Givens v. Bowser ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EVA MAE GIVENS,1
Plaintiff,
v.
Civil Action No. 20-307
MURIEL BOWSER, in her official (EGS/ZMF)
capacity as Mayor, Washington,
D.C., et al.,
Defendants.
MEMORANDUM OPINION
I. Introduction
Plaintiff Eva Mae Givens (“Ms. Givens”) filed this action
against Defendants Muriel Bowser, in her official capacity as
Mayor of Washington, D.C.; Laura Green Zeilinger, in her
official capacity as Director2 of the District of Columbia
Department of Human Services; Wayne Turnage, in his official
capacity as Director of the District of Columbia Department of
1 Magistrate Judge Faruqui granted the motion of Eugene P.
Givens, Jr., Deborah R. Bowser, and Anthony D. Givens
(collectively, “Plaintiffs”) to substitute as Plaintiffs for the
limited purpose of objecting to the Report and Recommendation,
ECF No. 28. See Minute Order (June 16, 2021).
2 The First Amended Complaint sues the “Commissioner” of the
District of Columbia Department of Human Services, but there is
no such position. See First Am. Compl., ECF No. 1 at 1; see also
Meet Our Executive Team, Dep’t of Hum. Servs.,
https://dhs.dc.gov/page/meet-our-executive-team-.
1
Health Care Finance; and M. Colleen Currie,3 in her official
capacity as Chief Administrative Law Judge of the District of
Columbia Office of Administrative Hearings (collectively,
“Defendants”). See First Am. Compl. (“Am. Compl.”), ECF No. 16.
Ms. Givens sues these officials under 42 U.S.C. § 1983 (“Section
1983”) on behalf of herself individually and two similarly
situated classes of individuals, requesting declaratory and
injunctive relief as well as monetary damages, and alleging that
Defendants have a policy and/or practice of: (1) failing to
properly deduct expenses incurred by Medicaid applicants and
recipients; and (2) failing to render Medicaid fair hearing
decisions within 90 days. See id. at 2 ¶ 4; id. at 12 ¶¶ 46-49.4
On July 1, 2020, Defendants moved to dismiss the action.
See generally Defs.’ Mot. Dismiss Pl.’s First Am. Compl., ECF
No. 18. On October 13, 2020, the Court referred the matter to
Magistrate Judge Faruqui for full case management, up to but
excluding trial pursuant to Local Civil Rule 72.2. See Minute
Order (Oct. 13, 2020). Magistrate Judge Faruqui has since issued
a Report & Recommendation (“R. & R.”) recommending that the
3 Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, the current Chief Administrative Law Judge, M.
Colleen Currie, is substituted as Defendant for the former Chief
Administrative Law Judge, Eugene A. Adams. See Fed. R. Civ. P.
25(d).
4 When citing electronic filings throughout this Opinion, the
Court refers to the ECF page numbers, not the page numbers of
the filed documents.
2
Court grant Defendants’ Motion to Dismiss. See R. &. R., ECF No.
28.
Pending before the Court are Plaintiffs’ Objections to
Magistrate Judge Faruqui’s R. & R. See Objs. by Eugene P.
Givens, Jr., Deborah R. Bowser and Anthony D. Givens to
Magistrate Judge Zia M. Faruqui’s May 3. 2021 R. & R. (“Pls.’
Objs.”), ECF No. 33. Upon careful consideration of the R. & R.,
the objections and opposition thereto, the applicable law, and
the entire record herein, the Court hereby ADOPTS the R. & R,
see ECF No. 28; and GRANTS Defendants’ Motion to Dismiss, see
ECF No. 18.
II. Background
A. Medicaid Eligibility
The R. &. R. sets forth the statutory and regulatory
background as follows:
Congress passed the Medicaid Act in 1965 and
established a “cooperative” arrangement
between the federal government and the States
through which poor and medically vulnerable
Americans receive healthcare benefits. Wilder
v. Va. Hosp. Ass’n, 496 U.S. 498, 502 (1990).
States must create and administer their own
plan in accordance with federal law; in
exchange, the Federal government funds their
Medicaid programs. See 42 U.S.C. § 1396a(a).
Each State submits its Medicaid plan to the
Department of Health and Human Services for
approval. See 42 U.S.C. § 1396a(b). The plan
must include information about the proposed
process and criteria for determining Medicaid
eligibility, two categories of which are
3
relevant here. See 42 U.S.C. §
1396a(e)(14)(E). The first includes
individuals who are “categorically needy,”
that is, those individuals who are eligible
solely because of their low income. Md. Dept.
of Health & Mental Hygiene v. Ctrs. for
Medicare & Medicaid Servs., 542 F.3d 424, 429
(4th Cir. 2008) (citing 4 U.S.C. §
1396a(a)(10)). The second is made up of
“medically needy” individuals—those who “have
become impoverished through medical
expenditures; while they have sufficient
income to afford basic living expenses, they
cannot afford expensive medical care.” Id.
“If a medically needy applicant’s pre-
eligibility income exceeds the Medicaid
limit,” States are “to deduct incurred
medical expenses in order to reduce that
income to the Medicaid eligibility level.”
Id. (citing 42 C.F.R. § 435.831(d)). In making
this calculation, States make “standard
deductions” from an applicant’s income. Id.If an applicant’s post-deduction income is at
or below the Medicaid threshold, the
individual is eligible for Medicaid
enrollment. See 42 C.F.R. § 435.831(f); 29
D.C.M.R. § 9899. After these “spend down”
adjustments are made for a medically needy
applicant, the state Medicaid plan is
required to calculate the amount of income
the applicant is expected to contribute to
her medical expenses. See 42 C.F.R. §
435.725(a). “[N]ursing home residents with
income remaining after the completion of the
spenddown process” must contribute their
“excess” income to the nursing home “to defray
the cost of their care.” Md. Dep’t of Health,
542 F.3d at 430 (citing 42 C.F.R. §
435.725(a)). This cost-sharing system between
the State Medicaid plan and the covered
individual operates like a co-pay, and the
amount the beneficiary owes is determined
after states make certain mandatory
deductions, including deductions of medical
expenses incurred prior to the eligibility
4
determination. See 42 U.S.C. §
1396a(r)(1)(A)(ii).
The Medicaid Act requires States to provide
fair hearings to individuals whose
applications for Medicaid are “denied or is
not acted upon with reasonable promptness.”
42 U.S.C. § 1396a(a)(3). The Department of
Health and Human Services’ implementing
regulation prescribes a timeline of ninety
days from the initial hearing request to the
“final administrative action.” 42 C.F.R. §
431.244(f).
R. &. R., ECF No. 28 at 2-3, 4.
B. Factual
The Court assumes the following facts alleged in the
Amended Complaint to be true for the purposes of deciding this
motion and construes them in Plaintiffs’ favor. See Baird v.
Gotbaum, 792 F.3d 166, 169 n.2 (D.C. Cir. 2015). Until her death
in December 2020, Ms. Givens was a nursing home resident. See
Am. Compl., ECF No. 16 at 2 ¶ 1; see generally Suggestion of
Death, ECF No. 26. She applied for Medicaid benefits on February
26, 2019 to pay for her medical expenses, including her nursing
home care. Id. at 6 ¶ 24. As part of her application, she
submitted copies of unpaid medical bills totaling $40,184
covering the time period of November 1, 2018 through January 31,
2019. Id. at 6 ¶ 25. According to Ms. Givens, these unpaid bills
qualify for a PEME deduction. Id. On May 17, 2019, the District
issued a notice with its determination that Ms. Givens was
eligible for Medicaid benefits, but did not provide an
5
appropriate PEME deduction. Am. Compl., ECF No. 16 at 6 ¶ 26.
Consequently, beginning February 1, 2019, she was required to
pay $2,044 per month for her nursing home care, and she was
unable to use that money to pay off the $40,183.93 in unpaid
bills. Id. at 6-7 ¶ 26.
On June 6, 2019, Ms. Givens filed a request with the
District’s Office of Administrative Hearings (“OAH”) for a fair
hearing to address the District’s failure to approve her request
for a PEME deduction. Id. at 7 ¶ 28. As described in the R. &.
R:
On March 5, 2020, nine months later, OAH
called the hearing. See Pl.’s Opp’n, Ex. 2
(Decl. of Ron Landsman) ¶ 2. Counsel for Ms.
Givens appeared and received a jointly
requested continuance. See id. Unfortunately,
an apparent email mix-up led to Ms. Givens’s
counsel’s failure to appear at the
rescheduled hearing on June 11, 2020. Id. ¶
3–5. Lacking a plaintiff, OAH dismissed the
administrative appeal. Id. ¶ 6. While the
present motion in this Court was pending, OAH
agreed to reopen Ms. Givens’s case. See Notice
of Suppl. Authority. OAH considered the case
before dismissing it with prejudice in
December 2020 along similar lines that the
District argues here. See id.R. &. R., ECF No. 28 at 4-5.
C. Procedural
Ms. Givens filed this Section 1983 suit against Defendants
on February 5, 2020, see generally Compl., ECF No. 1; and
amended her Complaint on June 3, 2020, see generally Am. Compl.,
6
ECF No. 16. On July 1, 2020, Defendants filed a Motion to
Dismiss the First Amended Complaint. See generally Defs.’ Mot.
Dismiss Pl.’s First Am. Compl., ECF No. 18. Plaintiff filed her
opposition, see Pl.’s Opp’n Defs.’ Mot. Dismiss Pl.’s First Am.
Compl., ECF No. 20; and Defendants filed a reply thereto, see
Defs.’ Reply in Supp. of Mot. Dismiss Pl.’s First Am. Compl.,
ECF No. 22. The Court referred this case to Magistrate Judge
Faruqui for full case management, see Minute Order (Oct. 13,
2020); who, on May 3, 2021, issued his R. & R. recommending that
the Court grant Defendants’ Motion to Dismiss, see R. & R., ECF
No. 28 at 15.
Before Magistrate Judge Faruqui issued his R. & R., Ms.
Givens died. See Suggestion of Death, ECF No. 26. On May 16,
2021, Ms. Givens’ three children—Eugene P. Givens, Jr., Deborah
R. Bowser, and Anthony D. Givens—moved to be substituted as
Plaintiffs, to file a Second Amended Complaint, and to object to
the R. & R. See generally ECF No. 29. Magistrate Judge Faruqui
granted their motion to substitute as Plaintiffs for the limited
purpose of objecting to the R. & R. See Minute Order (June 16,
2021).
Plaintiffs raise several objections to the R. & R, see
generally Pls.’ Objs., ECF No. 33; to which Defendants have
responded, see Defs.’ Resp. Objs. Magistrate Judge Zia M.
7
Faruqui’s R. & R. (“Defs.’ Opp’n”), ECF No. 36. The objections
and the motion are ripe and ready for adjudication.
III. Legal Standard
A. Objections to a Magistrate Judge’s R. & R.
Pursuant to Federal Rule of Civil Procedure 72(b), a party
may file specific written objections once a magistrate judge has
entered a recommended disposition. Fed. R. Civ. P. 72(b)(2). A
district court “may accept, reject, or modify the recommended
disposition.” Id. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C)
(“A judge of the court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge.”). A district court “must determine de novo
any part of the magistrate judge’s disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3). “If, however,
the party makes only conclusory or general objections, or simply
reiterates his original arguments, the Court reviews the [R. &
R.] only for clear error.” Houlahan v. Brown, 979 F. Supp. 2d
86, 88 (D.D.C. 2013) (citation omitted). “Under the clearly
erroneous standard, the magistrate judge’s decision is entitled
to great deference and is clearly erroneous only if on the
entire evidence the court is left with the definite and firm
conviction that a mistake has been committed.” Buie v. Dist. of
Columbia, No. CV 16-1920 (CKK), 2019 WL 4345712, at *3 (D.D.C.
Sept. 12, 2019) (citation and internal quotation marks omitted).
8
Objections must “specifically identify the portions of the
proposed findings and recommendations to which objection is made
and the basis for the objection.” LCvR 72.3(b). “[O]bjections
which merely rehash an argument presented and considered by the
magistrate judge are not properly objected to and are therefore
not entitled to de novo review.” Shurtleff v. EPA, 991 F. Supp.
2d 1, 8 (D.D.C. 2013) (citation and internal quotation marks
omitted). The Court reviews Plaintiffs’ objections de novo.
B. Rule 12(b)(1) Motion to Dismiss
“Federal courts lack jurisdiction to decide moot cases
because their constitutional authority extends only to actual
cases or controversies.” Iron Arrow Honor Soc’y v. Heckler, 464
U.S. 67, 70 (1983) (citation omitted). “A motion to dismiss for
mootness is properly brought under Rule 12(b)(1) because
mootness itself deprives the court of jurisdiction.” Indian
River County v. Rogoff, 254 F. Supp. 3d 15, 18 (D.D.C. 2017). “A
case becomes moot—and therefore no longer a ‘Case’ or
‘Controversy’ for purposes of Article III—when the issues
presented are no longer live or the parties lack a legally
cognizable interest in the outcome.” Already, LLC v. Nike, Inc.,
568 U.S. 85, 91 (2013) (citation and internal quotation marks
omitted). “This occurs when, among other things, the court can
provide no effective remedy because a party has already obtained
all the relief that [it has] sought.” Conservation Force v.
9
Jewell, 733 F.3d 1200, 1204 (D.D.C. 2013) (citation and internal
quotation marks omitted). “Because Rule 12(b)(1) concerns a
court’s ability to hear a particular claim, the court must
scrutinize the [party]’s allegations more closely when
considering a motion to dismiss pursuant to Rule 12(b)(1) than
it would under a motion to dismiss pursuant to Rule 12(b)(6).”
Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 65
(D.D.C. 2011) (citing Macharia v. United States, 334 F.3d 61,
64, 69 (D.C. Cir. 2003)). To assess whether a complaint
sufficiently alleges subject matter jurisdiction, the court
accepts as true the allegations of the complaint, see Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009); and liberally construes the
pleadings in the plaintiff’s favor, see Barr v. Clinton, 370
F.3d 1196, 1199 (D.C. Cir. 2004).
C. Rule 12(b)(6) Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A
complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citation and internal quotation marks
omitted).
10
Despite this liberal pleading standard, to survive a motion
to dismiss, a complaint “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible
on its face.” Iqbal, 556 U.S. at 678 (citation and internal
quotation marks omitted). “In determining whether a complaint
fails to state a claim, [the court] may consider only the facts
alleged in the complaint, any documents either attached to or
incorporated in the complaint and matters of which [the court]
may take judicial notice.” EEOC v. St. Francis Xavier Parochial
Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). A claim is facially
plausible when the facts pled in the complaint allow the court
to “draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation
omitted). The standard does not amount to a “probability
requirement,” but it does require more than a “sheer possibility
that a defendant has acted unlawfully.” Id.“[W]hen ruling on a defendant’s motion to dismiss [pursuant
to Rule 12(b)(6)], a judge must accept as true all of the
factual allegations contained in the complaint.” Atherton v.
D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009)
(citation and internal quotation marks omitted). In addition,
the court must give the plaintiff the “benefit of all inferences
that can be derived from the facts alleged.” Kowal v. MCI
11
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (citation
omitted).
IV. Analysis5
A. Mootness
1. Ms. Givens’ Individual PEME Deductions Claim Is
Moot
Plaintiffs’ objections do not address Magistrate Judge
Faruqui’s finding that the voluntary cessation exception to
mootness does not apply to Ms. Givens’ individual PEME claim.
See Pls.’ Objs., ECF No. 33 at 1-2. Accordingly, that finding is
conceded. Cohen, 819 F.3d at 480. Instead, Plaintiffs object to
Magistrate Judge Faruqui’s recommendation that Ms. Givens’ PEME
claims be dismissed because they were mooted when the District
allegedly made the payments to the nursing homes that the
District had “forced” her to pay. Pls.’ Objs., ECF No. 33 at 2.
There is no dispute that the District has now made the
corrective payments to the nursing homes. See Pls.’ Objs., ECF
No. 33 at 2-3; Defs.’ Opp’n, ECF No. 36 at 4-5. Magistrate Judge
Faruqui concluded that her claims were moot because she received
5 Plaintiffs’ objections do not address Magistrate Judge
Faruqui’s finding that her class claim is also moot because she
cannot assert an interest in spreading litigation costs among
potential class members prior to “a decision on class
certification,” which has not occurred in this case. R. & R.,
ECF No. 28 at 9 (quoting Bais Yaakov of Spring Valley v. ACT,
Inc., 798 F.3d 46, 50 (1st Cir. 2015)). Accordingly, those
findings are conceded. Cohen v. Bd. of Trs. of the Univ. of the
D.C., 819 F.3d 476, 480 (D.C. Cir. 2016).
12
the relief she sought—the corrective payments—and that if she
wanted a refund of what she paid to the nursing homes, her claim
would be against the nursing homes rather than the District. R.
&. R., ECF No. 28 at 6-7. To support their position, Plaintiffs
make three arguments. First, they argue that Ms. Givens “was
damaged in the amounts that the District improperly forced [her]
to pay.” Pls.’ Objs., ECF No. 33 at 2. However, the Amended
Complaint contains only a prayer for monetary damages in an
amount to be determined at trial. See generally Am. Compl., ECF
No. 16 at 13. And as Magistrate Judge Faruqui observed, Ms.
Given had “failed to allege injury specifically from the delays
in corrective payments[,] leaving her without any injury for
which the District could compensate her.” R. & R., ECF No. 28 at
7.6 Ms. Givens cannot amend her complaint in her objections to
an R. &. R. Cf. Coleman v. Pension Benefit Guar. Corp., 94 F.
Supp. 2d 18, 24 n.8 (D.D.C. 2000) (“[I]t is axiomatic that a
complaint may not be amended by the briefs in opposition to a
motion to dismiss.” (citation omitted)). Second, Plaintiffs
argue that Ms. Givens need only plausibly allege that there was
a direct causal link between the District’s policy or custom and
a violation of Section 1983. Pls.’ Objs., ECF No. 33 at 2.
However, as explained infra, the Court concludes that Ms. Givens
6
Plaintiffs did not object to this finding and so have conceded
it. Cohen, 819 F.3d at 480.
13
failed to state a claim for a violation of Section 1983. Third,
Plaintiffs argue that Ms. Givens need not sue all defendants in
one lawsuit on a cause of action. Id. at 3 (citing 7 Wright &
Miller, Fed. Prac. & Proc. § 1657 (3d ed. 2018) (“[A] plaintiff
generally has the prerogative of joining multiple defendants or
bringing separate actions.”)). However, this argument is beside
the point because Defendants here can provide no relief as they
have already made the corrective payments.
Accordingly, the Court ADOPTS Magistrate Judge Faruqui’s
conclusion that Ms. Givens’ individual PEME deductions claim for
monetary damages is moot.
2. Fair Hearing Claims
Plaintiffs also object that the fair hearing claims are
moot. See Pls.’ Objs., ECF No. 33 at 5-7. As to Ms. Givens’
individual claim, Plaintiffs argue that the “Amended Complaint
more than plausibly alleges” Defendants’ fair hearing
violations. Id. at 6. However, Magistrate Judge Faruqui
recommended dismissal for lack of jurisdiction due to mootness,
not for failure to state a claim. See R. & R, ECF No. 28 at 6-8.
The Court therefore ADOPTS the R. & R.’s recommendation that Ms.
Givens’ individual fair hearing claim is moot.
Plaintiffs next argue that the class fair hearing claim is
not moot because it satisfies the inherently transitory
exception to the mootness doctrine. Pls.’ Objs., ECF No. 33 at
14
6. They reason that “individual claims regarding the failure of
Defendants to render Medicaid fair hearing decisions within 90
days . . . ‘might end before the district court has a reasonable
amount of time to decide class certification’ and ‘some class
members will retain a live claim at every stage of litigation.’”
Id. (quoting J.D. v. Azar, 925 F.3d 1291, 1311-12 (D.C. Cir.
2019) (per curiam)). They also provide citations to several
cases in which public benefits and/or hearings for those
benefits were not decided within statutorily required time
frames and courts applied the inherently transitory exception.
See id. at 6-7 (collecting cases).
The inherently transitory exception to the mootness
doctrine permits courts to exercise jurisdiction over class
claims even though the named plaintiff’s individual claims have
become moot before class certification. See Azar, 925 F.3d at
1310. For this exception to apply, the Court must “determine (i)
whether the individual claim might end before the district court
has a reasonable amount of time to decide class certification,
and (ii) whether some class members will retain a live claim at
every stage of litigation.” Id. at 1311. “Time-limited hearings
may trigger this exception.” R. & R., ECF No. 28 at 10 (citing
Wilson v. Gordon, 822 F.3d 934, 947 (6th Cir. 2016)).
The allegations in the Amended Complaint do not support
application of the inherently transitory exception here. The
15
Court agrees with Plaintiffs that the first part of the Azar
inquiry has been satisfied. The District can and often does
issue hearing decisions within 90 days. Cf. Am. Compl., ECF No.
16 at 8 ¶ 34 (alleging more than 40 violations); R. & R., ECF
No. 28 at 13 (250,000 individuals in the District enrolled in
Medicaid at the time of the Amended Complaint). Thus, “[t]he
claims at issue likely will, or at least might, end quickly.”
Azar, 925 F.3d at 1311. However, the Amended Complaint does not
support a conclusion that some class members will retain a live
claim at every stage of litigation. It “alleges that some 40
individuals have had hearing delays in the past three years but
is silent on whether and how those claims remain live.” R. & R.,
ECF No. 28 at 10 (citing Am. Compl., ECF No. 16 at 8 ¶ 31). This
case is unlike others in which the exception has applied because
in those cases, the plaintiffs alleged that some members of the
class continued to be injured after the named plaintiff’s claims
were mooted. See Azar, 925 F.3d at 1312 (“ORR continues to keep
pregnant minors, and the plaintiffs represent that about a dozen
expressed an interest in abortion or related information during
the first six months after the issuance of the injunction.”);
Wilson, 822 F.3d at 945 (no dispute that this requirement was
met); Garnett v. Zeilinger, 323 F. Supp. 3d 58, 68 (D.D.C. 2018)
(“[A]s noted in the ruling on the motion for the preliminary
injunction, the District has admitted that it is not processing
16
all applications . . . . [A]t any given moment there are
recipients who are not receiving SNAP benefits owed under the
law because of a delay in processing their applications.”).
Accordingly, the Court ADOPTS Magistrate Judge Faruqui’s
recommendation to dismiss the individual and class fair hearing
claims as moot.
B. Magistrate Judge Faruqui Correctly Concluded that Ms.
Givens Failed to State a Claim
Plaintiffs also object to Magistrate Judge Faruqui’s
recommendation that the Court dismiss the Amended Complaint for
failure to state a claim pursuant to Rule 12(b)(6). See Pls.’
Objs., ECF No. 33 at 3-5. For the reasons that follow, the Court
ADOPTS the R. & R. with respect to Defendants’ Rule 12(b)(6)
Motion to Dismiss.
Section 1983 provides a civil remedy for an individual who
has been deprived, by a person acting under color of state law,
of “any rights, privileges, or immunities secured by the
Constitution and laws” of the United States. 42 U.S.C. § 1983.
As a municipality, the District is liable under Section 1983 for
the acts of its employees “when execution of a government’s
policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official
policy, inflicts the injury.” Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694 (1978).
17
The Court must conduct a two-step inquiry to assess whether
the Amended Complaint states a claim for municipal liability:
(1) it must “determine whether the complaint states a claim for
a predicate constitutional violation,” and (2) if so, it must
“determine whether the complaint states a claim that a custom or
policy of the municipality caused the violation.” Baker v. Dist.
of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citations
omitted). Such a policy or custom
exists when (1) the municipality adopts a
policy that itself violates the Constitution;
(2) the unconstitutional action was taken by
a “policy maker” within the government; (3)
the employees’ unconstitutional actions “are
so consistent that they have become [a]
‘custom’ ” of the municipality of which the
supervising policymaker must have been aware;
or (4) the municipality knew or should have
known of a risk of constitutional violations,
but showed “deliberate indifference” to that
risk by failing to act.
Hurd v. Dist. of Columbia, 997 F.3d 332, 337 (D.C. Cir. 2021)
(quoting Baker, 326 F.3d at 1306) (other citations omitted).
The Amended Complaint contains allegations about two
policies and/or practices. First, Ms. Givens alleges that
Defendants “have a policy and/or practice of failing to deduct
from Medicaid applicants’/recipients’ income the medical and
remedial expenses the applicants/recipients incurred prior to
becoming financially eligible for the Medicaid program.” Am.
Compl., ECF No. 16 at 7 ¶ 30. Second, she alleges that
18
Defendants “have a policy and/or practice of failing to render
Medicaid fair hearing decisions within 90 days of the requests
for such hearings.” Id. at 8 ¶ 31. To support her claims, she
further alleges that Defendants have failed to make appropriate
deductions and have failed to provide timely fair hearing
decisions for over 40 other Medicaid applicants/recipients in
the past three years. See id. at 7-8 ¶¶ 30-31.
In their objections to the R. & R., Plaintiffs argue that
Magistrate Judge Faruqui’s conclusion that these violations are
the “‘result of an admitted failure to follow the District[’]s
policy’ is unsupportable on Defendants[’] Rule 12(b)(1)7 and
12(b)(6) motions.” Pls.’ Objs., ECF No. 33 at 4 (quoting R. &
R., ECF No. 28 at 14). As to the Rule 12(b)(6) motion,
Plaintiffs contend that “[n]othing in the First Amended
Complaint supports Magistrate[] Judge Faruqui’s conclusion” that
the PEME deduction and fair hearing decision violations are “a
result of an admitted failure to follow the District[’]s
7 As to the Rule 12(b)(1) motion, Plaintiffs argue that “[i]t is
completely improper on a motion to dismiss for lack of subject
matter jurisdiction to factually decide one of the contested
merits issues in the case, i.e., what the District’s policy was
with respect to PEME deductions.” Pls.’ Objs., ECF No. 33 at 4.
But as Defendants point out in their response, see Defs.’ Opp’n,
ECF No. 36 at 7; Magistrate Judge Faruqui drew this conclusion
in evaluating Defendants’ Rule 12(b)(6) motion, see R. & R., ECF
No. 28 at 14. Nowhere in the R. & R. does the Magistrate Judge
suggest that the failure to state a claim has caused a failure
of jurisdiction. Cf. Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 91 (1998).
19
policy.” Pls.’ Objs., ECF No. 33 at 5 (quoting R. & R., ECF No.
28 at 14). Instead, the Amended Complaint alleges only that the
District’s policy and/or practice is to not make PEME deductions
and to not issue timely hearing decisions. See Am. Compl., ECF
No. 16 at 7-8 ¶¶ 30-31.
The Court of Appeals for the D.C. Circuit (“D.C. Circuit”)
“has identified several ways in which a plaintiff may allege a
municipal policy.” Blue v. Dist. of Columbia, 811 F.3d 14, 18
(D.C. Cir. 2015). To state a claim, “a plaintiff must plead the
elements of the relevant type of municipal policy” and
“indicate[] the contours” of that type of policy. Id. at 20. Ms.
Givens did not do so. The Amended Complaint contains no facts
alleging that: (1) the District adopted an unconstitutional
policy; (2) a “policy maker” has taken unconstitutional action;
(3) District employees have a custom of unconstitutional action
of which the supervising policy maker must know; or (4) the
District is deliberately indifferent to the risk of
constitutional violations. See Hurd, 997 F.3d at 337; see
generally Am. Compl., ECF No. 16. The failure to allege such
facts is fatal to Plaintiffs’ claims. See, e.g., Trimble v.
Dist. of Columbia, 779 F. Supp. 2d 54, 57-59 (D.D.C. 2011)
(“[M]erely speculating that an unidentified policy and
uncorroborated practice or custom exists without providing any
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factual heft to support the allegation is insufficient to state
a claim under § 1983.”).
Plaintiffs argue that the Amended Complaint contains
sufficient “factual heft” to survive Defendants’ Motion to
Dismiss. See Pls.’ Objs., ECF No. 33 at 3, 5. To clarify,
“[t]here is no heightened pleading standard in a case alleging
municipal liability for a civil rights violation. Nevertheless,
[a] Complaint must include some factual basis for the allegation
of a municipal policy or custom.” Faison v. Dist. of Columbia,
907 F. Supp. 2d 82, 85 (D.D.C. 2012) (citations and internal
quotation marks omitted), aff'd, No. 13-7021, 2013 WL 5975981(D.C. Cir. Oct. 23, 2013) (per curiam). Plaintiffs claim that
the Amended Complaint meets this standard because it
“describe[s] plainly” that Defendants have failed to make PEME
deductions and issue timely fair hearing decisions “over 40
times in a three-year period.” Pls.’ Objs., ECF No. 33 at 3; see
also id. at 5. Defendants respond that “[i]t is not enough to
describe factual allegations concerning a single violation, and
then simply allege, without support, that the District has acted
similarly in 40 or more instances to infer the existence of a
custom or policy.” Defs.’ Opp’n, ECF No. 36 at 9 (collecting
cases where the plaintiff pled facts about only a single
incident).
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For the purposes of this motion, the Court accepts as true
the allegation that the District has failed to make PEME
deductions and issue timely fair hearing decisions more than 40
times in three years. See Atherton, 567 F.3d at 681. However,
Ms. Givens pled facts about only one incident: the District’s
failure to make PEME deductions and issue a timely fair hearing
decision for her. See generally Am. Compl., ECF No. 16. Ms.
Givens’ “bare assertion that such problem has happened 40 other
times,” R. & R., ECF No. 28 at 15; without any facts about those
other incidents, is not enough under Twombly and Iqbal, see,
e.g., Ryan v. Dist. of Columbia, 306 F. Supp. 3d 334, 345-46;
cf. Jud. Watch, Inc. v. U.S. Dep’t of Homeland Sec., 895 F.3d
770, 776 (D.C. Cir. 2018) (describing detailed allegations the
plaintiff made regarding 19 incidents). Without any facts
describing those 40 other incidents, the Amended Complaint
contains “[p]roof of a single incident of unconstitutional
activity,” and that “is not sufficient to impose liability under
Monell.” Trimble, 779 F. Supp. 2d at 58 (quoting City of Okla.
City v. Tuttle, 471 U.S. 808, 823-34 (1985)); Blakeney v.
O’Donnell, 117 F. Supp. 3d 6, 12 (D.D.C. 2015) (quoting same).
Applying our liberal pleading standard, Barr, 370 F.3d at
1199; Magistrate Judge Faruqui appropriately considered whether
the Amended Complaint contains “allegations of practices so
persistent and widespread . . . as to be considered a . . .
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policy,” Ryan, 306 F. Supp. 3d at 346 (citation and internal
quotation marks omitted). But without any factual allegations in
the Amended Complaint as to the 40 other violations, Magistrate
Judge Faruqui was left with only facts for which he may take
judicial notice. See Abhe & Svoboda, Inc. v. Chao, 508 F.3d
1052, 1059 (D.C. Cir. 2007); R. & R., ECF No. 28 at 13-14
(citing U.S. Census Bureau, QuickFacts: District of Columbia,
July 1, 2019, available at: https://www.census.gov/quickfacts/DC
and Dist. of Columbia Dep’t of Healthcare Fin., Monthly
Enrollment Report, Jan. 25, 2021, available at:
https://dhcf.dc.gov/node/1521576). The Court agrees with
Magistrate Judge Faruqui that the “bare assertion” in the
Complaint, along with the facts of which the Court may take
judicial notice, do not plausibly show anything more than
“apparently rare administrative mistakes and backlog” in
implementing federal and District Medicaid requirements. R. &
R., ECF No. 28 at 14. In other words, the factual allegations
only support an inference that the District failed to follow a
policy of making proper PEME deductions and issuing timely fair
hearing decisions.
To excuse Ms. Givens’ pleading failure, Plaintiffs argue
that “the details describing those [40 other] violations is
information ‘peculiarly in the possession’ of Defendants,” and
so Ms. Givens could plead only “upon information and belief.”
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Pls.’ Objs., ECF No. 33 at 3-4 (collecting cases). The Court
does not dispute that “[a] plaintiff still may plead on
‘information and belief’ where the facts are peculiarly within
the possession and control of the defendant.” Kelleher v. Dream
Catcher, L.L.C., 263 F. Supp. 3d 322, 325 (D.D.C. 2017). Given
the nature of Medicaid proceedings, the Court recognizes that
Ms. Givens could not access confidential information about other
Medicaid applicants and recipients. The Court is not now
suggesting that Ms. Givens should have submitted declarations or
detailed allegations to support her claims. See Pls.’ Objs., ECF
No. 33 at 4 (citing Arista Records LLC v. Doe, 604 F.3d 110,
119-20 (2d Cir. 2010) and other cases). Even so, Twombly and
Iqbal require that the complaint “contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Iqbal, 556 U.S. at 678 (citation and
internal quotation marks omitted) (emphasis added). Ms. Givens
did not carry her burden to allege sufficient factual matter, as
explained supra. The Court agrees with Magistrate Judge Faruqui
that the factual allegations, construed liberally, do not
plausibly support an inference that Defendants have a policy
and/or practice of failing to make PEME deductions and failing
to issue timely fair hearing decisions. See R. & R., ECF No. 28
at 14-15.
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Accordingly, the Court concludes that the Amended Complaint
does not state a claim and ADOPTS the R. & R. as to the Rule
12(b)(6) Motion to Dismiss.
V. Conclusion
For the foregoing reasons, the Court ADOPTS Magistrate Judge
Faruqui’s R. & R., ECF No. 28; and GRANTS Defendants’ Motion to
Dismiss, Defs.’ Mot. Dismiss Pl.’s First Am. Compl., ECF No. 18.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
September 30, 2022
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