of the summary judgment, to submit an accurate copy of the recording is not improper. Plaintiff has not shown that Defendants will be unable to produce an original or authenticated copy. See Fed. R. Civ. P. 56(c)(2). The Court OVERRULES Plaintiff's objection.

         MATERIAL FACTS[1]

         1. Applications for Medicaid Disability

         On March 25, 2013, the Indiana Family and Social Services Administration (FSSA) sent Plaintiff Miller a “Pending Verifications for Applicants/Recipients” form in his case number 1056017336, giving him a deadline of April 8, 2013, to submit proof of “Unearned Income.” (ECF 77-2, Ex. B). All subsequent applications and notices relevant to this case and outlined below, other than related to an appeal, are in Plaintiff's same case number 1056017336. Also on March 25, 2013, FSSA sent Plaintiff a separate “Pending Verifications for Applicants/Recipients” form in the same case number, giving Plaintiff a deadline of April 8, 2013, to submit proof of “Bank Accounts/Financial Holdings.” (ECF 77-3, Ex. C).

         Beginning May 1, 2013, Plaintiff was approved by FSSA for Medicaid Disability with a monthly “spend-down amount.” (ECF 77-4, Ex. D). Beginning November 1, 2013, Plaintiff was eligible for Medicaid without a spend-down due to a decrease in income. (ECF 77-5, Ex. E).

         On January 16, 2014, FSSA mailed Plaintiff a notice that it was time to review his eligibility for SNAP benefits (previously known as “food stamps”) and for medical coverage. See (ECF 77-6, Ex. F). The notice informed Plaintiff that a telephone interview was scheduled for February 6, 2014, at 9:30 a.m. Id. The notice further explained that the SNAP benefits would end effective March 1, 2014. Id.

         On February 25, 2014, Plaintiff executed a “Summary of Eligibility Information Client Certification for Food Stamps” form, which provided redetermination information. (ECF 77-7, Ex. G).

         On May 28, 2014, FSSA mailed Plaintiff a notice that, effective July 1, 2014, Plaintiff's Medicaid would be discontinued because his “condition has improved significantly. It is no longer considered to be substantial enough to satisfy the definition of disability in state rules.” (ECF 77-8, Ex. H, p. 2) (citing 405 I.A.C. § 2-2-3). The same notice indicated that his SNAP benefits would continue without change, explained his right to appeal, and provided an appeal form. Id.

         On June 5, 2014, FSSA issued a “Notice - Receipt of Appeal” with appeal number 4000287250, informing Plaintiff that his appeal had been received and that he would be sent a hearing scheduling notice. (ECF 77-9, Ex. I).

         On June 6, 2014, FSSA sent Plaintiff a “Notice of Hearing” in his appeal in case number 4000287250 (which arose from his Medicaid Disability case number 1056017336), setting the hearing for July 15, 2014, at 1:30 p.m. (ECF 77-10, Ex. J) (citing 42 C.F.R. § 431.200 et seq./405 I.A.C. § 1.1-1 et seq.). The notice explained how to request a continuance of the hearing, including that good cause must be shown under 470 I.A.C. § 1-4-3(j) or 405 I.A.C. § 1.1-1-3(d), that the request be made in writing, that the request be made known to all parties, and that the request include two suggested hearing dates acceptable to all parties. Id. The notice warns that failure to appear at the scheduled hearing with no advance notice will result in a dismissal of the appeal. Id.

         On June 27, 2014, FSSA received a note from Plaintiff asking to reschedule his July 15, 2014 hearing because his attorney was “unwilling to go that day.” (ECF 77-11, Ex. K). Plaintiff requested that the hearing date be rescheduled for July 21, 2014, or July 25, 2014. Id. On July 25, 2014, FSSA mailed Plaintiff a “Notice of Dismissal” that provided: “The appeal request in this matter is dismissed. The appellant did not appear at the scheduled hearing and no evidence of good cause for failure to appear has been offered.” (ECF 77-12, Ex. L).

         On August 4, 2014, FSSA sent Plaintiff an “Important Notice About Your Benefits, ” explaining that, effective September 1, 2014, Plaintiff's Medicaid benefits would be discontinued due to “implementation of hearing decision” and because Plaintiff's “condition has improved significantly. It is no longer considered to be substantial enough to satisfy the definition of disability in state rules.” (ECF 77-13, Ex. M, p. 2) (citing Ind. Code § 12-15-28-7; 405 I.A.C. § 2-2-3). Plaintiff's SNAP benefits were not affected.

         On November 24, 2014, Plaintiff reapplied for Medicaid in the same underlying Medicaid Disability case number 1056017336. See (ECF 77-14, Ex. N, p. 2).

         On December 4, 2014, FSSA mailed Plaintiff a notice titled “Verificaciones Pendientes Para Postulantes/Beneficiaros - Healthy Indiana Plan.” (ECF 77-15, Ex. O). The notice was in Spanish. Id.

         On December 19, 2014, FSSA mailed Plaintiff a form titled “Pending Verifications for Applicants/Recipients, ” requesting information from Plaintiff. (ECF 77-16, Ex. P); (ECF 43-1, pp. 84-85). The forms gave Plaintiff until January 2, 2015, to provide the documents. (ECF 77-16, Ex. P); (ECF 43-1, pp. 84-85). The notice warns that a failure to provide the information will result in the benefits being denied or discontinued. (ECF 77-16, Ex. P); (ECF 43-1, pp. 84-85). The form asks Plaintiff to provide proof of “Shelter Expense, ” “Identity, ” “Bank Accounts/Financial Holdings, ” “Vehicles, ” “Lump Sum Payment, ” and “Notice Regarding Rights and Responsibilities.” (ECF 77-16, Ex. P); (ECF 43-1, pp. 84-85).

         On January 12, 2015, FSSA sent Plaintiff an “Important Notice About Your Benefits.” (ECF 77-14, Ex. N); see also (ECF 43-1, p. 102-108). The Notice informed Plaintiff that his November 24, 2014 application for Medicaid was denied because “individual does not have a social security administration (SSA) disability determination or social security disability insurance (SSDI)/Supplemental Security Income (SSI) application on file, ” “failure to cooperate in verifying the value of resources, ” “failure to provide all required information, ” “value of resources exceeds program eligibility standard, ” and “income exceeds program eligibility standards.” (ECF 77-14, Ex. N., p. 2); (ECF 43-1, p. 102).

         On January 15, 2015, Plaintiff reapplied for Medicaid Disability in the same case number. See (ECF 1-1, pp. 7, 8); (ECF 1-3). On January 21, 2015, FSSA sent Plaintiff an “Appointment Notice, ” informing Plaintiff that he was scheduled for a phone interview on January 28, 2015, at 8:15 a.m. (ECF 77-18, Ex. R); (ECF 43-1, p. 156).

         On January 28, 2015, FSSA sent Plaintiff a one-page “Pending Verifications for Applicants/Recipients, ” requesting that Plaintiff provide proof of “Shelter Expense, ” “Bank Accounts/Financial Holdings, ” “Summary of Eligibility Redetermination Information, ” “Client Certification for Food Stamps, ” and “Notice Regarding Rights and Responsibilities.” (ECF 1-3, p. 7). The notice gave Plaintiff until February 10, 2015, to submit the information. Id.

         On January 28, 2015, FSSA sent Plaintiff a two-page “Pending Verifications for Applicants/Recipients, ” requesting that Plaintiff provide proof of “Bank Accounts/Financial Holdings, ” “Vehicles, ” “Life Insurance, ” “Unearned Income, ” “Lump Sum Payment, ” and “Release of Medical Information.” (ECF 43-1, pp. 158-59, 160). The notice gave Plaintiff until February 10, 2015, to submit the information. Id. at pp. 158, 160.

         On January 30, 2015, FSSA sent Plaintiff a separate one-page “Pending Verifications for Applicants/Recipients, ” requesting that Plaintiff provide proof of “Requirement to File for Social Security Disability Benefits.” (ECF 1-3, p. 6). The notice gave Plaintiff until March 2, 2015, to submit the information. Id.

         On March 2, 2015, FSSA sent Plaintiff a notice informing him that the Medicaid Medical Review Team (MRT) had determined that Plaintiff did not meet the Medicaid Disability criteria. (ECF 77-19, Ex. S); (ECF 77-20, Ex. T); (ECF 1-3, p. 9). The notice further provided: “This is not an official notice of denial. This letter serves as a piece of the official notice that will be sent to you when the Division of Family Resources takes action on your case. That notice will explain your appeal rights.” (ECF 77-19, Ex. S) (emphasis added); (ECF 77-20, Ex. T); (ECF 1-3, p. 9). The March 2, 2015 MRT notice explained that Plaintiff stated in his application that he was disabled due to bodily injury (knee, arm, wrist, back, and neck); that the medical evidence indicated a diagnosis of “ruptured or herniated disc”; and that the MRT evaluated medical evidence from the dates 10/2/2013 - 11/19/2015 from Dr. Julian Ungar-Sargon. (ECF 77-19, Ex. S); (ECF 77-20, Ex. T); (ECF 1-3, p. 9). The notice states that Plaintiff was considered “not disabled” and an explanation is given: “Your impairment is considered to last for a continuous 12 month period; however, the social and medical information that was submitted does not confirm that your condition substantially impairs your ability to perform labor, services, or engage in a useful occupation.” (ECF 77-19, Ex. S); (ECF 77-20, Ex. T); (ECF 1-3, p. 9).

         On “March 4, 2015, ” FSSA sent Plaintiff a letter informing him that it had tried to contact him on “March 9, 2015, and on March 10, 2015, ” concerning Plaintiff's DFR Mailbox correspondence. (ECF 77-21, Ex. U); (ECF 1-3, p. 8); (ECF 43-2, p. 1). The letter provides:

Per our records it indicates that you were denied for Medicaid Disability by our Medical Review Team on 03/02/2015. You should have received a notice in the mail and if you do not agree with the decision [that] was made by our Medical Review Team you do have the right to appeal the decision that was made.
However; you were approved for another category of medical in[sic] which will start effective 04/01/2015 in[sic] which is our new HIP 2.0 medical coverage. You should receive further information in the mail concerning your coverage for that category.

(ECF 77-21, Ex. U) (emphasis added); (ECF 1-3, p. 8) (same).

         On March 5, 2015, FSSA sent Plaintiff an “Important Notice About Your Health Coverage” in relation to his January 15, 2015 application, advising him that he was approved for the Healthy Indiana Plan (HIP) Plus program. (ECF 77-22, Ex. V).

         In his sworn Declaration, Plaintiff states, “I called in and complained. In March of 2015 I was waiting for the official denial because it comes with the appeal form. The denial never came so I had wrote my own appeal letter. I wasn't sure it was sufficient so I sent in a old food stamp appeal form.” (ECF 26, p. 3, ¶ 6). “I ...


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