United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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
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.
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.
Motion to appoint counsel.
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).
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
Motions for entry of default, vacatur, and request for