UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

KEVIN MILLER, )

Plaintiff, )

)

 v. ) CAUSE NO.: 2:15-CV-291-PRC

)

DEBRA G. ROSADO and )

JOHN J. WERNERT, )

Defendants. )

OPINION AND ORDER

This matter is before the Court on (1) Plaintiff’s Second Motion for Summary Judgment [DE

53], filed by Plaintiff Kevin Miller on September 12, 2016, and (2) Defendant’s[sic] Cross-Motion

for Summary Judgment [DE 73], filed by Defendants Debra Rosado and Dr. John J. Wernert on

December 5, 2016. The motions were fully briefed on January 18, 2017. On June 23, 2017, the Court

ordered additional briefing on the issue of Eleventh Amendment immunity, the briefing of which

was complete on July 28, 2017.

PROCEDURAL BACKGROUND

Plaintiff Kevin Miller filed his Complaint, pro se, against Debra Rosado (Administrative

Law Judge) and Joseph Moser (Director of Medicaid for Indiana) on August 5, 2015. With the

Complaint, Plaintiff filed Exhibits 1, 2, 3, and 4. Plaintiff filed a First Amended Complaint on

November 3, 2015. On December 7, 2015, Defendants filed a Motion to Dismiss for failure to state

a claim.

On December 21, 2015, Plaintiff filed a Motion for Summary Judgment, including a 23-page

Exhibit. (ECF 25). That date, Plaintiff also filed a sworn Declaration, dated December 15, 2015, in

support of the Motion for Summary Judgment. (ECF 26). On January 7, 2016, the Court stayed the
briefing on Plaintiff’s Motion for Summary Judgment pending a ruling on Defendants’ Motion to

Dismiss.

On April 4, 2016, the Court granted in part and denied in part the Motion to Dismiss,

dismissing without prejudice Plaintiff’s Americans with Disabilities Act and Rehabilitation Act

claims. Plaintiff’s procedural due process claims brought under 42 U.S.C. § 1983 remain pending.

Defendants filed an Answer on April 21, 2016.

On April 28, 2016, the Court denied without prejudice and with leave to refile Plaintiff’s

Motion for Summary Judgment and set discovery deadlines.

On September 12, 2016, Plaintiff filed the instant Second Motion for Summary Judgment,

citing Exhibits 1, 2, 3, and 4 submitted with his Complaint. See (ECF 53; ECF 1-1, 1-2, 1-3, 1-4).

The Court stayed briefing on the Second Motion for Summary Judgment to allow for rulings related

to discovery.

On September 16, 2016, the Court substituted Dr. John J. Wernert, Secretary of the Indiana

Family Social Services Administration (FSSA), for Joseph Moser, Director of Medicaid for Indiana,

as the correct supervisory government official for Plaintiff’s claim.

On December 5, 2016, Defendants filed the instant Cross Motion for Summary Judgment

and a combined brief in support of their Cross Motion for Summary Judgment and in response to

Plaintiff’s Second Motion for Summary Judgment.

On January 3, 2017, Plaintiff filed a response to the Cross Motion for Summary Judgment

and a reply in support of his Second Motion for Summary Judgment.

On January 18, 2017, Defendants filed a reply in support of their Cross Motion for Summary

Judgment.

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On June 23, 2017, the Court issued an Opinion and Order setting a schedule for the parties

to brief the issue of Eleventh Amendment immunity in this case. Defendants filed their brief on July

7, 2017. Plaintiff filed his response brief on July 21, 2017, and Defendants filed their reply brief on

July 28, 2017.

The parties filed forms of consent to have this case assigned to a United States Magistrate

Judge to conduct all further proceedings and to order the entry of a final judgment in this case.

Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

SUMMARY JUDGMENT STANDARD

The Federal Rules of Civil Procedure require that a motion for summary judgment be granted

“if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Rule 56 “mandates the entry of

summary judgment, after adequate time for discovery and upon motion, against a party who fails

to make a showing sufficient to establish the existence of an element essential to that party’s case,

and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). “Summary judgment is appropriate when no material fact is disputed and the

moving parties are entitled to judgment as a matter of law, meaning that no reasonable jury could

find for the other party based on the evidence in the record.” Carman v. Tinkes, 762 F.3d 565, 566

(7th Cir. 2014).

A party seeking summary judgment bears the initial responsibility of informing the court of

the basis for its motion and identifying those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, that it believes

demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed. R.

Civ. P. 56 (a), (c). The moving party may discharge its initial responsibility by simply

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“‘showing’—that is, pointing out to the district court—that there is an absence of evidence to

support the nonmoving party’s case.” Celotex, 477 U.S. at 325; see also Spierer v. Rossman, 798

F.3d 502, 508 (7th Cir. 2015). When the nonmoving party would have the burden of proof at trial,

the moving party is not required to support its motion with affidavits or other similar materials

negating the opponent’s claim. Celotex, 477 U.S. at 323, 325; Spierer, 798 F.3d at 507-08;

Modrowski v. Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013). 

“Once the moving party puts forth evidence showing the absence of a genuine dispute of

material fact, the burden shifts to the non-moving party to provide evidence of specific facts creating

a genuine dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The non-moving party

cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See

Fed. R. Civ. P. 56(c)(1), (e); Flint v. City of Belvidere, 791 F.3d 764, 769 (7th Cir. 2015) (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party must “do more

than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)

(1986)). Rule 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails

to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .

consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion

and supporting materials—including the facts considered undisputed—show that the movant is

entitled to it . . . .” Fed. R. Civ. P. 56(e); see also Anderson, 477 U.S. at 248-50.

In viewing the facts presented on a motion for summary judgment, a court must construe all

facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor

of that party. See Anderson, 477 U.S. at 255; McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765

(7th Cir. 2014); Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009). A court’s role is not to

4
evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth

of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson,

477 U.S. at 249-50.

PLAINTIFF’S EVIDENTIARY OBJECTION

On January 3, 2017, Plaintiff filed an “Objection to Evidence,” (ECF 82), in which Plaintiff

objects to Defendants’ submission of the recording of the April 9, 2015 hearing before ALJ Rosado

and Defendants’ submission of the transcript of that recording. Plaintiff asserts that the recording

is not the original, that the recording Defendants submitted changes the outcome of the hearing in

the record, and that “[t]his is not the Plaintiffs April 9, 2015 recording of the hearing and the

transcript is not original either.” (ECF 82, p. 2). However, Plaintiff does not state what was changed,

he does not state that the voice on the recording is not his, and he offers no evidence (such as a

declaration or affidavit) in support of these assertions. The Court has listened to the recording, and

the transcript accurately transcribes the recording. It appears that this objection is based on the fact

that ALJ Rosado restarted the recording once Kathryn Houseworth was present for the hearing and

on Plaintiff’s misunderstanding that the case was going to be “remanded,” although the word

“remand” was never used at the hearing, as discussed in more detail below. (ECF 78-1, Ex. AA).

To the extent Plaintiff objects that Defendants submitted a copy, rather than the original, of the

recording and transcript for purposes of the summary judgment, to submit an accurate copy of the

recording is not improper. Plaintiff has not shown that Defendants will be unable to produce an

original or authenticated copy. See Fed. R. Civ. P. 56(c)(2). The Court OVERRULES Plaintiff’s

objection.

5
MATERIAL FACTS1

1. Applications for Medicaid Disability

On March 25, 2013, the Indiana Family and Social Services Administration (FSSA) sent

Plaintiff Miller a “Pending Verifications for Applicants/Recipients” form in his case number

1056017336, giving him a deadline of April 8, 2013, to submit proof of “Unearned Income.” (ECF

77-2, Ex. B). All subsequent applications and notices relevant to this case and outlined below, other

than related to an appeal, are in Plaintiff’s same case number 1056017336. Also on March 25, 2013,

FSSA sent Plaintiff a separate “Pending Verifications for Applicants/Recipients” form in the same

case number, giving Plaintiff a deadline of April 8, 2013, to submit proof of “Bank

Accounts/Financial Holdings.” (ECF 77-3, Ex. C).

Beginning May 1, 2013, Plaintiff was approved by FSSA for Medicaid Disability with a

monthly “spend-down amount.” (ECF 77-4, Ex. D). Beginning November 1, 2013, Plaintiff was

eligible for Medicaid without a spend-down due to a decrease in income. (ECF 77-5, Ex. E).

On January 16, 2014, FSSA mailed Plaintiff a notice that it was time to review his eligibility

for SNAP benefits (previously known as “food stamps”) and for medical coverage. See (ECF 77-6,

Ex. F). The notice informed Plaintiff that a telephone interview was scheduled for February 6, 2014,

at 9:30 a.m. Id. The notice further explained that the SNAP benefits would end effective March 1,

2014. Id.

1

 In his Second Motion for Summary Judgment, Plaintiff cites “the evidence presented and previously submitted in the

case exhibits 1, 2, 3, 4 and the brief filed in support of this motion.” (ECF 53). Plaintiff’s Exhibits 1-4 are attached to

Plaintiff’s Original Complaint. See (ECF 1). In addition, Plaintiff filed his written responses to Defendants’ discovery

requests as required by Northern District of Indiana Local Rule 26-2, and those documents are before the Court as part

of the record. See (ECF 43); Fed. R. Civ. P. 56(c)(3).

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On February 25, 2014, Plaintiff executed a “Summary of Eligibility Information Client

Certification for Food Stamps” form, which provided redetermination information. (ECF 77-7, Ex.

G).

On May 28, 2014, FSSA mailed Plaintiff a notice that, effective July 1, 2014, Plaintiff’s

Medicaid would be discontinued because his “condition has improved significantly. It is no longer

considered to be substantial enough to satisfy the definition of disability in state rules.” (ECF 77-8,

Ex. H, p. 2) (citing 405 I.A.C. § 2-2-3). The same notice indicated that his SNAP benefits would

continue without change, explained his right to appeal, and provided an appeal form. Id.

On June 5, 2014, FSSA issued a “Notice - Receipt of Appeal” with appeal number

4000287250, informing Plaintiff that his appeal had been received and that he would be sent a

hearing scheduling notice. (ECF 77-9, Ex. I).

On June 6, 2014, FSSA sent Plaintiff a “Notice of Hearing” in his appeal in case number

4000287250 (which arose from his Medicaid Disability case number 1056017336), setting the

hearing for July 15, 2014, at 1:30 p.m. (ECF 77-10, Ex. J) (citing 42 C.F.R. § 431.200 et seq./405

I.A.C. § 1.1-1 et seq.). The notice explained how to request a continuance of the hearing, including

that good cause must be shown under 470 I.A.C. § 1-4-3(j) or 405 I.A.C. § 1.1-1-3(d), that the

request be made in writing, that the request be made known to all parties, and that the request

include two suggested hearing dates acceptable to all parties. Id. The notice warns that failure to

appear at the scheduled hearing with no advance notice will result in a dismissal of the appeal. Id.

On June 27, 2014, FSSA received a note from Plaintiff asking to reschedule his July 15, 2014

hearing because his attorney was “unwilling to go that day.” (ECF 77-11, Ex. K). Plaintiff requested

that the hearing date be rescheduled for July 21, 2014, or July 25, 2014. Id. On July 25, 2014, FSSA

mailed Plaintiff a “Notice of Dismissal” that provided: “The appeal request in this matter is

7
dismissed. The appellant did not appear at the scheduled hearing and no evidence of good cause for

failure to appear has been offered.” (ECF 77-12, Ex. L).

On August 4, 2014, FSSA sent Plaintiff an “Important Notice About Your Benefits,”

explaining that, effective September 1, 2014, Plaintiff’s Medicaid benefits would be discontinued

due to “implementation of hearing decision” and because Plaintiff’s “condition has improved

significantly. It is no longer considered to be substantial enough to satisfy the definition of disability

in state rules.” (ECF 77-13, Ex. M, p. 2) (citing Ind. Code § 12-15-28-7; 405 I.A.C. § 2-2-3).

Plaintiff’s SNAP benefits were not affected.

On November 24, 2014, Plaintiff reapplied for Medicaid in the same underlying Medicaid

Disability case number 1056017336. See (ECF 77-14, Ex. N, p. 2).

On December 4, 2014, FSSA mailed Plaintiff a notice titled “Verificaciones Pendientes Para

Postulantes/Beneficiaros - Healthy Indiana Plan.” (ECF 77-15, Ex. O). The notice was in Spanish.

Id.

On December 19, 2014, FSSA mailed Plaintiff a form titled “Pending Verifications for

Applicants/Recipients,” requesting information from Plaintiff. (ECF 77-16, Ex. P); (ECF 43-1, pp.

84-85). The forms gave Plaintiff until January 2, 2015, to provide the documents. (ECF 77-16, Ex.

P); (ECF 43-1, pp. 84-85). The notice warns that a failure to provide the information will result in

the benefits being denied or discontinued. (ECF 77-16, Ex. P);(ECF 43-1, pp. 84-85). The form asks

Plaintiff to provide proof of “Shelter Expense,” “Identity,” “Bank Accounts/Financial Holdings,”

“Vehicles,” “Lump Sum Payment,” and “Notice Regarding Rights and Responsibilities.” (ECF 77-

16, Ex. P); (ECF 43-1, pp. 84-85).

On January 12, 2015, FSSA sent Plaintiff an “Important Notice About Your Benefits.” (ECF

77-14, Ex. N); see also (ECF 43-1, p. 102-108). The Notice informed Plaintiff that his November

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24, 2014 application for Medicaid was denied because “individual does not have a social security

administration (SSA) disability determination or social security disability insurance

(SSDI)/Supplemental Security Income (SSI) application on file,” “failure to cooperate in verifying

the value of resources,” “failure to provide all required information,” “value of resources exceeds

program eligibility standard,” and “income exceeds program eligibility standards.” (ECF 77-14, Ex.

N., p. 2); (ECF 43-1, p. 102).

On January 15, 2015, Plaintiff reapplied for Medicaid Disability in the same case number.

See (ECF 1-1, pp. 7, 8); (ECF 1-3). On January 21, 2015, FSSA sent Plaintiff an “Appointment

Notice,” informing Plaintiff that he was scheduled for a phone interview on January 28, 2015, at

8:15 a.m. (ECF 77-18, Ex. R); (ECF 43-1, p. 156).

On January 28, 2015, FSSA sent Plaintiff a one-page “Pending Verifications for

Applicants/Recipients,” requesting that Plaintiff provide proof of “Shelter Expense,” “Bank

Accounts/Financial Holdings,” “Summary of Eligibility Redetermination Information,” “Client

Certification for Food Stamps,” and “Notice Regarding Rights and Responsibilities.” (ECF 1-3, p.

7). The notice gave Plaintiff until February 10, 2015, to submit the information. Id.

On January 28, 2015, FSSA sent Plaintiff a two-page “Pending Verifications for

Applicants/Recipients,” requesting that Plaintiff provide proof of “Bank Accounts/Financial

Holdings,” “Vehicles,” “Life Insurance,” “Unearned Income,” “Lump Sum Payment,” and “Release

of Medical Information.” (ECF 43-1, pp. 158-59, 160). The notice gave Plaintiff until February 10,

2015, to submit the information. Id. at pp. 158, 160.

On January 30, 2015, FSSA sent Plaintiff a separate one-page “Pending Verifications for

Applicants/Recipients,” requesting that Plaintiff provide proof of “Requirement to File for Social

9
Security Disability Benefits.” (ECF 1-3, p. 6). The notice gave Plaintiff until March 2, 2015, to

submit the information. Id.

On March 2, 2015, FSSA sent Plaintiff a notice informing him that the Medicaid Medical

Review Team (MRT) had determined that Plaintiff did not meet the Medicaid Disability criteria.

(ECF 77-19, Ex. S); (ECF 77-20, Ex. T); (ECF 1-3, p. 9). The notice further provided: “This is not

an official notice of denial. This letter serves as a piece of the official notice that will be sent to you

when the Division of Family Resources takes action on your case. That notice will explain your

appeal rights.” (ECF 77-19, Ex. S) (emphasis added); (ECF 77-20, Ex. T); (ECF 1-3, p. 9). The

March 2, 2015 MRT notice explained that Plaintiff stated in his application that he was disabled due

to bodily injury (knee, arm, wrist, back, and neck); that the medical evidence indicated a diagnosis

of “ruptured or herniated disc”; and that the MRT evaluated medical evidence from the dates

10/2/2013 – 11/19/2015 from Dr. Julian Ungar-Sargon. (ECF 77-19, Ex. S); (ECF 77-20, Ex. T);

(ECF 1-3, p. 9). The notice states that Plaintiff was considered “not disabled” and an explanation

is given: “Your impairment is considered to last for a continuous 12 month period; however, the

social and medical information that was submitted does not confirm that your condition substantially

impairs your ability to perform labor, services, or engage in a useful occupation.” (ECF 77-19, Ex.

S); (ECF 77-20, Ex. T); (ECF 1-3, p. 9).

On “March 4, 2015,” FSSA sent Plaintiff a letter informing him that it had tried to contact

him on “March 9, 2015, and on March 10, 2015,” concerning Plaintiff’s DFR Mailbox

correspondence. (ECF 77-21, Ex. U); (ECF 1-3, p. 8); (ECF 43-2, p. 1). The letter provides: 

Per our records it indicates that you were denied for Medicaid Disability by our

Medical Review Team on 03/02/2015. You should have received a notice in the mail

and if you do not agree with the decision [that] was made by our Medical Review

Team you do have the right to appeal the decision that was made.

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However; you were approved for another category of medical in[sic] which will start

effective 04/01/2015 in[sic] which is our new HIP 2.0 medical coverage. You should

receive further information in the mail concerning your coverage for that category.

 (ECF 77-21, Ex. U) (emphasis added); (ECF 1-3, p. 8) (same).

On March 5, 2015, FSSA sent Plaintiff an “Important Notice About Your Health Coverage”

in relation to his January 15, 2015 application, advising him that he was approved for the Healthy

Indiana Plan (HIP) Plus program. (ECF 77-22, Ex. V).

In his sworn Declaration, Plaintiff states, “I called in and complained. In March of 2015 I

was waiting for the official denial because it comes with the appeal form. The denial never came

so I had wrote my own appeal letter. I wasn’t sure it was sufficient so I sent in a old food stamp

appeal form.” (ECF 26, p. 3, ¶ 6). “I didn’t get an appeal letter so I couldn’t appeal the denial.” Id.

p. 4, ¶ 9b.

On March 17, 2015, FSSA received Plaintiff’s handwritten “Appeal Request” with the case

number 1056017336 written at the top. (ECF 1-3, p. 12); (ECF 43-2, p. 6); see also (ECF 77-23, Ex.

W, p. 5). The appeal provides: “I wish to appeal the action to deny, stop or reduce my Benefits. I

am appealing my denial of Medicaid Disability Insurance Case #1056017336. I understand that a

fair hearing will be scheduled for me and that I will be able to explain why I disagree with the action

taken on my benefits.” (ECF 1-3, p. 12).

On March 20, 2015, FSSA received a computer-generated “Appeal Form” for Plaintiff in

the same case, dated March 19, 2015, which also states that Plaintiff “wishes to appeal the action

to deny stop or reduce my benefits. . . . I understand that a fair hearing will be scheduled for me and

that I will be able to explain why I disagree with the action taken on my benefits.” (ECF 1-3, p. 13).

The “Date of Notice” on the “Appeal Form” is March 5, 2015. Id.

11
2. April 9, 2015 Hearing

On April 9, 2015, an administrative hearing was held on Plaintiff’s appeal. (ECF 77-23, Ex.

W). Defendant Debra J. Rosado was the Administrative Law Judge who presided over the hearing.

Id. at p. 8; (ECF 78-1, Ex. AA, p. 1). Kathryn Houseworth represented the State of Indiana. Id.

ALJ Rosado used a hand-held tape recorder to record the hearing. (ECF 78-2, Ex. BB, pp.

11-12). ALJ Rosado started the recorder when Plaintiff came into the hearing room before she

started asking him questions. Id. Plaintiff then told ALJ Rosado about getting injured at work, that

he was homeless, and that FSSA did not use all his medical records. Id. ALJ Rosado decided to look

for some information on the internet. Id. While Plaintiff was looking for the web address to give to

ALJ Rosado, ALJ Rosado saw one of Plaintiff’s papers notifying him that he had been approved for

the Healthy Indiana Plan. Id. When Houseworth came on the phone, ALJ Rosado stopped and then

restarted the tape recording. Id.

After the recording was restarted, ALJ Rosado noted that Plaintiff received adequate and

timely notice of the action on January 12, 2015, but that the Hearings and Appeals department

received his request for a hearing on March 17, 2015, which was untimely as it was past the thirtythree days allowed for a medical appeal. (ECF 78-1, Ex. AA, p. 2). ALJ Rosado asked Plaintiff why

his appeal was late. Id. Plaintiff responded that he only became aware of the denial after he received

the March 2, 2015 notice from the Medical Review Team. Id. 

Houseworth stated that the official notification from FSSA was never mailed to Plaintiff. Id.

at p. 4. 

Then the following exchange occurred between ALJ Rosado and Plaintiff:

ALJ: Okay. So then, I am going to address the issue that the notice – the last

official notice that was sent was January 12th and the day you appealed was

on March the 17th, which is untimely. But, I also need to ask you, Mr.

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Miller, do you waive your right to proper notification, in which case it means

that the State will not be sending you the notice telling you that your

impairment and all that information from the Medical Review Team, and if

you do waive your right to proper notification, then the appeal that you filed

is basically untimely. So you may want to get that notice. 

KEVIN MILLER: Okay, so I don’t want to waive it, waive my right. 

ALJ: Okay, if you don’t waive your right to official notice, then the hearing is

going to be dismissed and you’ll be receiving a – a notice from the state

telling you that – the reason you were denied. 

KEVIN MILLER: And then I’ll have a right to appeal? 

ALJ: And then you’ll have your rights to appeal. 

KEVIN MILLER: Thank you, your honor. 

ALJ: Is that what you want? 

KEVIN MILLER: Yes. 

(ECF 78-1, Ex. AA, p. 4-5).

Houseworth then asked ALJ Rosado to repeat the action that was being taken, and ALJ

Rosado stated: 

ALJ: The hearing is going to be dismissed, the Appellant is . . . 

KATHRYN HOUSEWORTH: Okay. 

ALJ: . . . not waiving his right to proper notification, so a decision, I mean, a

decision will be sent to both parties and it will instruct the State as to what

they need to do which is basically to send him the notification... 

KATHRYN HOUSEWORTH: Right. 

ALJ: . . . as to why his medical disability application was denied. And then he will

. . . 

KATHRYN HOUSEWORTH: Okay.

ALJ: . . . have full appeal rights at that point.”

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Id. at p. 6.

3. The Hearing Decision

On May 14, 2015, ALJ Rosado issued a written “Notice Hearing Decision.” (ECF 1-3, p.

15); (ECF 43-2, pp. 54-59); (ECF 77-23, Ex. W, p. 5). The Hearing Decision states that the “Issue”

for the hearing was: “The original issue under appeal was the Appellant’s eligibility for Medical

Assistance to the Disabled (“MA D”); however, this issue was not addressed as the only issue was

determined to be whether the Appellant received timely and adequate notice.” (ECF 1-3, p. 15);

(ECF 43-2, p. 55); (ECF 77-23, Ex. W, p. 5). The decision then provides, in a separate delineated

section:

The Administrative Law Judge has carefully reviewed the testimony presented at the

hearing, all evidence, Federal/State regulations, and policy transmittals in regard to

this matter. The Decision, which follows, outlines the facts and conclusions

therefrom that are the basis for the final determination by the Administrative Law

Judge. 

THIS MATTER IS DISMISSED.

(ECF 1-3, p. 15); (ECF 43-2, p. 55); (ECF 77-23, Ex. W, p. 5).

After setting out twelve paragraphs of “Findings of Fact,” the Hearing Decision provides the

following “Conclusions of Law”:

This matter is dismissed since the Appellant was not issued timely and adequate

notice in regards to the Medicaid disability criteria denial of Medical Assistance to

the Disabled.

Since the Appellant did not waive his right to timely and adequate notice, the

original issue in regards to the denial of Medical Assistance to the Disabled taken

against the Appellant with respect to his resources and income were not addressed.

The State Agency is directed to mail out to the Appellant a manual or

computer-generated notice informing him of the denial of Medical Assistance to the

Disabled due to not meeting the Medicaid disability criteria.

The Appellant shall retain all rights of hearing and appeal of the new notice of

eligibility.

14
(ECF 43-2, p. 56) (emphasis added); (ECF 77-23, Ex. W, p. 8) (same).2 The section titled “Decision”

provides: “The Administrative Law Judge dismisses this matter as there was no timely and adequate

notice given to the Appellant as required under 45 CFR 205.10(i)(A)(B). (ECF 43-2, p. 56); (ECF

77-23, Ex. W, p. 8).3 Page 5 of the Hearing Decision is titled “Appeal Rights,” explaining the rights

of appeal for ALJ Rosado’s decision and the procedure to follow for the appeal. (ECF 1-3, p. 17);

(ECF 43-2, p. 59); (ECF 77-23, Ex. W, p. 9).

On May 15, 2015, FSSA sent Plaintiff an “Eligibility Notice of Action Medicaid/Hoosier

Healthwise” (State Form 1110 (R13/2-14) FI 0619M) in his same case number 1056017336

regarding the application date of November 24, 2014. (ECF 1-3, p. 20). On page one, the box for

“Your application was denied” is checked. Id. The “Reason for denial” is “Disability is not met; is

12 mo. but not substantail[sic] impairment; failure to provide all required information; failure to

cooperate in verifying the[sic].” Id. Only page one of the seven-page document is attached as an

exhibit to Plaintiff’s original Complaint, and Defendants have not provided a copy of any part of this

notice.

On May 19, 2015, Plaintiff faxed a handwritten correspondence dated May 18, 2015, which

states: “I Kevin Miller request a Agency Review of my Administrative Law Judges decision.

1056017336/MA D/01/A3-4000378714.” (ECF 1-3, p. 18).

On June 3, 2015, FSSA sent Plaintiff a letter, notifying him that they received the request

for a review of the May 14, 2015 Hearing Decision in 1056017336/4000378714 and that “[a]ll

parties will be sent a Notice of Final Agency Action when the review is complete.” (ECF 1-3, p. 19).

2

 This page is missing from the exhibit attached to the Complaint. See (ECF 1-3, pp. 15-17).

3

 This page is missing from the exhibit attached to the Complaint. See (ECF 1-3, pp. 15-17).

15
On June 16, 2015, FSSA issued a “Notice of Final Agency Action,” affirming ALJ Rosado’s

May 14, 2015 Hearing Decision. (ECF 25-1, p. 1). The Notice advised Plaintiff of his right to appeal

this final agency decision by asking a court to review the matter. Id.

After the April 9, 2015 hearing, Plaintiff did not apply for Medicaid again. See (ECF 78-2,

Ex. BB, p. 17).

ANALYSIS

This is a § 1983 action brought by pro se Plaintiff Kevin Miller who alleges that his

Fourteenth Amendment due process rights were violated in relation to his application for Medicaid

Disability. The claims remaining in this case following the Court’s April 4, 2016 ruling on the

Motion to Dismiss are Plaintiff’s § 1983 Fourteenth Amendment Due Process claims based on (1)

ALJ Rosado restarting the audio recording of the hearing, (2) ALJ Rosado allegedly stating different

outcomes at the April 9, 2015 hearing and in her written May 14, 2015 Hearing Decision, and (3)

FSSA only allowing Plaintiff to submit twelve months of medical evidence in support of his

Medicaid Disability claim. For the reasons set forth below, the Court grants summary judgment in

favor of Defendants on all remaining claims.

The due process clause of the Fourteenth Amendment to the United States Constitution

provides that the states shall not “deprive any person of life, liberty, or property, without due process

of law[.]” U.S. Const. amend. XIV. To prevail on his claim for a deprivation of procedural due

process based on a property right, Plaintiff must establish (1) a cognizable property interest, (2) a

deprivation of that property interest, and (3) a denial of due process. Mathews v. Eldridge, 424 U.S.

319, 332 (1976); Khan v. Bland, 630 F.3d 519, 527 (7th Cir. 2010) (citing Hudson v. City of Chi.,

374 F.3d 554, 559 (7th Cir. 2004)). There is no loss of property without due process if the state

16
provides an adequate post-deprivation remedy for the loss. See Hudson v. Palmer, 468 U.S. 517, 533

(1984); Parratt v. Taylor, 451 U.S. 527, 540 (1981).

Medicaid “is a cooperative federal-state program through which the Federal Government

provides financial assistance to States so that they may furnish medical care to needy individuals.”

Wilder v .Va. Hosp. Ass’n, 496 U.S. 498, 502 (1990); see also Nat’l Fed’n of Indep. Bus. v. Sebelius,

— U.S. —, —, 132 S. Ct. 2566, 2581 (2012). Medicaid requires that states provide assistance to a

needy individual with a disability who meets certain qualifications. See Ind. Code § 12-14-15-1.

This is commonly referred to as “Medicaid Disability” or “Medicaid for the Disabled” (“MA D”).

See Thompson v. Roob, 1:05-CV-636, 2006 WL 2990426, at *1 (S.D. Ind. Oct. 19, 2006). An

individual can be found to be a “needy individual with a disability” if the person has “[a] physical

or mental impairment, disease, or loss that is verifiable by a physician licensed under IC 25-22.5,

that appears reasonably certain to result in death or to last for a continuous period of at least twelve

(12) months without significant improvement, and that substantially impairs the individual’s ability

to perform labor or services or to engage in a useful occupation.” Ind. Code § 12-14-15-1(2)(A)

(emphasis added). Indiana FSSA’s Medicaid Medical Review Team (“MRT”) is responsible for

determining whether an applicant is eligible for Medicaid Disability under this standard. See Indiana

Medicaid for Providers, Review Team (MRT), Overview,

http://provider.indianamedicaid.com/about-indiana-medicaid/member-programs/special-program

s/medical-review-team-(mrt).aspx (last visited August 3, 2017).

17
The parties do not dispute that eligibility for Medicaid Disability benefits is a “property”

interest within the meaning of the Due Process Clause. Thompson, 2006 WL 2990426, at *6;4Coffey

v. Xerox Corp., No. 1:13-CV-97, 2014 WL 773202, at *9 (S.D. Ind. Feb. 24, 2014) (citing Hamby

v. Neel, 368 F.3d 549, 560 (6th Cir. 2004); Mathews, 424 U.S. at 340). Nor do the parties dispute

that Plaintiff was found to be not eligible for Medicaid Disability benefits on March 2, 2015. Thus,

to establish a violation of procedural due process, Plaintiff must show that he was deprived of his

property interest in Medicaid Disability without due process of law. Veterans Legal Defense Fund

v. Schwartz, 330 F.3d 937, 939 (7th Cir. 2003).

A. Due Process Claims Against ALJ Debra Rosado Based on the Restarting 

of the Tape Recording and on the Alleged Difference Between the 

Outcome Announced at the Hearing and the Outcome in the Written Decision

The Court begins with the two claims against ALJ Rosado, finding that there is no genuine

issue of material fact and that Plaintiff cannot demonstrate a due process violation by ALJ Rosado.5

4

 The court in Thompson v. Robb, explained:

We find that Plaintiffs have adequately articulated a claim to a property interest to which due

process protections apply. As they point out, the Indiana “MA D” eligibility statute (IC § 12-14-15-1)

“establish[es] ‘substantive predicates’ to govern official decision making . . . [and] mandate[s] the

outcome to be reached upon a finding that the relevant criteria have been met.” Kentucky Dept. of

Corrections v. Thompson, 490 U.S. 454, 462 (1989); Pls.’ Reply at 4. The Indiana statute states that

“MA D” benefits shall be granted to a needy disabled individual who meets specified and objective

criteria; it provides for no discretion on the part of the administrative agency, thus establishing an

entitlement to “MA D” benefits for any individual who qualifies.

The Supreme Court has stated that “[i]n the Medicare and the Medicaid Programs the

Government has provided needy patients with both direct benefits and indirect benefits. The direct

benefits are essentially financial in character . . . . The Government cannot withdraw these direct

benefits without giving the patients notice and an opportunity for a hearing on the issue of their

eligibility for benefits.” O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 787-88 (1980). See

also Goldberg v. Kelly, 397 U.S. 254, 261-64 (1970); Gomolinsky v. Davis, 716 N.E.2d 970, 973-75

(Ind. Ct. App. 1999) (applying procedural due process protections to Indiana Medicaid benefits). Such

direct benefits are at issue here. Thus, in our view, the “MA D” eligibility provision creates a

protectible property interest.

No. 1:05-CV-636, 2006 WL 2990426, at *6 (S.D. Ind. Oct. 19, 2006).

5

 “While a plaintiff is not required to exhaust state remedies to bring a § 1983 claim, this does not change the fact that

no due process violation has occurred when adequate state remedies exist.” Veterans Legal Defense Fund v. Schwartz,

330 F.3d 937, 941 (7th Cir. 2003); see also Stachowski v. Town of Cicero, 425 F.3d 1075 (7th Cir. 2005) (citing Veterans

Legal Defense Fund, 330 F.3d at 941). Regarding the decision of ALJ Rosado, it appears that Plaintiff was afforded all

18
1. Tape Recording

First, Plaintiff alleges that ALJ Rosado violated his due process rights because she restarted

the recording device. See (ECF 17, pp. 2-3). This was not a due process violation. ALJ Rosado

initially started the hand-held recording device when Plaintiff entered the hearing room; this was

not improper. Plaintiff explains that he began telling ALJ Rosado about his claim before the hearing

began, which would have been on the original recording. (These substantive matters that Plaintiff

discussed before the hearing began were ultimately not addressed at the hearing or in the hearing

decision because the hearing and decision turned on the procedural issue of Plaintiff not having

received proper notice.) The FSSA representative—Ms. Houseworth—was not yet present. Once

Ms. Houseworth was present for the hearing, ALJ Rosado then restarted the recording. In other

words, the recording of the hearing started when both parties were present for the hearing. There can

be no violation of Plaintiff’s rights regarding the hearing when the hearing had not yet begun until

Ms. Houseworth was present. 

The Indiana state statute governing the conduct of administrative proceedings provides that

“[t]he adminstrative law judge shall regulate the course of the proceedings in conformity with any

prehearing order and in an informal manner without recourse to the technical, common law rules

of evidence applicable to civil actions in the courts.” Ind. Code § 4-21.5-3-25(b). The statute further

requires that the ALJ “afford to all parties the opportunity to respond and conduct crossthe process that he was due because he had an opportunity to appeal ALJ Rosado’s May 14, 2015 decision and availed

himself of that opportunity by appealing the decision on May 18, 2015. See (ECF 1-3, p. 18). On June 3, 2015, Plaintiff

was notified that his appeal of the May 14, 2015 decision was received. (ECF 1-3, p. 19). And, on June 16, 2015, FSSA

issued a “Notice of Final Agency Action” affirming ALJ Rosado’s May 14, 2015 Hearing Decision. (ECF 25-1, p. 1).

The Notice advised Plaintiff of his right to appeal the final agency decision by asking a court to review the matter. Id.

There is no indication that Plaintiff filed a petition for judicial review pursuant to Indiana Code § 4-21.5-5-1, et seq.

However, because Defendants did not seek summary judgment on the claims against ALJ Rosado on this basis, the Court

nevertheless considers each substantive claim in turn. As set forth below, neither constitutes a due process violation.

19
examination.” Ind. Code § 4-21.5-3-25(c). ALJ Rosado complied with Indiana state statute by

recording the hearing, Ind. Code § 4-21.5-3-25(g), and by keeping a record of the proceeding, Ind.

Code § 4-21.5-3-14(a). And, the Indiana statute prohibits ex parte communications: “[A]n

administrative law judge serving in a proceeding may not communicate, directly or indirectly,

regarding any issue in the proceeding while the proceeding is pending, with: (1) any party; . . . .

without notice and opportunity for all parties to participate in the communication.” Ind. Code § 4-

21.5-3-11. Plaintiff has not explained how the restarting of the tape once all parties were present for

the hearing violated his due process rights. 

Because the hearing did not start until both parties were present, ALJ Rosado did not violate

Plaintiff’s due process rights when she restarted the tape recording at the moment when both parties

were present for the hearing. To the extent this claim is also brought against Defendant FSSA,

summary judgment is granted in favor of FSSA on this claim for the same reasons.

2. Oral Ruling v. Written Decision

Second, Plaintiff alleges that ALJ Rosado violated his due process rights by announcing a

different ruling at the April 9, 2015 hearing than the one written in the May 14, 2015 Hearing

Decision. There was no due process violation in relation to the outcome of the hearing because there

is no inconsistency between the oral and written rulings. Plaintiff alleges in his Complaint and

Amended Complaint and continues to argue in his briefs that ALJ Rosado “remanded” his case at

the end of the hearing. See (ECF 1, pp. 2-3); (ECF 17, pp. 2-3); (ECF 54, p. 14). However, the word

“remand” was not used at the hearing by ALJ Rosado. Rather, ALJ Rosado used the word

“dismissed” both at the April 9, 2015 hearing and in the May 14, 2015 Hearing Decision. At both

the hearing and in the written decision, ALJ Rosado explained that Plaintiff’s appeal was being

dismissed because he did not receive proper notice of the March 2, 2015 MRT decision, that FSSA

20
would be directed to send him the proper notice, and that he would then be able to appeal the March

2, 2015 MRT determination. Contrary to Plaintiff’s assertion, the April 9, 2015 hearing and the May

14, 2015 Hearing Decision do not have different outcomes; the word “remand” was never used.

At the hearing, Plaintiff explained that he became aware of the decision to deny his January

15, 2015 application for benefits when he received the March 2, 2015 MRT notice. (ECF 78-1, Ex.

AA, p. 2); see also (ECF 77-19, 20, Exs. S, T). The FSSA representative, Ms. Houseworth, testified

that the official notice following the MRT determination was never mailed to Plaintiff. (ECF 78-1,

Ex. AA, p. 4). ALJ Rosado confirmed with Plaintiff that he did not waive his right to get proper

notice of his right to appeal the March 2, 2015 MRT denial. (ECF 78-1, Ex. AA, pp. 2, 4-5). ALJ

Rosado explicitly found that FSSA had erred by not sending Plaintiff official notification of the

March 2015 MRT decision. Thus, ALJ Rosado ordered FSSA to send Plaintiff the official notice

of the March 2015 MRT decision and indicated that Plaintiff would retain his full rights to appeal.

At the hearing, ALJ Rosado confirmed that Plaintiff understood that this was a favorable ruling:

ALJ: Okay, if you don’t waive your right to official notice, then the hearing is

going to be dismissed and you’ll be receiving a – a notice from the state

telling you that – the reason you were denied. 

KEVIN MILLER: And then I’ll have a right to appeal? 

ALJ: And then you’ll have your rights to appeal. 

KEVIN MILLER: Thank you, your honor. 

ALJ: Is that what you want? 

KEVIN MILLER: Yes. 

(ECF 78-1, Ex. AA, p. 4-5). Thus, Plaintiff understood at the time of the hearing that the hearing

was being dismissed and that he would retain his right to appeal once he received the proper notice.

This is consistent with the May 14, 2015 Hearing Notice which provided:

21
This matter is dismissed since the Appellant was not issued timely and adequate

notice in regards to the Medicaid disability criteria denial of Medical Assistance to

the Disabled.

Since the Appellant did not waive his right to timely and adequate notice, the

original issue in regards to the denial of Medical Assistance to the Disabled taken

against the Appellant with respect to his resources and income were not addressed.

The State Agency is directed to mail out to the Appellant a manual or

computer-generated notice informing him of the denial of Medical Assistance to the

Disabled due to not meeting the Medicaid disability criteria.

The Appellant shall retain all rights of hearing and appeal of the new notice of

eligibility.

(ECF. 77-23, Ex. W, p. 8). Plaintiff has offered no evidence that ALJ Rosado used the word

“remand” at the April 9, 2015 hearing. There is no inconsistency between ALJ Rosado’s statements

at the hearing and in her written hearing decision, and ALJ Rosado did not prevent Plaintiff from

appealing the adverse decision of the MRT. There is no due process violation by ALJ Rosado. Thus,

the Court grants summary judgment in favor of ALJ Rosado on this claim. To the extent this claim

is also brought against FSSA, summary judgment is granted in favor of FSSA on this claim for the

same reasons.

B. § 1983 Due Process Claims Against Dr. John Wernert in his Official Capacity— 

Eleventh Amendment Immunity

Plaintiff’s remaining § 1983 procedural due process claim seeks injunctive relief against

Defendant Dr. John Wernert, in his official capacity, for an alleged violation of Plaintiff’s due

process rights in relation to the denial of Plaintiff’s application for Medicaid Disability. Plaintiff

argues that he should have been permitted to present evidence from a longer time period. 

In reviewing the cross motions for summary judgment, the Court sua sponte raised the issue

of Eleventh Amendment immunity as to this claim and ordered the parties to brief the issue. See

(ECF 89 (citing Higgins v. Mississippi, 217 F.3d 951, 954 (7th Cir. 2000) (“We conclude . . . that

22
a federal court can raise an Eleventh Amendment defense on its own initiative.”); Ind. Prot. &

Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., 603 F.3d 365, 370 (7th Cir. 2010) (addressing

Eleventh Amendment immunity on appeal after “[t]he defendants engaged in two rounds of

litigation in [the] case—one before the district court, and one before this court—without raising the

Eleventh Amendment as a defense”)). 

The Eleventh Amendment to the United States Constitution provides: “The Judicial power

of the United States shall not be construed to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects

of any Foreign State.” U.S. Const. Amend. XI. “If properly raised, the amendment bars actions in

federal court against a state, state agencies, or state officials acting in their official capacities.” Ind.

Prot. & Advocacy Servs., 603 F.3d at 370. There are three primary exceptions to Eleventh

Amendment immunity: when

(1) “Congress has abrogated the state’s immunity from suit through an unequivocal

expression of its intent to do so through a valid exercise of its power”; (2) a state

“has properly waived its immunity and consented to suit in federal court”; and (3)

the plaintiff “seek[s] prospective equitable relief for ongoing violations of federal

law . . . under the Ex Parte Young doctrine.”

Sonnleitner v. York, 304 F.3d 704, 717 (7th Cir. 2002) (quoting Marie O. v. Edgar, 131 F.3d 610,

614-15 (7th Cir. 1997)); see also Council 31 of the Am. Fed. of State, Cnty. and Municipal

Employees, AFL-CIO v. Quinn, 680 F.3d 875, 882 (7th Cir. 2012). As for the first two exceptions,

Congress did not abrogate a state’s Eleventh Amendment immunity to suit under § 1983, see Quern

v. Jordan, 440 U.S. 332, 340-41 (1979), and Indiana has not waived its immunity.

As for the third, the Ex Parte Young exception provides that a plaintiff can bring suit against

individual state officials in their official capacity for prospective relief to enjoin ongoing violations

of federal law. Ex Parte Young, 209 U.S. 123, 159-60 (1908); Council 31, 680 F.3d at 882; Ind.

23
Prot. & Advocacy Servs., 603 F.3d at 371. Determining whether the exception applies requires a

“straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and

seeks relief properly characterized as prospective.” Verizon Maryland Inc. v. Public Serv. Comm.

of Maryland, 535 U.S. 635, 645 (2002); see also Sonnleitner, 304 F.3d at 717. Defendant Dr.

Wernert, as the head of the FSSA and sued in his official capacity, is the appropriate target for a

claim for prospective injunctive relief, even though the FSSA is an arm of the state. See Ex Parte

Young, 209 U.S. 123. However, Plaintiff cannot satisfy the Ex Parte Young exception in this case

because, although he alleges a violation of federal law, he cannot show an “ongoing” violation of

that federal law. An entirely past deprivation of procedural due process is not an “ongoing” violation

for purposes of the exception. See Sonnleitner, 304 F.3d at 718-19; Ceria M. Travis Academy, Inc.

v. Evers, No. 16-CV-593, 2016 WL 4098587, at *5 (E.D. Wis. July 28, 2016) (citing Sonnleitner,

304 F.3d at 718). 

In Sonnleitner, the court held that the plaintiff’s allegation of a Fourteenth Amendment

procedural due process deprivation was not an “ongoing violation” when his claim was based on a

prior alleged demotion without adequate due process. Id. The court found that, even assuming the

plaintiff’s “constitutional rights have been violated, the violation was not the demotion as such, but,

instead, the fact that the demotion occurred without an adequate opportunity to be heard, either

through an additional predisciplinary hearing or a sufficiently prompt post-disciplinary hearing.”

Id. The court found this to be a “past rather than an ongoing violation of federal law” and held that

the Ex Parte Young exception did not apply. Id.

Similarly, in Ceria M., there was no question that the plaintiff had alleged a violation of

federal law by alleging a violation of Fourteenth Amendment due process based on the denial of a

request for a payment. 2016 WL 4098587, at *5. The plaintiff argued that the violation was

24
“ongoing” for purposes of applying the Ex Parte Young exception because “[the defendant]

‘continues to violate the Fourteenth Amendment as long as he continues to hold [plaintiff’s] property

without the benefit of a hearing to determine whether [the defendant] is entitled to that property.’”

Id. Relying on Sonnleitner, the court found that the due process violation in Ceria M

—–“withholding the May payment without an adequate opportunity to be heard”—was not an

“ongoing violation.” Id. The court reasoned that the denial was a “one-time” event that occurred in

the past and that there were no allegations as to future payments. Id. The court held that Ex Parte

Young did not apply to avoid Eleventh Amendment immunity in that case. Id.

As in both Sonnleitner and Ceria M., the alleged constitutional violation in this case occurred

in the past. Like in Sonnleitner, it is not the denial of Plaintiff’s application for Medicaid Disability

but, rather, that the denial occurred without an adequate postdeprivation remedy that is the alleged

constitutional violation. Even assuming that Plaintiff did not get the official notice of the March 2,

2015 MRT denial from FSSA, as ordered by ALJ Rosado in her May 14, 2015 Hearing Decision,

and that Plaintiff’s constitutional rights were violated as a result, the violation occurred in the past

and is not ongoing. Thus, the Ex Parte Young exception does not apply to overcome Eleventh

Amendment immunity as to this claim in this case. The Court grants summary judgment in favor

of Defendant Dr. John Wernert in his official capacity as Secretary of FSSA on this claim.

C. Other Allegations in Plaintiff’s Amended Complaint

In their Motion for Summary Judgment, Defendants note three other allegations by Plaintiff

in the Amended Complaint and argue that those allegations are undeveloped, that Plaintiff does not

allege that they constitute due process violations, and that they could not be due process violations.

In the interests of thoroughness, the Court considers each in turn.

25
First, Plaintiff alleges in his Amended Complaint that he received conflicting information

from FSSA on March 25, 2013, resulting in his Medicaid being terminated on July 25, 2014. (ECF

17, p. 2). As noted by Defendants, the information in the two March 25, 2013 notices were not

conflicting but rather requested that Plaintiff provide proof of different information. One notice

required Plaintiff to provide proof of his unemployment check, see (ECF 77-2, Ex. B), while the

other notice required Plaintiff to provide proof of his retirement account, see (ECF 77-3, Ex. C).

There is no conflict and no potential due process violation. Moreover, these two documents did not

result in the discontinuation of Plaintiff’s Medicaid benefits in July 2014; rather, Plaintiff’s

Medicaid benefits were discontinued because his condition improved significantly, which is

unrelated to his unemployment check or his retirement account. See (ECF 77-8, Ex. H, p. 2). The

Court grants summary judgment in favor of Defendants on these allegations.

Second, Plaintiff alleges in the Amended Complaint that, after reapplying for Medicaid on

November 24, 2014, he received documents in Spanish on December 4, 2014, and was denied

Medicaid on January 12, 2015. Notably, Plaintiff does not allege in his Amended Complaint or

argue in his briefs on these motions that receiving the documents in Spanish was related to the denial

of his benefits on January 12, 2015. Although FSSA initially mailed Plaintiff a document in Spanish

on December 4, 2014, requesting that he provide proof of certain documents, see (ECF 77-15, Ex.

O), on December 19, 2014, FSSA sent Plaintiff the notice in English, see (ECF 77-16, Ex. P). A

comparison of the two documents shows that the “comments” section under each checked category

of proof required on both the Spanish and English forms (Shelter Expense, Identity, Bank

Accounts/Financial Holdings, Vehicles, Lump Sum Payment, and Notice Regarding Rights and

Responsibilities) is typed in English and requests the identical information. Compare (ECF 77-15,

Ex. O), with (ECF 77-16, Ex. P). The only difference is that the Spanish form requests that Plaintiff

26
sign, date, and return the medical release form OMPP3512S. The proof requested in the December

19, 2014 form in English was due by January 2, 2015. The January 12, 2015 Notice of Denial lists

numerous reasons that Plaintiff is not eligible; his denial was not based on a failure to return the

signed and dated OMPP3512S form. (ECF 77-17, Ex. Q). Notably, the January 12, 2015 Notice

indicates that Plaintiff’s “income exceeds the program eligibility standards.” (ECF 77-17, Ex. Q, p.

2). Moreover, at the April 9, 2015 Hearing, ALJ Rosado noted that Plaintiff did not timely appeal

the January 12, 2015 decision. There was no due process violation in having sent Plaintiff a notice

in Spanish, which can only be described as a clerical error that was rectified and that had no

substantive effect on Plaintiff’s application for Medicaid Disability. The Court grants summary

judgment in favor of Defendants on these allegations.

Third, Plaintiff alleges in his Amended Complaint that the denial of his right to Medicaid

Disability has “obstructed medical evidence in my social security claim now going on four years.”

(ECF 17, p. 3). In response to Defendants’ Interrogatories, Plaintiff states that he “was unable to

show medical conditions in my social security claim. The only physical medical evidence in my

social security decisions was from my knees.” (ECF 78-2, Ex. B, Interrog. Resp. 22). However,

Plaintiff alleges no facts in his Amended Complaint nor offers evidence of record on summary

judgment to suggest that FSSA has obstructed evidence in his social security determination. 

It appears from Plaintiff’s Second Motion for Summary Judgment that Plaintiff’s position

is based on a misunderstanding of the interplay between the Social Security Administration and the

FSSA in relation to the determination of disability for purposes of supplemental security income

benefits. In his Second Motion for Summary Judgment, Plaintiff writes:

42 CFR 435.541 et seq. requires MRT to determine disability. As of June 1, 2014

FSSA determines disability for everything except SSI pursuant to the Social Security

27
Programs Operation Manual at https://secure.ssa.gov/poms.nsf/lnx/0501730060

including SSDI. 

(ECF 54, p. 9) (emphasis added); see also Social Security Administration, Program Operations

Manual System (POMS), SI 01730.060 Medicaid Information by Regions,

https://secure.ssa.gov/poms.nsf/lnx/0501730060 (last visited August 3, 2017). 

The POMS webpage cited by Plaintiff provides, in relevant part:

2. State of Indiana

The following describes the State’s Medicaid program:

•Name of Administering State Agency

Indiana Family & Social Services Administration (FSSA)

•Medicaid Determination

Effective June 1, 2014, SSA makes determinations for SSI recipients. The State

makes determinations for all other groups.

•Additional Medicaid Questions

Effective June 1, 2014, SSA obtains answers to the question regarding third party

coverage on the application and at all redeterminations. SSA does not obtain answers

to the question regarding unpaid medical expenses.

•Medicaid Referrals

When SSA does not make determinations of eligibility for Medicaid, refer those SSI

claimants to the local county Division of Family Resources (DFR) for a Medicaid

eligibility determination. Refer to regional Supplements for any additional referral

instructions.

https://secure.ssa.gov/poms.nsf/lnx/0501730060 (last visited August 3, 2017). Thus, this section

only describes which entity makes Medicaid Determinations for certain groups of individuals,

including supplemental security income recipients, in Indiana. Plaintiff appears to have understood

this description to mean that FSSA makes other determinations, such as his social security

28
determination, which is not the case. Rather, the Disability Determination Bureau handles the

gathering of documents for the Social Security Administration for determining disability for

supplemental security income benefits. See Ind. Code §§ 12-8-1.5-16, 17. To the extent that Plaintiff

is bringing a separate claim based on these allegations, the Court grants summary judgment in favor

of Defendants on this claim.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS Defendant’s[sic] Cross-Motion for

Summary Judgment [DE 73] and DENIES Plaintiff’s Second Motion for Summary Judgment [DE

53]. The Court DIRECTS the Clerk of Court to ENTER JUDGMENT in favor of Defendants

Debra Rosado and Dr. John J. Wernert and against Plaintiff Kevin Miller.

So ORDERED this 4th day of August, 2017.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

29