United States District Court, D. South Dakota, Western Division
GARY L. CHUTE, individually and personally, and as the personal representative of the Estate of Donna M. Chute; Plaintiff,
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 RILEY 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.
OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO ALTER OR
AMEND THE JUDGMENT, DENYING PLAINTIFF'S MOTION TO
DISQUALIFY JUDGE PIERSOL, GRANTING PLAINTIFF'S MOTION TO
AMEND THE COMPLAINT, DENYING DEFENDANT'S MOTION TO
DISMISS COMPLAINT, AND GRANTING DEFENDANT'S MOTION TO
DISMISS AMENDED COMPLAINT
LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE
before the Court is Plaintiffs Motions to Alter or Amend the
Judgment under FCRP Rule 59(e), Amend Findings of Fact and
Amend the Judgment Under FRCP Rule 52(b), and for
Clarification of Jurisdiction, Doc. 12, Plaintiffs Motion for
Disqualification of Judge Lawrence L. Piersol, Doc. 17, and
Plaintiffs Motion to Amend Complaint, Doc. 25. Also before
the Court is Defendant's Motion to Dismiss Complaint,
Doc. 20 and Defendant's Motion to Dismiss Amended
Complaint, Doc. 27. Having considered the pleadings, the
Court denies Plaintiffs motions and Defendant's Motion to
Dismiss Complaint. Defendant's Motion to Dismiss the
Amended Complaint is granted.
complaint alleges a conspiracy aimed to deprive Plaintiff 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 Plaintiff
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.
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
Plaintiff was disabled beginning on January 3, 2012. Civ.
11-5062 at Doc. 85. Following the partially favorable
decision for Plaintiff, Defendant 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, Plaintiff
alleges that he became eligible for Medicare on July 1, 2014.
Soon after, Plaintiff alleges that Dr. Jacqueline Van Egeraat
requested that he receive medical tests. On July 25, 2014,
Plaintiff went to The Imaging Center for the tests.
September 9, 2014, an administrative decision favorable to
Plaintiff was filed, awarding benefits to Plaintiff. As a
result, on November 10, 2014, Plaintiff entered current pay
status and back benefits under Title 2 were paid to Plaintiff
in the amount of $60, 324. Civ. 11-5062 at Doc. 19. Following
the September 9, 2014, administrative decision, Plaintiff
received a letter on September 24, 2014, notifying him that
his entitlement date for medical insurance changed to an
earlier date, January 2011. Plaintiff 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. Plaintiff
alleges he proceeded this way, because he believed to already
be covered by Medicare benefits that started in July of 2014.
alleges that shortly after receiving the letter regarding an
earlier entitlement date Plaintiff received a new Medicare
card. Plaintiff 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, Plaintiff alleges that he
was incorrectly refunded July and August Medicare Part B
payments as a result of an unlawful cancelation of Plaintiffs
Medicare Part B coverage.
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. Plaintiff further
alleges that this bill was turned over to Credit Collections
Bureau and has been accumulating interest ever since.
Plaintiff alleges that this is all the result of a
originally 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, Plaintiff asked the court to exercise
supplemental jurisdiction over all defendants' 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). Because Plaintiff moved for leave to proceed
in forma pauperis in his lawsuit against defendants,
the Court engaged in a two-step screening process to
determine 1) whether Plaintiff was financially eligible to
proceed in forma pauperis under 28 U.S.C. § 1915(a) and
2) whether the complaint should be dismissed under 28 U.S.C.
§§ 1915(e)(2)(B). See 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). In applying this process, the only part of Plaintiff s
complaint that survived screening alleged unpaid bills by
Medicare against the Acting Commissioner of Social Security.
All other claims against all other defendants, known and
unknown, were dismissed pursuant to 28 U.S.C. §
TO ALTER OR AMEND JUDGMENT
moves to alter or amend the Court's screening order ...