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Vetere v. City of New York

United States District Court, S.D. New York

December 5, 2019

MARGARET VETERE, Plaintiff,
v.
CITY OF NEW YORK, stated herein as City of New York HRA/DDS, and City of New York Bellevue Hospital Center Billing Dept., Defendant.

          ORDER OF DISMISSAL

          COLLEEN McMAHON, Chief United States District Judge:

         Plaintiff, appearing pro se, brings this action asserting that Defendant violated her rights by applying for Medicaid on her behalf without her consent. By order dated November 19, 2019, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis. The Court dismisses the complaint for the reasons set forth below.

         STANDARD OF REVIEW

         The Court must dismiss an in forma pauperis complaint, or portion thereof, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest, ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).

         BACKGROUND

         Plaintiff sues the City of New York for actions taken by the City's Human Resource Administration (HRA), the Department of Social Services (DSS), and Bellevue Hospital Center (Bellevue) Billing Department. She asserts that Bellevue and the City agencies violated New York Social Services Law § 366-b when Bellevue, without her consent, applied for and received Medicaid on her behalf. Plaintiff seeks monetary compensation and attaches to the complaint a settlement agreement with her terms to settle the matter.

         The following facts are taken from the complaint. Plaintiff arrived at Bellevue on the night of December 22, 2009, and became an inpatient from December 23, 2009, to January 6, 2010. She repeatedly told the hospital staff that she did not want to pay her hospital medical bills and she did not want Medicaid. But on February 17, 2010, an unknown person violated her “proprietary, personal and confidential information” by filling out and submitting to “HRA/DSS” an “unauthorized” Medicaid application “for Vetere” without her consent. (ECF No. 2, 2.) At the time, Plaintiff was a “competent functional adult” and she had not waived rights under the Health Insurance Portability and Accountability Act (HIPAA). (Id. at 3.) At a later date, Medicaid payment for Plaintiff's hospital stay was disbursed to Bellevue.

         After Medicaid was used to pay her hospital bills, Plaintiff contacted the New York State Medicaid Inspector General, who directed Plaintiff to contact the United States Department of Health & Human Services' Office for Civil Rights (OCR) concerning her HIPAA claims. Plaintiff filed a complaint with OCR, but it “could not assist.” (Id. at 5.) Plaintiff has also contacted various state agencies concerning the unauthorized Medicaid application, to no avail.

         Plaintiff brings this action as a “constitutional claim, ” contending that under New York Social Services Law § 366-b, no individual “is allowed by law to officially fill, file and submit HRA/DSS Medicaid Application ‘for Vetere.'” (Id. at 2, 8.) She asserts that the unauthorized Medicaid application is a “false instrument” under state law and constitutes Medicaid fraud. (Id. at 4, 8.) Plaintiff also indicates that Bellevue and the City agencies violated her privacy rights under HIPAA. Plaintiff seeks $1.5 million dollars in damages.

         DISCUSSION

         A. Section 1983 and New York Social Services Law § 366-B

         Because Plaintiff brings this action against the City of New York asserting constitutional claims, the complaint is construed as being brought under 42 U.S.C. § 1983.[1] Section 1983 provides redress for a deprivation of federally protected rights by persons acting under color of state law. 42 U.S.C. § 1983; Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-57 (1978).

         But Plaintiff's assertions fail to show that a right secured by the Constitution or laws of the United States was violated, as required for a § 1983 claim. See West v. Atkins, 487 U.S. 42, 48-49 (1988). Her main contention is that when Bellevue filled out and submitted the unauthorized Medicaid application and HRA and DSS approved the application and disbursed Medicaid payment for her hospital bills, those actions violated New York Social Services Law § 366-b.[2] But a violation of state law, without more, does not give rise to a claim under § 1983. See Davis v. Scherer, 468 U.S. 183, 195 (1984) (an official's violation of a state statute or regulation does not, by itself, make the official liable under § 1983); Pollnow v. Glennon, 757 F.2d 496, 501 (2d Cir. 1985) (“[A] violation of state law is not cognizable under § 1983.”) Smith v. O'Connor, 901 F.Supp. 644, 647-48 (S.D.N.Y. 1995) (“An individual's right to have the relevant state laws strictly obeyed is not a federal right protected by the Civil Rights Act of 1871 or the Constitution of the United States.”)

         B. ...


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