Houser v. U.S. Dep't of Health & Human Servs., Civil Action No. 16-0804 (RBW)

• Decision Date: 14 September 2020
• Docket Number: Civil Action No. 16-0804 (RBW)
• Citation: 486 F.Supp.3d 104
• Parties: George D. HOUSER, Plaintiff, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — District of Columbia

486 F.Supp.3d 104

George D. HOUSER, Plaintiff,

v.U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

Civil Action No. 16-0804 (RBW)

United States District Court, District of Columbia.

Signed September 14, 2020

George D. Houser, Ashland, KY, pro se.

Daniel Patrick Schaefer, Sian Jones, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

This matter is before the Court on Defendant's Motion for Summary Judgment (ECF No. 56). For the reasons discussed below, the Court grants the motion.¹

I. BACKGROUND

A. Procedural History

George D. Houser ("the plaintiff") brought this civil action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2018), against the United States Department of Health & Human Services ("HHS"), Centers for Medicare and Medicaid Services ("CMS"). See Complaint (ECF No. 1, "Compl.") ¶¶ 2, 9-16. After the Court denied without prejudice the defendant's first motion for summary judgment on September 15, 2017, CMS undertook efforts to compile and process for the plaintiff information maintained by a CMS contractor. See Defendants’ Status Report and Proposed Schedule for Further Proceedings (ECF No. 43) at 1-2. In addition, CMS sought to determine whether certain potentially responsive records had been destroyed, see Defendants’ Status Report and Proposed Schedule for Further Proceedings (ECF No. 49) at 1-2, and to obtain potentially responsive records from the Georgia Department of Community Health, see id. ; Defendants’ Status Report and Proposed Schedule for Further Proceedings (ECF No. 51) at 1-2.

The defendant filed its renewed summary judgment motion (ECF No. 56) on April 8, 2019. On April 9, 2019, the Court issued an Order (ECF No. 57) advising the plaintiff of his obligations under the Federal Rules of Civil Procedure and the Local Civil Rules of this Court to respond to the motion. Specifically, the Order advised the plaintiff that if he did not file an opposition by June 7, 2019, the Court may enter judgment in the defendant's favor if the "Court satisfies itself that the record and any undisputed material facts justify granting summary judgment." Order, Houser v. U.S. Dep't of Health & Human Servs. , No. 16-CV-804, 486 F.Supp.3d 104, 2020 WL 5518228 (D.D.C. Apr. 9, 2019) (quoting Winston & Strawn, LLP v. McLean , 843 F.3d 503, 507 (D.C. Cir. 2016) (citing Fed. R. Civ. P. 56(e)(3) )).

The plaintiff requested three extensions of time to respond to the defendant's motion for summary judgment (ECF Nos. 58, 59, 63), which the Court granted by Minute Orders dated July 1, 2019, September 20, 2019, and January 22, 2020. The Court's January 22, 2020 Minute Order set a new deadline of March 26, 2020, and advised the plaintiff that no further extensions of time would be granted absent a showing by the plaintiff of physical or mental incapacitation verified by a medical professional. Thereafter, the plaintiff filed his fourth and fifth requests for extensions of time (ECF Nos. 64-65). The plaintiff explained that the prison law library had been closed entirely for one week in March 2020, as a measure to prevent spread of the coronavirus. Third Motion for an Extension of Time to Answer Defendant's Motion for Summary Judgment (ECF No. 64, "Pl.’s Third Mot.") at 1-2. The plaintiff subsequently represented that for two weeks he was unable to conduct legal research. See Fourth Motion for an Extension of Time to Answer Defendant's Motion for Summary Judgment (ECF No. 65, "Pl.’s Fourth Mot.") at 1-2. He further explained that prison authorities provided one typewriter and LexisNexis software at one computer work station in each cell block for prisoners’ use during a three-hour period each day. See id. at 2. The plaintiff generally described his access to the typewriter and computer work station as limited, given the number of prisoners who must share these resources. See id.

The Court is not unsympathetic to the challenges presented to the plaintiff by the additional restrictions imposed at the institution because of the COVID-19 pandemic. But these restrictions have been in place only since March 2020. The plaintiff's initial deadline for submitting his opposition to the defendant's motion was June 7, 2019, meaning that he had had roughly nine months to respond to the defendants’ motion before the pandemic-related restrictions were imposed. Furthermore, the plaintiff missed the May 30, 2020 deadline he set for himself for the submission of his opposition. See Pl.’s Fourth Mot. at 1.

Undaunted, the plaintiff has recently filed three motions for extensions of time for reasons unrelated to the COVID-19 pandemic. On August 4, 2020, the plaintiff filed a motion to defer consideration of the defendant's pending summary judgment motion pending resolution of additional FOIA requests he made on or about July 25, 2020, to the National Archives and Records Administration for records which originated at HHS. See generally Motion Pursuant to Federal Rule of Civil Procedure § 56(e)(4) to Allow Further Time for Disclosure (ECF No. 67). On August 10, 2020, the plaintiff filed a motion asking that the Court delay further proceedings in this case until "the mail room at FCI Ashland begins to mail [his] legal mail in accord with the prison's standard regulations." Motion to Pend Further Action Until the Prison Mails Plaintiff's Legal Mail (ECF No. 68) at 1. The plaintiff explained that he intended to mail FOIA-related correspondence by certified mail, but prison officials have not returned to him the certified mail receipts, see id. at 2, and the plaintiff presumes that this mail has not been delivered, see id. at 3. For this reason, he contended, his access to the court is impaired. See id. at 2.

Also on August 10, 2020, the plaintiff filed a Motion Pursuant to Federal Rule of Civil Procedure § 56(e)(4) to Allow Further Time for Disclosure Addendum of Explanation (ECF No. 71). This document alleged that the defendant committed misconduct not only in the course of enforcing regulations against the skilled nursing facilities that corporate entities controlled by the plaintiff once operated, see id. at 2-3, but also in the course of responding to the plaintiff's FOIA requests, see, e.g., id. at 5.

The plaintiff's August 2020 motions do not justify further delay. The submission of a new FOIA request to a different government agency exceeds the scope of the plaintiff's original complaint. The National Archives’ response to the plaintiff's July 25, 2020, FOIA request, whether sent by certified mail or not, has no bearing on HHS's response to the FOIA requests, submitted in 2015, which is at issue in this case. Having already granted the plaintiff three extensions of time to file his opposition, the Court will deny the plaintiff's fourth and fifth requests for extensions of time, as they do not comply with the conditions set forth in the Court's January 22, 2020 Minute Order. The Court will therefore resolve the defendant's motion for summary judgment based on the information currently before the Court and deny the plaintiff's August 2020 motions.

B. Defendant's Assertions of Fact

1. Forum Healthcare Group and the Plaintiff's Criminal Conviction

Through the Forum Healthcare Group, Inc., the plaintiff once operated three licensed care facilities which received Medicare and Medicaid funds. See Defendant's Statement of Material Facts Not In Genuine Dispute (ECF No. 56-2, "Def.’s SMF") ¶¶ 5-6. These facilities were: (1) Forum Group at Mount Berry Nursing and Rehabilitation Center in Rome, Georgia; (2) Forum Group at Moran Lake Nursing and Rehabilitation Center in Rome, Georgia; and (3) Forum Group at Wildwood Park Nursing and Rehabilitation Center in Brunswick, Georgia. Id. ¶ 19.

The plaintiff is now serving a prison sentence imposed by the United States District Court for the Northern District of Georgia, arising from his operation of the three health care facilities. The United States Court of Appeals for the Eleventh Circuit provided the following summary of case that resulted in the plaintiff's prison sentence:

Following a four-week bench trial, George D. Houser was convicted of one count of conspiring with his wife, Rhonda Washington Houser ..., to commit health care fraud, in violation of 18 U.S.C. § 1349, of eight counts of payroll tax fraud, in violation of 26 U.S.C. § 7202, and of two counts of failure to timely file income tax returns, in violation of 26 U.S.C. § 7203. The district court sentenced Mr. Houser to 240 months’ imprisonment and ordered him to pay nearly $7 million in restitution to Medicare and Medicaid and more than $870,000 to the Internal Revenue Service[.]

United States v. Houser , 754 F.3d 1335, 1337 (11th Cir. 2014) ; see Def.’s SMF ¶¶ 2-3.

2. The Plaintiff's FOIA Requests

On June 23, 2015, CMS received three letters from the plaintiff dated May 8, 2015, May 10, 2015, and June 16, 2015. See Def.’s SMF ¶¶ 7-9. CMS treated them as "identical requests for records," Declaration of Hugh Gilmore (ECF No. 12-3, "First Gilmore Decl.") ¶ 5, and assigned the matter a single tracking number, 063020157066, see Def.’s SMF ¶ 9.

CMS initially interpreted the plaintiff's letters as a FOIA request for the following information:

documents, including financial, accounting, reimbursement, programmatic, regulatory, and professional documents, CMS had regarding (1) the Forum Group at Mount Berry Nursing & Rehabilitation, LLC, its Medicare Provider Number 11-5311, and its Medicaid Identification Number ... 0276[-]229A; (2) the Forum Group at Moran Lake Nursing & Rehabilitation Center, LLC, its Medicare Care Provider Number 11-5311; and its Medication Identification Number 00140[-]368S; (3) the Forum Group at Wildwood Park Nursing & Rehabilitation Center, LLC, its Medicare Care Provider Number 11-5574; and its Medication Identification Number, which is unavailable; (4) any other facilities regardless of name providing skilled convalescent services at the above

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