         Case: 13-31305   Document: 00512728215       Page: 1     Date Filed: 08/08/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                    No. 13-31305
                                  Summary Calendar
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                                                          August 8, 2014
THOMAS J. SMITH, BY TUTRIX CAROLYN SMITH,
                                                                          Lyle W. Cayce
                                                                               Clerk
                 Plaintiff - Appellant

v.

DEPARTMENT OF HEALTH AND HOSPITALS STATE OF LOUISIANA;
EASTER SEALS LOUISIANA, INCORPORATED; SOUTH CENTRAL
LOUISIANA HUMAN SERVICE AUTHORITY - DEVELOPMENTAL
DISABILITIES; LAFOURCHE ARC,

                 Defendants - Appellees


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:12-CV-3057


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
          Thomas J. Smith, by Tutrix Carolyn Smith, appeals pro se from the
district court’s pre-trial dismissal of his claims that Defendants the
Department of Health and Hospitals State of Louisiana (“the Department”),
South Central Louisiana Human Services Authority, Easter Seals Louisiana,


     Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
     *

published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                 No. 13-31305

Inc., and Lafourche ARC violated his rights under various federal statutes and
constitutional provisions by reducing his weekly hours of in-home care from
168 to 74. For the following reasons, we affirm.
                                       I.
      Smith is a disabled Medicaid recipient and participant in the New
Opportunities Waiver (“NOW”) program.           The NOW program, which is
administered by the Department, allocates resources—including in-home
care—to participants based on their level of need. Smith alleges that, in 2012,
the Department reduced his in-home care from 24 hours per day to 74 hours
per week. Smith appealed this reduction to a state administrative law judge,
who affirmed the Department’s decision. In July 2012, Smith filed suit in the
Seventeenth Judicial District for the Parish of Lafourche, seeking review of the
administrative law judge’s ruling. This suit is still pending.
      On December 31, 2012, Smith filed a motion for leave to proceed in forma
pauperis in the United States District Court for the Eastern District of
Louisiana. The court granted the motion, and, on January 9, 2013, Smith filed
his pro se complaint. Summons were withheld, however, pending further order
of the court. In his complaint, Smith purported to “transfer” his pending state
court action to the federal district court. The magistrate judge construed this
as Smith’s attempt to remove his own action to federal court and recommended
that the action be remanded to the Seventeenth Judicial District for the Parish
of Lafourche.
      Smith objected to the magistrate judge’s recommendation, explaining
that he intended to file a separate action in federal court and erroneously
believed that he was required to transfer his pending state court action in order
to do so. The district court sustained Smith’s objection, rejected the magistrate
judge’s recommendation, and granted Smith leave to file an amended



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complaint that included claims under federal statutory or constitutional law.
Smith filed his amended complaint on March 1, 2013.
      In August 2013, Smith filed a Motion for Emergency Permanent
Restraining Order, by which defendants would be immediately enjoined from
reducing Smith’s in-home care hours. Finding that the defendants had not
been served with Smith’s amended complaint, the district court denied Smith’s
motion without prejudice to re-file once the defendants had been served and
given an opportunity to file responsive pleadings. After being served, the
defendants each filed motions to dismiss Smith’s amended complaint for lack
of subject matter jurisdiction and for failure to state a claim upon which relief
could be granted.
      On November 19, 2013, Smith filed identical oppositions to all three
motions to dismiss. On December 16, 2013, the district court granted the
defendants’ motions to dismiss, holding that Smith had failed to state a claim
upon which relief could be granted and that the district court lacked subject
matter jurisdiction to hear Smith’s claims. Smith now appeals the judgment
of the district court.
                                       II.
      This court reviews de novo a district court’s dismissal under Federal
Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Spotts
v. United States, 613 F.3d 559, 565 (5th Cir. 2010). Likewise, this court reviews
de novo a district court’s dismissal under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can be granted, accepting
all well-pleaded facts as true and viewing those facts in the light most favorable
to the plaintiffs. Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys,
675 F.3d 849, 854 (5th Cir. 2012).       “[B]ut conclusory allegations or legal
conclusions masquerading as factual conclusions will not suffice to prevent a



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motion to dismiss.” Beavers v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir.
2009) (internal quotation marks omitted).
      As an initial matter, to the extent that Smith seeks review in federal
court of the Department’s decision to reduce his benefits under the NOW
program, his claims do not raise a federal issue and were rightly dismissed for
lack of subject matter jurisdiction. See Vinson v. La. Sec’y of Health and
Hosps., 2009 WL 1406296, *1-2 (W.D. La. May 19, 2009); Mashburn v. La.
Dep’t. of Soc. Servs., 1993 WL 192122, *1 (E.D. La. June 1, 1993). Under
Louisiana law, a plaintiff aggrieved by a final decision of the Department must
seek review “in state, as opposed to federal, court.”        Mashburn, 1993 WL
192122 at *1; see also La. Rev. Stat. § 46:107(C) (“[A]n applicant or recipient
may obtain judicial review [of an adverse administrative decision] by filing a
petition for review of the decision in the Nineteenth Judicial District Court or
the district court of the domicile of the applicant or recipient.”). Thus, as the
district court correctly noted, Smith must continue to pursue these claims in
state court.
      Regarding Smith’s claims under federal law—namely, that defendants
violated his federal statutory and constitutional rights by reducing his weekly
hours of in-home care from 168 to 74—we agree with the district court that
Smith has failed to state a claim upon which relief can be granted. “To survive
a motion to dismiss, a complaint must contain sufficient factual matter . . . to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible “when the pleaded factual content allows
the court to draw the reasonable factual inference that the defendant is liable
for the misconduct alleged.” Id. Although a district court must assume the
veracity of well-pleaded facts, a complaint that “fail[s] to show more than mere



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                                  No. 13-31305

conclusory allegations” is properly met with dismissal for failure to state a
claim. City of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 155 (5th Cir.
2010); see also Iqbal, 556 U.S. at 679.
      Smith’s amended complaint (amended for the purpose of stating claims
cognizable under federal law) sets forth no facts that, if proved, would entitle
him to relief. For example, Smith claims that the Department reduced his
weekly hours of in-home care from 168 to 74, but he does not indicate how this
reduction constitutes discrimination under the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq., or the Rehabilitation Act of 1973, 29 U.S.C. § 701
et seq., as he alleges. Without connecting the alleged facts to the alleged rights,
Smith argues only that his benefits were reduced and that this reduction
amounts to a violation of his federal statutory and constitutional rights. The
proper response to such conclusory allegations is dismissal for failure to state
a claim. See Iqbal, 556 U.S. at 678; Beavers, 566 F. 3d at 439.
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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