Philip M. Rafiy, M.D., Individually, & Long Island Spine & Orthopedics, P.C. v. Cnty. of Nassau
| Decision Date | 04 January 2017 |
| Docket Number | No. 15-CV-6497 (JFB) (GRB),15-CV-6497 (JFB) (GRB) |
| Parties | PHILIP M. RAFIY, M.D., INDIVIDUALLY, AND LONG ISLAND SPINE & ORTHOPEDICS, P.C., Plaintiffs, v. THE COUNTY OF NASSAU, ET AL., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiffs Phillip Rafiy, M.D. ("Dr. Rafiy") and Long Island Spine & Orthopedics, P.C. ("LISO") (collectively, "plaintiffs") bring this action pursuant to 42 U.S.C. §§ 1983 and 1985 ("Section 1983" and "Section 1985") and various New York state tort claims against defendants The County of Nassau, the Nassau County District Attorney, Former District Attorney Kathleen Rice, Andrew Weiss, William Walsh, and Diane Peress (collectively, the "County Defendants"); National Government Services, Inc. ("NGS" or "defendant"); Emblem Health, Inc./Group Health Incorporated ("Emblem"); United Healthcare ("United"); Empire Blue Cross Blue Shield ("Empire"); and several Jane and John Doe Assistant District Attorneys and police officers, as well as other unknown entities or individuals.
Defendants NGS, Emblem, United, and Empire moved to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b), and after the motions were fully submitted and the Court held oral argument, plaintiffs stipulated to dismissal without prejudice of their claims against Emblem, United, and Empire. Accordingly, the Court considers only NGS's motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim.
For the reasons set forth below, defendant's motion is granted in full. As a threshold matter, the Court finds that NGS is an entity of the federal government. With respect to the individual claims, the Court holds that: (1) plaintiffs' claim under Section 1983 is not applicable to the federal government and, because NGS is a Medicare administrative contractor and is therefore considered an agent of the Secretary of Health and Human Services, any Section 1983 claim against NGS must be dismissed; (2) plaintiffs' Bivens claim against NGS must be dismissed because sovereign immunity bars suits against federal agencies; (3) the Section 1985 conspiracy claim against NGS must be dismissed because medical doctors are not a protected class under the statute; (4) the complaint must be dismissed because NGS is entitled to official immunity for acts taken in its capacity as a Medicare contractor; and (5) the state tort claims against NGS must be dismissed because plaintiffs failed to file an administrative claim with the Department of Health and Human Services under the Federal Tort Claims Act prior to filing the instant action. In addition, the Court denies plaintiffs leave to replead because the defects in their claims are substantive in nature.
The following facts are taken from the complaint, and the Court limits its analysis to those facts that pertain to NGS. The Court assumes them to be true for the purpose of deciding this motion and construes them in the light most favorable to plaintiffs as the non-moving party.
On or about November 6, 2013, Dr. Rafiy was indicted in New York state court on three counts of Grand Larceny and seven counts of Falsifying Business Records. (Compl., ECF No. 1, ¶ 81.) Count 1 of the indictment alleged theft of $14,899.17 from NGS. (Id. ¶¶ 73, 81.) Following a jury trial, Dr. Rafiy was acquitted of all charges on November 13, 2014. (Id. ¶ 104.)1 Dr. Rafiy alleges that the County Defendants conspired to violate his constitutional and state law rights, as well as those of his business LISO, in connection with that prosecution. (Id. ¶ 80; see also generally id. ¶¶ 1-7.)
NGS is a New York corporation that conducts business with medical providers and patients and administers Medicare programs, payments, and services. (Id. ¶¶ 45-46.) Plaintiffs claim that NGS2 "act[ed] at the behest of" the County Defendants and thereby "became a party to the concerted effort along with the other Defendants to deprive and the violate of [sic] Plaintiffs' constitutional rights, as well as state and common law rights." (Id. ¶ 47; see also id. at ¶¶ 123-24.) Specifically, plaintiffs contend that NGS "intentionally and selectively submitted documentation—without the corresponding exculpatory material—in order to violate Plaintiffs' constitutional and state law rights for the sole purpose of securing a guilty verdict." (Id. ¶ 101; see also id. ¶¶ 151-52 ().)
Accordingly, plaintiffs allege that defendant violated 42 U.S.C. §§ 1983 and 1985 and also assert various New York state law claims against NGS. (Id. at 29-41.)
Plaintiffs commenced this action on November 12, 2015. (ECF No. 1.) On April 28, 2016, NGS filed its motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claimpursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 51.) Plaintiffs submitted their opposition on June 15, 2016 (ECF No. 67), and defendant filed its reply on June 30, 2016 (ECF No. 70). The Court held oral argument on July 7, 2016 (ECF No. 74) and has carefully considered the parties' submissions.3
Relevant here are Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), which respectively govern motions to dismiss for lack of subject matter jurisdiction and motions to dismiss for failure to state a claim. The following standards of review are applicable to motions brought under these provisions.
When a court reviews a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), it "must accept as true all material factual allegations in the complaint, but [it is] not to draw inferences from the complaint favorable to plaintiffs." J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004). The burden of proving subject matter jurisdiction by a preponderance of the evidence is on the plaintiff. Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). "In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside the pleadings" to resolve the jurisdictional issue, Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)), but a court "may not rely on conclusory or hearsay statements contained in the affidavits," Attica Cent. Sch., 386 F.3d at 110.
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). "In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege a plausible set of facts sufficient 'to raise a right to relief above the speculative level.'" Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). This standard does not require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.
The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth two principles for a district court to follow in deciding a motion to dismiss. 556 U.S. 662 (2009). First, district courts must "identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. Second, if a complaint contains "well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.
Defendant argues that plaintiffs' claims against must be dismissed for the following reasons: (1) this Court lacks subject matter jurisdiction with respect to plaintiffs' 42 U.S.C. § 1983 cause of action because NGS is a federal governmental entity and is therefore not subject to Section 1983 claims; (2) NGS is entitled to official immunity; (3) plaintiffs have failed to adequately state a conspiracy claim pursuant to 42 U.S.C. § 1985; and (4) plaintiffs have failed to administratively exhaust their state law tort claims. For the reasons set forth below, defendant's motion is granted in full.
The Medicare Act, 42 U.S.C. §§ 1395 et seq., authorizes the Secretary of Health and Human Services ("HHS") to "enter into contracts with any eligible entity to serve as a medicare administrative contractor [("MAC")] with respect to the performance of" certain functions, such as payment services, id. § 1395kk-1(a)(1). The Centers for Medicare and Medicaid Services ("CMS") is "the federal agency situated within [HHS] that administers the Medicare program on behalf of the Secretary of HHS," Estate of Landers v. Leavitt, 545 F.3d 98, 103 (2d Cir. 2008), as revised (Jan. 15, 2009) (footnoted omitted), and because MACs "act on behalf of CMS" with respect to Medicare administration, "CMS is the real party of interest in any litigation involving the administration of the program" by a MAC. 42 C.F.R. § 421.5(b).4
Defendant argues that "NGS is a Medicare Administrative Contractor ('MAC'), contracted with the Centers for Medicare and Medicaid Services ('CMS'), which is a component of the Department of Health and Human Service ('HHS')." (Mem. of Law in Supp. of Def. NGS's Mot. to Dismiss ("Def.'s Br."), ECF No....
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