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Chute v. Viken

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

August 27, 2018

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 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.

         MEMORANDUM 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

         INTRODUCTION

         Pending 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.

         FACTUAL BACKGROUND

         Plaintiffs 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.

         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 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.

         On 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.

         Plaintiff 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.

         Plaintiff 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 conspiracy.

         Plaintiff 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. § 1915(e)(2).

         ANALYSIS

         MOTION TO ALTER OR AMEND JUDGMENT

         Plaintiff moves to alter or amend the Court's screening order ...


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