Ferguson v. Pakseresht, 3:20-cv-1853-SI

MONICA FERGUSON, Plaintiff, v. FAIRBORZ PAKSERESHT, Director, Oregon Department of Human Services, Defendant.

No. 3:20-cv-1853-SI

United States District Court, D. Oregon

August 16, 2021

Monica Ferguson, pro se.

Ellen F. Rosenblum, Attorney General, and Nathaniel Aggrey Assistant Attorney General, Oregon Department of Justice, Of Attorneys for Defendant.

ORDER

Michael H. Simon, District Judge.

In this action, Plaintiff Monica Ferguson has sued Fairborz Pakseresht, Director of the Oregon Department of Human Services (Director Pakseresht), relating to the termination of her enrollment as a homecare worker (HCW) and her subsequent exclusion by the Oregon Office of the Inspector General (OIG) from participating in Medicare and Medicaid. Plaintiff challenges: (1) the Oregon Department of Human Services' (DHS) investigation concerning allegations against her that led to the revocation of her license; (2) DHS's decision to terminate her enrollment as a HCW; and (3) the denial of her appeal of the agency's decision. Plaintiff brings many claims based on these events requesting both injunctive and monetary relief. She seeks reversal of DHS's revocation of her license, compensation for loss of business income, compensatory damages of $900 000, and reimbursement of costs and fees, among other things. Defendant moves for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim.

STANDARDS

A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The court must draw all reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus. v. Ikon Office Sol., 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

A complaint must contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).

A court must liberally construe the filings of a self-represented, or pro se, plaintiff and afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Further, “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 923 n.4 (9th Cir. 2011) (quotation marks omitted). “Unless it is absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.” Garity v. APWU Nat'l Lab. Org., 828 F.3d 848, 854 (9th Cir. 2016) (alteration in original) (quoting Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)). Under Federal Rule of Civil Procedure 8(a)(2), however, every complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” This standard “does not require ‘detailed factual allegations, '” but does demand “more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).

BACKGROUND

Plaintiff was licensed by DHS in Oregon as a Nurse Practitioner authorized to provide homecare worker (HCW) services to private clients. Plaintiff provided HCW services to private clients, including her own father. Plaintiff also owned and operated a clinic that provided health care services to other Medicaid and Medicare patients. DHS and the Oregon State Board of Nursing conducted an investigation of Plaintiff based on allegations that she committed fraud and neglected and abused her father. After an investigation and hearing by DHS, Plaintiff's license was terminated in September 2017. Plaintiff alleges that certain individuals reported false information to DHS in connection with that investigation and hearing and that private information and photographs were used during the investigation and hearing. Based on DHS's decision, on September 19, 2019, OIG placed Plaintiff on “exclusion” from providing services through Medicaid and Medicare. Plaintiff requested an appeal of this decision, which was denied on September 1, 2020.

DISCUSSION

A. Parties

In her Second Amended Complaint (SAC), Plaintiff asserts claims only against Director Pakseresht. ECF 15.^[1] Although Plaintiff makes allegations against DHS as an entity, no claim appears to be asserted against Director Pakseresht in his individual capacity, only in his official capacity as Director of DHS. Thus, the Court concludes that Director Pakseresht is named as a Defendant only in his official capacity as Director of DHS. In addition, although other persons are mentioned in the SAC's “Parties” section and throughout the SAC, none are named as a Defendant in the caption of the SAC and Plaintiff does not appear to have effected or even attempted service on anyone other than Director Pakseresht. Even if an improper defendant is named in the caption, a court may consider a complaint to have named the proper defendant “if the allegations in the body of the complaint make it plain that the party is intended as a defendant.” Rice v. Hamilton Air Force Base Commissary, 720 F.2d 1082, 1085 (9th Cir. 1983) (pro se plaintiff's complaint found to have named the Secretary of the Navy as the proper defendant because the body of the complaint included the Secretary's signed disposition of the plaintiff's underlying claim). Here, however, Plaintiff does not appear to assert any claims against anyone other than Director Pakseresht in his official capacity. The Court construes any factual allegations about individual actors or other state organizations merely as background relating to Plaintiff's claims against Director Pakseresht in his official capacity.

B. Eleventh Amendment Immunity

The Eleventh Amendment to the United States Constitution bars suit in federal court against states and state agencies acting under the state's control. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993). When a suit seeks only prospective injunctive relief to end a continuing violation of federal law, Eleventh Amendment immunity may generally not be invoked. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996) (citing Ex parte Young, 209 U.S. 123 (1908)). A suit seeking monetary relief may be sustained if a state or state agency has waived its immunity, or if Congress has abrogated the state's sovereign immunity. See Va. Off. for Prot. & Advocacy v. Stewart, 131 S.Ct. 1632, 1638 (2011). “The Oregon Tort Claims Act is a waiver of sovereign immunity but does not waive Eleventh Amendment immunity. Thus, suits by private parties against the state must be brought in state court.” Est. of Pond v. Oregon, 322 F.Supp.2d 1161, 1165 (D. Or. 2004); see also Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 99 n.9 (1984) (“[A] State's waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts.”).

Although the SAC is unclear as to exactly what remedies Plaintiff seeks for which claims, in addition to her request for monetary relief, Plaintiff appears to request reinstatement of her nurse practitioner and HCW licensure.^[2] If Plaintiff seeks monetary damages against DHS, or Director Pakseresht in his official capacity as head of DHS, such a claim may not be brought in federal court absent express consent by the state. Having received no such consent, any claims seeking monetary damages are DISMISSED under Eleventh Amendment immunity.

C. Prospective Injunctive Relief: Reinstatement of Licenses

The Court next turns to Plaintiff's claims seeking injunctive relief, which are not necessarily barred by the Eleventh Amendment. Plaintiff's action seeking reinstatement of her license appears to be based on allegations that her license was revoked through a process that violated her procedural due process rights under the...