Justice v. North Carolina Department Health and Human Services Secretary

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

NO. 5:18-CV-187-FL

THEODORE JUSTICE, )

)

Plaintiff, )

)

v. )

) ORDER

NORTH CAROLINA DEPARTMENT OF )

HEALTH AND HUMAN SERVICES )

SECRETARY, and GRANVILLE )

COUNTY BOARD OF )

COMMISSIONERS, )

)

Defendants. )

This matter comes before the court on defendants’ motions to dismiss plaintiff’s amended

complaint, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (DE

55, 58). The issues raised are ripe for ruling. For the reasons that follow, defendants’ motions are

granted.

STATEMENT OF THE CASE

Plaintiff, proceeding pro se, commenced this action by filing motion for leave to proceed

in forma pauperis (“IFP”) in the United States District Court for the District of Columbia on

October 23, 2017. The court transferred plaintiff’s case to this district on December 22, 2017.

After some delay, on November 27, 2018, the magistrate judge allowed plaintiff’s IFP motion and

allowed plaintiff’s complaint and amended complaint to proceed through frivolity review.

Plaintiff’s amended complaint1 was filed on November 27, 2018, alleging claims pursuant to 42

U.S.C. § 1983 for failing or refusing to process plaintiff’s food stamp application for excess

medical deductions and failing or refusing to identify plaintiff’s child as a member of plaintiff’s

household for purposes of his application for benefits under the Food and Nutrition Act of 2008,

as amended, 7 U.S.C. §§ 2011–2036.

On January 11, 2019, the court, acting on its own initiative, vacated the magistrate judge’s

order and dismissed plaintiff’s claims as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). By

unpublished opinion on August 21, 2019, the United States Court of Appeals for the Fourth Circuit

in turn vacated and remanded the court’s order, holding plaintiff’s complaint is not frivolous where

“there is at least a plausible argument that the SNAP statute and regulations unambiguously confer

rights on SNAP benefits claimants in such a manner that a § 1983 cause of action is available to

enforce those rights.” Justice v. N. Carolina Dep’t Health & Human Servs. Sec’y, 775 F. App’x

107, 108 (4th Cir. 2019).

On January 2, 2020, defendant North Carolina Department Health and Human Services

Secretary (“NCDHHS”) filed its motion to dismiss, arguing that sovereign immunity bars

plaintiff’s claims, plaintiff has failed to state a cognizable § 1983 claim for violation of the Food

and Nutrition Act, and plaintiff’s claims are precluded by previous state administrative

proceedings adjudicating his eligibility for supplemental nutrition assistance program (“SNAP”)

benefits. In support of the motion, defendant NCDHHS relies upon decisions from plaintiff’s state

administrative hearings. Defendant Granville County Board of Commissioners2 (“Granville

1 As a general rule, “an amended pleading ordinarily supersedes the original and renders it of no legal effect.”

Young v. City of Mount Ranier, 238 F.3d 567, 573 (4th Cir. 2001) (internal quotations omitted); see also 6 Charles

Alan Wright, et al., Fed. Prac. & Proc. § 1476 (3d ed. 1998) (“A pleading that has been amended under Rule 15(a)

supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified. . .

. Once an amended pleading is interposed, the original pleading no longer performs any function in the case”).

2 The court construes plaintiff’s claims against defendant Granville County’s board of commissioners as a suit

County”) followed with its own motion to dismiss, arguing that it is not an entity capable of being

sued, that plaintiff cannot identify a county policy supporting a § 1983 claim, plaintiff fails to

allege facts plausibly supporting his claim. Defendant Granville County also relies upon defendant

NCDHHS’s arguments in support of its motion.

Plaintiff responded in opposition to defendants’ motions on February 11, 2020. Plaintiff

argues that his claims are not barred by sovereign immunity where he only seeks declaratory and

injunctive relief, that the statutes and implementing regulations for the SNAP program confer upon

him an enforceable right under § 1983, and that he alleges sufficient facts to state a claim.

STATEMENT OF FACTS

SNAP is a federally funded nutrition program administered by defendants, whereby

individuals whose households meet certain eligibility requirements may receive financial

assistance in purchasing food. See 7 U.S.C. §§ 2011–2036; (Am. Compl. ¶¶ 10–12, 14–16).

Eligible households are allotted funds to purchase food from retail stores approved for participation

in the program. See 7 U.S.C. § 2013(a). As part of maintaining eligibility for SNAP, households

must undergo a recertification process in which in which the household’s continuing eligibility

and participation in the program is redetermined for a new period. See 7 C.F.R. § 273.14.

Plaintiff, a resident of Granville County, North Carolina, is a SNAP recipient. (Am.

Compl. ¶ 1). Plaintiff alleges that one of the defendants received a letter dated April 25, 2016,

identifying a member of his household as a recipient with a disability. (Id. ¶ 18). Due to disabilities

and lack of adequate facilities in Granville County, this member of plaintiff’s household travels

against the county. See Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (“As long as the government entity

receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated

as a suit against the entity.”); N.C. Gen. Stat. § 108A-51 (“The boards of county commissioners through the county

departments of social services are held responsible for the administration and operation of the food and nutrition

services program.”).

five days a week to an adjoining county for recommended and prescribed treatment. (Id. ¶¶ 19,

20). In 2017, plaintiff’s SNAP benefits were reduced from $158.00 to $15.00 per month, and he

was required to repay $994.00. (Id. ¶ 19). Plaintiff alleges this recalculation of his benefits was

unlawful because defendants failed to allow deduction of medical expenses for a disabled member

of plaintiff’s household transported to an adjoining county for recommended and prescribed

treatment. (Id. ¶¶ 2, 17–20, 23–24). Plaintiff also alleges that defendants failed to recognize

plaintiff’s child as a member of the plaintiff’s household. (Id. ¶¶ 38–39).

COURT’S DISCUSSION

A. Standard of Review

A motion to dismiss under Rule 12(b)(1) challenges the court’s subject matter jurisdiction.

Such motion may either 1) assert the complaint fails to state facts upon which subject matter

jurisdiction may be based, or 2) attack the existence of subject matter jurisdiction in fact, apart

from the complaint. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Where a defendant

raises a “facial challenge[] to standing that do[es] not dispute the jurisdictional facts alleged in the

complaint,” the court accepts “the facts of the complaint as true as [the court] would in context of

a Rule 12(b)(6) challenge.” Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018). When a

defendant challenges the factual predicate of subject matter jurisdiction, a court “is to regard the

pleadings’ allegations as mere evidence on the issue, and may consider evidence outside the

pleadings without converting the proceeding to one for summary judgment.” Richmond,

Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The

nonmoving party in such case “must set forth specific facts beyond the pleadings to show that a

genuine issue of material fact exists.” Id.

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“Factual allegations must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all well-

pled facts as true and construes these facts in the light most favorable to the plaintiff,” but does not

consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further

factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.”

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations

omitted).

B. Analysis

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by

the Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988);

Jenkins v. Medford, 119 F.3d 1156, 1159–60 (4th Cir. 1997) (en banc); see 42 U.S.C. § 1983.

“A municipality is not subject to section 1983 liability simply because a claimant is able to

identify conduct attributable to the municipality.” Riddick v. Sch. Bd. of City of Portsmouth, 238

F.3d 518, 524 (4th Cir. 2000) (internal quotations omitted) (citing Bd. of Cty. Comm’rs of Bryan

Cty., Okl. v. Brown, 520 U.S. 397, 406–07 (1997)). “[I]t is 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 that the government as an entity is responsible

under § 1983.” Hunter v. Town of Mocksville, N. Carolina, 897 F.3d 538, 553–54 (4th Cir. 2018)

(quoting Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978) ); see

Pembaur v. City of Cincinnati, 475 U.S. 469, 481–83 (1986).

The court assumes without deciding that plaintiff has a statutory right enforceable under §

1983 to proper calculation of his SNAP benefits.3 Even so, plaintiff’s first cause of action fails to

allege facts from which the court can plausibly infer he is entitled to declaratory and injunctive

relief directing defendants to include excess medical deductions in calculating his income for

SNAP purposes. With regard to the unnamed, disabled household member, plaintiff does not

allege the nature of his household member’s disability, the prescribed treatment he receives, or the

amount of financial burden such expenses place on household income. Plaintiff also does not

allege whether or when he submitted a SNAP application, who reviewed and made an eligibility

determination, when that determination was made, whether plaintiff appealed that determination

through state administrative channels, or plaintiff’s expected income and benefits in light of the

foregoing absent facts. These missing details leave the court to speculate as to what policy or

custom of defendant Granville County violated plaintiff’s federal rights. The amended complaint

also does not allege a plausible violation of federal law by defendant NCDHHS.4

3 Defendants argue that plaintiff lacks an actionable statutory right because plaintiff did not cite a statute in his

amended complaint, instead choosing to cite the implementing regulations of the Food and Nutrition Act. See

Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002); Smith v. Kirk, 821 F.2d 980, 984 (4th Cir. 1987) (“An administrative

regulation . . . cannot create an enforceable § 1983 interest not already implicit in the enforcing statute.”). The

implementing regulations cited by plaintiff are derived from companion statutes in the Food and Nutrition Act. See

7 U.S.C. §§ 2012(m), 2014(e)(5)(A); 7 C.F.R. §§ 7 C.F.R. § 273.1(a), (b), 273.9(d)(3). The court declines to dismiss

plaintiff’s claims on this basis, absent more fulsome treatment by defendants of the statutes and cases that appear to

favor recognizing a statutory right enforceable under § 1983. See, e.g., 7 U.S.C. §§ 2014, 2017, 2020; Wright v. City

of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 420–22 & n.2, 430, 432 (1987); Barry v. Lyon, 834 F.3d

706, 717 (6th Cir. 2016); Briggs v. Bremby, 792 F.3d 239, 245–46 (2d Cir. 2015).

4 It follows that, notwithstanding his contentions to the contrary, plaintiff fails properly plead a claim against

defendant NCDHHS for an ongoing violation of federal law sufficient to invoke Ex parte Young, 209 U.S. 123 (1908).

See Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635, 645 (2002); Green v. Mansour, 474

U.S. 64, 68 (1985).

Plaintiffs second cause of action alleges that defendants do “not to recognize plaintiff child

as a member of the household.” (Am. Compl. § 39). However, plaintiff also alleges defendants

“regard the definition for the household 7 CFR 273.1(b)(1)(ii) but do not apply excess medical

deductions for the household as a whole.” (Id. Jf 4, 22). Plaintiffs allegations are bare assertions

devoid of factual enhancement, which the court is not required to accept as plausibly stating a

claim. In addition to the deficiencies noted by the court above, the amended complaint is unclear

as to what plaintiff means by not recognizing his child as a member of plaintiffs household. On

the scant assertions in the amended complaint, the only reasonable inference appears to be that

plaintiffs child was in fact counted in plaintiff's household, but that the child’s excess medical

deductions (the subject of plaintiff's first claim) were not. (See id. §§ 4, 17-20, 22).°

CONCLUSION

Based on the foregoing, defendants’ motions to dismiss (DE 55, 58) are GRANTED.

Plaintiff's amended complaint is DISMISSED WITHOUT PREJUDICE. Within 21 days of this

order, plaintiff is ALLOWED to file a motion to amend, together with proposed second amended

complaint, correcting the deficiencies noted herein. Should plaintiff fail so to file, the clerk is

DIRECTED to close this case without further order from the court.

SO ORDERED, this the 22nd day of May, 2020.

C Apa W. FLANASIN

United States District Judge

5 Defendants, citing administrative hearmg decisions on plaintiff’s 2016 recertification application, ask the

court to find plaintiff’s second claim barred by issue preclusion. (See Administrative Hearing (DE 56-1) at 1—2; Final

Decision (DE 56-2) at 1). Even if the court were to consider such administrative records, they do not clearly reveal

the existence of a meritorious affirmative defense. See Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013);

Georgia Pac. Consumer Prod., LP v. Von Drehle Corp., 710 F.3d 527, 533 (4th Cir. 2013); Sec’y of State For Defence

v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007). Nothing in the administrative records indicates that

the number of members in plaintiff's household was a controverted fact. See State v. Summers, 351 N.C. 620, 623

(2000); King v. Grindstaff, 284 N.C. 348, 356 (1973).