Opinion
6:14-CV-0910 (TJM/TWD)
12-22-2014
ANNA M. SHAUT, Plaintiff, v. SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
APPEARANCES: ANNA M. SHAUT Plaintiff pro se 13 Ferris Avenue Utica, New York 13501
APPEARANCES: ANNA M. SHAUT
Plaintiff pro se
13 Ferris Avenue
Utica, New York 13501
THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER
On July 23, 2014, pro se Plaintiff Anna M. Shaut filed a complaint against the United States Department of Health and Human Services ("HHS") seeking judicial review, pursuant to 42 U.S.C. § 1395ff(b), of a May 22, 2014, decision of the Medicare Appeals Council ("Appeals Council"). (Dkt. No. 1.) The complaint and Plaintiff's second application to proceed in forma pauperis were sent to the Court for review. (Dkt. Nos. 1 and 2.) The Court granted Plaintiff's second application to proceed in forma pauperis in an Order dated October 28, 2014. (Dkt. No. 7.) However, the Court concluded that there was an impediment to going forward with the initial review of the Complaint pursuant to 28 U.S.C. § 1915(e). Id. at 2-3.
Plaintiff's initial application to proceed in forma pauperis (Dkt. No. 2) was denied without prejudice. (Dkt. No. 4.)
The Appeals Council's decision on which review is sought by Plaintiff affirmed the determination of an administrative law judge ("ALJ"), who had upheld a demand by Medicare on Plaintiff's mother, Medicare beneficiary, Lydia Grzesiak ("Grzesiak"), for repayment of a $29,196.92 Medicare lien. (Dkt. No. 1 at 3, 11-16.) Grzesiak had made the repayment, and she was found to have made no showing that she was entitled to a waiver of recovery under Section 1870(c) of the Social Security Act. Id. at 15.
Plaintiff pursued the appeal to the Appeals Council on behalf of Grzesiak. Id. at 12. The sole allegation in Plaintiff's Complaint, to which the Notice of Decision of Medicare Appeals Council and Decision are attached, was "We want to be reimbursed the money that was paid to Medicare by my mother." Id. at 3. The Complaint did not identify the person or persons constituting "we." Id. However, the Court took judicial notice of Grzesiak's obituary, indicating that she died on November 22, 2012, and was survived by a number of children, including Plaintiff. (Dkt. No. 7 at 3 n.2.)
See www.eannacefuneralhome.com/obituaries/Lydia-Grzesiak/Lydia-Grzesiak/#!/Obituary (most recent visit December 18, 2014); see also Wilson v. Gordon & Wong Law Group, P.C., No. 2:13-cv-00609-MCE-KJN, 2013 WL 6858975, 2013 U.S. Dist. LEXIS 180366, at *11-12 (E.D. Cal. Dec. 24, 2013) (taking judicial notice of an obituary appearing in a newspaper); Magnoni v. Smith & Laquericia, LLP, 701 F. Supp. 2d 497, 501 (S.D.N.Y. 2010) (court generally has discretion to take judicial notice of internet materials), aff'd, 483 F. App'x 613 (2d Cir. 2012).
Although Plaintiff has the right to act as her counsel, see 28 U.S.C. § 1654 (1982), "[a] person who has not been admitted to the practice of law may not represent anyone other than [herself]." Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010). Even if Plaintiff had sued as administrator or executor of her mother's estate, she could not have proceeded pro se if the estate has beneficiaries or creditors other than her. See Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997). In Guest, the Second Circuit held that the administrator and sole beneficiary of an estate with no creditors may appear pro se on behalf of the estate. Id. at 21. Plaintiff did not sue as administrator or executor of Grzesiak's estate in her initial Complaint, nor did she allege that she is the sole beneficiary of her mother's estate and that there are no creditors. To the contrary, Plaintiff alleged that she was pursuing her late mother's Medicare claim, which presumably would be a part of her mother's estate, not only on her own behalf, but on behalf of others as well. (Dkt. No. 1 at 3.)
The Court concluded that based upon the allegations in her initial complaint and Grzesiak's obituary, Plaintiff would have to retain counsel to pursue the claim, thus leaving the Court unable to undertake its initial review. The Court ordered that the action be stayed for ninety days to give Plaintiff time to retain counsel or submit an amended complaint alleging that she is the administrator or executor of her mother's estate, that she is proceeding only on her own as the sole beneficiary, and that her mother's estate has no creditors. (Dkt. No. 7 at 4.) The Court noted in its Order that if there was no appearance by counsel and no amended complaint filed on or before January 26, 2015, it would issue a Report-Recommendation recommending that the complaint be dismissed without prejudice. Id.
Plaintiff filed an amended complaint on November 17, 2014. (Dkt. No. 8.) In her amended complaint, Plaintiff has alleged that she has been working on being reimbursed the money her mother paid medicare out of her settlement from her lawsuit, and she did not hire legal counsel because her personal funds were used to assist her mother after the lawsuit. (Id. at ¶¶ 1 and 5.) In a November 12, 2014, letter to the Court submitted with the amended complaint, Plaintiff explained that the "we" in her original complaint was her mother and siblings. (Dkt. No. 8-1.) However, according to Plaintiff, she was her mother's "beneficiary for her social security checks, health care proxy, and caregiver responsible for her financial responsibly (sic)." Id. Plaintiff also stated in the letter that "[t]here was no administrator or executor of her estate because she did not have an estate," and that "[s]he did not have creditors or beneficiaries." Id.
In its October 28, 2014, Order (Dkt. No. 7), the Court noted that Plaintiff had mistakenly filed a form pro se complaint for use in an action under 42 U.S.C. § 1983 (Dkt. No. 1) but excused the error in light of Plaintiff's pro se status. Plaintiff has utilized the same 42 U.S.C. § 1983 form for her Amended Complaint, and the Court again excuses the error. In its October 28, 2014, Order, the Court also noted that Plaintiff had mistakenly named the Department of Health and Human Services rather than the Secretary of the Department of Health and Human Services as Defendant. See 42 C.F.R. § 405.1136(d). Plaintiff has corrected the error and named the Secretary of the Department of Health and Human Services as Defendant in her Amended Complaint. (Dkt. No. 8.)
After reviewing the amended complaint (Dkt. No. 8), the Court finds that it states a claim for judicial review of the Appeals Council decision sufficient to survive initial review under 28 U.S.C. § 1915(e) (2006), and that Plaintiff may proceed pro se solely with respect to her own interest, if any, in the return of the repayment. Accordingly, Defendant should be directed to respond to the amended complaint. The Court expresses no opinion regarding whether Plaintiff has standing to pursue judicial review pursuant to 42 U.S.C. § 1395ff(b), or whether Plaintiff's claim can withstand a properly filed motion to dismiss or for summary judgment only that it should survive this initial screening.
Plaintiff annexed the following documents to her original complaint: (1) July 7, 2014, Notice of Action of Medicare Appeals Council Denying Request to Reopen; (2) Action of Medicare Appeals Council on Request for Review; (3) May 22, 2014, Notice of Decision of Medicare Appeals Council; (4) Procedural History; and (5) May 22, 2014, Decision of Medicare Appeals Council. (Dkt. No. 1 at 5-8, 11-16.) Plaintiff neglected to annex the documents to her amended complaint. (Dkt. No. 8.) Therefore, the Court will order that copies of those pages of plaintiff's original complaint (Dkt. No. 1) designated by the CM/ECF system as pages 5-8 and 11-16 be added to the end of Plaintiff's amended complaint, and that the amended complaint with the additional documents annexed thereto constitute the operative pleading in the case.
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ACCORDINGLY, it is hereby
ORDERED that copies of the documents annexed to plaintiff's original complaint (Dkt. No. 1) at page numbers 5-8 and 11-16, as designated by the CM/ECF system, be added to the end of Plaintiff's amended complaint (Dkt. No. 8), and that the amended complaint with those documents annexed be designated as Plaintiff's amended complaint and filed as the operative pleading in the action; and it is further
ORDERED, that the Clerk shall issue summonses and forward them, along with copies of the amended complaint designated by the Court as the operative pleading and packets containing General Order 25, which sets forth the Civil Case Management Plan used by the Northern District of New York, to the United States Marshal for service: (1) on the Secretary of Health and Human Services by registered or certified mail to the General Counsel, Department of Health and Human Services, 200 Independence Avenue, S.W., Washington, D.C. 20201; (2) on the Attorney General of the United States by registered or certified mail at U.S. Department of Justice, 950 Pennsylvania Avenue, NW, Washington, DC 20530-0001; and (3) on the United States Attorney for the Northern District of New York, by delivery to the United States Attorney or an assistant United States Attorney or clerical employee whom the United States attorney has designated in a writing filed with the court; and it is further
ORDERED that a formal response to Plaintiff's amended complaint be filed by Defendant as provided for in the Federal Rules of Civil Procedure subsequent to service of process on Defendant; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of the unpublished decision in Wilson v. Gordon & Wong Law Group, P.C., 2013 WL 6858975 (E.D. Cal. Dec. 24, 2013) in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Clerk revise the Civil Docket to identify the Secretary of the Department of Health and Human Services as Defendant; and it is further
ORDERED that the Clerk serve a copy of this Order and General Order 25 on Plaintiff; and it is further
ORDERED that any paper sent by a party to the Court or the Clerk shall be accompanied by a certificate setting forth the date a true and correct copy of it was mailed to all opposing parties or their counsel. Any letter or other document received by the Clerk or the Court which does not include a certificate of service which clearly states that an identical copy was served upon all opposing parties or their attorneys is to be returned, without processing, by the Clerk. Plaintiff shall also comply with any requests by the Clerk's Office for any documents that are necessary to maintain this action. All motions shall comply with the Local Rules of Practice of the Northern District. Dated: December 22, 2014
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge