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Abdulaziz v. Bremby

United States District Court, D. Connecticut

August 8, 2018




         Plaintiffs Tariq Abdulaziz and Neurostrategies, Inc., providers of services under a program administered by the Connecticut Department of Social Services (“DSS”), bring this suit under 18 U.S.C. § 1983 against eight current and former DSS officials and employees in their individual and official capacities.[1] Among other claims, plaintiffs complain that DSS has initiated investigations into their activities as service providers in retaliation for testimony given by Mr. Abdulaziz before the Connecticut General Assembly. Defendants have moved to dismiss the action in its entirety. For reasons that follow, the motion is granted.

         I. Facts

         The second amended complaint (ECF No. 73) contains the following allegations. Since 2004, plaintiffs have provided medical services through the Acquired Brain Injury Waiver Program (“ABI Waiver Program” or “Program”), which is administered by DSS under Connecticut's Medicaid program.

         From 2004 to 2015, plaintiffs' Provider Enrollment Agreements with DSS were different from other Medicaid providers' agreements. Unlike other providers, who annually or bi-annually signed a “standard” Provider Enrollment Agreement, plaintiffs were “arbitrarily and unilaterally forced” by DSS to sign non-standard agreements in 2004, 2014, and 2015. As a result, plaintiffs suffered unspecified additional administrative costs. During the relevant period, defendant McCormick expressed concerns to other DSS employees, including defendants Stauning and Long, that ABI Waiver Program providers were signing nonstandard agreements. Nonetheless, the nonstandard agreements remained in force until 2016. In that year, for the first time, DSS “arbitrarily” required that plaintiffs sign a standard agreement, which they signed under “protest” and “duress.”

         According to plaintiffs, the regulations governing ABI Waiver Program providers have been “unlawful” since they began participating in the Program. Plaintiffs' 2004 agreement with DSS required them to follow regulations issued in 1999 that were “out of date, unenforceable and adopted and/or promulgated unlawfully.” In March 2013, realizing that the 1999 regulations were unlawful, the individual defendants (except for Patrick) “either individually and/or in concert with one another, ” published a Notice of Intent to Adopt Regulations in the Connecticut Law Journal. These new regulations were also “unlawful, ” and DSS began to “arbitrarily” implement them in April 2013.

         On March 28, 2014, Abdulaziz testified before the Connecticut General Assembly regarding proposed legislation to implement “ABI Waiver Program II, ” a new program.[2] He testified that he opposed the legislation because he believed it would significantly reduce funding for treating certain clients. At the same hearing, DSS Commissioner Bremby testified in favor of the new program. Abdulaziz criticized Bremby's testimony and stated that Bremby was “disingenuous” about cost estimates.

         Plaintiffs allege that defendants have taken various actions against them in retaliation for Abdulaziz's testimony.[3] On April 21, 2014, twenty-three days after Abdulaziz testified, plaintiffs were informed by DSS that their client records were under review. This was the first such review since they began participating in the ABI Waiver Program. Plaintiffs refer to this as the “ruse” record review. In October 2014, McCormick assigned defendant Patrick, whom plaintiffs describe as a “rogue” DSS employee, [4] to investigate a complaint about plaintiffs that DSS allegedly had received from a third party. McCormick also referred the complaint to the Federal Health and Human Services Office of the Inspector General (“HHS”), the Office of the Connecticut Chief State's Attorney and the Connecticut Attorney General's Office (“state law enforcement”). In September 2017, in response to other alleged complaints about plaintiffs, McCormick again ordered a review, investigation and referral to HSS and state law enforcement. Plaintiffs have not been notified of the results of any of these investigations and maintain an “unblemished professional record.”

         Plaintiffs allege that defendants have taken the following additional actions in retaliation for Abdulaziz's testimony. From 2015 to 2017, DSS Deputy Commissioner Brennan made a series of false accusations and threats against plaintiffs. In emails, he stated that plaintiffs had committed “abusive program practices” and interfered with “client care managers.” Brennan also accused them of allowing an assistant to provide services without certification, failing to submit monthly reports, operating under conflicts of interest, and misrepresenting their client work. The emails threatened plaintiffs with nonpayment. Defendants have also failed to respond to certain inquiries made by plaintiffs. DSS has failed to process Abdulaziz's applications for mental health and substance abuse certifications and refused to respond to plaintiffs' requests for copies of “ABI Waiver Program Service Plans.”

         II. Legal Standard

         A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Non-conclusory factual allegations are accepted as true and viewed in the light most favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” are disregarded. Id. A claim satisfies the plausibility standard if it is supported by “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citations omitted).

         III. Discussion

         Plaintiffs claim that defendants have violated the First Amendment and the Due Process Clause of the Fourteenth Amendment. They also claim that Commissioner Bremby and Deputy Commissioner Brennan are liable under § 1983 for the alleged constitutional violations committed by their subordinates. In addition to damages, plaintiffs seek to enjoin the defendants from continuing to violate their constitutional rights. They also bring state law claims for breach of contract, intentional infliction of emotional distress (“IIED”), negligent infliction of emotional distress (“NIED”), interference with business relations (“IWBR”) and interference with contract relations (“IWCR”).

         A. First Amendment

         Plaintiffs claim that all the individual defendants retaliated against them in violation of the First Amendment. Defendants argue that their motion to dismiss should be granted because the complaint does not state a claim for relief and the ...

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