United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION & ORDER
E. WIER UNITED STATES DISTRICT JUDGE.
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.
STANDARD OF REVIEW
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).
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 Fed.Appx. 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
Fed.Appx. 579, 580 (6th Cir. 2001); see also Coleman v.
Shoney's, Inc., 79 Fed.Appx. 155, 157 (6th Cir.
2003) (“Pro se parties must still brief the issues
advanced with some effort at developed
“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).
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:
The Supreme Court recently raised the bar for pleading
requirements beyond the old “no-set-of-facts”
standard of Conley v. Gibson . . . that had
prevailed for the last few decades. [Iqbal;
Twombly.] Conley itself had reflected the
change away from “code pleading” to “notice
pleading, ” and the standard it announced was designed
to screen out only those cases that patently had no
theoretical hope of success. . . .
The Court has now explained, however, that a civil complaint
only survives a motion to dismiss if it “contain[s]
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.”
Iqbal, 129 S.Ct. at 1949. Indeed, while this new
Iqbal/Twombly standard screens out the
“little green men” cases just as Conley
did, it is designed to also screen out cases that, while not
utterly impossible, are “implausible.”
Courie v. Alcoa Wheel & Forged Prod., 577 F.3d
625, 629-30 (6th Cir. 2009) (footnote omitted).
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.
to State a Claim
defense contends that Plaintiff's claims hinge entirely
on alleged conduct of non-parties, 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.
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. Stated otherwise, Plaintiff identifies no
mechanism for holding Defendant liable for any other
entity's purported misdeeds.
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 ...