ROBERT E. WIER, District Judge.
In November 2018, pro se Plaintiff Will McGinnis sued Central Kentucky Management Services ("CKMS"), a billing agency for University of Kentucky HealthCare, in Fayette Circuit Court. DE 1-3 at 2 (State Court Record). After various procedural steps (including a complaint amendment, removal, and a rejected remand request), CKMS now seeks dismissal of McGinnis's operative pleading. DE 19 (Motion); see also DE 1-2 (Amended Complaint). The motion is fully briefed and stands ripe for review. See DE 21 (Response); DE 22 (Reply); DE 24 (Unauthorized Surreply). Principally because immunity bars all of McGinnis's claims, but also for several other reasons, the Court grants CKMS's motion.
To survive a motion to dismiss, "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, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)). "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." Id. However, "a formulaic recitation of a cause of action's elements will not do[.]" Twombly, 127 S. Ct. at 1965. Courts "must construe the complaint in the light most favorable to the plaintiff and accept all allegations as true." Keys, 684 F.3d at 608. Yet, courts need not accept "legal conclusion[s] couched as [ ] factual allegation[s]." Papasan v. Allain, 106 S.Ct. 2932, 2944 (1986).
Hinging on Rule 8's minimal standards, Twombly and Iqbal require a plaintiff to "plead facts sufficient to show that her claim has substantive plausibility." Johnson v. City of Shelby, 135 S.Ct. 346, 347 (2014). Where plaintiffs state "simply, concisely, and directly events that . . . entitle[ ] them to damages," the rules require "no more to stave off threshold dismissal for want of an adequate statement[.]" Id.; El-Hallani v. Huntington Nat. Bank, 623 F. App'x 730, 739 (6th Cir. 2015) ("Although Twombly and Iqbal have raised the bar for pleading, it is still low."). Further, when testing the sufficiency of pro se pleadings, courts apply forgiving rigor, liberally construing legal claims in the plaintiff's favor. Davis v. Prison Health Servs., 769 F.3d 433, 437-38 (6th Cir. 2012). Nonetheless, the liberal construction obligation has limits. See Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Courts will not "conjure allegations on a litigant's behalf." Erwin v. Edwards, 22 F. App'x 579, 580 (6th Cir. 2001); see also Coleman v. Shoney's, Inc., 79 F. App'x 155, 157 (6th Cir. 2003) ("Pro se parties must still brief the issues advanced with some effort at developed argumentation.").
Generally, "matters outside of the pleadings are not to be considered by a court in ruling on a . . . motion to dismiss." Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997). However, the Court may "consider other materials that are integral to the complaint, are public records, or are otherwise appropriate for the taking of judicial notice." Ashland, Inc. v. Oppenheimer & Co., 648 F.3d 461, 467 (6th Cir. 2011) (internal quotation marks and citation omitted).
Additionally, the Court rejects Plaintiff's contention that "the rules of procedures [sic] clearly say a judge will not dismiss at this stage unless it is IMPOSSIBLE for the defendant [sic] to win at trial." DE 21 at ¶ 3. As the Sixth Circuit has explained:
Courie v. Alcoa Wheel & Forged Prod., 577 F.3d 625, 629-30 (6th Cir. 2009) (footnote omitted).
McGinnis brings three claims against CKMS: "fraudulent concealment and fraudulent over-billing" (Count One); a 42 U.S.C. § 1983 claim for violation of the Fourteenth Amendment (Count Two); and "conspiracy to over-bill and conspiracy to fraudulently conceal material facts in order to gain financially" (Count Three). DE 1-2 at 4-7. The Court finds that sovereign immunity bars all three claims. Further, Plaintiff's § 1983 claim does not pass Twombly/Iqbal muster (and is time barred). Accordingly, the Court will grant Defendant's motion.
The defense contends that Plaintiff's claims hinge entirely on alleged conduct of nonparties, UK or the Kentucky Department of Revenue ("DOR"). DE 19 at 7. Thus, per Defendant, Plaintiff has sued the wrong entity and fails to state any claim against CKMS. The Court partly agrees.
A viable § 1983 claim requires plausible allegations of: "(1) deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under color of state law." Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008). Though it is unclear whether McGinnis alleges a substantive or procedural theory, it is apparent that Plaintiff's due process claim principally challenges (1) DOR collections of UK medical bills and (2) the University's review process as to McGinnis's denied application for "UK's Financial Assistance Program (FAP)." DE 1-2 at 6 & 10 (July 30, 2014, Letter from UK's Office of Legal Counsel); see also Fed. R. Civ. P. 10 ("A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes."). McGinnis does not claim that CKMS is, itself, the allegedly unconstitutional medical provider or collector or that it conducted the subject hearing. Obviously, Plaintiff has not sued (here) either the DOR or UK. Nor does Plaintiff allege any theory that could justify deeming CKMS vicariously liable for alleged University or DOR wrongs.
Plaintiff's only direct claim against the named Defendant is that "CKMS is not entitled to use the [DOR] as a collection agency." DE 1-2 at 6. This single-sentence allegation does not amount to a plausible § 1983 claim. McGinnis, citing no federal law and relying on a Fayette Circuit Court ruling against UK, apparently bases his due process claim on state law. See id. at 1. While procedural due process protections apply to rights "derived from state law rather than the Constitution, substantive due process rights are created only by the [federal] Constitution." Charles v. Baesler, 910 F.2d 1349, 1354 (6th Cir. 1990) (quoting Regents of the Univ. of Mich. v. Ewing, 106 S.Ct. 507, 515 (1985) (Powell, J., concurring)); Young v. Twp. of Green Oak, 471 F.3d 674, 684 (6th Cir. 2006) ("[A]reas in which substantive rights are created only by state law ... are not subject to substantive due process protection under the Due Process Clause[.]"). Thus, assuming arguendo that the state created a right akin to what McGinnis alleges, he needed to viably plead a deprivation of same without an "opportunity to be heard at a meaningful time and a meaningful manner" on this topic. Mathews v. Eldridge, 96 S.Ct. 893, 902 (1976).
McGinnis offers no such claim, certainly not one adequately alleged. Indeed, as the pleading makes clear, Plaintiff was given a hearing and did not then challenge the validity of CKMS's referral to the DOR. See DE 1-2 at 9-20. Nor does McGinnis claim that he could not have properly asserted his theory at that stage. An
McGinnis, perhaps, suggests that UK denied him an "impartial" decisionmaker. DE 1-2 at 6. Even if true, McGinnis could have pursued his current theory via the Commonwealth's judicial appeal process. See KRS 13B.140 (authorizing judicial review of agency orders). The fact that Plaintiff declined to utilize that mechanism does not render it any less an "opportunity to be heard at a meaningful time and a meaningful manner[.]" Matthews, 96 S. Ct. at 902. Stated otherwise, Plaintiff does not plausibly allege, as to CKMS's collection referral, that Defendant denied him the "fundamental requirement of due process[.]" Id. Thus, Plaintiff failed to plead a viable § 1983 claim, and Defendant is entitled to dismissal of Count Two.
The § 1983 claim is also time barred.
Pursuing tolling, McGinnis claims that he suffers from continuing Fourteenth Amendment violations via ongoing DOR collections. DE 1-2 at 6 ("Defendant violated and continues to violate. . . Plaintiff[`]s Constitutional Rights of due process."). The Court is unconvinced. The continuing violations doctrine permits tolling of a limitations period under three conditions:
Tolbert v. State of Ohio Dep't of Transp., 172 F.3d 934, 940 (6th Cir. 1999). The doctrine is seldom applicable. See Sharpe v. Cureton, 319 F.3d 259, 266 (6th Cir. 2003) (The "Sixth Circuit employs the continuing violations doctrine most commonly in Title VII cases, and rarely extends it to § 1983 actions."); see also Slorp v. Lerner, Sampson & Rothfuss, 587 F. App'x 249, 257 (6th Cir. 2014) ("Courts have been `extremely reluctant' to extend the continuing-violation doctrine beyond the context of Title VII[.]" (internal citations omitted)). The Court sees, and Plaintiff offers no valid basis for its application in this matter.
First, the alleged DOR collections are not "the defendant's" conduct. See Tolbert, 172 F.3d at 940. Second, Plaintiff does not allege that DOR's collection practices are themselves unconstitutional as a procedural due process matter. Rather, McGinnis's due process claim centers on the administrative proceeding and DOR referral. See DE 1-2 at 6. Subsequent non-party collection efforts stemming from the disputed hearing and referral do not, on this record, amount to plausibly alleged CKMS constitutional violations, continuing or otherwise. See Tolbert, 172 F.3d at 940 (A "continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation[.]" (internal citations omitted)). Thus, the collections provide no tolling basis.
"[A] statute of limitations begins to run when the plaintiff knows or has reason to know of the injury which is the basis of his action[.]" McCune v. City of Grand Rapids, 842 F.2d 903, 905 (6th Cir. 1988) (citing Sevier v. Turner, 742 F.2d 262, 272-73 (6th Cir. 1984)). A "plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence." Id. McGinnis knew or had reason to know of the full factual basis for his current Fourteenth Amendment claim no later than 2014, when Plaintiff received the decision denying his challenge to the delinquent account and notice of the referral. See DE 1-2 at 9. Plaintiff's 2018 state-court complaint came far too late. The latest conceivable deadline, given pleading content, expired in 2015. Thus, Count Two is time-barred.
Finally, Eleventh Amendment and state sovereign immunity bar all of Plaintiff's claims.
Hutsell v. Sayre, 5 F.3d 996, 999 (6th Cir. 1993) (internal citations and quotation marks omitted).
In truth, Plaintiff does not materially develop
Finally, the Court explains its denial of Plaintiff's request for remand of the state claims in the event of federal claim rejection. See DE 24 at ¶ 4. Given the common factual field, the Court, under 28 U.S.C. § 1367(a), has supplemental jurisdiction over the Kentucky claims. However, after a "district court has dismissed all claims over which it has original jurisdiction" the exercise of supplemental jurisdiction is not mandatory. 28 U.S.C. § 1367(c). The Court's discretion in this area is broad, but "bounded by constitutional and prudential limits on the use of federal judicial power." Musson Theatrical, Inc. v. Fed. Exp. Corp., 89 F.3d 1244, 1254 (6th Cir. 1996) (hereinafter Musson). Specifically, the Court must account for "judicial economy, convenience, fairness, and comity" concerns. Carnegie-Mellon Univ. v. Cohill, 108 S.Ct. 614, 619 (1988). If all federal claims are dismissed pretrial, "the balance of considerations usually will point to dismissing" or remanding state claims. Musson, 89 F.3d at 1254-55. Indeed, "a 12(b)(6) dismissal of the touchstone claims" creates "a strong presumption in favor of dismissing supplemental claims." Id. at 1255. Put differently, a pleading-stage rejection of federal claims "precludes the exercise of supplemental jurisdiction over any remaining claims" absent "unusual circumstances." Id. Nonetheless, the Court, for several reasons, finds that the particular case circumstances are atypical and warrant resolution, rather than remand of Plaintiff's claims.
First, the remand presumption can be overcome where, as here, it is "absolutely clear how the pendent claims can be decided." Wright v. Associated Ins. Companies Inc., 29 F.3d 1244, 1251 (7th Cir. 1994); see also Musson, 89 F.3d at 1256 (citing Wright). Plaintiff, long on notice of Defendant's state law immunity theory, see, e.g., DE 1-3 at 15 (Dec. 20, 2018, State Court Motion to Dismiss), offers nothing more than speculation and conclusory allegations to rebut Defendant's well-supported motion. Thus, the Court finds retention of such claims, for purposes of immunitybased dismissal, appropriate because "the correct disposition of the claim is `so clear as a matter of state law that it can be determined without further trial proceedings and without entanglement with any difficult issues of state law.'" See Wright, 29 F.3d at 1252 (citation omitted).
Judicial economy and fairness concerns further counsel against remand. Plaintiff has been litigating (and the University or its subsidiary agency have been defending) the subject events, in one form or another, for more than 3 years. See, e.g., DE 1-3 (2016 State Court Complaint). Plaintiff's tactics smack of willful delay.
For all these reasons, the Court
Nevertheless, the Court notes as follows: Relevant to McGinnis's allegations, 28 U.S.C. § 455 requires recusal in proceedings in which a judge's "impartiality might reasonably be questioned[,]" or where the judge "has a personal bias or prejudice concerning a party[.]" 28 U.S.C. §§ 455(a) & (b)(1). However, on this record, no "reasonable person with knowledge of all the facts would conclude that the [undersigned]'s impartiality . . . might reasonably be questioned." Deuer Mfg., Inc. v. Kent Products, Inc., 760 F.Supp. 609, 611 (E.D. Mich. 1989). McGinnis provides nothing more than conclusory assertions as grounds for his "concern[ ]" regarding the undersigned's impartiality. The Court, under the applicable standards and despite Plaintiff's speculation, sees no basis for recusal. See, e.g., Harris v. Morris, No. 17-1373, 2017 WL 8776683, at *2 (6th Cir. Oct. 26, 2017) (affirming denial of recusal motion based on "unsupported allegations about some connection between the governor—who is not a defendant in this case—and the judge, . . . [a] prior judicial misconduct complaint, and [ ] general and unsubstantiated statements about racial bias."); Ragozzine v. Youngstown State Univ., 783 F.3d 1077, 1079 (6th Cir. 2015) ("A relationship with a tenured member of a university faculty, without more, would not necessarily cause a reasonable person to question a judge's impartiality regarding all matters involving the university."); Easley v. Univ. of Michigan Bd. of Regents, 906 F.2d 1143, 1147 (6th Cir. 1990) ("Without more, the amicable feelings Judge Feikens undoubtedly has for his alma mater, The University of Michigan, fail to demonstrate a sufficient basis for his recusal. See Brody v. President & Fellows of Harvard College, 664 F.2d 10, 11 (1st Cir. 1981)."). The undersigned does not have any relationship with Mr. Thro and treats UK, and its apparatus, like any other party, ruling against or for it on the law and the merits. See, e.g., Mullins v. Kyrkanides, No. 5:17-CV-319-REW-CJS, 2018 WL 4688727, at *12 (E.D. Ky. Sept. 28, 2018) (denying UK College of Dentistry Dean's motion for summary judgment and finding: "It will be for the jury to decide whether Kyrkanides malevolently orchestrated the end of the Mullins era at UK, or whether the Dean benignly stood by").
