Ball v. Kasich

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT

EASTERN DIVISION

PHYLLIS BALL, et al.,

Plaintiffs,

Civil Action 2:16-cv-282

v. JUDGE EDMUND A. SARGUS, JR.

Chief Magistrate Judge Elizabeth P. Deavers

JOHN KASICH, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on the Joint Motion for Summary Judgment of the State

Defendants and the County Boards (ECF No. 547) and the County Boards’ Supplemental Motion

for Summary Judgment (ECF No. 548), both which are fully briefed (ECF Nos. 554, 557, 558); a

Motion to File as Amicus Curiae which is unopposed (ECF No. 561); and, the Guardians’

Motion to File a Sur-Reply (ECF No. 564), which is fully briefed (ECF Nos. 565, 566). For the

reasons that follow, all four motions are GRANTED. (ECF Nos. 547, 548, 561, 564.)

I.

This case originally involved two groups of individuals with developmental disabilities

who were not satisfied with Ohio’s administration of its developmental-disability system. One

group, headed by Disability Rights Ohio, filed this case alleging that Ohio’s system violated

federal law because it was allegedly too reliant on Intermediate Care Facilities (“ICFs”) at the

expense of integration into the community for disability services.

The other group, which intervened as representatives of individuals who prefer care in

ICFs (“Guardians”), alleged that Ohio’s system violates the same federal laws because it fails to

inform people of the ICF choice, leaving them only the option of community-based care through

waivers or wait lists for those waivers. The Guardians, as did Plaintiffs, bring claims under 42

U.S.C. § 1983.

A. Initiation of this Lawsuit

On March 31, 2016, Disability Rights Ohio filed this case on behalf of six individually

named Plaintiffs and the Ability Center of Greater Toledo seeking declarative and injunctive

relief against the Directors of the Ohio Department of Developmental Disabilities, the Ohio

Department of Medicaid, and Opportunities for Ohioans with Disabilities (together “State of

Ohio”) and the Governor of Ohio. Plaintiffs alleged that Ohio’s administration, management,

and funding of its service system for people with intellectual and developmental disabilities such

as themselves put them at serious risk of segregation and institutionalization in violation of Title

II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, et seq. and Section 504

of the Rehabilitation Act, 29 U.S.C. § 794.2 as interpreted by the Supreme Court’s decision in

Olmstead v. L.C., 527 U.S. 581 (1999). Plaintiffs also moved under Title XIX of the Social

Security Act (“Medicaid Act”), 42 U.S.C. 1396, et seq.

The Ohio County Boards Serving People with Developmental Disabilities (“County

Boards”) moved to intervene, which was opposed by Plaintiffs. (ECF Nos. 68, 73.) After full

briefing (ECF No. 79), this Court permitted the County Boards to intervene (ECF No. 261),

adding them as Defendants.

The Guardians, representing individuals who preferred institutional care in ICFs also

moved to intervene. (ECF No. 107.) Defendants supported the Guardians’ request to intervene,

but only for the purpose of opposing Plaintiffs’ request for class certification. (ECF No. 131.)

Plaintiffs opposed intervention. (ECF No. 130.) The Court granted intervention to the

Guardians in July 2017. (Opinion and Order, ECF No. 261.)

B. The Guardians’ Crossclaims

The Guardians filed a Third-Party Complaint with Crossclaims against the State of Ohio,

the Governor of Ohio, and the Intervenor County Boards. (ECF No. 326.) The Guardians allege

that Ohio has systematically denied ICF services, by failing, in their view, to assure that

individuals who qualify for ICF services are informed of that qualification so that they may be

provided the ICF service if they so choose. Guardians aver that the County Boards routinely

failed to provide information about ICFs to eligible individuals so that the individuals knew they

had a choice to reside in an ICF, and instead only provided information related to the

individual’s qualification for waiver services, i.e., community-based options or wait lists for

community-based options.

The State of Ohio, the Governor of Ohio, and the County Boards, all moved for dismissal

of the Guardians’ crossclaims. (ECF No. 353, 354, 355.) After full briefing, and at the request

of the parties, the Court stayed decision on the motions to dismiss so that all parties could engage

in settlement negotiations. Following extensive settlement negotiations, all parties entered into a

settlement as a complete and final resolution of all matters that ultimately only encompassed

Plaintiffs and Defendants. The Court granted the unopposed request of the Plaintiff Class,

Defendants, and the County Boards for Preliminary Approval of the Class Action Settlement

Agreement (ECF Nos. 396, 407, 408) on October 18, 2019 (ECF No. 409).

At the parties’ request, the Court vacated the stay on the motions to dismiss of the State

of Ohio, the Governor of Ohio, and the County Boards. The Court issued its decision, which

dismissed the Guardians’ claims brought pursuant to the ADA and the Rehabilitation Act and

permitted the claim filed under the Medicaid Act to proceed. (ECF No. 486.) The Guardians

asked the Court to reconsider its dismissal of the ADA and Rehabilitation Act claims (ECF No.

493), which this Court denied (ECF No. 567). Therefore, remaining for adjudication are the

Guardians’ Crossclaims under the “free choice” and “reasonable promptness” provisions of the

Medicaid Act, located at 42 U.S.C. § 1396n(c)(2)(B) and (C); 42 U.S.C. § 1396(a)(8). There are

ten Guardians who represent thirteen individuals with disabilities.

C. Currently Before the Court

The Guardians have requested permission to file a sur-reply, which is fully briefed. The

Guardians provide declarations of “‘regular’ Ohioans of all stripes simply trying to navigate the

system and learn of their options.” (Sur-Reply at 6, ECF No. 564.)

While the Guardians’ request addresses arguments that could have been made earlier, the

Court finds good cause to permit filing. This case has a long history and the Court finds it

beneficial to review the briefing even though it was not filed pursuant to the proper procedure. It

is well established that district courts enjoy an inherent power to manage and control their own

dockets. See, e.g., Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (affirming “the power

inherent in every court to control the disposition of the causes on its docket with economy of

time and effort for itself, for counsel, and for litigants”). Therefore, the Court GRANTS the

Guardians’ Motion to File a Sur-reply. (ECF No. 564.)

II.

Summary judgment is appropriate “if the movant shows that there is no genuine issue as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The Court may therefore grant a motion for summary judgment if the nonmoving party

who has the burden of proof at trial fails to make a showing sufficient to establish the existence

of an element that is essential to that party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).

The “party seeking summary judgment always bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those portions” of the

record which demonstrate “the absence of a genuine issue of material fact.” Id. at 323. The

burden then shifts to the nonmoving party who “must set forth specific facts showing that there is

a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting

Fed. R. Civ. P. 56(e)). “The evidence of the non-movant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Id. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S.

144, 158–59 (1970)). A genuine issue of material fact exists “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see

also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (the

requirement that a dispute be “genuine” means that there must be more than “some metaphysical

doubt as to the material facts”). Consequently, the central issue is “‘whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.’” Hamad v. Woodcrest Condo. Ass’n, 328 F.3d

224, 234–35 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 251–52).

III.

Defendants and the County Boards move for summary judgment on three grounds:

standing, mootness, and statute of limitations. This Court finds that the claims of the Guardians

have been rendered moot, and therefore declines to address the remaining arguments.

As to the doctrine of mootness, the Court starts with Article III, § 2 of the United States

Constitution, which provides jurisdiction to a federal court only over a live case or controversy.

See Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). The “case-or-controversy

requirement subsists through all stages of federal judicial proceedings, trial and appellate.” Id.

The Guardians maintain that their claims are not moot:

As the Court has already held, Guardians’ claims are ripe, not moot. As the Court

held 18 months ago when framing the relevant issue: “if Defendants are not

providing information about the ICF choice, Defendants will be ordered to comply

with the law.” Opinion at 18. The necessary analysis ends there. The claims are not

moot.

Moreover, as relates to mootness, the Supreme Court has held that even “a

defendant’s voluntary cessation of a challenged practice does not deprive a federal

court of its power to determine the legality of the practice.” Friends of the Earth,

Inc. v. Laidlaw Envir. Servs., Inc., 528 U.S. 167, 189 (2000), quoting City of

Mesquite, 455 U.S. 283, 289 (1982). As the Court noted as a practical matter:

otherwise, "if it did, the courts would be compelled to leave '[t]he defendant . . .

free to return to his old ways.'" Id. The Court then concluded:

In accordance with this principle, the standard we have announced

for determining whether a case has been mooted by the defendant's

voluntary conduct is stringent: “A case might become moot if

subsequent events made it absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur.” The

“heavy burden of persua[ding]” the court that the challenged

conduct cannot reasonably be expected to start up again lies with the

party asserting mootness.

Id. (internal citations omitted); See also Susan B. Anthony List v. Driehaus, 573

U.S. 149, 167 (2014) (questioning application of “ripeness” doctrine); Kiser v.

Reitz, 765 F.3d 601, 606–07 (6th Cir. 2014) (citing cases holding that “a federal

court’s obligation to hear and decide cases within its jurisdiction is virtually

unflagging”).

Again, applied here, there is nothing moot about Guardians’ claims. As the Court

framed it, the relevant issue – which is not moot – remains whether Defendants are

“providing information about the ICF choice.”

(Mem. in Opp. at 13, n. 5, ECF No. 554) (emphasis in original).

The Guardians continue, asserting that “if somehow Guardians’ claims were deemed

moot, then this exception to the mootness doctrine would clearly apply since Guardians’ “claims

are not just ‘capable of repetition yet evading review,’ they are occurring daily.” Id. at 14, n. 5

(citing Murphy v. Hunt, 455 U.S. 478, 482 (1982)).

Finally, the Guardians posit:

From inception, with the Court’s encouragement, Guardians have effectively been

representing a de facto class of Ohioans comprised of: (1) the thousands of Ohioans

who have not been told of their ICF entitlement with the choice effectively hidden

or denied to them; and (2) the thousands of existing ICF residents affected by

Defendants’ attempts to limit or close their ICFs.

In granting Guardians’ intervention, the Court noted that Guardians are also acting

on behalf of the 99 individuals who filed joinders to their intervention motion, as

well as the thousands of other Ohioans affected by Defendants’ failures. See

Opinion and Order (granting intervention) at 21-22 dated July 25, 2017 (Dkt. 261).

In granting intervention, the Court stated that “the individuals who the Guardians

represent are designated as part of the group of 5,800 putative class members who

are currently institutionalized in Ohio.” Id. at 15. In then granting Guardians’

intervention, the Court noted the “odd circular problem for any of the 5,800 putative

class members who do not wish to leave their current institutional home or those

who are at serious risk of being placed in an ICF and wish to be so placed.” Id. at

16.

Id. at 11.

Contrarily, Defendants argue that the claims of the 13 individuals who are represented by

the Guardians have been rendered moot:

Guardians have sought declaratory and injunctive relief from this Court.

(Crossclaims, ECF No. 326 at ¶¶ 362-68 (A-B), PageID #: 5489, 5494-95). There

is no genuine dispute of material fact that the Guardians with Wards currently

residing in an ICF have been informed of and provided the ICF benefit. Further,

there is no genuine dispute of material fact that the remaining Guardians—again,

the Guardians for Noah Goldberg and the Edler sisters—have been informed of ICF

services and are not interested in their Wards receiving such services. (Goldberg

Dep., ECF No. 544 at 69:24-70:11 & 59:8-13, PageID #: 9146-47, 9136; Goldberg

Dep., ECF No. 544-1 at Ex. 7, PageID #: 9206; Edler Dep. 10:2-3, 19:24-20:2 &

25:13-15, PageID #: 9218, 9227-28,

9233).

Thus, declaratory or injunctive relief from this Court requiring the State Defendants

and [the County Boards] to inform the Guardians of ICF services and provide their

Wards with those services would provide no relief, and indeed make no difference

to the legal interests of the Guardians. As such, the remaining Crossclaims of all

the Guardians are moot.

(Mot. for Summ. J. at 17, ECF No. 547.) This Court agrees.

A case becomes moot “‘when the issues presented are no longer ‘live’ or the parties lack

a legally cognizable interest in the outcome.’” United States Parole Comm'n v. Geraghty, 445

U.S. 388, 396 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). Here, there is

no dispute that all of the individuals whom the Guardians represent are either residing in ICFs or

have no intention of seeking a bed in an ICF even though they know of that choice. (Of the

thirteen, ten are in ICFs and the other three have knowingly declined to live in an ICF). Thus,

the Guardians claims are moot unless they fall into an exception to the mootness doctrine.

There is an exception to the mootness doctrine in cases that are “capable of repetition, yet

evading review.” Murphy v. Hunt, 455 U.S. 478, 481–84 (1982). “[In] the absence of a class

action, the ‘capable of repetition, yet evading review’ doctrine was limited to the situation where

two elements combined: (1) the challenged action was in its duration too short to be fully

litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the

same complaining party would be subjected to the same action again.” Id. (citing Illinois

Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 187 (1979) and Sosna v. Iowa, 419 U.S.

393 (1975)). “[T]here must be a ‘reasonable expectation’ or a ‘demonstrated probability’ that

the same controversy will recur involving the same complaining party.” Id. (citing Weinstein v.

Bradford, supra, at 149) (emphasis added).

In the case sub judice, there is no suggestion that the challenged action was in its duration

too short to be fully litigated prior to its cessation or expiration. Instead, the parties dispute

whether there was a reasonable expectation that the same complaining party would be subjected

to the same action again. The Guardians argue that their harm is occurring daily because

Defendants are not consistently informing of the ICF choice. The capable of repetition yet

evading review exception, however, applies only to those claims that involve the same

complaining party. Here, there is no chance that Defendants’ alleged conduct (not informing

parties of the ICF option) could harm any of the individuals the Guardians represent. Thus, the

Court concludes that there is no “reasonable expectation or a demonstrated probability that the

same controversy will recur involving the same complaining part[ies]” preventing the exception

to the mootness doctrine from applying to the claims of the Guardians.

Further, regardless of the Guardians’ suggestion that they have “effectively been

representing a de facto class of Ohioans,” this case has not been certified as a class action as to

the Guardians. The Guardians’ citation to prior decisions in this action merely highlight the

Court’s recognition that this case presented broader implications beyond just the named

Guardians, which is not uncommon when the state is a defendant. A court “may not ‘recognize . .

. a common-law kind of class action’ or ‘create de facto class actions at will.’” United States v.

Sanchez-Gomez, 138 S. Ct. 1532, 1539 (2018) (quoting Taylor v. Sturgell, 553 U.S. 880, 901

(2008)). Before certifying a class, a court must conduct a “rigorous analysis” into whether the

prerequisites of Rule 23 are satisfied. In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996).

As the United States Supreme Court has cautioned:

The class action is a creature of the Federal Rules of Civil Procedure. See generally

7A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1751 et seq.

(3d ed. 2005). It is an “exception to the usual rule that litigation is conducted by

and on behalf of the individual named parties only,” and “provides a procedure by

which the court may exercise . . . jurisdiction over the various individual claims in

a single proceeding.” Califano v. Yamasaki, 442 U.S. 682, 700–701 (1979).

“The certification of a suit as a class action has important consequences for the

unnamed members of the class.” Sosna, 419 U.S., at 399, n. 8, 95 S.Ct. 553. Those

class members may be “bound by the judgment” and are considered parties to the

litigation in many important respects. Devlin v. Scardelletti, 536 U.S. 1, 7, 9–10

(2002). A certified class thus “acquires a legal status separate from the interest

asserted by the named plaintiff.” Genesis HealthCare, 569 U.S., at 74 (quoting

Sosna, 419 U.S., at 399; alterations omitted).

Sanchez-Gomez, 138 S. Ct. at 1538 (parallel citations omitted).

The instant action consists of ten Guardians who represent thirteen individuals with

disabilities. Another consequence of this fact is that the affidavits from other community members

not parties to this case and presented to the Court in the Guardians’ Sur-reply are of no moment in

this analysis.

Finally, the Guardians’ assertion that the “claims are not moot” because this “Court held

18 months ago when framing the relevant issue: ‘if Defendants are not providing information

about the ICF choice, Defendants will be ordered to comply with the law.’” (Mem. in Opp. at

13, ECF No. 554.) That statement was merely the identification of the factual issue that remained

after dismissing the Guardians’ other Crossclaims in a decision of the Court rendered without

considering mootness. If there were any party before this Court with a live claim, that statement

would describe the issue for determination. There are no such parties in this case.

IV.

For the reasons set forth above, the Court concludes that Defendants have met their

burden of proving the claims of the Guardians have been rendered moot. Thus, the Court

GRANTS the Joint Motion for Summary Judgment of Defendants and the County Boards (ECF

No. 547), GRANTS the County Boards’ Supplemental Motion for Summary Judgment (ECF

No. 548), and GRANTS the unopposed Motion to File as Amicus Curiae (ECF No. 561), and

GRANTS the Guardians’ Motion to File a Sur-Reply (ECF No. 564). The Clerk is DIRECTED

to ENTER JUDGMENT in favor of Defendants.

IT IS SO ORDERED.

2/1/2023 s/Edmund A. Sargus, Jr.

DATE EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE