The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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IVAN FERNANDO ORTEGA,
NOT FOR PUBLICATION
Plaintiff,
MEMORANDUM & ORDER
-against-
18-CV-7293(KAM)(RER)
NEW YORK STATE OFFICE OF TEMPORARY
DISABILITY ASSITANCE, NEW YORK
STATE SUPPLEMENTAL PROGRAM, and NEW
YORK STATE DEPARTMENT OF SOCIAL
SERVICES
Defendants.
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MATSUMOTO, United States District Judge:
Pro se Plaintiff Ivan Fernando Ortega filed the above-
captioned complaint in the United States District Court for the
Southern District of New York on December 13, 2018, and it was
transferred to this court on December 21, 2018. Plaintiff’s
request to proceed in forma pauperis (“IFP”) is granted for the
purpose of this Order. For the reasons that follow, the
complaint is dismissed.
BACKGROUND
The complaint consists of hand-written entries in a
form complaint and attached exhibits describing plaintiff’s
efforts “to receive full medications and money from SSI paid
trust [that were] taken by H.R.A. Social Services.” (ECF No. 2,
Compl. at 6.) Plaintiff checked the box for federal question,
which he identifies as being “American Disability Acts, Civil
Rights, Federal Poverty Line.” (Id. at 2.)
It appears that plaintiff is seeking to receive
payments from the Supplemental Security Income (“SSI”) program
that were previously remitted to the New York City Human
Resources Administration (“HRA”) as reimbursement for interim
assistance that plaintiff had received from the HRA while he was
waiting for SSI benefits. (Id. at 6.) By letter to plaintiff
dated May 23, 2018, the Social Security Administration (“SSA”)
explained that plaintiff’s monthly payment as of June 2018 was
zero, but that he was entitled to back payments of $3,530 for
the period from January through October of 2016. (Id. at 20.)1
Plaintiff received a Repayment of Interim Assistance Notice
dated May 22, 2018 indicating that the HRA provided plaintiff
$4,578.70 in interim assistance between January and November
2016, and had received $3,530 in reimbursements from the SSA.
(Id. at 23.)
Plaintiff requested a hearing on June 1, 2018, which
was held on November 2, 2018 in the State of New York’s Office
of Temporary and Disability Assistance before Administrative Law
Judge Edward Paulino, who issued a Decision After Fair Hearing
on November 13, 2018 (“November 2018 Decision”). (Id. at 25-
1 The Court refers to the pages of the exhibits by the page numbers assigned
by the Electronic Case Filing System (“ECF”).
28.) ALJ Paulino’s decision noted that the New York City
Department of Social Services (“NYCDSS”) had determined that
plaintiff was not entitled to payments from any balance because
the amount of his interim assistance received from the HRA
exceeded the amount of HRA’s reimbursement from the SSA. (Id.
at 27.) Nevertheless, the ALJ adjudged that the HRA failed to
present sufficient evidence that plaintiff had authorized the
deductions for periods prior to October 2016. (Id. at 27-28.)
Accordingly, the November 2018 Decision referred the matter back
to the NYCDSS to determine whether plaintiff was entitled to
additional reimbursements. (Id.) Plaintiff has not indicated
whether he received any further notifications.
Plaintiff also appears to be challenging the denial by
Healthfirst, his Medicare Managed Care Plan, of coverage for
drugs approved to treat erectile dysfunction. One of the
attached exhibits appears to be an undated letter to Chief Judge
Colleen McMahon in the United States District Court for the
Southern District of New York, in which plaintiff describes
Healthfirst’s denial of Cialis 20mg and Levitra 20mg. (Id. at
10) A July 2, 2015 letter from plaintiff’s doctor recommended
Levitra 20 mg for erectile dysfunction. (Id. at 41.) A
Decision After Fair Hearing issued by the State of New York
Department of Health on September 26, 2017 affirmed the denial
of coverage for Levitra because Medicaid does not cover
medications for treatment of erectile dysfunction. (Id. at 46-
53.) Plaintiff appealed the denial to the Supreme Court of the
State of New York, Kings County, which affirmed the denial of
his request for Levitra. (Id. at 40.) A March 5, 2018 letter
from Murray Hill Urology, P.C. attached a prescription for
Cialis 20mg and explained that Cialis 5 mg was necessary to help
plaintiff urinate because of his history of BPH.2 (Id. at 30-
31.) A Department of Health Decision dated July 20, 2018
affirmed the denial of plaintiff’s request for coverage of
Cialis 20mg. (Id. at 33-39.) The decision explained that
Medicaid does not cover medications used for the treatment of
erectile dysfunction unless the drug is used to treat other
conditions and has been approved by the Food and Drug
Administration for that purpose. (Id. at 38-39.) It stated:
“The record fails to show that the FDA has approved Cialis for
the treatment of BPH.” (Id. at 39.)
Plaintiff also attaches a November 9, 2018 letter from
the Social Security Administration Office of Appellate
Operations explaining that plaintiff’s request for review of the
ALJ’s April 2, 2018 decision was filed late and requesting an
explanation for the delay. (Id. at 18.) Plaintiff does not
include or describe the April 2, 2018 decision, nor does he
2 The discrepancy between 20 mg and 5 mg is not explained and may have been an
error. BPH is an abbreviation for benign prostatic hyperplasia, a
noncancerous enlargement of the prostate.
indicate whether he responded to the November 9, 2018 Letter.
By letter dated December 26, 2018, plaintiff mentions his
request for review of a “hearing decision/order dated May 1,
2018: BNC#18D1431B21330 RECON.” (ECF No. 6, at 2.) He does not
enclose any additional correspondence with the SSA or otherwise
describe pending claims with the SSA.
DISCUSSION
The Court is mindful that “[a] document filed pro se
is to be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (internal quotation marks and citations
omitted). If a liberal reading of the complaint “gives any
indication that a valid claim might be stated,” the Court must
grant leave to amend the complaint. See Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000).
However, pursuant to the in forma pauperis statute, a
district court must dismiss a case if the court determines that
the complaint “is frivolous or malicious; fails to state a claim
on which relief may be granted; or seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). To avoid dismissal, a complaint must plead
“enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim will be considered plausible on its face “when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Although “detailed factual allegations” are not
required, “[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).
Similarly, a complaint is insufficient to state a claim “if it
tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Plaintiff’s claims against the New York State agencies
named as defendants must be dismissed because the Eleventh
Amendment’s guarantee of sovereign immunity protects states from
suits in federal courts. See Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984). The Eleventh Amendment bars
suits for damages against states, state agencies, and state
officials acting in their official capacity, absent the state’s
consent to suit or an express or statutory waiver of immunity.
Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356,
363 (2001); Will v. Michigan Dep’t of State Police, 491 U.S. 58,
71 (1989). Plaintiff has not identified any waiver of sovereign
immunity that would permit him to bring suit against the State
of New York. Accordingly, to the extent that plaintiff seeks
damages, all of plaintiff’s claims are dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(iii) (“[t]he court shall dismiss the case
at any time if the court determines that the action or appeal
seeks monetary relief against a defendant who is immune from
such relief.”)
Moreover, even if plaintiff were to bring suit against
individual officials acting in their individual capacities,
plaintiff does not provide any basis for this court’s
jurisdiction beyond his vague references to the Americans with
Disabilities Act (“ADA”) and “Civil Rights, Federal Poverty
Line.” Title II of the ADA provides that “no qualified
individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.”
42 U.S.C. § 12132. A “public entity” is defined in the ADA as
“a state or local government,” or “department, agency, special
purpose district, or other instrumentality of a State or States
or local government.” 42 U.S.C. § 12131(1)(a) and (b).
Plaintiff has not, however, alleged that the City of New York or
its agencies denied him any services because of his disability.
Plaintiff has not identified any federal rights that
depend on plaintiff’s income or protect individuals with income
below the federal poverty line. Liberally construing the
complaint, the court considers whether plaintiff’s claims
implicate any other federal laws or civil rights. The
Fourteenth Amendment guarantees Due Process protections, but
plaintiff has not alleged that the New York state laws and
proceedings provided insufficient protection of his rights to
life, liberty, and property. Indeed, the exhibits attached to
his complaint indicate that he received multiple hearings
related to both his claim for SSI payments paid to a state
agency on his behalf and his claims related to Medicare payments
for specific medications. In fact, plaintiff appears to have
been successful in reopening his claim for a refund of SSI
benefits paid to HRA for January to November 2016, even though
he also received interim assistance during that period. As of
November 13, 2018, the New York City Department of Social
Services was directed to recompute the amount of interim
assistance he received and determine whether plaintiff is
entitled to receive additional funds. Plaintiff has not
indicated that he received any further notification regarding
this claim. Plaintiff’s other appeals, regarding provision of
Levitra and Cialis 20mg were denied after a fair hearing, and,
in the case of Levitra, after plaintiff’s additional appeal to
the New York Supreme Court. Plaintiff has not indicated whether
he brought an Article 78 proceeding regarding the June 20, 2018
decision related to Cialis 20mg.
The Social Security Act provides procedures for
hearings within the SSA and federal court review of final
decisions of the SSA related to eligibility or amount of
benefits for SSI. 42 U.S.C. § 1383(c)(1)(a) and (c)(3). But it
does not provide for agency review of disagreements regarding
reimbursement payments made by the SSA to state agencies for the
amount of interim assistance provided while the request for SSI
benefits was pending. 42 U.S.C. § 1383(g)(5). Instead, the
federal regulations require states to hold hearings if an
applicant wishes to challenge a state’s decision “regarding the
amount of the repayment the State keeps or the amount of any
excess the State pays to you” from the SSA reimbursements. 20
C.F.R. § 416.1920. The regulations explicitly provide: “You are
not entitled to a Federal hearing on the State’s actions
regarding repayment of interim assistance.” See id.; see also
Warren v. Roberts, No. 15 Civ. 7850 (NRB), 2017 WL 2782176, at
*7-10 (S.D.N.Y. June 12, 2017) (discussing and collecting cases
finding no federal court review of claims related to repayment
of benefits where states provide interim assistance to SSI
claimants). The exhibits to plaintiff’s complaint indicate that
he received the state hearings to which he was entitled, and he
is not entitled to federal court review of the decisions
regarding SSA reimbursements to state agencies for interim
assistance plaintiff received under 42 U.S.C. § 1383(g)(5).
Plaintiff has not named the Social Security
Administration as a defendant nor alleged that this federal
agency violated any of his rights or issued a final decision
that would be ripe for review under 42 U.S.C. § 405(g) or 42
U.S.C. § 1383(c). He includes a November 9, 2018 Letter from
the SSA related to an April 2, 2018 decision, but the decision
itself is not included.
CONCLUSION
For the reasons set forth above, the complaint is
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) because all
of the defendants are immune from suit, and for lack of subject
matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3). The
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith and
therefore in forma pauperis status is denied for purpose of an
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45
(1962). The Clerk of Court is directed to mail a copy of this
Memorandum and Order to the pro se plaintiff and note service on
the docket.
SO ORDERED.
Dated: April 21, 2020
Brooklyn, New York
/s/ _______
Hon. Kiyo A. Matsumoto
United States District Judge