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Chute v. Viken

United States District Court, D. South Dakota, Western Division

August 30, 2017

GARY L. CHUTE, individually and personally, and as the personal representative of the Estate of Donna M. Chute; Plaintiff,
v.
HONORABLE JEFFREY L. VIKEN, in his official capacity and individually; HONORABLE DANIEL L. HOVLAND, in his official capacity and individually; HONORABLE RAYMOND GRUENDER, in his official capacity and individually; HONORABLE DIANA MURPHY in her official capacity and individually; HONORABLE LAVENSKI SMITH in his official capacity and individually; HONORABLE WILLIAM JAY RJLEY in his official capacity and individually; BRENDAN V. JOHNSON, United States Attorney, in his official capacity and individually; STEPHANIE BENGFORD, Assistant United States Attorney, in her official capacity and individually; MICHAEL S. HOWARD, Assistant Counsel, Social Security Administration, in his official capacity and individually; CAROLYN W. COLVIN, Acting Commissioner of Social Security, in her official capacity; JEFFREY B. WALL, Acting Solicitor General, in his official capacity and individually; JUDGE VIKEN'S UNKNOWN LAW CLERKS, in their official capacity and individually; JUDGE HOVLAND'S UNKNOWN LAW CLERKS, in their official capacity and individually; AND EIGHTH CIRCUIT COURT OF APPEAL UNKNOWN NUMBER OF PANEL JUDGES AND LAW CLERKS, in their official, capacity and individually; Defendants.

          ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS ANDDISMISSING COMPLAFNT FN PART, AND DIRECTFNG SERVICE

          LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Gary Chute filed a pro se complaint against several named and unnamed defendants alleging violations of his civil rights pursuant to 42 U.S.C. § 407(a)-(b), 42 U.S.C. § 1981, 42 U.S.C. § 1985(3), 42 U.S.C. § 1986, 42 U.S.C. § 1988, The Americans with Disabilities Act, and the Fifth Amendment equal protection and due process rights. Additionally, Chute calls the court to exercise supplemental jurisdiction over all defendant's alleged violations of S.D.C.L. § 16-18-28 and defendant attorney's alleged violations of S.D.C.L. § 16-18-26(1). Chute moves for leave to proceed in forma pauperis in his lawsuit against defendants.

         FACTUAL BACKGROUND

         Chute's instant complaint alleges a complex conspiracy aimed to deprive Chute of his disability benefits. The alleged facts came about during and as a result of earlier litigation in Civ. 11-5062. The earlier litigation began on August 5, 2011, when Chute filed a complaint appealing the denial of his application for disability insurance benefits and supplemental security income benefits by defendant, the Commissioner of Social Security Administration. Civ. 11-5062 at Doc. 1.

         On March 7, 2012, Judge Viken granted defendant's motion to remand pursuant to sentence six of 42 U.S.C. § 405(g). Civ. 11-5062 at Doc. 23. On remand, the Administrative Law Judge issued a partially favorable decision, finding Chute was disabled beginning on January 3, 2012. Civ. 11-5062 at Doc. 85.

         Following the partially favorable decision for Chute, the Commissioner moved for an order reversing and remanding the action for further administrative proceedings to determine whether the alleged onset of disability occurred prior to January 3, 2012. Id. Judge Viken granted defendant's motion to remand on October 29, 2013. Id. Despite the remand, Chute alleges that he became eligible for Medicare on July 1, 2014. Soon after, Chute alleges that Dr. Jacqueline Van Egeraat requested that he receive medical tests. On July 25, 2014, Chute went to The Imaging Center for the tests.

         On September 9, 2014, an administrative decision favorable to Chute was filed, awarding benefits to Chute. As a result, on November 10, 2014, Chute entered current pay status and back benefits under Title 2 were paid to Chute in the amount of $60, 324. Civ. 11-5062 at Doc. 19.

         Following the September 9, 2014, administrative decision, Chute received a letter on September 24, 2014, notifying him that his entitlement date for medical insurance changed to an earlier date, January 2011. Chute alleges that he did not want the earlier Medicare benefits and did not write to the Social Security Administration as the letter directed him to do if he wanted the earlier Medicare benefits. Chute alleges he proceeded this way, because he believed to already be covered by Medicare benefits that started in July of 2014.

         Chute alleges that shortly after receiving the letter regarding an earlier entitlement date Chute received a new Medicare card. Chute alleges that he did not notice the effective date for his Medical Insurance Part B had been changed from 07-01-14 to 09-01-17. Furthermore, Chute alleges that he was incorrectly refunded July and August Medicare Part B payments as a result of an unlawful cancelation of Chute's Medicare Part B coverage.

         Chute alleges that Medicare wrongfully denied payment of $3, 774.08 to The Imaging Center Dakota PET CT and MRI for the procedures performed on July 25, 2014. Chute further alleges that this bill was turned over to Credit Collections Bureau and has been accumulating interest ever since. Chute alleges that this is a result of a conspiracy amongst defendants.

         LEGAL STANDARD

         There is a two-step screening process with in forma pauperis litigants. Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th Cir. 1982); see also, Key v. Does, 217 F.Supp.3d 1006, 1006 (E.D. Ark. 2016). First, district courts must determine whether a plaintiff is financially eligible to proceed in forma pauperis under 28 U.S.C. § 1915(a). Id. Second, district courts are to determine whether the complaint should be dismissed under 28 U.S.C. § 1915(e)(2)(B). Id.

         This court may authorize the commencement of suit without prepayment of fees when an applicant files an affidavit stating she is unable to pay the costs of the lawsuit. 28 U.S.C. § 1915. Determining whether an applicant is sufficiently impoverished to qualify to proceed in forma pauperis under § 1915 is committed to the court's discretion. Cross v. Gen. Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983). "In forma pauperis status does not ...


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