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Burke v. Hill

United States District Court, E.D. North Carolina, Northern Division

October 31, 2017

PETER BURKE, SR., Plaintiff,
ROBIN HILL, in her official capacity, Supervisor, N.C. Medicaid; PATRICK MCCRORY, in his individual capacity; and ROY COOPER, in his official capacity, Governor of NC, [1]Defendants.



         This 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.


         On 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.

         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 address.

         Defendants 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.


         The 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 performed.

         Defendant 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.).

         Defendant 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).

         After 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.


         A. Standard of Review

         “When 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 ...

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