United States District Court, E.D. North Carolina, Northern Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court upon defendants' motion to
dismiss the complaint for lack of subject matter
jurisdiction, lack of personal jurisdiction, insufficiency of
service of process, and failure to state a claim upon which
relief can be granted. (DE 13). The motion has been fully
briefed and the issues presented are ripe for ruling. For the
reasons that follow, the motion is granted.
January 3, 2017, plaintiff filed pro se an application to
proceed in forma pauperis and a proposed complaint, seeking
damages and injunctive relief based upon decision issued by
the North Carolina Department of Health and Human Services
(“NCDHS”) to deny plaintiff's request for
Medicaid coverage of certain medical treatment not described
in the complaint. Plaintiff alleges violations of the Fifth,
Eighth, and Fourteenth Amendments to the Constitution on the
grounds that the denial of benefits was procedurally
deficient, was issued pursuant to an unconstitutional policy
of racial discrimination, and constitutes cruel and unusual
punishment. The court construes these claims as arising under
42 U.S.C. § 1983. On February 6, 2017, United States
Magistrate Judge Robert B. Jones, Jr., granted
plaintiff's motion to proceed in forma pauperis, directed
the clerk to file the complaint and prepare summonses, and
directed the United States Marshal to serve said summonses
and copies of the complaint upon defendants.
do not dispute that the United States Marshal properly
effected service upon defendants Cooper and McCrory.
Defendants also do not dispute that the United States Marshal
delivered summons for defendant Hill to the address plaintiff
provided at Post Office 300009, Raleigh, NC 27622-8009,
though defendants dispute effectiveness of service at this
filed the instant motion March 28, 2017, seeking dismissal of
the complaint in its entirety under Federal Rule 12(b)(6) for
failure to state a claim. Defendants move to dismiss claims
against defendant Cooper, pursuant to Rule 12(b)(1) on the
additional basis of sovereign immunity. Finally, defendants
move to dismiss claims against defendant Hill, pursuant to
Rules 12(b)(2) and (5) for insufficiency of service of
process and consequent lack of personal jurisdiction, or, in
the alternative, under Rule 12(b)(1) on the ground that
plaintiff failed to exhaust administrative remedies.
Plaintiff responded in opposition to the motion. Defendants
made no reply.
OF THE FACTS
facts alleged in the complaint may be summarized as follows.
Plaintiff suffers an unspecified illness, which, if allowed
to progress to its fourth stage, causes liver failure, kidney
failure, and death. (DE 8 at 3). In or around September 2016,
plaintiff was scheduled to begin treatment with Dr. Hamza
Khalid (“Khalid”), a specialist in
gastroenterology at Vidant Medical Center in Greenville,
North Carolina. (Id.). At an unspecified time,
plaintiff applied to NCDHS for Medicaid coverage of
procedures scheduled to be performed by Khalid, but plaintiff
eventually discovered that his application for coverage was
denied. (Id.). The complaint does not indicate the
nature of the procedures nor whether they were ever
Hill is employed as a supervisor within NCDHS and possesses
authority, pursuant to North Carolina's Medicaid program,
to approve or deny payment for the type of medical expenses
involved in plaintiff's treatment with Khalid.
(Id.). Plaintiff Hill is the NCDHS official directly
responsible for denial of plaintiff's request for
Medicaid coverage. (Id.).
McCrory is former governor of North Carolina and defendant
Cooper is his successor in office. According to the
complaint, Hill's decision to deny plaintiff's
request for Medicaid benefits constitutes but one instance of
a broader conspiracy, initiated by McCrory and implemented
through the North Carolina governor's office, to violate
the constitutional rights of minority groups in connection
with disbursement of Medicaid benefits. (Id.). In
support of this inference, plaintiff relates an anecdote
about events taking place around 2013 where the Medicaid
office for Pasquotank County, North Carolina refused to cover
certain expenses for plaintiff's pain management therapy
and transportation thereto, which decision plaintiff alleges
was overridden by federal Medicaid officials. (Id.
at 5). The complaint makes reference also to North
Carolina State Conference of NAACP v. McCrory, in which
the Fourth Circuit held that the North Carolina General
Assembly acted with discriminatory intent in enacting certain
voter identification laws. 831 F.3d 204, 215 (4th Cir. 2016);
(DE 8 at 3-4).
plaintiff's request for Medicaid coverage was denied,
defendants gave no notice of that decision nor informed
plaintiff of his appeal rights. (DE 8 at 7). Upon eventual
discovery that his application for benefits was denied,
plaintiff initiated this action.
Standard of Review
a district court considers a question of personal
jurisdiction based on the contents of a complaint and
supporting affidavits, the plaintiff has the burden of making
a prima facie showing in support of its assertion of
jurisdiction.” Universal Leather, LLC v. Koro AR,
S.A., 773 F.3d 553, 558 (4th Cir. 2014). Where defendant
disputes jurisdiction through affidavits or otherwise,
plaintiff may not rest on mere conclusory allegations.
See McLaughlin v. McPhail, 707 F.2d 800, 806 (4th
Cir. 1983). Rather, plaintiff must come forward with
affidavits or other evidence to counter defendants'
arguments. See id. (affirming dismissal under Rule
12(b)(2) where, “[a]gainst the defendants'
affidavits, ” a plaintiff “offered nothing beyond
his bare allegations that the defendants had . . .
significant contacts” with ...