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ALMOND PHARMACY, INC. v. MANKOWITZ

June 27, 1984

ALMOND PHARMACY, INC., PLAINTIFF,
v.
CARL MANKOWITZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Almond Pharmacy ("Almond") sues Acting Director of the Illinois Department of Public Aid ("Department") Carl Mankowitz, Chief of Department's Bureau of Program Integrity Dennis Williams and Administrator of Department's Medical Assistance Program Betsy Skloot, each in his or her official and individual capacity. Almond's two-count Complaint asserts this Court's jurisdiction under Title XIX of the Social Security Act (the "Act"), 42 U.S.C. § 1396a ("Section 1396a"):

    1. Count I seeks damages and injunctive relief for
  defendants' failure to pay for goods Almond supplied under
  the Medical Assistance Program.
    2. Count II seeks the same damages under an intentional tort
  theory.

Defendants now move to dismiss this action on twofold Fed.R.Civ.P. ("Rule") 12(b)(1) grounds:

    1. Section 1396a does not provide an independent
  jurisdictional basis.
    2. Almond's claim for monetary damages is essentially a claim
  against the State of Illinois and is therefore barred by the
  Eleventh Amendment.

For the reasons stated in this memorandum opinion and order, the motion to dismiss is granted.

Facts*fn2

Almond sold and dispensed drugs and drug-related products to recipients receiving assistance under Department's Medical Assistance Program pursuant to the Act. During 1982 Almond submitted to Department for payment weekly statements of account for items Almond dispensed to such recipients. Department made payments to Almond on a regular basis. Since July 1983 the Department has refused to pay Almond for prescriptions and orders provided under the Medical Assistance Program.

Subject Matter Jurisdiction

Because Section 1396a affords no private right of action in federal court, Almond's exclusive federal remedy (if any) must be a claim under 42 U.S.C. § 1983 ("Section 1983"). Taylor v. St. Clair, 685F.2d 982, 988 (5th Cir. 1982). See Maine v. Thiboutot, 448 U.S. 1, 6-8, 100 S.Ct. 2502, 2505-2506, 65 L.Ed.2d 555 (1980); see also Edelman v. Jordan, 415 U.S. 651, 674-77, 94 S.Ct. 1347, 1361-63, 39 L.Ed.2d 662 (1974) and Oregon Environmental Council v. Kunzman, 714 F.2d 901, 903-04 (9th Cir. 1983). Thus as now advanced Almond's claims must be dismissed for lack of subject matter jurisdiction.

Were that jurisdictional flaw curable by a mere pleading amendment, this Court would of course (mindful of the liberal standards of Rule 15) ordinarily dismiss with leave to replead within a short time. But things are not so simple here, and this opinion therefore ventures into what might be viewed the normally forbidden territory of the advisory opinion.

Suppose Almond were to refile its Complaint by invoking Section 1983. That section does not override the States' Eleventh Amendment protection. Quern v. Jordan, 440 U.S. 332, 342-45, 99 S.Ct. 1139, 1145-47, 59 L.Ed.2d 358 (1979). Thus for Almond to proceed on its damages claim at all, it must name state officials as the defendants, as it has done here. But the Eleventh Amendment also bars recovery of money damages from state officials if that money would be paid from the state treasury. Edelman, 415 U.S. at 663, 94 S.Ct. at 1355 ...


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