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Howell v. Wood

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

March 16, 2018

BURL ANDERSON HOWELL and ALICE ANNETTE HOWELL, Plaintiffs,
v.
GEORGE A. WOOD, County Manager for the Wayne County NC Department of Social Services WCNCDSS in his managerial capacity for injunctive relief; RESEE PHELPS, individually and in her official capacity as Income Maintenance Supervisor of the Wayne County Department of Social Services; LOU JONES, individually; EDWARD FELTMAN, individually; MANDY COHEN, in her official capacity as Secretary of the North Carolina Department of Health and Human Services, Defendants.

          ORDER

          TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.

         This cause comes before the Court on several pending motions, including motions by defendants to dismiss, plaintiffs' motion for entry of default, and plaintiffs' motion for appointment of counsel. The matters have been fully briefed and are ripe for ruling.

         BACKGROUND

         Plaintiffs, Burl and Alice Howell, proceeding pro se, filed this action under 42 U.S.C. § 1983 challenging their treatment by defendants regarding claims for payment under North Carolina's Medicaid program. Plaintiffs contend that their constitutional rights were violated when defendants, by attempting to use the North Carolina Administrative Code, delayed retroactive corrective payments to plaintiffs. The following procedural history of plaintiffs' dealings with the North Carolina Medicaid program is provided in the twelve exhibits attached to and referenced by plaintiffs' complaint.[1]

         Plaintiffs began receiving Medicaid in the form of Medicaid Qualifying Individuals payment of Medicaid Part B premiums (MQB-E benefits), on April 11, 2011, after a joint application to the Wayne County, North Carolina Department of Health and Human Services. [DE 7-1]. Effective January 31, 2015, the Wayne County Department of Social Services terminated Burl Howell's MQB-E benefits due to his income exceeding the applicable monthly limits and an indication that he was unable to meet an ongoing six month deductible. [DE 7-10 ¶ 1]; [DE 7-3 at 8]. Burl Howell filed a local appeal of this decision, which was heard on January 8, 2015 and which affirmed the decision to terminate MQB-E benefits the same day. [DE 7-10 ¶ 3]; [DE 7-3 at 8]. Burl Howell then appealed that decision to the North Carolina Department of Health and Human Services (DHHS), and State Hearing Officer Feltman conducted a hearing at the Wayne County Department of Social Services (DSS) on March 3, 2015. On March 16, 2015, State Hearing Officer Feltman affirmed the Wayne County decision to terminate Mr. Howell's MQB-E benefits. [DE 7-3 at 8-15]. Specifically, it was determined that Burl Howell and his wife were receiving $1, 931.94 per month in unearned income, which was comprised of Social Security Administration benefits and Department of Veterans Affairs (VA) benefits. [DE 7-3 at 8]. It was further determined that Howell's VA benefits would not be considered as Aid & Attendance, that the monthly income received by the Howells was in excess of the allowable amount of $1, 770 per month for two people, and that there was no evidence indicating the Burl Howell's six month deductible could be met. [DE 7-3 at 14]. The order entered by State Hearing Officer Feltman provided notice to Mr. Howell of the procedure for seeking review of the decision, including by presenting written and oral argument to the Chief Hearing Officer or by appealing a final decision to the appropriate superior court, in accordance with N.C. Gen. Stat. § 108A-79(k) within thirty days. Id. at 14-15.

         Burl Howell then filed a petition for a contested case hearing with the North Carolina Office of Administrative Hearings, naming as respondents Resee Phelps, Income Maintenance Supervisor, and Lou Jones, Caseworker. [7-10 ¶ 6]. On February 9, 2017, an Administrative Law Judge with the Office of Administrative Hearings dismissed Burl Howell's petition for a contested case hearing for lack of jurisdiction, noting that an appeal of a DHHS decision must be taken in the superior court of the county from which the case arose, and citing N.C. Gen. Stat. 108A-79(k). Id. ¶ 9-16. Plaintiff Alice Howell's MQB-E was reinstated on December 1, 2015 and plaintiff Burl Howell's MQB-E was reinstated on June 1, 2016. [DE 7-12]. The order notified Mr. Howell that an appeal of that decision must be filed in the superior court of the county where the individual aggrieved resides or where the contested case which resulted in the final decision was filed, citing N.C. Gen. Stat. § 150B-45. An appeal must be filed within thirty days.

         On February 21, 2017, plaintiffs filed a motion to proceed in forma paueris in this Court, which was granted by order entered June 2, 2017. In the instant complaint, plaintiffs allege that their MQB-E benefits were wrongfully terminated by defendant Jones for lack of training, supervision, and control by defendant Phelps, and wrongly affirmed by defendant Feltman for lack of training, supervision and control by defendant Cohen. Plaintiffs contend that they have been denied a right granted to them by the VA, which was known to Feltman, which included an entitlement to a special monthly pension based on a need for aid and attendance established December 12, 2012. [DE 7-4]. Plaintiffs complain that their subpoena issued to Feltman to testify at the contested case hearing was improperly quashed, that the motion to quash was filed without first raising the defense of lack of jurisdiction under Rule 12(b), and further that the Administrative Law Judge decision to stay plaintiffs' hearing which was scheduled for December 1, 2015, was unauthorized and violated plaintiffs' due process rights.

         Plaintiffs seek an order enjoining defendants and ordering them to release monies improperly withheld by the County Manager for Medicaid Part B services. Plaintiffs also seek an order directing the County Manager to pay withheld monies for the out-of-pocket expenditures of Alice Howell for Medicaid Part B services to the date of termination. Finally, plaintiffs seek damages for liability for an unconstitutional official policy, 10A NCAC .0203, as well as punitive damages.

         Defendants Feltman, Hearing Officer of the Hearings and Appeals Section of the North Carolina DHHS and Cohen, Secretary of the North Carolina DHHS (DHHS defendants), have moved to dismiss plaintiffs' complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim upon which relief can be granted. Defendants Wood, Phelps, and Jones of the Wayne County Department of Social Services (Wayne County defendants), have moved to dismiss plaintiffs' complaint for lack of subject matter jurisdiction and failure to state a claim. Plaintiffs have moved for entry of judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and for entry of default pursuant to Fed.R.Civ.P. 55. Plaintiffs have also moved for vacatur of the Court's order extending time for defendants to respond and for certification of interlocutory appeal, as well as for appointment of counsel.

         DISCUSSION

         I. Motion to appoint counsel.

         Plaintiffs seek appointment of counsel to assist them in prosecuting this case. The Court has detailed the submission of this case to its Pro Bono Panel in a prior order [DE 38], which provided that counsel is not appointed under this Court's Pro Bono Program. Further, "it is well settled that in civil actions the appointment of counsel should be allowed only in exceptional cases . . .." Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975); Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard v. United States Dist. Court for the S. Dist. of Ia., 490 U.S. 296, 300 n.3 (1989). The existence of exceptional circumstances depends upon "the type and complexity of the case, and the abilities of the individuals bringing it." Whisenant, 739 F.2d at 163 (quotation and citation omitted). Further, as a threshold matter, it is not proper to appoint counsel unless the plaintiffs case appears likely to be one of substance. Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).

         The Court does not find exceptional circumstances are present here, and for the reasons discussed below, does not find plaintiffs' case to be one of substance. Plaintiffs' motion for appointment of counsel [DE 39] is DENIED. Plaintiffs' request for certification of interlocutory appeal of this issue under 28 U.S.C. § 1292(b) is also denied. See 28 U.S.C. § 1292(b); State v. N.C ex rel. Howes v. W.R. Peele, Sr. Trust, 889 F.Supp. 849, 852 (E.D. N.C. 1995); see also Picard v. Katz, 466 B.R. 208, 210 (S.D.N.Y. 2012) (even if requirements of § 1292(b) are satisfied, the district court has "unfettered discretion" to decline to certify an interlocutory appeal if exceptional circumstances are absent).[2]

         II. Motions for entry of default, vacatur, and request for authorization ...


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