Opinion
23-CV-6868 (CS)
08-09-2023
SONYA MUNROE, Plaintiff, v. AETNA MEDICARE, Defendant.
ORDER OF DISMISSAL
CATHY SEIBEL UNITED STATES DISTRICT JUDGE
Plaintiff Sonya Munroe, possibly through her husband,brings this pro se action, for which the filing fees have been paid, alleging that Defendant Aetna Medicare violated her rights under the Medicare and Medicaid Act of 1964. The Court dismisses the complaint for lack of subject matter jurisdiction, but grants Plaintiff 30 days' leave to replead her claims in an amended complaint.
The beginning of the facts section of the complaint includes a note saying that the facts are “[s]tated in Sonya's 1st person voice, not her husband Patrick's who represents her pro se.” (ECF 1, at 5.) As discussed below, Plaintiff's husband may not assert claims pro se on Plaintiff's behalf.
STANDARD OF REVIEW
The Court has the authority to dismiss a complaint, even when the plaintiff has paid the filing fees, if it determines that the action is frivolous, Fitzgerald v. First E. Seventh Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam) (citing Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir. 1995) (per curiam) (holding that Court of Appeals has inherent authority to dismiss frivolous appeal)), or that the Court lacks subject matter jurisdiction, Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). The Court also may dismiss an action for failure to state a claim, “so long as the plaintiff is given notice and an opportunity to be heard.” Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994) (citation and internal quotation marks omitted). The Court is obliged, however, to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).
BACKGROUND
The following allegations are taken from the complaint. Plaintiff, who resides in Westchester County, receives health care coverage through the Aetna Medicare Elite Plan. On March 22, 2023, Plaintiff began experiencing pain in her left leg. A doctor recommended an MRI, which showed “a synovial cyst between two vertebrae . . . constricting the sciatic nerve on [Plaintiff's] left leg.” (ECF 1, at 5.) Plaintiff's spine surgeon recommended surgery to remove the cyst, which was scheduled for May 31, 2023. On May 16, 2024, however, Aetna denied medical coverage for the surgery and for Plaintiff's inpatient hospital visit, and instead required that Plaintiff first undergo “presurgical physical therapy.” (Id.) On May 23, 2023, Plaintiff's surgeon appealed Aetna's denial. The Aetna representative, who was also a retired spine surgeon, agreed that physical therapy was unnecessary and would have “no effect on the cyst,” but stated that “it was Aetna protocol and he was bound to it.” (Id.) Plaintiff's appeal was denied, and Plaintiff's surgeon “acceded to Aetna's physical therapy requirement and scheduled the surgery for July 18th.” (Id.) In the weeks leading up to the surgery, Plaintiff experienced significant pain while she underwent physical therapy. She took ibuprofen for the pain, but “[i]t had a dangerous side effect that was diagnosed as chronic kidney insufficiency.” (Id. at 6.)
On June 24, 2023, Aetna approved the surgery for July 18, 2023. On June 26, 2023, Plaintiff was informed that Aetna approved outpatient admission but not inpatient admission, even though Plaintiff's surgeon had recommended inpatient admission. On July 18, 2023, 2 Plaintiff underwent the surgery, and the cyst was removed. At 5:00 PM, “the wound was still bleeding, leaking outside the dressing.” (Id.) Plaintiff's dressing was replaced, and she was discharged at 6:00 PM. Her dressing was again soaked through with blood later that night.
In the section of the complaint form asking Plaintiff to state her injuries, she writes, “None.” (Id.)
Plaintiff seeks reimbursement of her $360 co-pay for presurgical physical therapy and an order directing that “Aetna publicly admit responsibility for [Plaintiff's] seven weeks of suffering, and that they give a corrective protocol to the Court for its approval - how from now on Aetna will treat plan members humanely and accordance with their legal and moral obligations.” (Id.)
DISCUSSION
A. Plaintiff's husband may not bring claims on her behalf
Although it appears that Plaintiff signed the complaint, the complaint also states that Plaintiff's husband is bringing claims on her behalf. Because Plaintiff's husband does not indicate that he is a lawyer, he cannot bring claims pro se on behalf of his wife. See 28 U.S.C. § 1654; U.S. ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008) (“[A]n individual who is not licensed as an attorney may not appear on another person's behalf in the other's cause.” (internal quotation marks and citation omitted)); Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991) (noting that Section 1654 “allow[s] two types of representation: ‘that by an attorney admitted to the practice of law by a governmental regulatory body, and that by a person representing himself'”). Plaintiff's husband may assist her in drafting the complaint, but he may not assert claims on her behalf. If Plaintiff submits an amended complaint, she must sign the amended complaint and include an attestation that she is personally bringing claims on her own behalf.
B. Subject matter jurisdiction
The Court construes Plaintiff's claims against Medicare as brought under the Medicare Act and the Social Security Act, in which she challenges the denial of her Medicare benefits. With respect to such claims, 42 U.S.C. § 405(h) mandates that the judicial review method set forth in 42 U.S.C. § 405(g) is the exclusive method for judicial review, and bars judicial review under other grants of subject matter jurisdiction, “irrespective of whether the individual challenges the agency's denial on evidentiary, rule-related, statutory, constitutional, or other legal grounds.” Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 10 (2000). In order to challenge the denial of Medicare benefits under Section 405(g), a plaintiff must exhaust her administrative remedies before seeking judicial review. 42 U.S.C. § 405(g), (h); see Abbey v. Sullivan, 978 F.2d 37, 41-44 (2d Cir. 1992). This requirement is jurisdictional. Shalala, 529 U.S. 1; Weinberger v. Salfi, 422 U.S. 749, 757-66 (1975); see Heckler v. Ringer, 466 U.S. 602, 622 (1984) (“Because Ringer has not given the Secretary an opportunity to rule on a concrete claim for reimbursement, he has not satisfied the nonwaivable exhaustion requirement of § 405(g). The District Court, therefore, had no jurisdiction as to respondent Ringer.”).
42 U.S.C. § 405(h) provides, in relevant part, that:
[t]he findings and decision of the [Secretary of the United States Department of Health and Human Services (“HHS Secretary”)] after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the [HHS Secretary] shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the [HHS Secretary], or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.42 U.S.C. § 405(g) provides, in relevant part, that:
[a]ny individual, after any final decision of the [HHS Secretary] made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the [HHS Secretary] may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia.
A plaintiff dissatisfied with a Medicare contractor's initial determination of Medicare benefits must follow certain procedures before filing suit in federal court: (1) a plaintiff must request that the contractor perform a redetermination of the claim if the requirements for obtaining a redetermination are met; (2) if dissatisfied with the redetermination, a plaintiff must seek reconsideration from the contractor; (3) if still dissatisfied, the plaintiff must request a hearing by an Administrative Law Judge (“ALJ”) with the United States Department of Health and Human Services; (4) if dissatisfied with the decision of the ALJ, a plaintiff must request that the Medicare Appeals Council (“MAC”) review the case; and (5) if the plaintiff is still dissatisfied with the decision made by the MAC, only then may the plaintiff file suit in federal court if the amount remaining in controversy and other requirements for judicial review are met. See 42 C.F.R. § 405.904(a)(2); Townsend v. Cochran, 528 F.Supp.3d 209, 212-13 (S.D.N.Y. 2021).
The Second Circuit has determined that judicial waiver of this exhaustion requirement is appropriate in only three circumstances: (1) where the claim is collateral to a demand for benefits; (2) where exhaustion would be futile; and (3) where the plaintiff would suffer irreparable harm if required to exhaust administrative remedies before obtaining relief. See Abbey, 978 F.2d at 44. Thus, “[e]xhaustion is the rule, waiver the exception.” Id.
Here, Plaintiff does not allege that she exhausted her administrative remedies. She states that her surgeon appealed Aetna's May 16, 2023 decision denying coverage of the surgery unless Plaintiff first underwent physical therapy and denying inpatient admission, but she does not allege that she or her doctor took any further steps to exhaust her administration remedies. Plaintiff does not allege that she took any steps to appeal Aetna's June 26, 2023 decision to deny inpatient admission. Nor does Plaintiff allege any facts suggesting that waiver of the exhaustion requirement is appropriate in this case. Because Plaintiff does not allege that she has exhausted her administrative remedies, the Court dismisses her claims for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
In light of Plaintiff's pro se status, the Court grants her 30 days' leave to replead her claims in an amended complaint demonstrating the Court has subject matter jurisdiction of her claims by alleging facts showing that she has exhausted her administrative remedies.
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). The Court grants Plaintiff 30 days' leave to replead her claims in an amended complaint alleging facts demonstrating that the Court has subject matter jurisdiction of her claims.
In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated her federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
CONCLUSION
The Court dismisses the complaint for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
The Court grants Plaintiff 30 days' leave to replead her claims in an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within 30 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 23-CV-6868 (CS). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and she cannot show good cause to excuse such failure, the complaint will be dismissed for lack of subject matter jurisdiction.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.